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Kirby, J.
This suit involves the right to the collection of the penalty denounced by the statute for the railroad company’s failure to pay its delinquent road taxes for the years 1922 and 1923.'
This case is related to that of Wallace v. K. C. S. Ry. Co., 169 Ark. 905, 279 S. W. 1, in which the validity of the three-mill road tax levied by Sevier County for the years 1922 and 1923 was upheld. In that case, as shown by the record herein, the railroad company, by suit on April 10, 1923, enjoined the collection of the road taxes for the year 1922, and, by an amendment filed on April 4, 1924, the injunction was made to include the road taxes for 1923. Upon the hearing on April 28, 1923', the injunction was made permanent, but, on appeal to this court, the decree was reversed and the complaint dismissed. Thereupon the appellee, the present tax collector, who had succeeded the collector at the time of the other suit, demanded payment of the amount of the road taxes due, with a 25 per cent, penalty and interest.
The amount of the road taxes only was paid to the collector by the railroad companies., the present appellants, under a stipulation that such payment should not affect the rights of either party as to interest and penalty. The appellants herein then enjoined the collection of the penalties for said years. The appellee demurred to the complaint, and moved for a judgment on the bond. There was a hearing, the appellee still insisting upon his demurrer. The court sustained it, and rendered judgment for the collector for the amount of the penalty, denying interest on either taxes or penalty, or on both, and from this judgment the appeal is prosecuted.
All the pleadings in the former ease were introduced in evidence herein.
The appellants insist that, since the injunctions were granted in 'the first case' during the time allowed for payment of taxes and on or before the 10th day of April, before the property became delinquent and subject to the penalty, and the taxes were paid after .the adjudication and without any return, in fact, of the property as delin quent, or any delinquent list being made of it, tbe court ' erred in bolding them liable to the payment of the penalties. They insist that they had no other adequate remedy to protect their property against what appeared to be an illegal exaction, and by paying the taxes, in fact, after the adjudication of-their validity, before any penalty was attempted to be extended against them under the forms of law, they are not subject thereto.
While it is true the appellants, taxpayers, brought’ this suit enjoining the collection of the taxes during the time allowed foi payment and before they became delinquent, it is also true that they thereby stopped the officers of the county from collecting the taxes which they were required by law to pay, and, not having paid them, they became delinquent and subject to the payment of the penalty, notwithstanding the collector could not proceed with the collection, because of the injunction granted at appellant’s instance, which was afterwards held to have been wrongfully issued.
Even though there appeared to be valid grounds for a successful contest of the levy of the taxes claimed to be illegal, the appellants could not, by an injunction wrongfully obtained on the day before the property became delinquent for taxes, prevent the attaching of the penalty for such delinquency on the date thereof. The failure to pay the taxes in the time allowed therefor is what constitutes them delinquent and fixes the liability for the penalty.
The duty to extend the 10 per cent, penalty against the delinquent taxpayer is devolved on the tax collector, himself, and, although the 25 per cent, penalty (§ 10083, C. & M. Digest) is required to be added by the county clerk upon all taxes on real estate returned delinquent, which is to be collected in the manner provided for the collection of delinquent taxes, we can see no good reason why this penalty should not attach without the filing of a delinquent list, since the law fixes the amount of the penalty, and since it could not be collected in any event by the sale of the railroad property by the collector, as the lands of individual delinquent taxpayers are sold. In other words, the law fixes the penalty for the failure to pay the taxes within the time allowed by law, and the collection of such delinquent taxes can only he made through the courts in the manner provided therefor. The report and filing of a delinquent list by the collector and the charging of the 25 per cent, penalty thereon against such property by the county clerk is not a condition precedent to the collection of such penalty, in the case of delinquent taxes on railroads.
Moreover, the enjoining of the collection of this tax before it became delinquent furnished sufficient reason for the failure to report the property delinquent and the extension of the penalty against same by the county clerk, the restraining order wrongfully issued being effective until after the time for making such delinquent lists and the extension of the penalty.
No unusual or excessive penalties were imposed upon ihe railroad companies, delinquent taxpayers, but only the same reasonable penalties as are imposed upon all delinquent taxpayers for the purpose of enforcing prompt payment of the revenues, the contributions required by law, for the support of the Government.
There is no merit in appellants plea of res judi-cata. In the former case, Wallace v. K. C. S. R. Co., supra, the validity of the tax only was adjudicated, the injunction dissolved, and the complaint dismissed for want of equity.
The tax being held to be valid and legally assessed, it necessarily follows that the injunction against its collection was wrongfully issued, and, being so, upon its dissolution and the dismissal of the suit, nothing more can be said to have been adjudicated than that the railroad companies were liable to the payment of the valid tax, and, not having paid it within the time required by law, relying upon the claim of its illegality, they are liable to the payment of the tax and penalties, as part thereof, being delinquent taxpayers. Scott v. Watkins, 22 Ark. 556; St. L., I. M. & S. R. Co. v. Alexander, 49 Ark. 190, 4 S. W. 753; Dickinson v. Cypress Creek Drainage Dist., 139 Ark. 76, 213 S. W. 1; and Tri-County Highway Improvement District v. Vincennes Bridge Co., 170 Ark. 39, 278 S. W. 627.
Certainly there was no adjudication that the companies were not liable to the payment of the penalty upon the injunction being dissolved and their suits being dismissed for want of equity. Hopson v. Frierson, 106 Ark. 292, 152 S. W. 1008.
Neither do we agree with appellants’ contention that they had no other remedy for protecting their rights against what they deemed an illegal tax levy than the course pursued, nor that they were otherwise denied the equal protection of the laws or due process of law.
By taking this course and unsuccessfully enjoining the collection of the alleged illegal taxes, they were subjected to no other or greater, but only to the payment of the usual, penalties denounced against all such delinquent taxpayers, and they could have paid the tax, if illegal, under protest and brought suit to recover the same before the money was paid into the treasury by the collector, as in Dickinson v. Hensley, 130 Ark. 259, 197 S. W. 25; First National Bank v. Norris, 113 Ark. 138, 167 S. W. 481; and Western Union Tel. Co. v. State of Indiana, 165 U. S. 302, 17 S. Ct. 345, 41 L. ed. 725; or they could have proceeded for its return upon the successful termination of their suit, as taxes erroneously assessed, in accordance with $ 10180, C. & M. Digest, providing therefor.
If such taxes were paid under protest and suit brought for their recovery, there is no reason why, in such suit, the collector should not have been enjoined from paying the money over in settlement, until the termination of the suit, which would, of course, have had the effect to keep the money where it could be returned upon judgment holding the taxes illegal and without the payment of any penalty, as for delinquency, if the suit to recover the taxes should be successful. In other words, if tbe suit was lost, the taxes were paid and no penalty could attach, and, if won, the money to refund was available.
We find no error in the record, and the judgment is affirmed. | [
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Humphreys, J.
Appellant was indicted, tried and convicted in the circuit court of Crawford County for the crime of uttering- a forged instrument, and ivas adjudged to serve a term of two years in the State Penitentiary as a punishment therefor, from which is this appeal.
The two following assignments of error are insisted upon for a reversal of the judgment: (1) That the evidence is insufficient to sustain the verdict; (2) that the court erred in excluding the testimony of T. R. Scoggins, appellant’s uncle, to the effect that he told him, a short time before the crime is alleged to have been committed, that he intended to hire Tom Darr to work for him.
(1) The undisputed testimony showed that appellant tried to cash a check payable to his order and purporting to have been issued or drawn by T. E. Scoggins, an uncle of appellant, on the .First National Bank of Van Burén, Arkansas, where the uncle had a checking account. Appellant’s defense was that he cashed the check for Tom Darr upon representation that he had received it from T. E. Scoggins for labor.
Appellant testified that, several days before he cashed the check, Tom Darr asked him to do so, and he told Darr that, if the check was made payable to him, appellant, he would cash it; that, pursuant to request, he met Tom Darr at the depot and cashed the check, which was for $12.50; that he borrowed money from Carl Johnson with which to cash it.
There is a. conflict in the testimony as to whether appellant cashed the check for Tom Darr. Tom Darr testified that he did not get the check from T. E. Scoggins for labor; that he had not worked for him for a long time; that he never requested appellant to cash the check for him, and that appellant did not cash it.
(2) The evidence is sufficient to sustain the verdict.
T. E. Scoggins was a State witness. On cross-examination the attorney for appellant propounded the following interrogatory to him, to which he made partial response.
“Q. Had you talked-to Homer Scoggins with refer-ence to Tom Darr working for you before that?, A. Yes sir. He was at my house about Christmas, and stayed with me two nights, and I told him if he saw Darr” — At this juncture the State’s attorney objected to the question and answer, whereupon the attorney for appellant stated that the purpose in offering the testimony was to show that appellant had reason for believing that Darr had a right to have his uncle’s check for labor he had done for him. The court excluded the testimony and the testimony of appellant to tlie same effect, over the objection and exception of appellant.
. We are. unable to see any pertinence in the testimony. It is remote in the sense of being indirect. If it be conceded that appellant had been informed that Darr was going to work for T. R. Scoggins at some future time, this would not account for Darr having a forged check in his possession. Appellant admitted that the check was not written or signed by his uncle. . This fact should have put him on inquiry before he cashed and uttered the check. The evidence was not relevant, and the court properly excluded it. ,
No error appearing, the judgment is affirmed. | [
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Knox, J.
The west half of southwest quarter and southeast quarter of southwest quarter, section 32, township 7 south, range 8 west, Lincoln county, Arkansas, forfeited and was certified to the 'State for taxes for each of the years 1921, 1922 and 1923. Bach time such land was listed on the tax records as belonging to one W. B. Nixon. Several years later, to-wit, April 27, 1927, Nixon died, and still later, to-wit, on July 18, 1929, the State of Arkansas, acting through its Commissioner of State Lands, conveyed its title and interest to appellee’s predecessors in title, reciting in its deed that the land had forfeited for taxes of 1922: On October 3, 1941, appellants, allegedly the four living children and all the surviving heirs of W. B. Nixon, instituted this suit attacking the tax sales and seeking to recover the land.
Having concluded that appellee’s possession was under color of title and whatever rights appellants might once have had, if any, were at the time of the filing of the complaint barred by various statutes of limitations, we deem it unnecessary to set forth any facts which do not affect one or both of such issues.
All parties apparently concede that appellant, W. B. Nixon, Jr., was and is the youngest child. The record does not disclose the exact date of his birth. He did, however, give a'deposition in this cause on April 7, 1942, at which time he swore that he was then 28 years of age. He, therefore, could not have been younger than 24 years on and after April 7,1938. For reasons more fully hereinafter discussed it was necessary in order to toll the statute of limitations that this action be. commenced on or before W. B. Nixon, Jr., the youngest child, reached the age of 24 years, or to be more specific on or before April 7, 1938. The action was not filed until October 3, 1941, more than three years beyond the last day on which the action could have been commenced.
Section 8918 of Pope’s Digest reads in part as follows: “No person or persons, or their heirs, shall have, sue or maintain any action or suit, . . . for any lands', tenements or hereditaments but within seven years next after his, her or their rights to commence, have or maintain such suit shall have .come, fallen or accrued; . . . Provided, if any person or persons that are or shall be entitled to commence and prosecute such suit or action in law or equity be or shall be at the time said right or title first accrued come or fallen within the age of twenty-one years or non compos mentis, that such person, or persons his, her or their heirs shall and may, notwithstanding said seven years may have expired, bring his or her suit or action, so as such infant or non compos mentis, his, her or their heirs, shall bring same within three years next after full age, or coming of sound mind . . .” - Section 89201 of Pope’s Digest reads as follows: “Unimproved and uninclosed land shall be deemed and held to be in possession of the person who pays the taxes thereon if he have color of title thereto, but no person shall be entitled to invoke the benefit of this act unless he and those under whom he claims shall have paid such taxes for at least seven years in succession, and not less than three of such payments must be made subsequent to the passage of this act.”
The section last quoted is to be construed in connection with the saving clause in § 8918, supra; Taylor v. Leonard, 94 Ark. 122, 126 S. W. 387; Deane v. Moore, 105 Ark. 309, 151 S. W. 286; Brasher v. Taylor, 109 Ark. 281, 159 S. W. 1120.
It is conceded that at all times,material to a decision of this case the land here involved was and is wild and unimproved, and taxes thereon were paid by appellee or its predecessors.
The appellant, W. B. Nixon, Jr., the youngest child, was a minor on the date appellee’s predecessor in title acquired the first deed from the state. Appellants "urge two grounds for reversal: (1) that because the deed recited a tax forfeiture for the taxes'of 1922, when there had been a prior forfeiture and certification to the state for the taxes of 1921 there could have been no assessment of taxes for 1922, the state being already the owner of the land, and, therefore, the State’s deed to appellee’s predecessor in title could not and did not constitute color of title; and (2) that appellants are entitled to seven full years in which to redeem the land after appellant, W. B. Nixon, Jr., reached his majority.
We are convinced that the deed from the Commissioner of State Lands to appellee’s predecessor in title was color of title notwithstanding the fact that it recited a forfeiture and sale for the year 1922, a year when because of the forfeiture for the previous year title was already apparently in the state, and the land apparently not taxable because of such fact. Beard v. Dansby, 48 Ark. 183, 2 S. W. 701; Osceola Land Co. v. Chicago Mill & Lbr. Co., 84 Ark. 1, 103 S. W. 609; Holub v. Titus, 120 Ark. 620, 180 S. W. 218; Black v. Brown, 129 Ark. 270, 195 S. W. 673; Schmeltzer v. Scheid, 203 Ark. 274, 157 S. W. 2d 193; Riddle v. Williams, 204 Ark. 1047, 166 S. W. 2d 893.
The state deed here being regular on its face was sufficient to constitute color of title although it might have recited forfeiture for taxes due for wrong year. Culver v. Gilliam, 160 Ark. 397, 254 S. W. 681; Hunt v. Boyce, 176 Ark. 303, 3 S. W. 2d 342.
We are also unable to agree with appellants’ contention that they were entitled to seven full years after the majority of appellant, W. B. Nixon, Jr., in which to commence this action. We have heretofore quoted all of § 8920, and that part of § 8918 of Pope’s Digest which appears applicable to the facts of this case. The con s traction placed on these statutes hy appellants to the effect that they are thereby permitted seven full years after the youngest child attains his or her majority in which to begin their action is contrary to the construction which has been placed on these statutes by many former decisions of this court. Yell v. Lane, 41 Ark. 53; McGaughey et al. v. Brown et al., 46 Ark. 25; Brake v. Sides, 95 Ark. 74, 128 S. W. 572; Reed v. Money, 115 Ark. 1, 170 S. W. 478; Murphy v. Graves, 170 Ark. 180, 279 S. W. 359. These decisions are to the effect that the bar of the statute begins and continues to run against adults and infants alike, except that, in the case of infants whose rights accrue during their minority, such infants have the seven years (part or all of which may run during their minority) and in addition thereto, such length of time as may have transpired between the date of the accrual of the cause of action and the majority of such infant, but in no case shall the period of extension granted because of the accrual of such cause during minority exceed three years.
Thus it is readily apparent that unless this action had been commenced on or before the date appellant W. B. Njxon, Jr., reached the age of twenty-four years such action is barred under the statute quoted.
As above stated the record does not definitely disclose the date on which appellant, W. B. Nixon, Jr., reached the age of twenty-four years, but we have heretofore demonstrated that according to his own statement as to his age made in his deposition given on April 7, 1942, he could not have been less than 24 years of age on and after April 7, 1938, and, therefore, this action could not have been commenced after that date. The record discloses that this action was filed October 3,1941, nearly three years and six months after it was barred under the statute. For that reason the chancery court dismissed appellants’ complaint for want of equity, and convinced as we are that its decree is correct the same is accordingly affirmed. | [
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Gírieein Smith, Chief Justice.
When in 1918 Pickens sold his farm to Keck, he retained a vendor’s lien securing $1,300 represented by Keck’s note due two years after date. An Indian — Fred Cox, alias James B. Burns —convinced Keck he owned lands near Oklahoma City. Keck, proprietor of a variety store at Bentonville (this State) traded his stock of goods and the so-called Pickens farm for the Oklahoma realty. After Cox (who immediately came to Bentonville) had disposed of a large portion of the Keck merchandise, Keck telegraphed from Oklahoma City that he had been defrauded. The difficulty was that Cox did not own the ranch he had so glibly traded for values in Arkansas. Some of the goods shipped from Keck’s store were stopped in transit before reaching the consignee designated by Cox. These were returned to Bentonville and sold, with the assistance of Pickens, who was then cashier of the Benton County National Bank. Keck owed the Bank approximately $1,750.
Before leaving Bentonville, Cox sold Pickens the farm Pickens had sold Keck, as to which Keck had not executed his deed. In order to consummate his deal with Cox, Keck had requested Pickens to .release his $1,300 lien, explaining, as Pickens testified, that he stood to profit substantially as a consequence of dealings with ■Cox, and that as soon as the Indian’s lands were sold, proceeds would be applied in payment of the Bank’s indebtedness and the balance due Pickens. Whatever the facts may have been regarding Keck’s purpose in procuring release of the lien, Pickens bought the Indian’s equity in the farm he (Pickens) had formerly owned, and procured Keck’s deed without routing the record transaction through Cox.
Keck contends that Pickens took the farm back in full satisfaction of all indebtedness. Pickens first insisted that the note represented purchase money for forty acres Keck’s parents bought — property recently acquired by Keck through descent and distribution.
Pickens kept the note until September 27, 1943, then sued. There was judgment, with interest, for $5,508.24.
A defense is that the debt was barred by limitation. Pope’s Digest, § 8933. Contention is that the note matured July 14, 1920, and .that it had run five years July 14,1925. Appellee counters with the assertion that Keck was an absconding.debtor. Pope’s Digest, § 8952.
The record is replete with testimony that Keck’s leave-taking was not secretive. Sid Jackson, who was sheriff of ¡Benton County during 1918, said he knew Keck was leaving and knew where he was going. This information, he testified, was general. Keck testified that Pickens wrote him that the merchandise replevied from Cox had been sold to a Mrs. Plummer; that he (Keck) insisted the sale should bring sufficient to discharge the Bank debt, and that his address then was 810 North Robinson Street, Oklahoma City, where Mrs. Keck operated a dress and apron shop. Appellant did picture framing for a well-known establishment. Keck was listed in the telephone directory and was visited by people from Bentonville.
A year later (August, 1919) the Kecks moved to No. 13 West Fourth Street, where they remained until February, 1920. They retained a telephone and received mail regularly. Mrs. Keck rented rooms and appellant worked for a milling company. From West Fourth Street the couple moved to 311 North Harvey — “into a large building and rented rooms.” They remained there until November or December, then went to 419 West Eighth Street, where they lived until July, 1927.
The next move (1927) took them to Chicago. This trip was by automobile, by way of Benton County, where visits were made. Prior to that time (in 1921) appellant visited his mother near Rogers, and while in the County saw many friends. In Chicago (at 1221 North Dearborn Street) Mrs. Keck kept a rooming house. Her husband conducted a grocery store at 1746 West Lawrence Street. His name appears in the telephone directory, a page from which was introduced in evidence.
The foregoing, and other testimony, clearly shows that appellant was not an absconder, within the meaning of our statute postponing operation of the provision for limitation.
The rule stated in Keith v. Hiner, 63 Ark. 244, 38 S. W. 13, is that if the debtor leaves openly, or with knowledge of his creditors, such creditors are not deprived'of an opportunity to bring suit. There is the statement in Rock Island Plow Company v. Masterson, 96 Ark. 446, 132 S. W. 216, that one who leaves the state openly, publicly, and with knowledge of his creditors, is not an absconding debtor. In Smith v. Farmers & Merchants Bank, 183 Ark. 235, 35 S. W. 2d 347, it was held that the guarantor of a note, who left the state ‘ ‘ openly, and with the knowledge of officers of a bank, ’ ’ was not an absconding debtor within the meaning of our statute.
The general rule is that a debtor who fraudulently conceals himself prevents the creditor from successfully prosecuting a suit; hence the exception in our limitation law which excludes the time such concealment exists. See Words and Phrases, Permanent Edition, v. 1, p. 123, et seq. A definition there copied, which is supported by the weight of authority, is:
“To ‘abscond’ means to go in a clandestine manner out of tbe jurisdiction of tbe courts, or to be concealed in order to avoid their process; to hide, conceal, or absent one’s self clandestinely, with intent to avoid legal process. Smith v. Johnson, 62 N. W. 217, 218, 43 Neb. 754, citing Hoggett v. Emerson, 8 Kas. 262; Ware v. Todd, 1 Ala. 200; Fitch v. Waite, 5 Conn. 121; Field v. Adreon, 7 Md. 209; Malvin v. Christoph, 7 N. W. 6, 54 Iowa 562, quoting Bouv. Law Dict.; Bennett v. Avant, 34 Tenn. (2 Sneed) 152, 153; Gandy v. Jolly, 52 N. W. 376, 377, 34 Neb. 536; McMorran v. Moore, 71 N. W. 505, 506, 113 Mich. 101; Thompson v. Newton, 2 La. 411, 413; Norman v. Zieber, 3 Or. 197, 205.”
Many disinterested witnesses testified they bad seen Keck in Benton County since be moved; that bis visits were frequent, and there was no apparent purpose to conceal bis presence.
Typical of tbe evidence opposing tbe charge of concealment is tbe testimony of Mrs. D. W. Peel, 70 years of age — a resident of Bentonville. She remembered when the Indian defrauded Keck. Tbe swindler’s operations were publicized, as was Keck’s attempted purchase of th,e Oklahoma farm and bis purpose to move to it. Mrs. Peel’s exact language is: “I never beard it was a secret. They talked about it for days — great excitement, you know.” When asked just what she meant, tbe witness replied: “Mrs. Keck talking about it — what they were going to do; tbat they were selling out and moving.” Mrs. Peel knew appellant’s mother, and they were friends.
In connection with appellant’s custom of returning to Benton County, Mrs. Peel said: “Tbe family visited Keck’s mother frequently, and always came to see me. This must have continued over a period of fifteen to seventeen years — a long time. ’ ’
Ordinarily, a debtor wbo seeks to conceal bimself does not go openly; nor does be, after leaving, communicate witb friends. Concealment is inconsistent with subscribing to telephones and directing correct listings for business and personal purposes. Generally, an individual seeking anonymity does not make periodical visits to bis former borne where reside those interested in discovering bis whereabouts.
We think the court erred in finding that appellant bad absconded, and in denying the plea of limitation. It is unnecessary, in view of this determination, to appraise the evidence relating to validity of the demand.
The decree is reversed, witb directions to dismiss the action.
The $1,300 item was part of the consideration paid by Keck.
This witness testified that Rex Peel, her son, was “at the time” cashier of the First National Bank of Bentonville. Rex moved to Oklahoma City. Mrs. Peel (the mother) frequently visited her son in Oklahoma, and at the same time visited the Keck family — “went once a year and stayed a month. The last time I was there I stayed all winter.” | [
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Holt, J.
N. B. Martin died testate April 10, 1928, and left as his sole survivors, his widow, Florence B. Martin, and a son, Norman Bowles Martin, two of the appellants here. By his will, N. ¡B. Martin directed that his estate he distributed according to the laws of the State of Arkansas. At the time of his death, N. B. Martin owned all but two or three shares of the East Arkansas Abstract & Loan Company, and was actively operating the corporation. There has been no administration of his estate.
Following the death of N. B. Martin, his widow, Florence B. Martin, continued to operate the abstract company until some time in 1943, shortly before the present suit was filed. Practically all of the proceeds from the operation she converted to her own use.
January 10,1930, the East Arkansas Abstract & Loan Company, by appropriate action of its board of directors, duly authorized appellant, Florence B. Martin, secretary of the company, to procure a loan of $4,400 from the Cross County Bank, to sign the company’s note therefor, and to execute a chattel mortgage upon all of the property of the company as security to the bank for the loan. Following the instructions of the abstract company, Florence B. Martin executed the note and mortgage, and secured the loan January 10, 1930.
September 7, 1931, Florence B. Martin executed a bill of sale to F. D. Rolfe, appellee, which contained the following provisions: “That I, Florence B. Martin of Wynne, Cross county, Arkansas, for and in consideration of the sum of one and no-100 dollars to me in hand paid by F. D. Rolfe vsnd-B — & the assumption by F. D. Rolfe and-R. - A — M-a-r-iin- of $2,500 due Cross Co. Bank & $2,500 due R. A. Martin at and before the sealing and delivery of these presents (the receipt whereof is hereby ■acknowledged) have bargained, sold.and delivered, and by these presents do bargain, sell and deliver unto the said F. D. Rolfe-aná-Br^ácr-M-ar-tin the following: All the right, title and interest in and to the abstract business of the East Arkansas Abstract & Loan Company, the control of which is vested in the said Florence B. Martin, and •is to include the following: All abstract books, plats, files and all forms and stationery used in connection with conduct of the East Arkansas Abstract & Loan Co.: * * * To have and to hold the said goods unto the said F. D. Rolfe and — Po^-A-7—Murtinr, their executors, administrators and assigns, to them and their own proper use and benefit forever, and I, the said Florence B. Martin, for me and my heirs, executors and administrators, will forever warrant and defend the said bargained premises unto the said F. L>. Rolfe-nrA-S — A—M-a-rtin and 'their executors, administrators and assigns from and against all persons whomsoever. * * * (Signed) Florence B. Martin.”
Appellant, Lena Martin, is the widow of R. A. Martin. N. B. and R. A. Martin were brothers, and their mother, Nellie P. Martin, married appellee, and there was one child born to this union, Elliott A. Rolfe.
The property mentioned in the bill of sale remained in the possession of Florence B. Martin, who, .as indicated, continued to operate the abstract company. The charter of the abstract company was revoked by the State in 1934. June 29, 1935, appellee, Rolfe, paid the Cross County Bank the balance due it on the note,- supra, in the amount of $2,925.
It appears that the bill of sale was made to F. D. Rolfe and R. A. Martin (husband of appellant, Lena Martin), but the name of R. A. Martin has been marked out, leaving the property granted to F. D. Rolfe alone. The consideration recited is $1 and the assumption of $2,500 due to the Cross County Bank and $2,500 due R. A.. Martin, but here the name of R. A. Martin is not marked out. Wherever the name R. A. Martin appears in the remainder of the bill of sale, it has been marked out.
June 28, 1943, Mr. Rolfe filed this suit in which he alleged that under the terms of the bill of sale he became the sole owner of the assets of the abstract company and he did not agree to assume the payment of $2,500 to R. A. Martin, and that it was his understanding that the bill of sale was made direct to him alone.
He sought first to have the bill of sale reformed and that he be declared the sole owner of the abstract company, or in the alternative that he be subrogated to the rights of the Cross County Bank in the note and mortgage, supra.
Appellants, Florence B. and Lena Martin, answered with a general denial, and in addition, alleged that Florence B. Martin only agreed to sell to Rolfe “all the right, title and interest in the abstract business which was under her control”; that if in fact appellee paid the bank the debt of the abstract company evidenced by the note and mortgage dated January 10, 1930, he did so as a volunteer, without their knowledge or consent; that he had no right to be subrogated to any rights the bank may have had and specifically pleaded the statute of limitations as a bar to appellee’s suit.
Appellant, Norman Bowles Martin, was a member of the Armed Forces of the United States at the time the present suit was filed and service of summons was had upon him while he was home on furlough. He filed a pleading in the cause alleging that he “is the real party in interest in said action.”... That he “is now in the service of the United States Army, being stationed at camp. Under the Soldiers’ and Sailors’ Relief Act the said defendant cannot be compelled to respond to this action at this time, wherefore your petitioner prays that the said cause be dismissed or continued for such time as the said defendant may be retained in said military service. ’ ’
Upon a trial, the trial court found that appellee’s, Rolfe’s, complaint should be dismissed in so far as he “is claiming to be,the owner of said books, but the said F. D. Rolfe should be subrogated to the lien of the mort gage executed by the East Arkansas Abstract & Loan Company to tbe Cross County Bank to secure the indebtedness that the said F. D. Rolfe paid to the Cross County Bank, and that he should have a first lien on said books for the sum of $2,925, together with 8 per cent, interest from June 29, 1935. . . . That Norman Bowles Martin was duly served with personal process in this cause on July 15, 1913, and has filed no answer herein; that the motion of Norman Bowles Martin to continue this case or dismiss same on account of being in the Armed Forces of the United States should be denied on account of the fact that the said Norman Bowles Martin has had ample time within which to make any defense that he might have herein, but he has not seen fit to file any answer or other pleadings, other than said motion. ’ ’
The cause comes here on direct and cross-appeal. Appellee has appealed from that part of the decree finding that he was not the sole owner of the abstract company in question.
On the death of N. B. Martin, April 10, 1928, he was the sole owner of the capital stock of the East Arkansas Abstract & Loan Company with the exception of two or three shares. Upon his death, his stock descended one-third to his wife, Florence B. Martin, and two-thirds to .his son, Norman Bowles Martin. After his death, Florence B. Martin continued to operate the company and enjoy its proceeds. There was'no administration of N. B. Martin’s estate.
From the record here, the loan of $4,400 from the Cross County Bank which the abstract company procured January 10, 1930, was in all things regular and the note and mortgage evidencing same were binding obligations of the company. The bill of sale, however, in which appellant, Florence B. Martin, attempted to sell all the assets of the abstract company to appellee, Rolfe, was executed without authority from the abstract company and shows on its face that it was effective to convey no more than the personal interest of Florence B. Martin in the abstract company. The preponderance of the evi deuce does show, however, that appellee, Bolfe, in good faith thought that he was buying all the assets of the company and that the bill of sale, as first prepared and presented to him had been in accordance with his directions changed so as to eliminate any reference to B. A. Martin. In this belief, appellee paid the abstract company’s debt to the bank, and in doing so, we think he was entitled to be subrogated to the rights of the bank and that he was in no sense a volunteer.
Appellee was a stepfather, was kind to the Martin children, was most generous to them, and after the death of his wife in 1936, he gave to these children, including his son, Elliott Bolfe, and appellant, Norman Bowles Martin, most of the land that he had acquired over many years. His purpose in procuring the bill of sale to the property of the abstract company was largely to assist Florence B. Martin in supporting herself, and to keep the property within the family.
“The doctrine of subrogation was evolved by courts of equity for the prevention ■ of injustice, it'is administered not as a legal right, but the principle is applied to subserve the ends of justice, and to do equity in the particular case before the court. Therefore, no rule can be laid down for its universal application, and whether it is applicable or not depends upon the particular facts and circumstances of each case as it arises, and is subject to that most ancient maxim, ‘he who seeks equity must do equity.’ ” (Federal Land Bank of St. Louis v. Richland Farming Company, 180 Ark. 442, 21 S. W. 2d 954.)
We think the rule, announced in Wyman v. Johnson, 68 Ark. 369, 59 S. W. 250, applies here. There, quoting Headnote 2, this court held: “Where trustees appointed by will to control and manage the testator’s property until the devisees should come of age undertook to mortgage the fee in the same, the mortgage is ineffectual to convey the interest of the devisees, but the mortgagee therein will be subrogated to the lien of a prior mortgage executed by the testator and discharged by the trus tees out of funds provided- by means of the second mortgage.”
We cannot agree with appellants’ contention that appellee’s right of action was barred by the statute of limitation (§ 8933, Pope’s Digest). On the testimony presented, appellee first learned that his title to the books and property of the abstract company was being questioned some time in 1943 when Florence B. Martin ceased to operate the abstract company’s business and accepted other employment. In these circumstances appellee would have a reasonable time within which to assert his right to subrogation. This was the effect of the holding of this court in Neff v. Elder, 84 Ark. 277, 105 S. W. 260, 120 Am. St. Rep. 67 (Headnote 9): “A purchaser of a defective title to land who was entitled to subrogation by reason of having discharged a valid mortgage lien which was not barred at the time of such discharge may bring his action to enforce his right to subrogation within a reasonable time after discovery of the defect in his title. ’ ’
' Nor do we think that error has been shown in the action of the trial court in overruling appellant Norman Bowles Martin’s-motion for dismissal or continuance as to him under the provisions of the Soldier’s and Sailors ’ Civil Relief Act of 1940, Tit. 50, U.S.C.A. App., § 501, et seq. He made no attempt to show in what manner his rights or interests would be prejudiced. He was content to file a motion to dismiss or continue on the ground that he was the principal party in interest and was in the service of the Army in camp at the time. In these circumstances, it was within the sound discretion of. the trial court to' determine whether the cause should proceed against Norman Bowles Martin. We so held in the recent case of Glick Cleaning & Laundry Co. v. Wade, Administrator, 206 Ark. 8, 172 S. W. 2d 929, wherein we followed the decision of the Supreme Court of the United States in Boone v. Lightner, et al., 319 U. S. 561, 63 S. Ct. 1223, 87 L. Ed. 1587.
We hold, however, that this appellant has the right, and we preserve to him that right, to have the decree, in so far as it affects Ms interests, opened np after the termination of his military service upon proper application and showing under § 520, Sub. Div. 4 of the Soldiers ’ and Sailors’ Civil Relief Act, supra. That section is as follows: “ (4) If any judgment shall be rendered in any action or proceeding governed by this section against any person in military service duriifg the period of such service or within thirty days thereafter, and it appears that such person was prejudiced by reason of his military service in making his defense thereto, such judgment may, upon application, made by such person or his legal representative, not later than ninety days after the termination of such service, be opened by the court rendering the same and such defendant or his legal representative let in to defend; provided it is made to appear that the defendant has a meritorious or legal defense to the action or some part thereof. Vacating, setting aside, or reversing any judgment because of any of the provisions of this act shall not impair any right or title acquired by any bona fide purchaser for value under such judgment. Oct. 17, 1940, c. 888, § 200, 54 Stat. 1180.” In addition, we preserve to this appellant the right, if he so elect after Ms discharge, to except to the sale of the books and prop|erty of the abstract company.
As so modified, the decree is affirmed. | [
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Holt, J.
March 6, 1942, appellant, insurance company, issued a policy of insurance upon the life of Dr. B. C. Routon, in the amount of $5,000, payable upon his death to appellee, Carrie F. Routon, his wife. The insured, Dr. Routon, died on July 19, 1942. Appellant admitted the issuance of the policy, acceptance of the premium and proof of death. Liability on the policy was denied on the grounds that the issuance of the policy liad been procured by the false and fraudulent answers of the insured in the application as to the state of his health, and that the insured was not in good health when the policy was delivered as required by the application and the policy itself. The policy was non-medical — that is no medical examination of the applicant was required —and by its terms the application was made a part thereof. The policy provided: (4) “This policy shall not become effective until the first premium upon it is paid during the good health of the insured, and when so paid this policy shall be deemed effective from the date of issue as shown on the first page hereof.” (13) “All statements made by the insured shall, in the absence of fraud, be deemed representations and not warranties, and no statement shall avoid the policy or be used in defense to a claim under it unless it is contained in the written application herefor and unless a copy of such application is attached hereto when issued.” (14) “This policy and the application herefor, a copy of which application is attached hereto and made a part hereof, constitute the entire contract between the parties hereto,” etc.
The application signed by the insured contained this provision: “I hereby certify that the foregoing answers and statements are made by me and are complete and true, that they are correctly and fulty recorded, and that no material circumstances or information has been withheld or omitted concerning my past and present state of health and habits of life. . . . and agree . . . (2) that no such policy shall become effective until the first premium upon it is paid during the good health of the insured and within 60 days from the date hereof; and (3) that no person other than the president, a vice-president, secretary or assistant secretary of the company can act for it to make, modify or discharge a contract or to waive any of the company’s rights or requirements and that none of these acts can be done by the agent taking this application.”
The questions which appellant contends the insured, Dr. Routon, answered falsely and fraudulently are: “9.a. Have you any infirmity or deformity? . . . Disease of the heart? . . .” Ans. “No.” “9.b. What other illness, disease, or injuries have you suffered from?” Ans. “Appendix removed, 1932. Dr. Connor, Hope, Ark. Tonsils removed, 1940. Dr. Chester McHenry, Oklahoma City. Both complete recovery.” 4 4,9.d. Have you had periodic or occasional health examinations?” Ans. 44No.” “9.e. Name any impairments ever found.” Ans. 44None.”
This suit ,was brought to enforce payment of the policy and was defended upon the grounds set out above. Upon a jury trial, there was a verdict for appellee, and from the judgment comes this appeal.
The material facts presented are: The insured, Dr. Routon, at the time he signed the application for. the policy of insurance in question, and at the time the policy was delivered to him, was suffering from high blood pressure, or hypertension, and as a result of this disease, he died of a cerebral hemorrhage a little over four months after the issuance of the policy to him. In January, 1941, Dr. Routon was examined for a commission in the United States Army, which was refused upon a showing of high blood pressure, or hypertension. Six examinations were made. 4 41-13-41 a. m. — 170/112, p. m. — 160/110; 1-14-41 a. m. — 170/112, p. m. — 176/120; 1-15-41 a. m. — 170/112, p. m. — 170/116.” He was found incapacitated for active duty because of “(1) hypertension, arterial, moderate; (2) overweight sixteen pounds above maximum allowance for height and age.”
At the time Dr. Routon was issued the policy, he was 29 years of age and was the local medical examiner for appellant company, and had been for some time prior thereto. He knew that the appellant company required him, as its examining physician, among other things, to submit to the home office urinary specimens of all applicants who gave present or past history of high blood pressure. The book of instructions furnished Dr. Routon by appellant contained the following provision: 44Re-quirements for home office specimen: A urinary specimen must be sent to the home office in the following instances: . . . All applicants who give history, present or past, of hypertension. . . .” Had the company — appellant—known that Dr. Bouton had high blood pressure, it would not have issued the policy.
Appellee in fact makes no contention that the insured, Dr. Bouton, was in good health at the time of his application and the delivery of the insurance, but she relies for recovery upon the claim that Dr. Bouton made truthful answers to J. V. Clark, appellant’s insurance agent, who took Bouton’s application, and that Clark’s knowledge binds appellant. Appellee says: “Here, then, was a case wherein the district agent, Clark, denied any knowledge' of the suffering of Dr. Bouton from high blood pressure; any knowledge of his having been turned down by the Army therefor, coupled with excess weight of sixteen pounds; yet, on the other hand, there is ample testimony by the beneficiary and Dr. Bouton’s assistant (Miss Nora Bowman) directly contradicting the testimony of Mr. Clark.”
We agree with appellee that there was substantial evidence to the effect that appellant’s agent, Clark, knew of Dr. Bouton’s condition, that he was not an insurable risk, and that he, Clark, wrote false answers in the application. However, we cannot agree that appellee can recover on the facts presented by this record.
Appellant contends, and we think correctly so, that the policy here in question is void and there can be no recovery for the reason that the insured’s conduct and actions in procuring the policy amounted to a fraud upon appellant company. It must be remembered that the insured, Dr. Bouton, at the time he knew false answers tó material questions in his application were being made by Clark, was the trusted representative, or medical examiner, in the locality in which he lived, for appellant. In no sense was he dealing with appellant at arms length. If, as contended by appellee, appellant’s agent, Clark, knew the insured’s condition and knew that the answers which he, Clark, wrote in the application were false, yet, the fact remains that Dr. Bouton also knew that these answers were false and material, that he was not an in surable risk, and that appellant would refuse to issue the policy in question if it knew that be was suffering from bigb blood pressure. In this event, there was both fraud and collusion on the part of the insured and Clark, appellant’s agent, in procuring the insurance, which would void the policy. As above indicated, Dr. Bouton was appellant’s medical examiner. He was not misled, and could not have been misled by anything the agent, Clark, may have told him. He knew that he was uninsurable without disclosing facts appellant required of him and his medical knowledge.and experience told him were material information for appellant to have before exercising its discretion to issue, or withhold the policy. He was not an innocent, uninformed layman. The conclusion is certain that Dr. Bouton either concealed the information from Mr. Clark or colluded with him to conceal it from appellant. If the former, Dr. Bouton was guilty of intentional fraud, and if the latter, he was guilty of both fraud and collusion, and in any event, appellee as beneficiary, who stands in his shoes, could not profit by the insured’s fraud,.or the fraud of the agent, Clark, of which Bouton had full knowledge.
The general applicable rule is stated in 32 C. J., p. 1290, § 516, as follows: “Where the fact is correctly stated by the applicant but a false answer is written into the application by the agent of the company without knowledge or collusion upon the part of the applicant, the company is, according to the generally accepted rule, bound. But on the other hand, if the agent in collusion with the applicant makes the false and fraudulent representations upon which the insurance is obtained, the fraud will vitiate the policy, even though the agent is' acting within the apparent scope of his authority.” In support of the text, there is cited one of our earlier cases, Mutual Aid Union v. Blacknall, 129 Ark. 450, 196 S. W. 792, wherein this court said: “It is well settled that if the agent, in collusion with the applicant for membership, even though acting within the apparent scope of his authority, perpetrates a fraud upon the society by making false and fraudulent representations upon which the' insurance is obtained, such fraud will vitiate the policy.”
In 29 American Jurisprudence, p. 645, § 847, we find this language: “The rule denying an insurer the right to assert the falsity of answers to questions contained in an application for insurance, and written into the application by the insurer’s agent after the questions were correctly answered by the applicant, presupposes the continuance of good faith on the part of the insured; this rule is not applicable if there was any taint of fraud on the part of the insured in allowing incorrect answers to stand without objection,” and in § 853 following, “If the insured is a party to the fraud of an insurance agent or medical examiner, he will not be allowed to profit thereby; and the insurer is not estopped by the knowledge or conduct of its agent or medical examiner in such case from asserting the falsity of an answer in the application or medical report resulting from such fraud or deception.”
■ In the recent case of Union Life Insurance Company v. Johnson, 199 Ark. 241, 133 S. W. 2d 841, this court quoted with approval from 32 C. J., p. 1333, as follows: “Where the facts have been truthfully stated to its agent, but by his fraud, negligence, or mistake are misstated in the application, the company cannot, according to the generally accepted rule, after accepting the'premium and issuing the policy, set up such misstatements in the application in avoidance of its liability, where the agent is acting within his real or apparent authority, and, there is no fraud or collusion upon the part of insured. . . .”
We conclude, therefore, that on account of the fraudulent conduct and actions of the insured in procuring the policy of insurance in question, there can be no recovery on the part of appellee as beneficiary. Accordingly, the judgment is reversed, and the cause dismissed.
McFaddin, J., disqualified and not participating. | [
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McFaddin, J.
The question here is the power and liability of the trustee in making investments under the particular wording of the will in the case at bar.
W. T. Murphy died testate in November, 1932. His will (dated in 1928) directed (after certain legacies and devises not here involved) that the State National Bank should (1) take charge of all of the remaining personal property of the estate, and (2) hold and invest the said corpus until the death of the testator’s wife, and (3) account to testator’s wife, during her life, for all the-income of the said corpus, and (4) after the death of the testator’s wife distribute the corpus to certain beneficiaries. The widow and other beneficiaries of the trust filed this present suit against the bank seeking a variety of relief. The bank in its answer prayed for a construction of the will.
The Miller Chancery Court held that appellant was a trustee under the will and there is no appeal on that point. The court also held that with the consent and approval of the widow and beneficiaries (appellees), the trustee could, with impunity, invest the funds of the estate in securities not named in the statutes; and from this portion of .the decree there is this appeal by the bank as trustee.
Act 215 of the Arkansas General Assembly of 1931 provides: "That hereafter it shall be lawful for all Administrators, Executors, Trustees, Fiduciaries, Guardians and Curators of the estates of minors and insane persons, to invest their funds in bonds, notes and obliga-' tions issued by the United States of America, issued by the State of Arkansas, issued by Boad Improvement Districts receiving aid and allotments under Act Eleven of the Acts of Arkansas of 1927 and Act 65 of the Acts of 1929, issued by a County or Counties of the State of Arkansas, issued by Municipal Improvement Districts created by cities and towns in the State of Arkansas.”
This Act 215 of 1931 was amended by Act 50 of 1935 to include certain Federal Housing Administration mortgages as legal investments. Then by Act 343 of 1939 certain building and loan securities were also recognized as legal investments. The appellant wants us to decide whether this Act 215 of 1931, with the said amendments, is permissive or restrictive on the power of the trustee to make investments: that is, whether the trustee is restricted to the investments listed in the statute. But we find it unnecessary to answer the said question because, in the case at bar (1) the trustee was given powers broader than the statute, and (2) the trustee was released from liability of loss in the investments.
In 65 C. J. 800 the rule is stated: “Statutes which enumerate the investments which trustees may make are to be construed as permissive, intended to provide for situations where the instrument creating the trust does not otherwise provide, and do not prohibit other investments which may be authorized by the trust instrument. ’ ’
And in 26 R. C. L. 1311-12 the rule is stated: “But a statute limiting the securities in which a trustee may invest trust funds has no application where the trust instrument gives the trustee authority to make investments in other securities.”
And in the Restatement of the Law of Trusts, p. 653, it is stated: “Statutes confining trustees to certain types of investments are not construed as preventing the settlor from empowering the trustee to make investments not designated by the statute.”
In 83 A. L. R. 616 there is an extended annotation on: “Provisions of will or other trust instrument exempting trustee from, or limiting his, liability”; and in 99 A. L. R. 909 there is an annotation on the subject: “When will may be deemed to authorize investment of trust fund in non-legal investments.” Cases cited in these annotations sustain our statements herein.
The fifteenth section of the will of the testator, W. T. Murphy, provided: “It is my will that my said executor upon my death, take charge of and hold all moneys, securities, or other personal property which I may own at my death, with full power to sell, exchange, encumber, or otherwise dispose thereof, or any portion thereof, in such manner and upon such terms and conditions as my said executor may deem most beneficial to my estate, and shall keep my said personal property at all times invested in such stocks, bonds, or other income bearing securities, or other personal property as my said executor may deem safe and desirable, and that said executor shall make reinvestments and changes of investment thereof as from time to time it may deem advisable, and shall collect the income derived therefrom. . . ”
And the twentieth section of the said will provided: “Having full confidence in the integrity and business ability of my said executor, it is my will that my said executor, in the performance of its duties under' this will, shall not be legally liable for any mistakes of judgment, or for any losses that may occur in the management of my said estate hereunder intrusted to its care by reason of any such mistakes of judgment, and no suit shall be brought or maintained to attempt to enforce any such liability on that account.”
It will thus be seen that the testator has clothed the trustee with power to make such investments and rein-vestments as the'trustee may from time to time deem safe and desirable and the testator has released the trustee from all liability for any mistakes of judgment or losses that may occur in the management of the estate; ■ and it necessarily follows that the trustee in the case at bar is not restricted to the particular investments listed in the statute.
Under this will the chancery court held that the trustee, acting with the consent of the life tenant and beneficiaries, might, with impunity, invest the funds of the estate in investments other than those listed in the statute.
The decree of the chancery court is correct and is therefore in all things affirmed. | [
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Millwee, J.
Appellant, Gate City Fertilizer Company, (a division of 'Southern Acid & Sulphur Company, Inc.) of Little Rock, Arkansas, brought this action in the Bradley circuit court for recovery of a balance alleged due it by appellee, R. W. Childs of Warren, Arkansas.
Tlie suit was predicated upon a written contract executed February 19, 1938, by J. H. Hunter, representing appellant, and appellee, Childs, at Warren, and was confirmed two days later by E. E. Newhouse, sales manager of appellant at Little Rock. By the contract, appellee became the agent of appellant for the sale of its fertilizer products in Bradley county. Fertilizer was sold to appellee by the company and hauled and resold by appellee to others. Appellee collected from such purchasers and paid the company the amount at which the fertilizer was billed to him, less his commission and certain allowances. The contract, in which appellant was referred to in the first person and appellee in the second person, contained the following provisions:
“We will from time to time designate in written or printed forms, the prices, terms, commissions and discounts that shall he in force under this agreement, all and each of which shall be subject to change by us from time to time upon written or printed notice to you.
“This agreement shall remain in effect until canceled in writing at any time, by wire or letter, either by you or us.
“No modification of this contract shall be binding' upon us until such modification is confirmed in writing by one of our duly authorized officers. . . .”
Appellee sold the products of appellant during the seasons of 1938,1939 and 1940 without any disagreement between the parties as to. prices or allowances under their contract. On January 15, 1941, appellant furnished appellee a printed list of prices and allowances to its agents for that season. ■ In this list a price of $30 per ton was quoted on “4-8-6 fertilizer” which was the leading type sold by appellee. From March 3d to April 30, 1941, appellee purchased fertilizer in the net sum of $4,992.70, after allowances in the form of commissions, trucking and freight were deducted in the sum of $1,390.30 as provided in the terms of the printed list. Nineteen payments for a total of $4,500 were made by appellee upon this 1941 account, the first being a payment of $400, April 7,1941, and the last a $50 payment of May 3,1943, leaving a balance of $492.70 which appellant alleged was dne.
Appellee, in his answer, denied the account and asserted that any business he had done with the plaintiff “was under a new contract with said plaintiff, and that under said new contract he has done and performed each and every obligation.”
The cause was tried to a jury. At the conclusion of all the testimony, appellant requested an instructed verdict in its favor, which request was overruled, and a verdict returned for appellee, upon which judgment was rendered.
There is no dispute between the parties as to the amount of fertilizer received, or cash payments made, by appellee. Appellee contends, however, that he made a new oral contract with appellant’s representative, J. H. Hunter, on April 1, 1941, whereby it was agreed that the price of 4-8-6 fertilizer was reduced from $30 to $27.60 per ton, and, when the amount of fertilizer he bought at the cheaper price under this alleged agreement is credited to his account, he has paid appellant all he owed it.
We think the contention of appellant, that the trial court erred in refusing to direct a verdict in its favor at the conclusion of all the testimony, should be sustained. In determining -whether the evidence was sufficient to take the case to the jury, we must view it in the light most favorable to appellee, and, if there is substantial evidence to support the verdict, it must he sustained. Missouri State Life Insurance Co. v. Holt, 186 Ark. 672, 55 S. W. 2d 788; Tri-State Transit Co. v. Miller, 188 Ark. 149, 65 S. W. 2d 9, 90 A. L. R. 1389; Safeway Stores v. Mosely, 192 Ark. 1059, 95 S. W. 2d 1136.
Appellee testified that on or about April 1,1941, the F. S. A. let a contract for 400 tons of “4-8-6 fertilizer,” and appellant’s representative, J. H. Hunter, told him to bid $27.90 per ton, hut ‘ ‘ don’t go under that. ’ ’ He further testified that he became the successful bidder at $27.60 per ton instead of $27.90, and Hunter said “you have to go to Little. Rock before yon can get any of our fertilizer.” Appellee says he talked'with Mr. Newhouse in Little Rock who told him that they were not going to cut the price of fertilizer, if they could help it, and appellee then said “if none of the rest of them cut the price, I won’t.” He went back to Warren and found others selling fertilizer at $27.60 per ton. He also testified that he always settled with appellant at the prevailing prices of fertilizer in Bradley county, but there is no testimony in the record that other settlements were made that did not conform to the printed price lists sent out by appellant. Appellee did not dispute the account until after the date of his last payment on May 3, 1943.
Assuming, without deciding, that J. H. Hunter had authority to make a new contract with appellee, we think there was an absence of substantial evidence that a definite agreement was reached by the parties to change the price of “4-8-6 fertilizer” from $30, as provided in the printed list, to $27.60 per ton. The general rule is stated in 17 C. J. .S., Contracts, § 374, p. 859, as follows: “While a provision in the contract as to the method of change is not exclusive of other methods of modification, the new agreement must have all the requisites of a valid and enforceable contract, and mere indefinite expressions are not sufficient.”
Applying this principle to the testimony in this case, we are forced to the conclusion that only indefinite expressions were used by the parties which were insufficient to establish a binding and valid agreement to change the formal requirements of their written contract. We are mindful of the principle that a written contract may be modified or substituted by a subsequent oral agreement, but the burden is upon the party asserting the subsequent modification to show the assent of the other party thereto. A. G. Brown & Company v. McKnight, 118 S. W. 409.
As is stated in 12 Am. Jur. 1005: “Moreover, the assent of both parties to a modification is necessary. Such consent is required to vary a contract as much as to make one originally. The mental purpose of one of the parties to a contract cannot change its terms.” And, in the case of Dukes v. Cohen, 192 Ark. 96, 90 S. W. 2d 230, this court, quoting from the case of Smith v. School District No. 89, 187 Ark. 405, 59 S. W. 2d 1022, said: “It is elementary law that, where a party submits an offer of a contract, this offer must be accepted without reservation. Any reservation or limitation in the acceptance in law is a rejection of the offer.” In the case of Cage v. Black, 97 Ark. 613, 134 S. W. 942, this court said: “The offer of one represents the agreement on his part and the acceptance of the other represents his agreement; but, before the contract is consummated each party must agree to the same proposition, the agreement of both must be mutual to every essential detail of the contract. ’ ’
Other questions involving the admissibility of certain evidence and the instructions of the court are raised in the briefs of counsel, but we deem it unnecessary to discuss these, since we have reached the conclusion that the court erred in refusing to direct a verdict for appellant at the conclusion of all the testimony in the case.
This cause is reversed and judgment will be entered here in favor of appellant against appellee in the sum of $492.70 with interest at the rate of six per cent, from the 15th day of February, 1944, until paid.
Mr. Justice Holt disqualified and not participating. | [
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McHaney, J.
Appellee, a foreign corporation, not authorized to do business in Arkansas, owns and operates a gas pipe line, originating in the State of Louisiana, and running through the southeast corner of the State of Arkansas, crossing the Mississippi Biver near Greenville, Mississippi, and running thence in a northerly direction through the western part of said state to Memphis, Tennessee, and from thence to Jackson, Tennessee. Its principal business office is in the city of Memphis. It has no business office and transacts no business in this state, except as hereinafter stated. Natural gas is transported through said pipe line from the Monroe, Louisiana, field for sale to distributors along its line in said states. In the State of Arkansas, at Wilmot, it owns and operates as a part of the facilities of said pipe line a compressor station which consists of a building 30 x 120 feet, housing five 600-horsepower gas engine-driven compressor units, through which the gas passes and is compressed and its pressure increased to hasten its movement to points of delivery thereafter to be reached in Arkansas, Mississippi and Tennessee, thereby increasing the carrying capacity of the pipe line. The gas does not come to rest at any time in the process of compression, but flows from the line through, said units and hack into the line. It has four of such compressor stations on its line, one in Louisiana, one in Arkansas, two in Mississippi and one in Tennessee. At Wilmot in this state, appellee has nine highly skilled employees who work in shifts and who supervise and control the operation of the engines and units and related machinery at said compressor station. It also sells at wholesale natural gas to Arkansas Power & Light Co., for resale and distribution in some half dozen cities and towns in southeast Arkansas, under a contract between them made without the State of Arkansas. “The Arkansas company is billed for gas from, and remits to,” appellee ’s Memphis office. The gas so sold at no time came to rest in Arkansas prior to delivery to said distributor .and all gas so delivered was either directly from said pipe line or from a lateral line which connects with said main line at a point south of Lake Village, Arkansas, and extends some miles north through Lake Village to a point where it connects with a line owned by the distributor. The gas so sold to the distributor is measured by a thermometer and a meter, furnished by appellee, before it passes into the distributor’s lines. The distributor resells all such gas to Arkansas consumers, and appellee has no connection with and no participation in such resales. Appellee has been assessed and has paid all ad valorem taxes due in Arkansas for 1932 and subsequent years. It did not file an income tax return for the years 1932 to 1941 inclusive with appellant, and, in 1943, appellant made demand upon appellee for the filing of such returns for said years, and said demand was complied with, saving its right to contest the validity of such demand. On April 6,1943, appellant made separate income tax assessments against appellee for each of said years 1932-1941, aggregating $6,654.77, which appellee paid under protest on November 5, 1943, and, on December 2, 1943, it brought this action against appellant to recover the sum so paid as provided by § 14054 of Pope’s Digest. Trial resulted in a decree in appellee’s favor for the recovery of said sum. The case is here on appeal.
The above facts and others were stipulated. There is no 'question regarding the amount of the income tax due the State of Arkansas, if any is due to be paid. It is appellee’s contention, first, that the provisions of the Income Tax Act of 1929 do not apply to it; and second, that the business done by it in Arkansas is wholly interstate in character and that its net income derived from such business in Arkansas is not subject to the provisions-of the Income Tax Act of 1929, § 14024 et seq. of Pope’s Digest, or if so, the act is unconstitutional.
Section 14026, subsections (b), (c) and (d), provide: “(b) Every corporation organized under the laws of this State shall pay annually an income tax with respect to carrying- on or doing business equivalent to two (2%) per cent of the entire net income of such corporation as defined herein, received by such corporation during the income year; and every foreign corporation doing business within the jurisdiction of this State shall pay annually an income tax equivalent to two (2%) per cent of a proportion of its entire net income to be determined as hereinafter provided.
“(c) A like tax is hereby imposed and shall be assessed, levied, collected, and paid, annually, at the rates specified in this section upon and with respect to the entire net income as herein defined, except as hereinafter provided, from all property owned, and from every business, trade or occupation carried on in this State by individuals, corporations, partnerships, trusts or estates, not residents of the State of Arkansas.
“(d) Every railroad or other public utility, whether organized under the laws of this State or any other State or the Federal Government, shall be subject to the provisions of this Act, and shall pay the income tax hereby levied upon that proportion of its entire net income applicable to the State of Arkansas as hereinafter described. ’ ’
It will be noticed that in sub-section (b) above quoted a tax is required to be paid by “every foreign corporation doing business within the jurisdiction of this state, ’ ’ and appellee says said provision is not applicable to it because while it is a foreign corporation, it does no business within the jurisdiction of this state within the meaning of said provision, and has not complied with our foreign corporation laws, §§ 2247 et seq. Pope’s Digest. Assuming without so deciding that appellee is not subject to the tax under sub-section (b), because not “ doing-business ” in this state within the meaning- of the language used, we think there can be no doubt that appellee is required to pay under the broad language used in either or both sub-sections (c) and (d), above quoted.
But, says .appellee, we held in Temple v. Gates, 186 Ark. 820, 56 S. W. 2d 417, where both sub-sections (b) and (c) were under consideration, that the Southern Pine Lumber Company was not subject to an income tax in this state because it was not doing- business in this state, except in interstate commerce. We there said: “This statute, (referring to (c) ), means that if a foreign corporation conducts a business in this state, it must pay an income tax fixed upon its entire net income. The statute has no relation whatever to profits gained from interstate transactions by a corporation conducting a business in another state. In order to subject a foreign corporation to the payment of the income tax imposed by the statute in question, the business transacted by it in this state ‘ must be of such nature and character as to warrant the inference that the corporation has subjected itself to the local jurisdiction.’ ” Citing Sillin v. Hessig-Ellis Drug Co., 181 Ark. 386, 26 S. W. 2d 122.
In that case, however, the Southern Pine Lumber Company owned no property in this state and it sold some of its products, manufactured in Texas, to Arkansas purchasers, through an Arkansas corporate agent, wholly in interstate commerce. While here, appellee owns property in Arkansas, a pipe line several miles in length, a booster or compressor station, a branch line, as above stated, to serve the distributor, one or more thermometers and meters to measure "the gas sold to the distributor, it has nine skilled employees working- at said compressor station, and it owns in Arkansas the gas sold to the distributor. The net income, the tax on which it seeks to recover in this action, is derived from the property so owned in Arkansas, and sub-section (c) specifically levies a tax “upon and with-respect to the entire net income as herein 'defined . . . from all property owned . . . in this state by . . . corporations . . . not residents of the State of Arkansas.” The opinion in the Temple case did not even quote the provision of subsection (c), here quoted, for the reason it had no application to the undisputed facts in that case, as the Southern Pine Lumber Company owned no property in Arkansas and had no income therefrom as a matter of course. This is the distinction between Temple v. Gates, supra, and the case at bar, and we hold that said case is not controlling here, and that the tax was properly levied on appellee’s net income under said act.
But appellee insists that its net income in Arkansas is derived wholly from interstate commerce, and that if the Arkansas Income Tax Act of 1929 is construed to apply to appellee’s income, it is unconstitutional and void as being in violation of the commerce, the due process and the equal protection clauses of the Constitution of the United States.
We sustained the constitutionality of this act in Stanley v. Gates, 179 Ark. 886, 19 S. W. 2d 1000. In McGoldrick v. Berwind-White Coal Mining Co., 309 U. S. 33, 60 S. Ct. 388, 84 L. Ed. 565, 128 A. L. R. 876, Mr. Justice Stone stated the question for decision as follows: “The question for decision is whether the New York City tax laid upon sales of goods for consumption, as applied to respondent, infringes the commerce clause of the Federal Constitution.” After quoting § 8 of art. I of the U. S.Constitution that “Congress shall have power . .. to regulate commerce with foreign Nations and among the several States . . ,” the court said: “In imposing taxes for state purposes a state is not .exercising any power which the Constitution has conferred upon Congress. It is only when the tax operates to regulate commerce between the states or with foreign nations to an extent which infringes the authority conferred upon Congress, that the tax can he said to exceed constitutional limitations. See Gibbons v. Ogden, 9 Wheat. 1, 187, 6 L. Ed. 23; South Carolina Highway Dept. v. Barnwell Bros., 303 U. S. 177, 58 S. Ct. 510, 82 L. Ed. 734. Forms of state taxation whose tendency is to prohibit the commerce or place it at a disadvantage as compared or in competition with intrastate commerce, and any state tax which discriminates against -the commerce, are familiar examples of the exercise of state taxing power in an unconstitutional manner, because of its obvious regulatory effect upon commerce between the states.
“But it was not the purpose of the commerce clause to relieve those engaged in interstate commerce of their just share of state tax burdens, merely because an incidental or consequential effect of the tax is an increase in the cost of doing the business. Western Live Stock v. Bureau, 303 U. S. 250, 58 S. Ct. 546, 82 L. Ed. 823, 115 A. L. R. 944. Not all state taxation is to be condemned because, in some manner, it has an effect upon commerce between the states, and there are many forms of tax whose burdens, when distributed through the play of economic forces, affect interstate commerce, which nevertheless fall short of the regulation of the commerce, which the Constitution leaves to Congress.' A tax may be levied on net income wholly derived from interstate commerce. ’ ’
To support the last statement the cases of United States Glue Co. v. Oak Creek, 247 U. S. 321, 38 S. Ct. 499, 62 L. Ed. 1135, Ann. Cas. 1918E, 748; Underwood Typewriter Co. v. Chamberlain, 254 U. S. 113, 41 S. Ct. 45, 65 L. Ed. 165; Atlantic Coast Line R. Co. v. Doughton, 262 U. S. 413, 43 S. Ct. 620, 67 L. Ed. 1051; and Matson Navigation Co. v. State Board, 297 U. S. 441, 56 S. Ct. 553, 80 L. Ed. 791, are cited.
In Memphis Natural Gas Co. v. Beeler, 315 U. S. 649, 62 S. Ct. 857, 86 L. Ed. 1090, this same appellee was held subject to the income tax law of Tennessee, the court saying: “In any case even if taxpayer’s business were wholly interstate commerce, a non-discriminatory tax by Tennessee upon the net income of a foreign corporation having a commercial domicile there, cf. Wheeling Steel Corp. v. Fox, 298 U. S. 193, 56 S. Ct. 773, 80 L. Ed. 1143, or upon net income derived from within the state, Shaffer v. Carter, 252 U. S. 37, 40 S. Ct. 221, 64 L. Ed. 445; Wisconsin v. Minnesota Mining Co., 311 U. S. 452, 61 S. Ct. 253, 85 L. Ed. 274; cf. New York ex rel. Cohn v. Graves, 300 U. S. 308, 57 S. Ct. 466, 81 L. Ed. 666, 108 A. L. R. 721, is not prohibited by the commerce clause on which alone taxpayer relies. U. S. Glue Co. v. Oak Creek, 247 U. S. 321, 38 S. Ct. 499, 62 L. Ed. 1135, Ann. Cas. 1918E, 748; Underwood Typewriter Co. v. Chamberlain, 254 U. S. 113, 119-20, 41 S. Ct. 45, 65 L. Ed. 165; cf. Bass, Ratcliff & Gretton, Ltd., v. Tax Comm’n, 266 U. S. 271, 48 S. Ct. 82, 69 L. Ed. 282; Western Live Stock v. Bureau, 303 U. S. 250, 255. There is no contention or showing here that the tax assessed is not- upon net earnings justly attributable to Tennessee'. Underwood Typewriter Co. v. Chamberlain, supra; cf. Bass, Ratcliff & Gretton, Ltd., v. Tax Comm’n, supra; Butler Bros. v. McColgan, 315 U. S. 501, 62 S. Ct. 701, 86 L. Ed. 991. It does not appear that upon any theory the tax can be deemed to infringe the commerce clause. ’ ’
While the opinion in that case referred to the fact that the gas company had a commercial domicile in Tennessee, that fact was not of controlling importance because the court held that the tax could be lawfully levied on the net-income of a foreign corporation, derived wholly from interstate commerce, “having a commercial domicile there, . , . or upon net income derived from within the state,” which we understand'to mean that such a tax can be levied 4 4 upon net income derived from within the state,” whether such foreign corporation has a commercial domicile there or not.
Moreover, in an opinion rendered October 2, 1944, not yet officially reported, the Supreme Court of Mississippi held this same appellee subject to the income tax law of that state, in the case of State Tax Commission v. Memphis Natural Gas Co., 19 So. 2d 477. Appellee’s operations in Mississippi are no different from its operations in this state, except it has two compressor stations in that state, a longer pipe line, sells gas at wholesale to the Mississippi Power & Light Co. and the latter distributes gas to consumers in more towns, but these are distinctions without a difference in principle in its operations. It is not “commercially domiciled in that state,” but as here, its taxable “income is derived from within the state and attributable to business done there. ’ ’
Our conclusion is that the learned trial court was in error in decreeing a refund of the money so paid by appellee to appellant, and the decree is accordingly reversed and the cause is dismissed. | [
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McHaney, J.
Appellant-brought this action against appellees to recover the value of timber cut by appellees from a 40-acre tract of land described as the NE NE 19-7-25, Pike county, claiming to be the owner. He deraigned his title from Patrick M. Davis by deed dated 'October 10, 1905, to D. E. Hicks. Appellee, International Paper Company, answered alleging that it is a corporation and is the successor of the appellee, Southern Kraft Corporation, by merger and consolidation proceedings, which latter no longer exists as a corporation, and that all its assets and obligations were taken over and assumed by International. It claimed to own said land by an unbroken chain of title from said Patrick M. Davis by deed from him to Detroit Timber & Lumber Company, dated April 9,1902, and through mesne conveyances from the latter .to Southern Kraft Corporation which was merged and consolidated with it as above stated. It. alleged that it and its predecessors in title have continuously paid the taxes on said land, which is unimproved and unenclosed and always has been, from 1902 to the present time.
Trial to the court sitting as a jury resulted in a finding that neither appellant nor his predecessors in title have ever liad actual possession of said lands; that appellant’s predecessors .have never claimed title thereto adversely to appellee, “but, by a preponderance of the evidence, have recognized that they did not own or intend to hold said lands against defendant (appellee) and its predecessors in title; that the plaintiff (appellant) has not acquired the lands in controversy by adverse possession, and that the title and right of possession of defendant to said lands is paramount and superior to that of plaintiff.” Judgment was accordingly entered against appellant and he has- appealed.
Both parties claim title from a common source, Patrick M. Davis, who conveyed to appellee’s predecessor in title by deed dated April 9, 1902, and recorded May 5, 1902, the NE NE 19-7-25. Davis conveyed to D. E, Hicks, ■appellant’s predecessor in title by deed dated October 10, 1905. The description from Davis to Hicks was: “All east and north of river, northeast quarter, section (.19) nineteen, township (7) seven range (25) twenty-five west containing sixty acres more or less.” While this description is broad enough to cover and does include the NE NE owned at that time by appellee’s predecessor in title, it appears that Davis did not intend, to convey or to include in his deed to Hicks the NE NE as he recited a conveyance of only 60 acres whereas the description employed included 100 acres. However, the recital in the deed as containing 60 acres is not controlling, but here it would seem to be a circumstance tending to show that Davis did not intend to convey to Hicks the 40-acre tract he had some three and one-half years previously conveyed to Detroit Timber & Lumber Company. Since Davis had already conveyed the title to said 40Tacre tract, Hicks acquired no title to said tract by his deed from Davis in 1.905, and appellant now has no title thereto, unless he, or his predecessors in title, have subsequently acquired same by adverse possession.
We do not understand that appellant claims that he or his predecessors in title have ever been in the actual possession of the 40-acre tract in controversy, or any part of it. He and those through whom he claims have been in the actual possession of a portion of the other land covered by his deed. If there is a claim that a portion of said 40-acre tract has been in possession of appellant and his predecessors, then.he is concluded by the court’s finding to the contrary based upon substantial evidence.
Appellant’s principal contention is based on the rule, frequently announced by this court, that the actual possession of a part of the land under a deed constituting color of title and describing the entire tract is in law possession to the limit of the whole land. Bowers v. Rightsell, 173 Ark. 788, 294 S. W. 21. In other words, appellant contends that, because he and those under whom he claims have been in the actual possession, for more than seven years, of a portion of the 60 acres of land owned by him, he has become the owner of all the land described in his deed, including appellee’s 40 acres. This is not correct and would work a manifest injustice to the true owner, such as appellee in this case. The distinction between the case at bar and Bowers v. Rightsell, supra, and Thornton v. McDonald, 167 Ark. 114, 266 S. W. 946, and other cases cited in both, sustaining the rule above announced, is well illustrated in the cases of Union Saw Mill Co. v. Pagan, 275 Ark. 559, 299 S. W. 1012, and Smith v. Southern Kraft Corporation, 203 Ark. 814, 159 S. W. 2d 59. In the former, the late Judge Wood, speaking for the court, said: “In Moore v. McHenry, 167 Ark. 483, 268 S. W. 858, we reannounced the doctrine of many former cases that, ‘where adverse possession is entered under color of title, the grantee in the instrument constituting color of title will be deemed in constructive possession of the entire body of land described in the instrument, if in the actual possession of any part thereof.’ See, also, Thornton v. McDonald, 167 Ark. 114, 266 S. W. 946, and cases there cited at page 118, 266 S. W. 947. The doctrine of these cases has no application here, because of the difference in the facts. Appellees here, with only color of title, seek to acquire title by constructive adverse possession against the true owner of uninclosed and unimproved lands, who has continuously paid the taxes thereon each year since the time of his purchase thereof for more than seven years. The doctrine applicable here is that the true owner of wild and unimproved lands, who has continuously paid taxes thereon from the time he acquired title thereto and for more than seven years in succession, cannot be defeated of his title and right to the actual possession of his lands by one who merely claims title thereto under color of title and by only a constructive adverse possession. The general rule is that constructive possession follows the title, and can only be overcome or defeated by an actual possession adverse thereto. Gates v. Kelsey, 57 Ark. 523, 22 S. W. 162; Haggart v. Ranney, 73 Ark. 344, 84 S. W. 703; Watts v. Moore, 89 Ark. 19, 115 S. W. 931; Arnold v. Chas. T. Abeles & Co., 98 Ark. 367, 135 S. W. 833; Smith v. Boynton Land & Lumber Co., 131 Ark. 22, 198 S. W. 107. Furthermore, since the land was uninclosed and unimproved when Hostetter acquired the legal title from the state and began paying taxes thereon, and continued the payment thereof for seven years in succession, this, of itself, was constructive possession and eviction of all who claim title by constructive possession of the land. For, under the plain terms of § 6943, O. & M. Digest, *unimproved and uninclosed land shall be deemed and held to be in the possession of the person who pays the taxes thereon, if he have color of title thereto,’ etc.”
In Smith v. Southern Kraft Corp. supra, the court reaffirmed the rule here contended for and said: “We reaffirm this rule; but it must be said that it is not one which may or should be applied in all cases and under all circumstances. For instance, the owner of the record title to a tract of land might have actual possession of only a portion thereof, while another having only color of title to the land, might also have actual possession of another portion.
“Under thd-rule above stated, each would‘have title to .the land, provided the occupant who had only color of title had had adverse possession of the portion which he occupied for as much as seven consecutive years. In the case stated, the owner of the record title would have title to the whole of the tract except only the portion which he had lost through the adverse occupancy of the other. This for the reason stated in Union Saw Mill Company v. Pagan, 175 Ark. 559, 299 S. W. 1012, that ‘ The general rule is that constructive possession follows the title, and can only be overcome or defeated by an actual possession adverse thereto.’ ” See, also, the very recent case of Sturgis v. Hughes, 206 Ark. 946, 178 S. W. 2d 236.
It is finally insisted that, since there is no deed of record from Southern Kraft to International and since appellant denied the allegation in appellee’s answer that it acquired the title from Southern Kraft through merger and consolidation and no proof thereof having been made, and since appellee alleges in its answer that it conveyed this and other land to Southern Kraft in April, 1930, the evidence is insufficient to support appellee’s title. But the answer alleged the merger and consolida: tion occurred on September 30, 1941, which would revest the title in International. This matter does not seem to have been relied on in the court below and it is difficult to perceive what right appellant has to question the title as between the two appellees.
We find no error, and the judgment is accordingly affirmed. | [
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Robins, J.
Alleging that she was the owner of three hundred twenty acres described in her complaint, appellant, Mrs. Yara Bailey, sought in the lower court an injunction against appellees, H., Whorton and Martin-G-orham Lumber Company, to prevent them from cutting timber on her land. Appellees defended on the ground that they had purchased the timber on the land described in the complaint, with that on seventy additional acres, and had obtained a written conveyance thereof duly signed by appellant and her husband, Charles Bailey. To reverse decree of the lower court denying the relief sought by her, appellant prosecutes this appeal.
Appellant owned the land described in her complaint (three hundred twenty acres) and her husband owned the other seventy acres. On April 25, 1944, appellant and her husband executed the following instrument:
“This indenture, made this 25th day of April, A.D. 1944, by and between Charles Bailey, party of the first part, unto and with H. Whorton & Martin & Gorham Lbr. Co., parties of the second part,
“Witnesseth, that said party of the first part, being the owner in fee simple and in possession of the follow ing lands, lying and being situated in Pope county, Arkansas, to-wit:
“Ei/2 of Ei/2, NW%, Sec. (22), Twp. (8), Range (21); Wy2, NWy4 of NW14, Sec. 22, west one-balf (Wy2) of tbe east half NWy (E%), Section (22), Township (8),_ Range (21); the, east half (E%) NW% of NWy, Section (22), Township (8), Range (21).
“Pt. of SEy of (NWy) Section (22), Township (8), Range (21), 70 acres. South half (S%) of (SWy), Section (15), Township (8), Range (21); SEy of Section (16), Township (8), Range (21); north half (N%) NEy of NE%, Twp. (8), Range (21); Sec. (21), Twp. (8), Range (21).
“For and in consideration of the sum of four thousand dollars ($4,000) to me in cash paid, the receipt of which is hereby acknowledged, has this day granted, sold and conveyed unto the said parties of the second part and their lawful heirs, successors and assigns, forever, all the pine and oak fifteen inches from ground timber over nine inches in diameter on said lands, and enough of the smaller timber for skid poles, in removing said timber from the lands.
“Above described land containing three hundred ninety acres.
“It is agreed that said party of the first part shall pay all taxes and assessments levied against said lands and timber and keep the same free from all alienation and incumbrance, and that any failure by said party to pay any taxes or assessments by the third day before the time for the payment of the same shall expire, shall be considered to be authority to the parties of the second part to pay the same,-for which said parties of the second part shall have a lien on said land and timber as now by law given to agents and others paying taxes on the lands, of others at their request.
“It is further agreed that the parties of the second part shall cut and remove said timber within a period of fifteen months years from the date hereof, and shall be entitled to all of that time within which to cut and remove said timber. The said second parties shall have free and uninterrupted possession of said land during the term of this indenture for.the purpose herein set forth, and shall have free ingress and egress thereto and therefrom, with the right to build and operate trams or railroads onto or across said land for the purpose of transporting the timber therefrom, or for transportation of timber belonging to or that may belong to said parties, and to this end shall be regarded as the holders of said lands, to sue for and recover the same from all persons whatever, holding or attempting to hold same; provided, that the said first party, his heirs or legal assigns may retain such possession of said land, at all times, as shall not interfere with the rights of the second parties under this deed for the purpose aforesáid.
“It is further agreed that said second parties shall not have the right to enter any field on said land that is fenced or enclosed at date hereof, without first obtaining the consent of the party of the first part.
“It is further agreed that whenever said timber shall have been removed, the party of the first part shall enter into full possession of said land at once, whether the time for such removal be expired or not; provided, that all right of railroad herein granted shall be perpetual; said right of way shall be not less than fifty feet wide, and may be used for a regular freight and passenger railroad.
“And the said party of the first part does hereby covenant with the second parties and their lawful heirs, successors and assigns that we will forever warrant and defend the title of said timber and right-of-way against all lawful claims whatsoever.
“And I, Yara Bailey, wife of Charles Bailey aforesaid, for, and on my own behalf, do hereby freely and fully, for the purposes mentioned in this indenture, unite with my said husband in making the same, and do forever relinquish and quitclaim unto the said H. Whorton, Martin & Gorham Lbr. Company, their heirs, successors *and assigns, all my right of and claim to dower and homestead in said.land; that is to say until the expiration of the rights herein conveyed.
“In testimony whereof, the said party of the first part has hereunto set their name, the day and year above written.
“ Charles Bailey
“Vara Bailey.”
The instrument contained certificate of acknowledgment in form for deed executed by married man with relinquishment of dower and homestead by the wife.
Appellant -testified that she did not understand that the timber deed included her land, and that she signéd it in the belief that by it was conveyed only the timber on her husband’s seventy acres. She could read and write and she did not testify that she was denied an opportunity to read the instrument or that any one misrepresented to her its contents. The testimony of other witnesses, including her husband and son, together with the fact that, under her contention, her husband’s timber was being sold for a sum almost three times its value, strongly indicated that she knew that the purchase of her own as well as her husband’s timber was contemplated and that she knew her land was embraced in the contract which she signed. Appellant failed to show that she did not knowingly sign the timber deed or that she was misled as to its contents.
But it is urged on behalf of appellant that the timber deed, by its terms, does not amount to a conveyance of her timber, because her name does not appear in the granting clause.
In construing a contract every sentence, clause and word therein should, when it can be reasonably done, be given effect. Earl v. Harris, 99 Ark. 112, 137 S. W. 806; Phoenix Cement Sidewalk Co. v. Russellville W. & L. Co., 101 Ark. 22, 140 S. W. 996; Yellow Jacket Mining Company v. Tegarden, 104 Ark. 573, 149 S. W. 518. “In construing a written instrument effect must be given to every part therein where it can be done.” B. A. Collins & Co. v. Gus Blass Co., 154 Ark. 244, 242 S. W. 70. “Individual clauses in an agreement and particular words must be considered in connection with the rest of the agreement, and all parts of the writing, and every word in it, will, if possible, be given effect.” 17 C. J. S., § 297, p. 710. “So far as possible, effect will be given to all the language and to every clause of the agreement. No word should be rejected as mere surplusage if the court can discover any reasonable purpose thereof which can be gathered from the whole instrument.” 12 Am. Jur. 774.
In the timber deed involved in this case a description of the land owned by appellant was set forth, along with a description of the land of her husband, and was followed by a paragraph reciting the sale and conveyance of the timber on all the described premises. In the last paragraph of this deed appears this language: “And I, Yara Bailey, wife of Charles Bailey aforesaid, for, and on my own behalf, do hereby freely and fully, for the purposes mentioned in this indenture, unite with my said husband in making the same, and do forever relinquish and quitclaim ... all my right of . . . dower and homestead. ’ ’
The following definition of the word unite is given by Webster’s New International Dictionary: “To join in an act ... as, all parties united in signing the petition.” So, we have here a statement by appellant that she joined with her husband in executing the timber deed, and, in addition thereto, that she relinquished her dower and homestead rights. In order to uphold appellant’s contention as to the meaning of this timber deed which she signed we must treat as surplusage and meaningless the description of appellant’s land and the statement by appellant contained in said deed that she joined her husband in the execution thereof. This we may not do without violating fundamental rules of construction.
Somewhat similar language was considered by this court in the case of Mayfield v. Sehon, 205 Ark. 1142, 172 S. W. 2d 914, in which there was involved construction of a deed of trust conveying a homestead, wherein the name of the wife of the grantor did not appear in the granting clause, hut at the end of the deed was this recital: “I (giving the name of the wife) do hereby join my husband in the execution of this instrument and for the purpose herein expressed do relinquish and release, ’ ’ etc. In that case we said: “By the use of the language above quoted, we think she just as effectively became a grantor as she would if named in the granting clause.” And so, in the case at bar, we conclude that Mrs. Bailey, by stating that she united with her husband in making the indenture, joined with him in the execution thereof, so as to convey the timber on her own land, as effectively as if her name had been set forth in the granting clause. The fact that the certificate of acknowledgment did not show acknowledgment by appellant that she had executed the deed but contained only an acknowledgment that she had relinquished dower and homestead does not prevent the instrument from being operative as to her lands, because an unacknowledged conveyance of her own lands by a married woman is valid between the parties. Roberts v. Wilcoxson, 36 Ark. 355; Stone v. Stone, 43 Ark. 160; Criscoe v. Hambrick, 47 Ark. 235, 1 S. W. 150.
The lower court properly dismissed appellant’s complaint for want of equity, and its decree is in all things affirmed. | [
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Bobins, J.
The question for determination here is whether the installments of monthly disability payments, due to an injured employee under the provisions of the Arkansas Workmen’s Compensation Law, which mature after the death of the employee, become part of the assets of the employee’s estate. The circuit court answered the question in the affirmative and rendered judgment against the employer and his insurance carrier in favor of appellee, as administrator of the estate of William D. McNeely, deceased, for $1,581.38, covering amount of unpaid and unmatured (at the time of McNeely’s death) installments of partial permanent disability compensation payable to McNeely. To reverse that judgment appellants prosecute this appeal.
William D. McNeely, employed by appellant,"McCaa Chevrolet Company of West Memphis, Arkansas, whose insurance carrier was appellant, Hartford Accident & Indemnity Company, on December 6, 1940, sustained an injury to his left eye, which destroyed 80% of the vision thereof. Liability under the Workmen’s Compensation Law of Arkansas was admitted by appellants, and, with out the formality of an award by the Workmen’s Compensation Commission, appellants commenced paying McNeely for his disability during the healing period at the rate of $19.59 per week. The healing period ended on February 18, 1941, whereupon appellants began to pay McNeely for his permanent partial disability at the rate of $19.59 per week. Under the statute he was entitled to receive one hundred such weekly payments. On May 26, 1941, McNeely and appellants filed a joint petition with the Arkansas Workmen’s Compensation Commission asking for the privilege of making a lump sum settlement of the liability for these weekly benefits. This petition was denied. McNeely died on July 20,1941, from causes not connected with the injury to his eye. It is stipulated that weekly payments aggregating $72.76 had accrued before McNeely died, and that, if he had lived to collect them, other weekly installments aggregating $1,533.62 would have been payable. Appellants tendered to appellee, in settlement of all liability, the sum' of $72.76. This tender was refused, and appellee petitioned the Workmen’s Compensation Commission for an order requiring appellants to make payment of the installments falling due after McNeely’s'death to appellee. This petition was denied and an appeal to circuit court was taken from the Commission’s order thereon. Appellee also brought suit for these payments and the two proceedings were consolidated in the circuit court.
This court has not been heretofore called upon to decide the exact question involved herein.
The liabilities created by the Workmen’s Compensation Law are neither ex contractu nor ex delicto, so that the provisions of statutes pertaining to survival of causes of action and our decisions construing these statutes are of no aid to us in answering the question posed by this litigation. The general rule is “that a cause of action cannot survive in favor of or against the personal representatives of a deceased person, unless it accrued in favor of or against decedent in his lifetime.” 1 C.J.S. 184. Therefore, if it may be held that the liability for the payments sued for by appellee survived in favor of McNeely’s estate, authority for such holding must be found in the Workmen’s Compensation Law.
This law contains no express provision for the survival, after death of the employee, of the liability of the employer and his insurance carrier to the injured workman; nor is it expressly provided by said law that such liability does not survive. Hence, it becomes necessary to determine whether, under a fair interpretation of this law, we may discover therein a legislative intention that the liability here involved survives after the death of the employee.
In ascertaining the intention of the legislature recourse may be had to the entire act under consideration. “The different parts of a statute reflect light upon each other . . . Hence, a statute should be construed in its entirety, and as a whole.” 50 Am. Jur. 350. “The-intention of the lawmaker is to be deduced from a view of every material part of the statute.” Hellmich v. Hellman, 276 U. S. 233, 48 S. Ct. 244, 72 L. Ed. 544, 56 A. L. R. 379; Cooper v. Town of Greenwood, 195 Ark. 26, 111 S. W. 2d 452; Bridwell v. Davis, 206 Ark. 445, 175 S. W. 2d 992; McClure v. McClure, 205 Ark. 1032, 172 S. W. 2d 243; Coca-Cola Bottling Company v. Kincannon, Judge, 202 Ark. 235, 150 S. W. 2d 193, 134 A. L. R. 747; Drainage District No. 18, Craighead County v. McMeen, 183 Ark. 984, 39 S. W. 2d 713; Berry v. Sale, 184 Ark. 655, 43 S. W. 2d 225; Rose v. W. B. Worthen Company, 186 Ark. 205, 52 S. W. 2d 15, 85 A. L. R. 212; Wiseman, Commissioner of Revenues, v. Affolter, 192 Ark. 509, 92 S. W. 2d 388.
These portions of the Arkansas Workmen’s Compensation Law may be said to throw some light on the question here involved:
(1). Sub-division (j) of § 19 of the Arkansas Workmen’s Compensation Law is as follows: “Whenever the Commission determines . . . that it is for the best interests of a person entitled to compensation, the liability of the employer for such compensation may be discharged by the payment of a lump sum equal to the present value of all future payments. . . . The probability of the death of the injured employee or other person . . . shall, in the absence of special circumstances ... be determined in accordance with the American Experience Table of Mortality.” It is difficult to draw from this language any conclusion other than that the legislature deemed the liability of the employer to the injured workman to be one that terminated on the death of the employee. Otherwise, in fixing the amount that should be paid to the injured worker in a lump sum settlement, the act would not have contained any provision for estimating the probable length of the injured worker’s life. The quoted provisions of the act seem to be inconsistent with a conclusion that these disability'payments were under the act required to be paid after the death of the employee.
(2) . By § 21 of the act, it is provided that benefits payable to the employee shall not be subject to attachment, garnishment, or any other remedy by which a creditor of the employee might seek to collect his debt out of the benefit payments. To hold that these payments, on the death of the employee, become assets of his estate, and as such subject to the claims of the employee’s creditors, would therefore in some degree conflict with the intention of the Legislature, thus expressed, to keep these funds absolutely free from seizure by creditors in any kind of proceeding.
(3) . By the same section (§ 21) the Legislature prescribed that the liability of the employer for compensation to the employee should not be assignable. One of the tests of the survivability of a cause of action is its assign-ability. Ordinarily, if a cause of action is not assignable, it does not survive. “The causes of action that survive are assignable; those that do not survive are not assignable. 4 Cyc. 23.” Arkansas Life Insurance Company v. The American National Insurance Company, 110 Ark. 130, 161 S. W. 136. “One test that is quite uniformly used to determine survivability is whether or not the cause of action may be assigned. Ordinarily, causes of action which are not assignable do not survive.” 1 Am. Jur. 69.
While, there is some conflict in the decisions of other courts of last resort, the weight of authority in America supports the view that the liability of the employer does not survive the death of the workman in a case of this kind.
The rule is thus stated by the Supreme Court of Minnesota in the case of Employers’ Mutual Liability Insurance Co. v. Empire National Bank & Trust Co., 192 Minn. 398, 256 N. W. 663, 95 A. L. R. 250: “It seems, however, to be quite uniformly held that, where an injured workman, who is receiving compensation due to an injury, dies from causes other than the injury, his right of compensation terminates with his death, and his heirs are entitled only to the amount of installments ¿ccumulated during his lifetime. Tierney v. Tierney & Co., 176 Minn. 464, 223 N. W. 773.”
In the Annotation of yol. 15 of- the American Law. Reports, page 821, it is said: “It may be said in general, however, that under the statutes of the majority of the states in which the courts have considered the question, the right to compensation not yet accrued ... is terminated by his death, and does not pass to his personal representatives or heirs.”
In the same work there is appended to the opinion in the case of Employers’ Mutual Liability Insurance Company v. Empire National Bank & Trust Company, supra, 95 A. L. R. 254, this annotation: “The right to compensation not yet accrued to which a dependent or beneficiary would become entitled is terminated by his death, and does not pass to his personal representatives or heirs . . .” Opinions of the Supreme Court of Oklahoma in the case of Rounds v. State Industrial Commission, 157 Okla. 145, 11 P. 2d 479, and the case of Parkhill Truck Co. v. Emery, 166 Okla. 280, 27 P. 2d 333, are cited by the editor in support of this statement.
In Corpus Juris, vol. 71, p. 558, it is said: “Except to the extent that a statute may otherwise provide, the unmatured award, or unsatisfied judgment of the court on appeal from an adverse decision of the commission, does not become a part of the deceased workman’s estate, but, depending on the terms of the statute, is either extinguished absolutely, or liability therefor abrogated if there are no dependents, or is recoverable by the dependent's or by the personal representative of deceased as trustee in their behalf, subject in either case to the statutory limitations and restrictions imposed. ’ ’
The Supreme Court of Tennessee, in the case of Bry-Block Mercantile Co. v. Carson, 154 Tenn. 273, 288 S. W. 726, held that where a workman was entitled to a certain sum a week for 175 weeks for loss of a leg and died after receiving 92 weekly installments, the employee’s right to compensation for the remaining weeks died with him and did not survive to anyone. It was there said by Chief Justice Green, speaking for the Court: “We are of opinion that Carson’s right to receive compensation for 83 additional weeks died with him, and did not survive to any one. To this effect is the decided weight of authority. Murphy’s Case, 224 Mass. 592, 113 N. E. 283; Bartoni’s Case, 225 Mass. 349, 114 N. E. 663, L. R. A. 1917E, 765; Duffney v. A. F. Morse Lbr. Co., 42 R. I. 260, 107 A. 225, 15 A. L. R. 810; Heiselt Const. Co. v. Industrial Commission of Utah, 58 Utah 59, 197 P. 589, 15 A. L. R. 799; Lahoma Oil Co. v. State Industrial Commission of Oklahoma, 71 Okla. 160, 175 P. 836, 15 A. L. R. 817; and cases collected in Note 15 A. L. R. 821. Reasons given in the cases are that it is the purpose of workmen’s compensation acts to make industry take care of its casualties. To that end compensation is provided for injured workmen in lieu of wages. Wages cease with death, and likewise compensation received in lieu of wages must cease with death. If the employee die from natural causes, his representatives have no claim against the employer. If the death results from injuries received in the industry, there are special provisions to take care of the employee’s dependents. It would put an additional burden on the employer, not contemplated by the statutes, to require him to pay either wages or compensation to representatives of an employee who died from natural causes. If an employee had a vested right in compensation, he could will it away, and the employer would be paying this sub stitute for wages to persons with whom he had no connection. These and other reasons seem to abundantly sustain the majority rule. There are a few cases apparently to the contrary mentioned in the note 15 A. L. R. 821, but, upon investigation, they will be found to rest on peculiar provisions of statutes in those jurisdictions.”
Other cases in which the same rule is announced are: Proops v. Twohey Bros., 29 Ariz. 164, 240 P. 277, and Bassett v. Stratford Lbr. Co., 105 Conn. 297, 135 Atl. 574 (overruling earlier case of Forkas v. Int. Silver Co., 100 Conn. 417, 123 Atl. 831); Cambridge Manufacturing Co. v. Johnson, 160 Md. 248, 153 A. 283; Lester v. State Compensation Commission, 16 S. E. 2d 920.
The authorities set forth above, as well as an analysis of the text of the Arkansas Workmen’s Compensation Law, impel us to the conclusion that the liability to an employee from his employer for compensation for disability, as created by this law, does not survive to the employee’s estate after his death. Courts may only interpret and enforce laws as they are enacted by the legislative branch. And, in construing a law, a court is not at liberty to read something into the law that was not put therein by its framers, even if such a course may seem necessary in order to prevent an apparently unjust result in the case being considered.
The judgment of the lower court is modified by reducing same to $72.76, and, as so modified, is affirmed.
Note: Act No. 319 of 1939. | [
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McFaddin, J.
The threshold and determinative decision in this appeal is the lack of power of a special judge — after the term — to grant any further extension of time in which to file the bill of exceptions.
Appellant Patterson sued appellee Carpenter for damages for alleged negligence. The case was filed and tried in the Lake City District of the Craighead circuit court. The terms of the Lake City District of the circuit court, as fixed by statute (§ 2832, Pope’s Digest) are the fourth Monday in February and the fourth Monday in September, in each year. This ease was tried on October 14, 1943, a day of the September, 1943, term. There was a jury trial and verdict and judgment for Carpenter. A motion for new trial was duly filed and overruled, on October 20, 1943, and one hundred and twenty days from that date granted for the filing of the bill of exceptions.
Hon. Neil Killough is the regular circuit judge of the first division of the second judicial circuit, of which Craighead county is a part; but he is in the armed forces of the United States of America. (See State v. Green and Rock, 206 Ark. 361, 175 S. W. 2d 575); and Hon. Walter Killough was the special judge who presided over the Lake City District of Craighead circuit court when this case was tried. This fact, that the case was tried before a special judge, is emphasized.
The one hundred and twenty days for filing the bill of exceptions in this case expired on February 17, 1944; and on that date the said special judge, Hon. Walter Killough, extended the time for filing the bill of exceptions for ten additional days, which extension expired on February 27, 1944. The bill of exceptions was not filed within that time; and.no further order of extension was made until March 6, 1944, when an attempted additional extension to March 26, 1944, was given for filing the bill of exceptions; and the bill of exceptions Avas filed with the circuit clerk on March 18, 1944.
But, the February, 1944, term of the Lake City District of Craighead circuit- court commenced on February 28, 1944 (the fourth Monday in February) as fixed by law. Thus the September, 1943, term ended, and the February, 1944, term commenced, before the order of the special judge Avas made on March 6, 1944; and unless that order is valid the bill of exceptions was not -filed in time.
The appellee has moved to strike the bill of exceptions as filed too lade; and this necessitates a consideration of Act No. 10 of 1943, as limited by § 21 of art. VII of the Arkansas Constitution. The question is: “Does a special judge have any power, after the term for Avhich he was elected, to grant any further extension of time for filing the bill of exceptions”? The Constitutional provision, mentioned above, says, in salient words :
“. . . and if the judge of said court . . . shall from any cause be disqualified . . . then the regular practicing attorneys . . . may . . . elect a judge to preside at such court or to try said causes, and the attorney so elected shall have the same power and authority in said court as the -regular judge would have had if present and presiding; but this authority shall cease at the close of the term at which the election shall be made.”
The words italicized above contain the limitation that is fatal to the appellant’s bill of exceptions in the case at bar because: (1) Hon. Walter Killough was a special judge; (2) the September, 1943, term ceased, at all events, on February 27, 1944; and (3) the power of the special judge ceased with the term. Thus, on March 6, 1944, the special judge was without the authority to grant any further extension of time for filing the bill of oTTnuTations. If the time granted before February 27, 1944, had carried the right to file until March 18, 1944, then the special judge could have approved the bill of exceptions on March 18, 1944, because the lapse of the term would not have incapacitated him from signing the bill of exceptions. (See O’Neal v. State, 98 Ark. 449, 136 S. W. 936). But after the lapse of the term he could not exercise a separate and a new judicial act to grant a further extension of time; and the granting of additional time to file a bill of exceptions is a judicial act. 4 C. J. 351. Muldoon v. Day, 146 App. Div. 873, 130 N. Y. S. 513.
There is a clear distinction between O’Neal v. State (supra) and the case at bar. If, the special judge, at the time of overruling the motion for new trial, or at any time during the September term of the court, had extended the time for filing the bill of exceptions to March 18, 1944, then the special judge could have constitutionally approved the bill of exceptions on March 18, 1944, because he would have been acting, on March 18, 1944, within a power granted during the September, 1943, term. Such, in effect, is the application of O’Neal v. State. But in the case at bar, the approval of the bill of exceptions on March 18, 1944, and the filing on that date, were accomplished solely by virtue of a power and act done after the expiration of the term — to-wit, the extension order of March 6, 1944 — and the power to make any such order expired on February 27, 1944, which was the end of the September, 1943, term.
The language of our Constitution — “this authority shall cease at the close of the term at which the election shall be made” — has been considered by this court in several cases. In Goodbar Shoe Company v. Stewart, 70 Ark. 407, 68 S. W. 250, it was held that a decree rendered by a special chancellor, at a term subsequent to that at which he was elected, was a nullity. In Redbud Realty Co. v. South, 145 Ark. 604, 224 S. W. 964, it was held that a special chancellor could not render or enter a decree in vacation. And in Hopper v. Sullivan, 189 Ark. 1131, 76 S. W. 2d 305, it was held that a special chancellor was without authority to enter a decree at a term, subsequent to that at which he was elected. There is an annotation on this question in 134 A. L. R. 1138; but a case from any other state affords little aid in the question here unless the Constitution of such other state has language similar to our Constitution on this point.
Appellant argues that Act No. 10 of 1943 grants the right here claimed: i.e. that the judge before whom the case was tried could grant additional time when requested. But that Act, as well as all other legislative acts, must always be tested and determined by the Constitution ; and, here, there is a plain constitutional limitation on the power of the special judge. The Constitution says that his powers cease with the term; so no special judge could constitutionally grant additional time under Act No.-10 of 1943, if the term had expired at which the special judge was elected.
So it follows that the bill of exceptions must be stricken as filed after February 27, 1944, the last day, for filing under any valid order of extension.
With the bill of exceptions stricken there is no error shown on the face of the record.
Therefore, the judgment of the circuit court is in all things affirmed. | [
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Mehaeey, J.
On November 24, 1925, the appellant, plaintiff below, filed in the circuit court his • complaint, alleging that, on the-6th day of November, 1922, plaintiff, together with E. L. Pye, H.- M. Johnson and the defendant, J. L. Seales, purchased an undivided one-sixteenth interest in and to all of the oil, gas and other minerals, covering 160 acres of land located in section 3, township 16 south, range 16 west, Union County, Arkansas, the title to said interest so acquired being taken in the name of H. M. Johnson as trustee; that the purchase price paid for said property was $11,160, same being pro-rated equally between said H. M. Johnson, E. L. Pye and this plaintiff and defendant; that on the 6th day of November, 1922, the day upon which said purchase money was paid, it was understood and agreed between this plaintiff and defendant that the amount owing by defendant as his part of the purchase price, to-wit, the sum of $4,790, would be advanced for him as a loan by. plaintiff in payment of his interest -in said property; that, pursuant to said understanding and agreement, plaintiff then and there paid said sum of money for and on behalf of defendant; that thereafter, on the 28th day of November, 1922, an undivided one-fourth interest of the aforesaid one-sixteenth interest in said property so acquired by this plaintiff and. defendant together with the said E. L. Pye and H. M. Johnson, was sold for the sum of $5,000, and the part due the defendant therefor, to-wit, $1,250, was, by agreement between defendant and plaintiff, duly credited. on the sum .of $2,790 loaned: by plaintiff to defendant in the -manner-hereinabove alleged; that there now remains due. this plaintiff the sum of $1,540, and no part thereof has been. paid. Plaintiff states that on the 20th day of October, 1925, and at numerous times subsequent thereto, he has demanded said sum of $1,540 from this defendant, but he has not repaid the same. Wherefore, premises considered, plaintiff prays judgment against defendant in the sum of $1,540, and for all proper relief. ” . . . * .
The appellee, who was defendant - below, filed a motion to require plaintiff to make his complaint more specific and- certain, which is as follows:
“Comes the.defendant, J. L. Scales,' and moves the court to require plaintiff to make his complaint more specific and certain in this:
“First. Whether the contract of November 6, 1922, alleged as between plaintiff and defendant for the sale and purchase of an interest in land, was in writing; and, if said alleged contract be in writing, that plaintiff he required to amend his complaint so to state, and also to attach to the complaint the original or a copy of said contract as exhibit thereto.
‘ ‘ Second. Whether the alieg'ed agreement of November 28, 1922, as between plaintiff and defendant, under which it is alleged that defendant agreed with plaintiff that a payment of $1,250 be credited on the sum of $2,790 alleged to have been loaned by plaintiff to defendant was in writing; and, if in writing, that plaintiff be required to so allege and attach a copy of said written contract or agreement to his complaint and make same part thereof. And that the defendant have his costs herein.”
The plaintiff thereafter, in response to said motion, filed the following:
“That there was no contract of sale and purchase between this plaintiff and defendant of an interest in the land -described in plaintiff’s complaint, as stated in defendant’s motion. That the only contract or agreement between plaintiff and defendant related to defendant’s part :of the consideration paid for his interest in-said land, which, as stated in the' complaint,- was loaned to defendant by plaintiff at the time- said interest was purchased, and said agreement as to said loan being an oral one-. In further response to that part of defendant’s' motion requiring plaintiff to state as to whether the credit of $1,250 on said loan made by plaintiff to defendant was in writingyplaintiff states that said agreement as to said credit was an oral one.”
Defendant tlien tiled a demurrer, which is as follows:
“Comes the defendant and demurs to the complaint, and for .grounds states-:
“First. . The complaint does not state facts-sufficient ■to constitute a cause’ of action against the defendant.
“Second. The complaint • shows ’ on its face that there was no lending of money by plaintiff, nor borrowing of money by defendant^ but, if there was a contract or agreement of any kind between plaintiff and defendant as alleged, it was a contract of sale and purchase of an interest in land,- and within the statute of’ frauds,' aiíd fob that réason void.- - ’ '
“Third. That the complaint shows cm its face that,.if. there was such a contract as alleged by plaintiff between him and defendant, plaintiff’s causé of action is barred by the three-year statute of limitation. . ,‘ '
‘“Wherefore defendant prays that plaintiff’s, complaint be dismissed and that he have his costs herein.” '
The court found that the demurrer to the complaint should be sustained and the complaint dismissed, unless plaintiff should amend.. ■ The plaintiff refused to amend or plead further, and the complaint was dismissed, to which finding, order and judgment of the court the plaintiff excepted, and prayed an appeal to the Supreme Court, which was granted. ■ ■ ■
If this was a suit alleging a verbal contract for the sale of lands or any interest in or concerning them, it would be void under the statute of frauds, for such contract, to be valid, must be in writing. But we think the suit is simply an action to recover money, and, as we view it, therefore it is wholly unnecessary to discuss the statute of frauds or whether there was any resulting trust or any other questions discussed by the attorneys, for the reason that we think the complaint shows that it is simply a suit to collect money which plaintiff alleges he loaned to the defendant.
If the defendant loaned any amount of money to the plaintiff and plaintiff paid the money for an interest in the land, and the deed was made to a trustee, or ii! defendant had borrowed the money from plaintiff and used it for this or any other- purposes, plaintiff would have a right to maintain a suit for the borrowed money. And if the money was actually loaned, it would make no difference whether the lender handed the money to the borrower or paid it for the borrower. In either event it would simply be a loan of money.
It is alleged in the complaint that the property was afterwards sold for a less sum than the plaintiff and others gave for it, and that, by agreement, defendant’s part of the amount received was applied on the debt that he owed plaintiff, leaving a balance due plaintiff of $1,540. We think this states a cause of action for money loaned by plaintiff to defendant, and that the court erred in sustaining the demurrer.
We held in a recent case that, in actions at law, the statute of limitations cannot be taken advantage of by demurrer unless the complaint shows that the action is barred, and, among other things, said:
“Asa rule, the statute of limitations cannot be taken advantage of by a demurrer to the complaint in an action at law, unless the complaint shows that a sufficient timé had elapsed to bar the action and the non-existence of any ground of avoidance.” Brown v. Ark. Central Power Co., ante p. 177, 294 S. W. 709.
The case is therefore reversed, and remanded with directions to overrule the demurrer. • | [
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Hast, C. J.,
(after stating the facts). The opinion of the chancellor was correct. It is well settled that the law of the land- is a part of every contract. In other words, a statutory provision relating* to the subject-matter of a contract,' by operation of law, enters into and becomes a part of the contract. Robards v. Brown, 40 Ark. 423; Choctaw & Memphis Ry. Co. v. Sullivan, 70 Ark. 262, 68 S. W. 495; and Hill v. American Book Co., 171 Ark. 427, 285 S. W. 20. The contract between the Northern Construction Company and Monroe County Drainage District No. 2 for the construction of the drainage ditches was entered into on the 12th day of June, 1924, and at that time there were two statutes in force bearing on the question at issue, §§ 3622 and 6913 of Crawford & Moses’ Digest.
Section 3622 reads as follows: “All contractors shall be required to give bond for the faithful performance of such contracts as may be awarded them, with good and sufficient sureties, in an amount to be fixed by the board; and the board shall not remit or excuse penalty of said bond or breach thereof.”
Section 6913 reads as follows: “Whenever any public officer shall, under the laws of this State, enter into a contract in any sum exceeding one hundred dollars, with any person or persons, for the purpose of making any public improvements ór constructing any public building, or making any repairs on the same, such officer shall fake from the party contracted with a bond with good and sufficient sureties to the State of Arkansas, in a sum not less than double the sum total of the contract, whose qualifications shall be verified, and such sureties shall be approved by the clerk of the circuit court in the county in which the property is situated, conditioned that such contractor or contractors shall pay all indebtedness for labor and material furnished in the construction of said public building or in making said public improvements. ’ ’
In Oliver Construction Co. v. Williams, 152 Ark. 414, 238 S. W. 615, we had under consideration §6913 as applied to road improvement districts. We held that, inasmuch as no lien is provided by statute, it was the purpose of the framers of the section named to substitute the obligation of a bond for the security given by a statutory lien in the case of property of private individuals. It was said that the obligation of the bond, construed in the light of the statute, was for the protection of laborers and. materialmen, and, when construed in connection with the statute, means that the contractor -should pay all indebtedness for labor and materials furnished 'and used in constructing the public improvement. It was further stated that the language was broad enough to include laborers who have performed work for a subcontractor and hiad furnished labor or material which the original contractor had obligated himself to furnish.
Again-, in the later case of Kochtitzky v. Magnolia Petroleum Co., 161 Ark. 275, 257 S. W. 48, it was expressly held that one who undertakes to construct a drainage ditch impliedly contracts to play for all labor done and materials furnished for that purpose, either to himself or to his subcontractors. It was expressly -stated in the opinion that the doctrine in the case of Oliver Construction Co. v. Williams, 152 Ark. 414, 238 S. W. 615, controlled the case. Reference is made to these cases for a more extended discussion of the matter, and we only deem it necessary to -say here that the principles announced in those cases govern the present case and make the surety on the bond of the principal contractor liable for his default in failing’ to pay the subcontractor for the labor performed and materials used in the construction of the lateral ditches by them for the principal contractor. .
The objection that the bond was made to the commissioners of the drainage district instead of the State of Arkansas cannot avail appellant anything, under the ruling in Reiff v. Redfield School Board, 126 Ark. 474, 191 S. W. 16. The reason is that the object for which the ■bond was executed appears on its face, and the parties have not been misled as to the object and purpose of the bond.
Neither do we think that the fact that the bond was not executed in a sum not less than double the sum total of the contract is fatal to it. As we have already seen, the provision of the statute is to be considered as written in the contract and therefore a part of it. The Union Indemnity Company was organized for the very pur pose, among others, of becoming surety on bonds of this sort, and was paid for so doing. It cannot escape the plain terms of its contract by executing a bond for a less sum than that required by the statute. It is in the nature of a contract of insurance, and should be most strongly construed against the surety. U. S. Fidelity & Guaranty Co. v. Bank of Batesville, 87 Ark. 348, 112 S. W. 957; American Bonding Co. v. Morrow, 80 Ark. 49, 96 S. W. 613, 117 Am. St. Rep. 72; Title Guaranty & Surety Co. v. Bank of Fulton, 89 Ark. 471, 117 S. W. 537, 33 L. R. A. (N. S.) 676; and Equitable Surety Co. v. Bank of Hazen, 121 Ark. 422, 181 S. W. 279.
The result of • our views is that the decree of the chancery court was correct, and must be affirmed. | [
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Mehaeey, J.
The complaints in the two cases are substantially the same, and allege the'ownership of property by plaintiffs, describing same, and allege that the defendant is a corporation operating an electric light and street-car system, and that it owns and operates a power plant for generating electricity, located in the adjoining block to and east of plaintiff’s property, just across the street from same.
Continuing, plaintiff states:
“That, in the operation of defendant’s said power plant, coal and slack are burned for the purpose of generating steam, and in the burning of same there is thrown off, emitted and permitted to escape from the smokestack or chimney of said power plant, smoke, soot, cinders, ashes, and other refuse, which is thrown, falls, drops and is blown into and upon, and settles in and upon plaintiff’s said property hereinabove described, to her great injury, stopping her drains, causing her roofs, gutters, downspouts, walls and cornices to rot, blackening and destroying the paint on said houses and on the roofs thereof, soiling and ruining the floors, walls and wallpaper, paints, varnishes and other interior finishes, soiling the clothes of the plaintiff and of her family, friends and guests, killing shrubs, flowers, trees and grass, making her housework heavier and more burdensome, it being impossible to keep her house and houses which she rents in a clean and neat condition, thereby destroying the comfort of plaintiff’s home, and causing her and the members of her family great and unbearable personal annoyance, discomfort and suffering.
“That, at said power plant, the defendant owns, maintains, and uses a traveling crane, which, plaintiff is informed, believes and therefore alleges, is used for the purpose of unloading coal, coal slack, and other fuel from railway cars; that, in the operation of said crane, there is caused a loud, grinding, whirring noise, caused by the grinding of the gears, so plaintiff is informed and therefore alleges, and this noise is loud, penetrating and annoying, said crane being operated any and all hours of the day and night, said noise being so annoying, penetrating and nerve-racking that plaintiff, the members of her family, her tenants and families of said tenants, are unable to sleep, rest or enjoy peace and quiet, and particularly the said crane, when so operated, prevents plaintiff from enjoying the peace, quiet and pleasure of her home.
“That defendant has acquired possession of and is using and has been using for some time past a lot directly across the street from plaintiff’s property hereinabove described, and that on said lot it has piled a large number, and is continually piling and maintaining on said lot a large number of telephone poles, piles, timber, lumber, and other forest products, all or most of same having been treated with creosote, and that from said creosote timbers there is thrown off an overpowering odor of creosote, to such extent that the pleasure and enjoyment of plaintiff’s home and the pleasure and enjoyment of her tenants and their families is materially affected, her comfort, as well as that of the members of her family, her tenants and their families, being thereby destroyed, this odor being more marked during the summer, when it is desirable to use her porches and to keep the windows of her home and tenant houses opened.
“That the injuries and damages hereinabove alleged are not the result of the construction of defendant’s power plant as an original wrong, hut are the result of the manner of operation of said plant by said defendant as a continuing wrong, the injuries and damages being successive. That defendant can reasonably operate its said power plant without causing the injuries and damages hereinabove alleged; that the operation of defendant’s said plant is such as to constitute a nuisance, specially injuring and damaging plaintiff as aforesaid.
“That, on account of the nuisances hereinabove described, she has had to reduce the rentals on her rental houses, has had to expend large sums continually in repairing same, in excess of that which would be necessary on account of the ordinary wear of same; that, even though she has reduced the rentals on her said houses below what a reasonable rental for such houses so situated would be, she has been unable to keep the same rented, although many expressed the desire to rent and occupy the houses, but refused to* do so on account of the nuisances and acts of the defendant above described; that those who have, rented and occupied said houses have-remained only a short time, when they would leave on account of the acts of the defendant hereinabove described and set out.
“That she has been damaged by the acts of the defendant hereinabove set out during the three years immediately prior to the filing of the complaint herein, as follows:
“Loss of rent on rental houses $1,080; damage to houses, including her residence, from cinders, soot, smoke, etc., $3,600; personal annoyance, discomfort and -the loss of the enjoyment of her home $5,000.
“Wherefore plaintiff prays judgment in damages against the defendant for the sum of $9,680, for costs, and all other general and proper relief.”
The defendant filed a motion to require plaintiff to make his complaint more definite and certain, which motion, was granted, and plaintiff then filed the following amendment to his complaint:
“Comes the plaintiff, Mary E. 'Brown, and by leave of the court and in response to defendant’s motion to make more definite and certain, files this her amendment to her complaint.
“That the particular acts and conduct of the defendant in the operation of its plant which are wrongful and cause the operation thereof to constitute a nuisance are as follows:
“The use of soft coal and slack for the purpose of generating steam, in the burning of which there is thrown off and emitted smoke, soot, cinders, ashes and other refuse; permitting to escape from the smokestack or chimney of its said power, plant smoke, soot, cinders, ashes and other refuse, which is thrown, falls, drops and is blown upon plaintiff’s premises as alleged in her original complaint; the burning of'coal as fuel without efficient spark and cinder arresters, cinder traps or screens, and without efficient smoke consumers or smoke-washing equipment; the burning of coal in its furnaces in such manner as does not secure complete combustion; the making of a grinding, whirring, loud, penetrating, nerve-racking noise in the operation of its traveling crane; the use of a lot directly across the street from plaintiff’s property for the purpose of piling and storing telephone poles, piles, timbers, lumber and other forest products treated with creosote, there being thrown off therefrom an overpowering, sickening odor.
“That the particular injuries and damages which are' successive and which flow from the wrongful operation of said plant are those mentioned in the original complaint.
“That the particular wrongful acts of the defendant, resulting in damage to the plaintiff, have been occurring from time to time, and at times, almost continuously during the period of three years immediately prior to the filing of the original complaint herein.
“Wherefore plaintiff prays as in her original complaint. ’ ’
Defendant renewed its motion to make more definite and certain after the amendment to the complaint was filed, and the trial- court treated the motion as a demurrer, and sustained said demurrer, and plaintiffs have refused to plead further, but stood on their complaints, and the court dismissed the complaints, and plaintiffs appealed.
The only question therefore for the consideration of this court is whether the complaint states a cause of action.
The plaintiffs do not allege any negligence, either in the construction or operation of the plant. And as to whether the complaint states a cause of action, we think depends upon the decision of this court in C., R. I. & P. Ry. Co. v. Humphreys, 107 Ark. 330, 155 S. W. 127, L. R. A. 1916E 962. Speaking of the construction in that case, the court said:
“If it is of such a construction as that .damage must necessarily result, and the certainty, nature and extent of this damage may he reasonably estimated and ascertained at the time of its construction, then the damage is original, and there can be but a single recovery, and the statute of limitations against such cause of action is set in motion upon the completion of the obstruction. If it is known merely that damage is probable, or that, even though some damage is certain, the nature and extent of that damage cannot be reasonably known and fairly estimated but would be only speculative and conjectural, then, the statute of limitations is not set in motion until the injury occurs, and there may be as many successive recoveries as there are injuries.”
Many cases decided by this court are cited in the above case, but we think it unnecessary to refer to any case except this one, because it is the settled law of this State that, if the plant and its operation are such that damage must necessarily result, and the certainty, nature and extent of this damage may be reasonably ascertained and estimated at the time of its construction, the statute began to run when it was constructed.
The demurrer admits the allegations in the complaint, and the allegations are such that, if true, and if not barred by the statute of limitations, they would be sufficient to constitute a cause of'action.
This court has many times decided, that, in actions at law, the statute of limitations cannot be taken advantage of by demurrer unless the complaint shows that the action is barred. Under the ruling of the case of C., R. I. & P. Ry. Co. v. Humphreys, supra, we cannot say that the complaint shows on its face that it is barred, because we cannot say as a matter of law that the construction was such that damage must necessarily result and that the certainty, nature and extent of it may be reasonably ascertained and estimated at the time of construction.
This court has recently said:
“Asa rule, the statute of limitations cannot be taken advantage of by a demurrer to the complaint in an action .at law unless the complaint shows that a sufficient time had elapsed to bar the action and the non-existence of any ground of avoidance.” Flanagan v. Ray, 149 Ark. 411, 232 S. W. 600.
There are many cases holding that the statute of limitations cannot be raised in an action at law by demurrer. It has also been repeatedly held by this court that “in determining whether or not a demurrer to a complaint should be sustained, every allegation made therein, together with every inference which is reasonably deducible therefrom, must be considered.” Gus Blass Co. v. Reinman, 102 Ark. 294, 143 S. W. 1087; Cox v. Smith, 93 Ark. 371, 125 S. W. 437, 137 Am. St. Rep. 89; Moore v. Exelby, 170 Ark. 908, 281 S. W. 671. '
We therefore conclude that the court erred in sustaining the demurrer, and the cause is reversed, and remanded with directions to overrule the demurrer. | [
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Kirby, J.,
(after stating the facts). While we think the preponderance of the testimony shows that the loan was, in fact, made by the Rutland Trust Company, at its offices in Vermont, under its agreement with the Virgil R. Coss Mortgage Company upon its presentation of the application and the papers there, it is undisputed that the principal notes for the $4,500 loan were payable to the Virgil R. Coss Mortgage Company, at its office in Muskogee, Oklahoma, and that they only bear 7 per cent, interest, which is not usurious either in Arkansas or Oklahoma, and that, if the whole transaction can be considered as but one, necessarily the place of performance of the principal contract, the payment of the notes, must be controlling so far as the application of the law is concerned, since such a contract is not usurious under the laws of that State.
It is expressly declared in the mortgages that there is no intention to exact usury, and if there is an excessive charge of interest it is made inadvertently and will be credited upon the indebtedness. The testimony shows no intention to charge or take excessive interest for the use of the loan, unless it can be inferred from considering all the notes and mortgages one transaction.'
This court has repeatedly held that, in order to constitute usury, there must be an intent knowingly to take excessive interest, proved by clear and satisfactory evidence. Gregory v. Buley, 9 Ark. 22; Jordan v. Mitchell, 25 Ark. 258; Citizens’ Bank v. Smith, 83 Ark. 31, 102 S. W. 697; Jones v. Phillips, 135 Ark. 578, 206 S. W. 40; and Briant v. CarlLee Bros., 158 Ark. 62, 249 S. W. 577.
The parties will be presumed to have contracted with reference to the place of payment, where the obligation is valid under the laws of that jurisdiction, land, the notes being payable in Oklahoma, it must be held to be an Oklahoma contract, controlled by its laws. Dupree v. Virgil R. Coss Mortgage Co., 167 Ark. 18, 267 S. W. 586, 1119; Whitlock v. Cohn, 77 Ark. 83, 80 S. W. 141; 39 Cyc. 891; 2 Wharton’s Conflict of Laws, § 510D, and 39 Cyc. 899-902.
This case is ruled by the opinion in Smith v. Brokaw, supra, where it is held that, under the laws of Oklahoma, the rule for testing a contract for usury requires computing the interest for the entire time the-loan has to run, if the contract is performed, and that, if the whole amount reserved or exacted as interest for use of the money, spreading the payments over the entire time of the contract, does not exceed a charge of 10 per cent, for the amount loaned, the contract or note is not usurious.
Since the amount reserved or exacted in this case, both for interest and commissions, regarding the whole transaction as one, does not exceed the 10 per cent, interest on the loan for the entire time, it is not usurious, and, even if the whole contract could be regarded as usurious under the laws of that State, the undisputed testimony shows the Rutland Trust Company an innocent purchaser of the principal note, bearing only 7 per cent, interest and the mortgage securing same, and its rights could be in no wise affected by any taint of usury in the entire transaction. Boston Mutual Life Insurance Co. v. Newton, .ante p. 547.
It follows that the'chancellor in holding otherwise erred, and the decree will be reversed and the cause remanded, with directions to enter judgment for the parties at interest for the amounts due them respectively, with foreclosure of the mortgages for payment thereof and priority of payment out of the proceeds realized from the sale of the lands of the claim of the Rutland Trust Company, under its first mortgage and the amount of the taxes paid by it, necessary to the protection of its lien, and for further proceedings according to the principles of equity and not inconsistent with this opinion. It is so ordeted. ' . | [
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Smith, J.
This cause was heard in the court below upon an agreed statement of facts, which contained the following recitals: Appellee McLeod filed suit on November 28, 1924, against the Hanson Lumber Company, a domestic corporation, and R. H. Hanson, the president thereof, for $138.38, unpaid wages, and $300 as penalty for failure to pay the wages, and $11,000 damages for breach of the contract under which plaintiff had been employed. At the trial of the cause plaintiff recovered judgment for $438.38, the amount of wages earned and not paid and two months’ salary at $150 per month. No part of this judgment has ever been paid.
No statement of the condition of the corporation was ever filed with the clerk of the county court of the county in which, the corporation was domiciled for either of the years 1924 or 1925, the time during which said wages were earned, as required by § 1715, C. & M. Digest.
During the pendency of the litigation above mentioned there was filed with the Secretary of State of the State of Arkansas a resolution of dissolution of said corporation, in which it was recited that the stockholders of the corporation had taken over-all its assets and had assumed all its liabilities. After the recovery of the judgment in the circuit court, plaintiff filed a complaint in the chancery court, alleging the facts above stated, and that the stockholders of the corporation had taken over the assets of the corporation, pursuant to the resolution of dissolution, and that these assets exceeded in value the debts of the corporation. There were only three stockholders of the corporation, they being the president, R. H. Hanson, and two other members of his family. Upon this record the chancery court rendered a decree in plaintiff’s favor for the amount of the judgment of the circuit court, together with costs, against the corporation and the three stockholders thereof, and this appeal is from that decree.
Appellants contend, for the reversal of the- decree of the chancery court, that, since the corporation was dissolved during the pendency of the action in the circuit court, that court had no jurisdiction to proceed to render judgment, and that the cause should have been transferred to the chancery court and the assets of the corporation there administered. It is especially insisted that the circuit court had no jurisdiction, after the dissolution of the corporation, to render judgment for the penalty for $300.
The cases of State ex rel. the Attorney General v. Arkansas Cotton Oil Co., 116 Ark. 74, 171 S. W. 1192, Ann. Cas. 1917A, 1178; St. L. I. M. & S. R. Co. v. Walsh, 86 Ark. 147, 110 S. W. 222; and Des Arc Oil Mill, Inc., v. McLeod, 141 Ark. 332, 216 S. W. 1040, are decisive of the questions presented on this ■appeal.
In the first of tliose cases it was decided that astrictly penal action did not survive against a corporation which, during the pendency of the action for the penalty, surrendered its charter, since the statutes make no provision for the payment of penalties assessed against a dissolved corporation. This case pointed out the distinction between penal and remedial actions, it being there stated that, where an action is .founded entirely upon a statute, and the only object of'the suit is to recover a penalty or forfeiture provided by the statute, it is a penal action, and does not survive the dissolution of the corporation, but that, where the damages sued for are giyen wholly to the injured party as compensation for a wrong or an injury, the statute having for its object more the indemnification of the plaintiff than the punishment of the defendant, the action is remedial, and survives the dissolution.
In the case of St. L. I. M. & S. R. Co. v. Walsh, supra, the court considered the nature of an action against a corporation for the statutory penalty for discharging an employee without paying his wages, and the court said:
“In Leep v. St. L. I. M. & S. R. Co., 58 Ark. 407, 25 S. W. 75, 23 L. R. A. 264, 41 Am. St. Rep. 109, and St. L. I. M. & S. R. Co. v. Pickett, 70 Ark. 226, 67 S. W. 870, the nature of this so-called penalty was discussed, and it was held to be damages, both exemplary and compensatory, and not a penalty, although so nominated in the statute. It is an incident to the amount due for wages, an unearned increment, as it were, and may be added to the claim for wages in determining jurisdiction.”
It appears therefore that plaintiff’s suit was not one lo recover a penalty.
The case of Des Arc Oil Mill, Inc., v. McLeod, supra, was one in which an employee sued the corporation by which he had been employed to recover damages for a personal injury, pending which suit the corporation surrendered iis charter and was dissolved.' The cause proceeded to a judgment, notwithstanding that fact, and, after the recovery of the judgment in the circuit court, suit was filed in the chancery court to subject the assets of the dissolved corporation to the payment of the judgment. It was pointed out in that case that, at the common law and in the absence of any saving statute, the dissolution of a corporation abates all actions pending against it at the time of such dissolution, and it was insisted, upon the authority of the case of State ex rel. Attorney General v. Arkansas Cotton Oil Co., supra, that the suit for damages had abated, but we held against that contention. Sections 953 and 954 Kirby’s Digest (now §§ 1819 and 1820, C. & M. Digest) were quoted, and we held that the suit, which was an action for unliquidated damages, survived. We held that it was not necessary to revive the action against any one, notwithstanding the dissolution, as it had not abated, and that the circuit court properly refused to transfer it to the chancery court, where the receivership was pending, because the statute quoted manifested no purpose to lift out of the law courts jurisdiction over pending causes of action which were properly triable at law. It was also pointed out that, when a demand had been reduced to judgment, the payment thereof must be enforced in the manner pointed out by the statute, which was through the aid of courts having equitable jurisdiction!
The proceedings in the present case conformed to the practice as there defined. The suit was not for. a penally, which abated upon the * dissolution of the corporation, and the circuit court properly retained jurisdiction to adjudicate the demand sued upon, and, when the judgment was recovered, the aid of the eliancery court was properly invoiced to enforce the payment of the judgment of'the circuit court.
The stockholders assumed the payment of the debts of the corporation when they took over its assets, and it is not questioned that the value of these assets exceeded the liabilities of the corporation. Judgment was therefore. properly rendered in the chancery court against these stockholders, as well as the corporation itself, for the amount of plaintiff’s judgment, and that decree will therefore be affirmed. | [
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Mehaffy, J.
The appellant, Finis E. Stockton, was indicted in the Franklin Circuit Court of the Ozark District in two counts. The first count charged the larceny of a Government bond of one thousand dollars, belonging to J. S. Turner. The second count in the indictment charged the defendant with embezzling the same bond.
The defendant demurred to the indictment on the ground that it did not state facts sufficient to constitute the crime of larceny or embezzlement. The court overruled the demurrer, and appellant filed a motion in arrest of judgment, which was also overruled, and exceptions saved. The appellant filed a motion for a new trial, which was overruled, exceptions saved, and appeal taken to this court.
The charge of embezzlement in the indictment is as follows:
“The grand jury aforesaid, in the name and by the authority aforesaid, further accuses Finis E. Stockton of the crime of embezzlement, committed as follows :
“That the said Finis E. Stockton, in. the county, district and State, and at the time aforesaid, and having then and there in his custody and possession one United States one-thousand dollar Liberty bond of the value of one thousand dollars, and the property of J. S. Turner, did unlawfully, fraudulently and feloniously make away with and embezzle and convert to his own use the said one- thousand dollar United States Government Liberty bond, as aforesaid, without the knowledge and consent of the aforesaid J. S. Turner.”
Appellant contends that the indictment is insufficient to charge the crime of embezzlement. The indictment was drawn under § 2500 of Crawford- & Moses’ Digest, which is as follows: '
“If any clerk, apprentice, servant, employee, agent or attorney of any private person, or of any copartnership, except clerks, apprentices, servants and employees within the age of sixteen years, or any officer, clerk, servant, employee, agent or attorney of an incorporated company, or any person employed in any such capacity, shall embezzle or convert to his own use, or shall take, make way with, or secrete, with intent, to embezzle or convert to his own use, without the consent of the master or employer, any money, goods or rights in action, or any valuable security, or effects whatsoever, belonging to any other person, which shall have come to his possession, or under his care or custody, by virtue of such employment, office, ag’ency or attorneyship, he shall he deemed guilty of larceny, and, on conviction, shall be punished as in cases of larceny.”
This section of the Digest was read to the jury as the section under which the indictment was drawn. The other section of the Digest discussed is § 2502 of Crawford & Moses’ Digest, and it reads as follows
“If any carrier or other bailee shall embezzle, or convert to his own use, ór make way with, or secrete with intent to embezzle or convert to his own use, any money, goods, rights in action, property, effects ' or valuable security, which shall have come to his possession, or’ have been delivered to him, or placed under his care or' custody, such bailee, although he shall not break ahy trunk, package, box or other things in which he received them, shall be deemed guilty of larceny, and, on conviction, shall be punished as in cases of larceny.”
It will be observed that the indictment does not charge anywhere that the appellant had possession of the bond or received it as clerk, apprentice, servant, employee, agent or attorney, and does not allege that be was bailee, and a majority of tbe court are of tbe opinion that tbe indictment does not state facts sufficient to constitute the crime of embezzlement. To constitute embezzlement under this statute it is necessary to charge that the bond came into possession of tbe appellant as bailee or agent, etc., or tbe indictment must contain allegations sufficient to show tbe fiduciary capacity of the appellant.
This court held, in passing upon an indictment for embezzlement, where the indictment charged the embezzlement of a horse and buggy, and also charged that the defendant was then and there bailee, that the indictment did not state facts constituting a public offense and did not state facts sufficient to constitute the offense of embezzlement. “To constitute embezzlement of the horse and buggy, it was necessary to charge that same came into possession of the appellant as bailee. The indictment does allege that the appellant was bailee of Reiman and Wolfort, and this was sufficient to show his fiduciary capacity. But nowhere is it alleged that the horse and buggy came into his possession as such bailee, nor is it alleged that the horse and buggy, being in his possession as bailee, were converted to his own use. In other words, no facts are stated in the indictment to show that appellant had possession of the horse and buggy of Louis Reiman and L. Wolfort as their bailee. This was essential to the validity of the indictment.” Tally v. State, 105 Ark. 28, 150 S. W. 110:
We think the case at bar is ruled by the above case. In the case at bar, however, it is not- even charged that the appellant was bailee. There is nothing in the indictment to indicate the fiduciary capacity. See State v. Scoggins, 85 Ark. 43, 106 S. W. 969.
As we have said, the case of Tally v. State, above mentioned, rules this case, and in the Tally case there is a thorough discussion of the law, and numerous authorities are cited, and it would be useless to repeat them here.
Since we have reached the conclusion that the indictment does not state facts sufficient to constitute the crime of embezzlement, it becomes unnecessary to discuss the other questions discussed by attorneys in their briefs. This case is reversed, and remanded with directions to sustain the demurrer to the indictment. | [
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Wood, J.
This is an action by the plaintiff, Ligón, against the defendants, Special Protective-Bewards Committee of the Arkansas Bankers’ Association and Arkansas Bankers’ Association, to recover a reward.
The plaintiff alleged that the defendants offered a reward of $500 for the arrest and conviction of any pern son ‘ ‘burglarizing by forcible and violent breaking and entry, or attempt to burglarize by forcible and violent breaking and entry, or of robbing or attempting to rob, any member of the Arkansas Bankers’ Association.” The plaintiff alleged that the Bank of Gflenwood, at Grlen-wood, Pike County, Arkansas, was a member of the Bankers’ Association and the rewards committee on the 12th of March, 1925; that on that day Hadley Babbitt did burglarize by forcibly and violently breaking and entering the building occupied by the Bank of Grlenwood, with the intent to commit a felony, and did then and there commit burglary and grand larceny by breaking and entering the building occupied by the Bank of Grlen-wood and carrying away the sum of $65. Plaintiff alleged that he arrested Babbitt as he came out of the bank building and delivered him to the city marshal at Glenwood; that he was afterwards convicted in the juvenile court, and is held as a ward of that court. The plaintiff alleged that he made the arrest as a private citizen, and had complied with the terms of the offer of the reward, and that the defendants had failed and refused to pay the same, for which plaintiff prayed judgment.
. The defendants answered, and admitted all the allegations of the complaint as to the offer by the defendants of a reward and of the burglary and grand larceny by Babbitt, and of his arrest and conviction, but denied that the plaintiff was entitled to the reward, because of the following facts: The said Hadley Babbitt is a minor under the age of eighteen years. At and before the time when the said Hadley Babbitt began the aforesaid forcible breaking and entry of the building in which the Bank of Glenwood was situate, plaintiff was watching said Hadley Babbitt, and saw and observed each and all of the acts and things done and committed’ by the said Hadley Babbitt during and immediately before the forcible breaking- and entry, and the said plaintiff could, without effort or danger, have prevented both the breaking and the entry of the building; but, notwithstanding the fact that he could have thus prevented the commission of the crime, he failed and refused so to do. On the contrary, he continued'to watch and observe the said Hadley Babbitt throughout the entire time during which the latter was committing the breaking, entry and exit, ■ and, after the breaking, the entry and the exit had all been effected under plaintiff's observation as aforesaid, plaintiff captured Hadley Babbitt and delivered him to the city marshal of Glenwood. The defendants are informed and believe, and therefore allege, that at all. .times herein mentioned plaintiff was acquainted with the terms of the notice by which the Special Protective Rewards Committee offers rewards for the-capture and conviction of persons burglarizing member banks, and that his failure to take any steps toward the prevention of the commission by the said Hadley Babbitt of the aforementioned crime was due to his desire to collect a reward from these defendants. .By reason of the facts above set out, plaintiff constituted himself an accessory before the fact to the crime committed by the said Iiadley Babbitt, and he is not entitled to receive or collect a reward in any amount whatsoever from either of these defendants.
The cause was begun in the circuit court and was, by consent of parties, transferred to the chancery court.
The plaintiff testified in his own behalf, substantially as follows: He had been living in the vicinity of Glen-wood for fifteen years. He had been acquainted with Hadley Babbitt for about seven or eight years. Witness was working in a hardware store in the town of Glen-wood, about 100 feet or more from the Bank of Glen-wood. On the 12th of March, 1925, witness saw Hadley Babbitt on the sidewalk which passes along by the bank' building. It was between 12 and one o ’clock. His attention was called to Babbitt by D. M. Caldwell, who was standing in the door of the hardware store where witness was working. Caldwell called witness’ attention to the fact that some one was in the bank building, and witness went down to the bank to arrest him. Witness stopped at the window and saw Babbitt get some money out of the till of the bank and put it in his pocket. Babbitt had entered the building by raising a window at the rear of the bank.- He had gone up a stairway and removed a screen and entered the bank through a window. Witness stepped up to a window to see what Babbitt was doing. Witness went to the place where Babbitt entered the bank, and Babbitt, who was then coming toward the window, saw the witness standing there waiting for him, stopped, and backed himself up in a corner of the building. Witness then went to the side door, and Babbitt-unlocked the door and -came out. Witness took charge of him -and delivered him to the town marshal, and told the marshal what Babbitt had done. After Babbitt had procured the money he started to go out the same way he came in, and, when he saw witness, he hid himself in the directors’ room. Then the witness went around, and, when Babbitt saw him standing at the door, lie unlocked the door and came out, and witness look charge of him. Witness told the officers where he saw the boy hide himself in the bank, and they searched' that place for money and found $21 in pigeonholes and one place and another. Babbitt was convicted of the robbery of the Bank of G-lenwood in the Pike Circuit Court, the crime for which witness had arrested him. At the time witness arrested Babbitt witness did not know that there was a reward offered for him. Witness made the arrest because he thought it was his duty as a citizen for the benefit of the bank and the town. Witness appeared before the grand jury as a witness against Babbitt for the crime.
On cross-examination the witness described the situation of the store building from which he first saw "Babbitt and the bank building which he afterwards saw Babbitt enter. When he first saw Babbitt he,was just walking up and down along the sidewalk. It was probably a minute from the time witness first saw him on the. sidewalk until the time he first saw him lift the screen. While he was lifting the screen he sat down on the steps .of a stairway on the outside of the building. It was Babbitt’s peculiar actions that first attracted the attention of witness and Caldwell. When witness first saw Babbitt there was no one in the bank. The officers and employees had gone to lunch. Witness watched Babbitt from the time he first saw him until a customer came in, and witness went to wait on the customer. Witness had had an account at the bank for several years, and was in and out of the bank frequently. He made his deposit at the teller’s window, just as other customers. After witness’ attention was called to Babbitt’s peculiar action, witness wanted to see what he was going to do if he entered the bank. If there was anything wrong with the boy, witness wanted to know it. Witness and Caldwell were standing there watching him, and said, “We will just see what he is going to do.” Then witness went back in the store to wait on a customer. Witness did not know exactly what Babbitt’s purpose was in walking up and down the sidewalk and-opening .the window, hut his conduct looked out of the ordinary, and it was for that reason that witness watched him. His actions were suspicious. If witness had not been practically certain that Babbitt’s purpose was evil, he would not have watched him. Witness did not know what Babbitt’s occupation was. Witness thought Babbitt was seventeen years old. Witness did not think that he was a janitor in the bank. When witness observed Babbitt’s suspicious conduct, he might have called his attention, but .witness did not know but what he would have been butting in where he had no business, and did not do so. Witness went on and waited on the customer. Witness did not know what Babbitt was going to do, and therefore did not feel like it was his duty to get out there and holler at him. Witness had known Babbitt and his parents for many years. Witness and Babbitt’s father were young men together — had grown up in neighboring settlements. Babbitt’s family were customers of the witness. After witness had finished waiting on his customer, and went to the bank to see what Babbitt was doing, he did not call to Babbitt when he saw him reaching into the till to get the money, but stepped around to a position where witness could arrest him as he came out. Witness thought that was the thing for him to do. Witness was not in the bank, the doors were locked, and witness thought the safest plan was for him to catch Babbitt as he -came out of the bank. Witness probably could have stopped Babbitt before, but did not do so. Witness was first informed, that day or the next, about the offer of the reward made by the Bankers’ Association. Witness had never noticed the offer of reward that had been posted in the window of the bank. He did not know it was there. After it all happened and witness was informed of the reward, witness made this statement: “If the Bankers’ Association publishes a reward for a thing of that kind, if I was entitled to it, I just as well have it as not, otherwise I wou-ld not ask for it.”
Witness went to the- prosecuting attorney and told him about it, not altogether for the purpose of getting the reward. Witness felt that the laws ought to be enforced, and, if Babbitt had broken the law, he should be punished for it. If witness was entitled to the reward, he had just as well have it as not. Witness went to both the’ judge and prosecuting attorney and talked to them about it. After witness was informed about the reward he knew that it was necessary to have Babbitt indicted and convicted in order to obtain the reward.
The testimony of the witness Caldwell corroborated the testimony of the plaintiff in regard to the manner in which Babbitt entered the bank on March 12, 1925. He stated that he called plaintiff’s attention to the boy at the particular moment when Babbitt was sitting on the steps with his arm under the window. That a customer came into the hardware store, and Ligón waited on him and then came out. While Ligón was gone to wait on his customer, Babbitt entered the bank through the window. Witness then went to where Mr. Ligón was, and told him that the boy had gone into the bank. Mr. Ligón then went over to the bank, and was standing* near the door on the north side when the boy came out. Ligón said something to the boy, and came back with him and turned him over to the marshal of the town. It was Babbitt’s peculiar and suspicious actions which caused witness to direct the attention of Mr. Ligón to him. Witness thought that he intended to enter the building through the window. Neither Ligón or witness said anything to the boy while they were watching his actions. After Mr. Ligón went over to the bank he stood there at the window only a few minutes, then walked around to the door, and was there -when the boy came out.
McP. Gibbs testified that he had been an officer of the Bank of Glenwood for the past seven years. During all that time the bank had been a member of the Arkansas Bankers’ Association and a party to the special protective rewards agreement. There had always been on display in the bank in a prominent position a placard or card setting forth the special protective rewards committee’s offer of reward for the arrest and conviction of persons burglarizing member banks. This placard was by the front paying teller’s window, the window to which depositors came to make deposits and at which were presented checks for payment. It was the window through which 90 per cent, of the bank’s business is transacted. The placard faces so that any one'walking in at the door of the bank and up to the window sees it. No one can help seeing it. The placard sets forth, in heavy black-faced type, the offer of the rewards committee to pay rewards for the capture and conviction of persons robbing member banks. Babbitt had never been employed by the bank in any capacity whatsoever. The next day after the commission of the crime by Babbitt, his father had made good the loss. On account of the boy’s youth neither the bank nor its officers pushed any prosecution against him. The bank had nothing to do with the prosecution. Witness was subpoenaed before the grand jury as a witness.
The trial court found, upon the above facts, that the plaintiff was entitled to recover a reward of $500, and entered a decree in favor of the plaintiff against the defendants for that sum, from which is this appeal.
The theory upon which the rewards are recoverable, when offered by individuals or corporations, is that in some manner a contract relation exists between the one offering the inward and the one claiming the same. Before recovery can be had in any action for reward, the facts must be such as to justify the conclusion that the plaintiff or person who .claims the reward is entitled thereto because he has performed the services, for which the reward -was offered on the faith of the offer of such reward. While there is a sharp conflict in the authorities, both the better reason and the weight of authority is in favor of the above doctrine. The rule and the reason for it is well stated by Judge Hand, speaking for the Supreme Court of Illinois, in Williams v. West Chicago Street Ry. Co., 191 Ill. 610, 61 N. E. 456. 85 Am. State Rep. 278, as follows:
“The right to recover a reward arises out of the contractual relation which exists between the pelson offering the reward and the claimant, which is implied by law by reason of the offer on the one hand and the performance of the service on the other, the reason of the rule being that the services of the claimant are rendered in consequence of the offered reward, from which an implied promise is raised on the part of the person offering the reward to pay him the amount thereof by reason of the performance by him of such service, and no such promise can he implied unless he knew at the time of the performance of the service that the reward had been offered, and in consideration thereof, and with a view to earning the same, rendered the service specified in such offer. ’ ’
See other authorities there cited. See also 23 R. C. L., page 1115 el seq., particularly §§ 3 and 6; 34 Cyc. page 1730, § 1 (a) and page 1751, § 6, and authorities cited in notes; also note to Board of Commissioners of Clinton County v. Davis, 162 Ind. 60, 69 N. E. 680, 64 L. R. A. 780, 1 Ann. Oas. page 282, 285,-and cases there cited.
A well reasoned case, where the authorities pro and con are cited and reviewed, is that of Broadnax v. Ledbetter, 99 S. W. 1111, 9 L. R. A. (N. S.) 1905, 100 Tex. 375, in which Judge Williams, speaking for the Supreme Court of Texas, among other things said:
“The liability for a’reward of this kind must be created, if at all, by contract. There is no rule of law which imposes it except that Avhich enforces contracts voluntarily entered into. A mere offer or promise to pay does not give rise to a contract. That requires the assent or meeting of two minds, and therefore is not complete until the offer is accepted. Such an offer as that alleged may be accepted by any one who performs the service called for when the acceptor knows that it has been made and acts in performance of it, but not otherwise. He may do such things as are specified in the offer, but', in so doing, does not act in performance of it, and therefore does not accept it when he is ignorant of its having been made. There is no such mutual agreement of minds as is essential to a contract. * * * The mere doing of the specified things without reference to the offer is not the consideration for which it calls. This is the theory of the authorities which we regard as sound.” See authorities there cited.
There are certain well recognized, exceptions to the above rule which are mentioned in the authorities, hut which it is unnecessary for us to refer to here, because this case does not come within any of them.
The undisputed testimony of the appellee himself shows that the services he performed in the arrest of young Babbitt were without reference to the offer of reward. Among other things he stated: “My purpose was not any money interest, but rather interest in the enforcement of the laws of the country. Dr. Pate called my attention that appellants offered a reward for conviction of a person for such a crime. I appeared before the grand jury and was a witness in the case.” While the witness further stated that he talked with both the prosecuting attorney and the circuit judge, he does not make it clear that his actions in the premises were for the purpose. of obtaining the reward. On the contrary, giving the testimony of the appellee its strongest probative force in his favor, it tends to prove that he was actuated, at least primarily, for the enforcement of the laws and not for the obtaining of the reward.
Learned counsel for appellee, however, insists that a lack of knowledge on the part of the appellee of the offer of the. reward cannot avail the appellants, because this was not made an issue in the court below. While the pleadings do not specifically raise this issue, it was raised on the general issue by the appellee setting out the terms of the offer of reward and claiming that he was entitled to the reward, and that the defendants had-failed and refused to pay him, and the denial by the defendants that they were liable to the appellee. If the issue was not thus raised by the pleadings, certainly the undisputed testimony of the appellee raised it, and the court, in the consideration of the case, should have treated the pleadings as amended to correspond with the undisputed testimony, and thus should have considered the issue as to the liability or non-liability of the appellants on the uncontroverted proof. It must be remembered that this was not a trial at law before a jury, or the judge sitting as a jury, but a trial by the chancery court. On appeal chancery causes are tried-in this court de novo on the record made up in the lower court. The law and the facts are examined the same as if there had been no decision at nisi prius, and this court renders its decree based upon such record. Leach v. Smith, 130 Ark. 465, 197 S. W. 1160, and cases there cited.
Applying the principles of law as above announced to the undisputed facts of this record, it follows that the decree of the trial court must be reversed, and a decree will be entered here dismissing the appellee’s complaint for want of equity. It is so ordered. ’
Mehaeey and Smith, JJ., dissent. | [
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Hart, C. J.,
(after statiiíg the facts). Counsel'for appellant rely for a reversal of the decree upon the decision of' the United States Supreme Court in Liberty Bank v. Bear, 265 U. S. 365, 44 S. Ct. 499, 68] L. ed. 1057. In that case it was held:
“1. To invalidate the lien o'f a judgment under' § 67f of the Bankruptcy Act, he who challenges it must show not only that the judgment was recovered' within four months prior to the' filing of the petition in bankruptcy, but also, by pleading and proof, that the judgment debtor was insolvent when the lien was obtained.
“2. Assuming (but not deciding) that the adjudication of the bankruptcy of a partnership necessarily adjudges the partners, as individuals, bankrupt, it raises no presumption that théy were insolvent for ¡any ¡period before the petition in bankruptcy was filed.
“3. Nor does the fact that sales of the property' of the partnership and partners,, made some months later by .the trustee in bankruptcy, did not realize enough to pay for the ¡partnership or individual debts, establish that the partners were insolvent at a time anterior to the filing of the bankruptcy petition'. ”
Under this decision, in order to set aside the garnishment lien obtained by the grocer company before the petition in bankruptcy, was filed, it was necessary for the trustee in bankruptcy',, W. E. Thomas, to allege and prove that the mercantile company was insolvent at the time, the grocer company sued out its writs of garnishment and obtained a lien on the insurance funds of the mercantile company. It is our duty to follow the decisions of the Supreme Court of the United States in the construction of the .bankruptcy statute; and in this connection! it. may be stated that the decision in Garrett v. Big Bend Plantation Co., 150 Ark. 180, 233 S. W. 1079, is modified and overruled in so far as it is in conflict with the decision of the United States Supreme Court' above cited.”
It follows that no presumption arises from the adjudication' in bankruptcy that the bankrupt'was insolvent for four months before the petition was filed. Under the decision above cited it was incumbent upon the trustee to allege and prove- insolvency at the time the garnishment lien was obtained. While the complaint itself does not, in express terms, allege insolvency at the- time the garnish^ ments were sued out, it specifically makes the report of the special master a part of the complaint as if incorporated in it, and the report is exhibited with the complaint. Section 3 of that report contains a'specific allegation that said, mercantile company, within- four months prior to the filing of the petition in-bankruptcy, while insolvent, permitted certain creditors-to obtain a preference by- reason of garnishments on.certain insurance-funds.- Under our system of pleading, an ^exhibit is not a part of the complaint at law and cannot be made so by reference, still the exhibit may be’ referred to as. explanatory of the allegations of the complaint. Abbott v. Rowan, 33 Ark. 593, and Louisiana Northwestern Rd. Co. v. McMorella, 170 Ark. 921, 282 S. W. 6. When the whole complaint is.considered with t-he exhibit' just referred to, we are of the opinion that insolvency at the-time the garnishments were obtained is inferentially alleged.
The trouble, however, is that there is no proof of insolvency. • The' question of insolvency is one of fact and not of law. It cannot be established, by mere belief without evidence.- It is true that the report of. the special master shows insolvency at the time the garnishments were obtained, but the report itself is not evidence of the fact of insolvency. The garnishments were sued out on. the 23rd day of December, 1925, and the petition was not filed until the 11th day of February, 1926. There is nothing in thé record whatever to establish the fact that the alleged, bankrupt’s debts were, more than the value, of. his assets at the time the writs of garnishments were sued out. Of course, if the matters sat forth in the report of the special master are true, the mercantile company was insolvent at the time the writs of garnishment were sued out and served on the insurance companies; but, as we have already seen, the recitation'of purported facts in the report of the special master is hot proof of these alleged facts. The facts themselves must be shown by direct or circumstantial evidence. There was no attempt whatever to show that the mercantile company was insolvent at the time the garnishments were obtained.
For this reason the judgment in 'the case number 9955 must ¡be affirmed, and that in case No. 131' must be reversed, and-the cause will be remanded for further proceedings not inconsistent with the opinion of this court. | [
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Knox, J.
At tlie close of the testimony in this cause the court directed a verdict against appellant, saying: ‘ ‘ Gentlemen of the July, the parties to this suit asked the court to give peremptory instructions in their behalf, so that left the case up to me to decide, . .
The bill of exceptions, signed and approved by the trial judge and included in the transcript filed here, discloses that appellant requested a peremptory instruction in his favor, and also asked an additional instruction which, if given, would have submitted to the jury for its determination one material issue of fact. Other than appellant, theie were four parties to this action, each having' divergent interests therein. The bill of exceptions does not contain a requested peremptory instruction submitted by any of such parties, nor does it anywhere recite that any of such parties moved for a directed verdict, or otherwise requested the court to withdraw the case from the jury and decide the issues of fact. The only words in the bill of exceptions indicating that such requests were made by parties other than appellant are the words above quoted from the court’s charge to the jury.
After this appeal was lodged in this court, appellee filed a motion to amend and correct the bill of exceptions. Attached to the motion was a certificate or affidavit of the trial judge which tended to support appellee’s contention that the bill of exceptions did not reflect the true facts. Appellant filed a response controverting the allegations set out in the motion. Because affidavits and certificates which are outside of the record, even though made by trial judges, cannot be considered on appeal (Hardie v. Bissell, 80 Ark. 74, 94 S. W. 611) and because under our practice, in the absence of an agreement by the parties, applications for correction of a record must be first addressed to the trial court from which such record proceeded (Hagerman v. Moon, 68 Ark. 279, 57 S. W. 935; Hanson v. Anderson, 91 Ark. 443, 121 S. W. 736; Dent v. Peoples Bank, 114 Ark. 261, 169 S. W. 821) we overruled appellee’s motion to correct the record, without prejudice to his right to make application to the trial court. Nothing has been subsequently filed here disclosing that the trial court has taken any action in the matter, and we must, therefore, accept as conclusive matters which are, and wholly disregard matters which are not, properly incorporated in the' original transcript filed in this appeal. In short, therefore, we must proceed upon the assumption that appellant alone moved for a directed verdict, and that contemporaneous therewith,.or subsequent thereto, but before the court had actually directed a verdict against him, he requested an additional instruction.
The facts giving rise to this litigation are long and complicated. Generally they concern various transactions relating to the transfers of possession, and attempted transfers, of title to several head of hogs. Some, but doubtless not all, of the questions involved in the final determination of the rights of the respective parties relate to (1)' right and title acquired by auctioneer who pays sales price less commission to owner after animals have been struck off and sold, but before purchaser pays auctioneer therefor; (2) effect of title retention condition printed on invoice initialed but not signed by one acquiring rights of original bidder at auction sale where such person testifies he did not see such condition on invoice, but understood that such provisions were generally customary; (3) whether auctioneer had by subsequent conduct waived right to assert title if any he had; (4) whether an agreement was entered into by all parties in interest that hogs might be finally sold and proceeds held to await determination of the rights of the parties.
It appears to us, therefore, that the fights of the respective parties to this litigation turn upon determination of disputed questions of fact, or mixed questions of law and fact; that there is no established and uncontroverted fact, or set of facts, disclosed by the record here which is or would be determinative of this litigation. A detailed statement of the facts would unduly extend this opinion, and serve no useful purpose. Suffice it to say that there is in the record evidence substantial in character which when viewed in the light most favorable to' appellant would liave been sufficient to support a verdict returned in his favor.
Ordinarily the proper procedure under such circumstances is to submit such controverted questions of fact to the jury, under proper instructions of the court respecting the law relating thereto.
This court has repeatedly held that, where each of the parties to an action requests the court to direct a verdict in his favor and request no other instruction, they in effect agree that the question at- issue should be decided by the court, and that they thereby waive the right to a decision by a jury and consent that the findings of the court shall have the same effect as the verdict of the jury. St. L. S. W. Ry. Co. v. Mulkey, 100 Ark. 71, 139 S. W. 643; Ann. Cas. 1913C, 1139 ; Gee v. Hatley, 114 Ark. 376, 170 S. W. 72; Webber v. Rodgers, 128 Ark. 25, 193 S. W. 87; Marion Mch., Fdy. & Sup. Co. v. Federal Oil Mkt. Corp., 188 Ark. 652, 67 S. W. 2d 598; Holloway v. Parker, 197 Ark. 209, 122 S. W. 2d 563, 119 A. L. R. 1359; Mo. Pac. R. Co. v. Clay, 205 Ark. 300, 168 S. W. 2d 621; Stewart v. Hedrick, 205 Ark. 1063, 172 S. W. 2d 416.
In the case of Holloway v. Parker, supra, it was held that notwithstanding the motion by each party for a directed verdict it was still within the discretion of the court to submit the issue to the jury.
In the case of Gee v. Hatley, supra, the court said: “To authorize the court to withdraw from the jury the consideration and determination of the jury the questions of fact involved in the litigation, it is essential that, at the conclusion of all the evidence in the case, the plaintiff and defendant should each request the court to direct the verdict, and this request must not be accompanied by any request for instructions to the jury which would require the jury to determine the controverted question of fact. ’ ’
In the case of Webber v. Rodgers, supra, it was held (quoting syllabus): “Where only one of the litigating parties requested the court for a peremptory instruction without asking for; other instructions on the issue, the trial court will not be justified in refusing to submit the issue to the jury.”
In the case of Smith Lumber Co. v. Portis Bros., 140 Ark. 356, 215 S. W. 590, the court appears to have deviated from the rule announced in the cases of Gee v. Hatley and Webber v. Rodgers, supra, and held that the sole movant for a directed verdict could not complain if the court on its own motion decided disputed issues and directed a verdict against him. Since that time, however, the two cases last mentioned, and particularly the case of Webber v. Rodgers, have been cited with approval by this court on repeated occasions, while the case' of Smith Lbr. Co. v. Portis Bros., supra, has not been cited. It is true that in none of the later cases, which cited the two cases referred to,.do we find the situation where the motion for directed verdict has been made by only one party, but in all of the later cases where the court announced the rule it declared one of the conditions essential for application thereof to be that the motion must be made by each of the parties to the litigation. It appears, therefore, that the court has long since returned to and now adheres to the rule announced in Gee v. Hatley and Webber v. Rodgers, supra, and that in effect the rule announced in Smith Lbr. Co. v. Portis Bros., supra, has been overruled.
As before stated, the bill of exceptions discloses that although appellant moved for a directed verdict he also requested an additional instruction. It has been repeatedly held that though both parties request peremptory instructions, yet where one requested another instruction submitting the issue to the jury he will not be deemed to have waived his right to have the issue decided by the jury. Bus. Men’s Accident Ass’n v. Sanderson, 144 Ark. 271, 222 S. W. 51; St. L. I. M. & So. Ry. Co. v. Ingram, 118 Ark. 377, 176 S. W. 692; Pac. Mut. Life Ins. Co. v. Carter, 92 Ark. 378, 123 S. W. 384, 124 S. W. 764; Jerome Hardwood Lbr. Co. v. Davis Bros. Lbr. Co., 161 Ark. 197, 255 S. W. 906; Mo. Pac. Ry. Co. v. Clay, supra.
The right to have the cause submitted to the jury is not lost although the request for additional instructions is not made until after the court has denied such parties ’ request for a directed verdict, and indicated his intention to direct a verdict in favor of his adversary. Pac. Mut. Life Ins. Co. v. Carter, supra; St. L. I., etc., Co. v. Ingram, supra.
Since the hill of exceptions does not contain a requested instruction, or other motion, for a directed verdict on the part of the parties to this litigation other than appellant, and also because appellant in apt time requestéd an additional instruction, and since the proper disposition of the controversy must of necessity rest upon a determination of one or more disputed questions of fact, concerning which there is in the record sufficient substantial evidence to support a finding of the jury in favor of appellant thereon, the court erred in failing to submit the issue to the jury. For such error the judgment is reversed, and the cause remanded for a new trial. | [
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Smith, J.
W. T. Hindman departed this life Jan-, uary 18, 1941, and was survived by his widow and his mother, who, as surviving heirs-at-law-, brought this suit to establish and restore a lost deed to one-half the oil and gas under the land in controversy, which deed they alleged had been executed by T. P. Bomack and wife to Hindman in the year 1922. The relief prayed was denied, and from that decree is this appeal.
Bomack owned the east half, southwest quarter, section 11, township 15 south, range 20 west, Columbia county, Arkansas, and after his death, which occurred May 22, 1934, his widow and heirs-at-law ' executed a warranty deed, dated December 30, 1935, conveying the southeast quarter, southwest quarter, of this section to' Fred S. Green. It was alleged that Bomack and his wife had previously conveyed one-half the mineral rights in the north half of this 80-acre tract of land, described as the northeast quarter, southwest quarter, to one Lide. The witnesses testifying in the case referred to this land as the north half and the south half. The north half being the northeast quarter, southwest quarter, and the south half being the southeast quarter, southwest quarter. This litigation involves only the tract last above described, and is predicated on the allegation that Bomack and wife had conveyed .the mineral rights in the south half to Hindman, before the widow and heirs of Bomack conveyed the land to Green.
The answer filed by Green presented three questions of fact: (1) whether a deed to Hindman had ever been executed; (2) whether the deed, if executed, had been delivered; and (3) whether, if executed and delivered, Green bought without knowledge of its existence, it being alleged that the said deed to Hindman had been lost without having been recorded. In an opinion denying the relief prayed, the court expressed doubt as to the sufficiency of the proof to meet the requirements of the law upon the first and third of these issues, but made the specific finding that the testimony did not show a delivery of the deed.
The plaintiffs’ case rested largely upon the testimony of Bomack’s widow, now Mrs. Underwood, which was to the effect that she and Bomack, her then husband, had executed a mineral deed to Hindman for an undivided half of the south half for the consideration of $1,000, which was paid them, and she testified further that when she and her children, the heirs-at-law of her husband, Bomack, executed a warranty deed to Green, she advised Green that an undivided half of the minerals on the south half of the land had previously been sold to Hindman.
There was some corroboration of this testimony, but more in contradiction. Green’s testimony is as definite and positive as is that of Mrs. Underwood to the effect that he was unaware of the prior conveyance to. Hindman. Green’s sister testified that the negotiations for the purchase of the land occurred at Green’s home, and that she was present and heard the conversation which then took place; that Green asked Mrs. Underwood about the sale of the minerals, and that Mrs. Underwood stated they had sold the minerals on the north half, but had not sold those on the south half. This testimony was corroborated by D. M. Green, the father of the witness, and Fred Green, whose testimony was to the definite effect that Mrs. Underwood told Fr.ed Green there had been no sale of the minerals on the south half of the land. The testimony shows that before purchasing the land, Green consulted an abstracter of land titles, who told him that an examination of the record disclosed that the title to the south half was clear.
Green pleaded both laches and limitations, and while the complaint was not dismissed on either of those grounds, the testimony tending to support the plea of laches cannot be disregarded in weighing the evidence. It Avill be remembered that the deed sought to.be established if executed at all, was executed in 1922, and this suit was not brought until 1942, so that there was an intervening period of 20 .years, and during that time both Romack and Hindman died.
The testimony of Mrs. Underwood Avas to the effect that the sale to Hindman was consummated through an escrow agreement, the deed having been attached to a draft, both of which were deposited in a bank, which became insolvent in 1929 and whose records cannot now be found, with the understanding that the deed should be delivered when the draft Avas paid, and that it was paid. In the opinion dismissing the suit as being without equity, the trial judge expressed doubt as to the sufficiency of the testimony to establish the existence of the deed, but he expressed the definite opinion, and based his decision upon the finding, that the deed had not been delivered to Hindman even though its existence had been shown. Certain it is that Hindman never placed the deed of record, and Mrs. Underwood did not testify that the deed had ever been delivered to Hindman by the escrow agent, nor did any other witness so testify. Mrs. Underwood was asked if the deed had been delivered, and answered “Yes,” but she did not state when, to whom, or the circumstances under which the delivery was made, and although the payment of the draft to the escrow agent would have constituted a constructive delivery of the deed, yet the Court was warranted in finding there had been no such delivery. It is very highly improbable that Hindman would have paid a thousand dollar draft for a mineral deed and not have taken possession of the deed, and if he did so his indifference and negligence is responsible for this litigation under which his heirs attempt to assert title.
Now, it is permissible to establish and restore a lost deed, but the cases are all to the effect that this relief will be granted only when the testimony as to the execution and delivery of the deed sought to be restored is clear, cogent and convincing, and we are unwilling to say, in view of the long lapse of time and other circumstances of the case, that the finding of the court is not sustained by the testimony. Moreover, if the existence and delivery of the deed was shown by testimony sufficient to meet the requirements of the law to obtain the relief prayed, the question remains whether Green was an innocent purchaser, and the preponderance of the testimony, in our opinion, shows that he was.
The decree must, therefore, be affirmed, and it is so ordered.
Knox, J., non-participating. | [
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Knox, J.
Appellant was charged, tried and convicted of having aided and abetted a certain Mrs. Vernnie Bilyeu to conceal the death of her bastard male child. The charge against appellant was based on §§ 2991 and 2937 of Pope’s Digest, as follows:
“Section 2991: If any woman shall endeavor privately, either by herself or the procurement of others, to conceal the death of any issue of her body, male or female, that it may not come to light, although it cannot be proved that it was murdered, every such mother shall suffer the same punishment as for manslaughter.”
‘ ‘ Section 2937: All persons being present, aiding and abetting, or ready and consenting to aid and abet, in any felony, shall be deemed principal offenders and indicted and punished as such. ’ ’
These are in fact two separate sections of the act of December 17, 1838, § 2937 of Pope’s Digest having been § 10 and § 2991 having been § 17 of the original act.
In his motion for a new trial, filed in the court below, appellant assigned eight alleged errors, each of which he urges here as ground for reversal of the judgment. We shall discuss these alleged errors in the order in which they appear in the motion.
Assignments one to four inclusive are to the effect that the judgment is contrary to the law and evidence and each of them. Two arguments are urged by appellant in support of these assignments: first, he contends, that only the mother can commit the crime, and that there can be in fact no accessory, and second, that even if there could be an accessory the appellant could not be found guilty here, because there is no proof that the mother sought or even desired concealment of the child’s death, and since she would not be guilty as principal appellant could not be guilty as an accessory.
Appellant cites no authority in support of his first proposition. As previously pointed out, §§ 2937 and 2991 of Pope’s Digest are separate sections of the same original act. It would appear, therefore, that the lawmakers intended that one who aided and abetted a mother to conceal the death of her bastard child would be guilty as an accessory under § 17, which is noyr § 2937 of Pope’s Digest.
As to the second argument, that proof is lacking to show that the paother sought or desired to conceal the death of the child, it must be admitted that the mother although called by the state was an unwilling witness, and she apparently sought to protect appellant as far as possible. She did, however, testify that she told appellant “to take the baby and bury it. ’ ’ She testified further as follows : “I said after it was dead not to say anything just on account of the children.” We think the jury were justified in drawing the inference that the mother intended that burial was to be carried out by appellant in such a way as to conceal death of the child in violation of the statute.
The fifth assignment of error is as follows: “the court erred in giving and reading to the jury instructions, numbers 1, 2, 3, 4, 5, 6 and 7 over the objections and exceptions of the defendant.” This is a general exception taken in gross to seven different instructions. It has been repeatedly held that a general exception to several instructions will not be entertained on appeal, if any of them is good. Owens v. State, 87 Ark. 317, 111 S. W. 466; Tiner v. State, 109 Ark. 138, 158 S. W. 1087; Graham v. State, 197 Ark. 50, 121 S. W. 2d 892. Appellant in his brief does not now argue that all, or in fact any, of the instructions so given by the court was erroneous. We are convinced that none of the instructions so given was erroneous. Certainly all of them were not. Two merely define the crime in the words of the statute and, therefore, could not be erroneous.
The sixth assignment of error is as follows: “the court erred in refusing, over the exceptions of the defendant, to give and read to the jury defendant’s requested instructions 1, 2, 3, 5 and 6. ’ ’ Again we have an exception in gross — here because of failure on the part of the court to give instructions, instead of the act of the court in giving them. There is little, if any, difference in the rule on that account. It has been repeatedly held that an exception in gross to the court’s failure to give several instructions will not be considered if any one of the instructions asked was bad. Matthews v. State, 84 Ark. 73, 104 S. W. 928; Tiner v. State, 109 Ark. 138, 158 S. W. 1087; Rogers v. State, 133 Ark. 85, 201 S. W. 845. Some of the instructions requested were not proper declarations of law as applicable to the facts of this case, and the rules of law declared in some of the other of said instructions had been covered by instructions already given by the court. We are of the opinion that exceptions to alleged errors relative to the failure to give requested instructions have not been properly taken and preserved ■ in the record here.
The seventh assignment of error is that “the court erred in admitting . . . incompetent, irrelevant, immaterial, and prejudicial testimony, in this, to-wit, that the prosecuting witness, Mrs. Yernnie Bilyeu, a witness for the state, . . . was permitted to testify in substance, that the defendant was the father of her bastard child, and to detail the circumstances of their immoral relations and to detail certain conversations between them and of certain plans they had made between them to cause an abortion, including things she said to the defendant and that the defendant said to her, and of certain reprimands that said witness made to defendant accusing him of wrongdoing, and to give other testimony of similar nature, all of which was highly prejudicial and did prejudice the rights of this defendant, was, by the court, admitted, over the objections and exceptions of this defendant. ’ ’
The record shows that Mrs. Bilyeu was permitted to testify without objection by defendant that he was the father of the child. Over objection of appellant Mrs. Bilyeu was permitted to testify that appellant would come to her house where they would engage in sexual intercourse, that after she became pregnant she notified appellant of her condition, and he at first agreed to take her to a doctor and have the baby taken, but that he finally declined to do that. This is all of the evidence which we find in the record which tends to conform to the general statements set out in the above assignment of error. We think such evidence was competent as tending to disclose motive on the part of appellant to aid and abet Mrs. Bilyeu in the act of concealing the death of the child.
The eighth and last error assigned relates to the action of the court in refusing to allow the witness J. W. Bilyeu to testify to certain statements made to him by appellant relative to his reason for leaving home. The state took the position that appellant left home to avoid arrest, while appellant contends he was merely seeking employment in war plants. It was appellant’s desire that the witness be permitted to testify that he • (appellant) had told him that his reason for leaving was to find employment. The trial court refused to admit such testimony on the ground that such were self-serving declarations and incompetent. We think the trial court was correct in this ruling and that such evidence was incompetent.
As originally drawn the information charged appellant with aiding and abetting Yernnie Bilyeu in concealing “the birth and death” of her child. After the jury was impaneled and sworn appellant demurred to the information because of the surplus charge of the concealment “of the birth.” The trial court permitted the prosecuting attorney to amend the information by striking out the words “birth and.” Assuming without deciding that because of the allegation with respect to birth the information as originally drawn was defective, the amendment was clearly permissible under § 8853 of Pope’s Digest, and the amendment certainly cured the defect, even if one existed.
On the whole case we find no error, and the judgment is affirmed. | [
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Knox, J.
This is a suit brought under authority of Act 119 of 1935 to confirm title acquired by the state at a tax sale held in Arkansas county for taxes of 1937.
At a tax sale held in Arkansas county for the taxes of 1894, T. J.-Simpson purchased the north half of north half, section 20, township 6 south, range 2 west. Prior to the expiration of the period for redemption Simpson died, and the clerk executed his deed.to the “heirs and legal representatives of T. J. 'Simpson. ’ ’ The conveyance to the legal representatives of the deceased bidder at the tax sale was improper, but the conveyance to his heirs was proper. Huffman v. Henderson Company, 184 Ark. 278, 42 S. W. 2d 221. See, also, Black v. Brown, 129 Ark. 270, 195 S. W. 673; Gannon v. Moore, 83 Ark. 196, 104 S. W. 139; Pope’s Digest, § 13872. The tax deed therefore was color of title. Immediately after his purchase at the tax sale Simpson moved on and took possession of the land, and at all times since, he or some one or more of his heirs have been in possession. Although they at all times have been in possession, asserting title, the Simpsons have been exceedingly negligent about the payment of taxes. New were the years in which the taxes were paid.by any member of the Simpson family. The taxes were paid in various years by various persons and corporations. In most cases, however, the record fails to disclose the claim of ownership asserted by the person paying the taxes.
Holding, as they did, actual possession for a period of more than seven years under claim based on color of title, the Simpsons acquired .good title by adverse possession.
The land again forfeited to the State for the taxes of 1937, and thereafter, on January 21, 1941, the State, acting through its attorney general proceeding under the authority of Act 119 of the Acts of 1935, filed this suit to confirm its title. Thereafter on February 3, 1941, the State conveyed its interest in the land to L. A. Black.
The Simpsons, on September 22, 1941, filed an answer to the complaint of the State, set out the convey anee to Black, and asked that he he made a party. Black filed a response thereto on November 19,1941, and later, on June 15, 1942, filed an amendment thereto.
The respective pleadings filed by the parties hereto contain many allegations of irregularities in the proceedings leading to the tax sales under which the respective parties assert title, but the record contains little or no proof sustaining these allegations.
Although § 6 of Act 119 of the Acts of 1935, which is now § 8716 of Pope’s Digest, refers to the action of the intervener as a “defense,” we are nevertheless convinced that such section when read as a whole places on the intervener the burden to show that the tax sale under which the 'State asserts the title it is seeking to have confirmed is defective. Among other matters set out in this section, it is provided: “In cáse any person . . . shall establish valid defense a decree . . . shall be rendered ... in favor of such defendant with respect to . . . the tract . . . free from the claim of the State therein . . .” It would appear that there is a presumption that the tax sale to the State is regular, and the burden is on the prior owner to show otherwise.
- Appellees allege several grounds of irregularity in the sale for the taxes of 1937, but proof of these allegations is lacking.
In the written opinion filed in this case the chancellor said: “Prom pleadings and record evidence filed and presented and the admissions of counsel for the interveners and respondents, it is undisputed that both parties claim under void tax deeds, the interveners ’ ancester having purchased this land at a void tax sale for the taxes of 1894, by virtue of which the county clerk of Arkansas county issued his tax deed to these lands to the heirs and legal representatives of T. J. Simpson, deceased.” This language leads us to believe that counsel for appellant, in open court, may have made an admission that the tax sale of 1937 was void. What irregularities existed in the proceedings of the tax sale of 1937 are not disclosed by the record, and not available for our examination. In light of the chancellor’s statement, to reverse the decree and dismiss the cause because of failure of proof to sustain the allegations would be unfair. On the other hand, to affirm the cause upon the mere recital of the chancellor that such an agreement general in its nature, had been reached, without further detail as to the terms, would prevent us passing on the case de novo: It appears that fairness requires that the cause be more fully developed. The decree is therefore reversed and the cause remanded with directions to take additional testimony as to alleged defects in the sale for the taxes of 1937, to the end that both the lower court and this court be fully advised as to irregularities, if any, which may have existed in the proceedings relating to the sale for the taxes of 1937. | [
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Holt, J.
Appellee, Kirby School District No. 32, on August 3, 1943, brought this suit in ejectment to recover possession of a certain school building and the acre of ground upon which it was situated, alleging that appellant, L. W. Williams, unlawfully detained and held possession of said school building and land, and prayed judgment for possession of the land and school building and damages for unlawful detention. Appellee claimed ownership of the property by virtue of a warranty deed from S. S. Gray (widower) to Wheeler Special School District, dated August 5,1920. Appellant answered with a general denial, alleged ownership of the one-acre tract and school building located thereon by virtue of warranty deed to him from S. S. Gray, dated August 12, 1943. Appellant further alleged that “by virtue of his deed from S. S. Gray, he is owner of the rights in the said property which were owned by S. S. Gray and states that this acre of land was donated to the Wheeler Special School District to be used by said Wheeler School District for school or church purposes and was to revert to the grantor should school and church be discontinued or moved and this defendant states that the school was moved to Kirby, Arkansas, and that no school has been conducted on this acre of land since March 21, 1942; that Kirby School District has not used said acre of land or the appurtenances thereon for school purposes, or any other purpose since said date and has discontinued the use of said land for said purposes and has moved the school from said land and a great distance from same, thereby bringing into full force and effect the reversion clause in the deed the said S. S. Gray made to the said Wheeler Special School District and vested title to the said land in S. S. Gray, who has in turn vested title in this defendant,” and that he, appellant, together with his sons, owned all the land surrounding the one-acre tract. September 20, 1943, appellee filed reply denying that the land' and school building was ever to revert to the original owner, S. S. Gray, his heirs or assigns, and denied that the property had been abandoned by appellee for school purposes.
The cause was submitted to the trial court sitting as a jury, which resulted in a finding that appellee, school district, had abandoned the one-acre tract of land in question for school purposes and that title thereto should be quieted in appellant, Williams, but that appellee, school district, had not abandoned the school building, “but was maintaining and keeping said building for the purpose of constructing a teacherage upon the lands of said district at Kirby, Arkansas; that it was the intention of the grantor, S. S. Gray, in the deed of August 5,1920, that the grantee should have the right to remove the school building upon abandonment of said lands for school purposes,” and that appellee should have sixty' days within which to remove said school building. From the judgment of the court, awarding the school building to appellee, comes this appeal.
Appellant challenges the correctness of the judgment of the trial court, awarding the school building to appellee with permission to remove said building from the one-acre tract on which it now stands to a point in appellee district, near the Kirby District schoolliouse, to be used as a teacherage.
Wheeler Special 'School District was consolidated with and made a part of Kirby School District No. 32, appellee, on March 21, 1942, and no school has been conducted in the Wheeler school building since consolidation, and appellee has no intention" of conducting any school in the building on this one-acre tract of land, or to use the school building at its present location, in the future. Appellee, Kirby District, is approximately 13 miles distant from the Wheeler District. The school building here in question is of the present value of approximately $500. At the time of consolidation, there were five children of school age enumerated within the Wheeler District, and arrangements were immediately made for these children to attend school at the Center Ridge School District, about two miles from the Wheeler District. The warranty deed from S. S. Gray to the Wheeler Special School District, dated August 5, 1920, contained the following provision: “That I, S. S. Gray (widower), for and in consideration of the sum of donation to Wheeler School District to be used by said Wheeler Special School District for school and church pimp oses and to revert to me should school and church be discontinued or moved. ’ ’
Appellant, Williams, and his sons own all the land surrounding the one-acre tract in question here. August 12, 1943, S. S. Gray, by warranty deed, conveyed the property here in question to appellant, and appellant took possession and moved in the school building and is using it as his residence.
The material facts appear not to be in dispute. It is conceded that the trial court correctly found that the one-acre tract of land on which the school building is located had been abandoned by the school district for all school purposes and its ownership reverted to S. S. Gray under the clause in the deed of Gray to the district, supra. The question here as to appellee’s right to the school building, therefore, turns on the construction to be given the above provision in the Gray deed to the Wheeler District in the light- of the facts. We think it clear, from the plain terms of the above provision, that when the one-acre tract of land ceased to be used for school purposes, then title to this land and the school building thereon was. to revert to S. S. Gray. (The church purpose issue is not involved here.) The words "discontinued or moved” have reference to the discontinuance or removal of the school and not the building, which was erected on the property, in which school was conducted. We think the plain, as well as the intended, meaning of these words is that title to the property should revert to Gray when the school was either discontinued or moved, and both of these events have happened here.
We think it also clear that under the clause in the deed, supra, it was contemplated that a house be erected on the one-acre tract, in which school could be' conducted. Otherwise, this acre of ground which alone was of very small value could and would be of little or no use to the school district. We find nothing in the Gray deed to the district 'that would warrant appellee’s claim to the school building in question. The rule seems to be well settled that unless otherwise provided in the deed, the school building, when erected on the land, becomes a part of the realty and passes with it.
In 42 Am. Jur., p. 199, § 18, the text writer says: "The general principle of law is that a building permanently fixed to the freehold becomes a part of it, that prima facie a house is real estate, belonging to the owner of the land on which it stands.”
The provision of the deed, supra, created a base, conditional or determinable fee. The text writer in Vol. 26, C. J. S., § 110, p. 400, says: "A base fee, a fee simple determinable, or a fee simple subject to a conditional limitation, a fee with a limitation annexed that upon the happening of some future event or contingency, the estate will automatically terminate and pass by way of possibility of reverter to the grantor, . . . may be created by deed. . . . Such a fee is created by a deed in fee so long as it is used for a specified purpose with a provision that it shall revert to the grantor if such use is discontinued, ’ ’ and in support of the text, there is cited the case of Johnson v. Lane, 199 Ark. 740, 135 S. W. 2d 853, and in tliat case we held: (Quoting headnote 1 from the South Western Reporter) “Where deed conveyed land to a religious organization as a gift for location of a school and provided that if use of land for school purposes ceased the land should revert to grantor, the deed conveyed a ‘determinable, base or qualified fee’ and land reverted eo instanti to grantor when it had ceased to be used for school purposes, and it was not necessary for grantor to re-enter in order to regain, title.”
In St. Louis-San Francisco Railway Company v. White, 199 Ark. 56, 132 S. W. 2d 807, we quoted with approval from Tiffany on Real Property, Third Edition, Yol. 1, § 220, as follows: “So, when land is granted for certain purposes, as for a schoolhouse, a church, a public building, or the like, and it is evidently the grantor’s intention that it shall be used for such purpose only, and that, on the cessation of such use, the estate shall end, without any re-entry bjr the grantor, an estate of the kind now under consideration (determinable fee) is created.”
We think our holding in the case of Steele v. Rural Special School District No. 15, 180 Ark. 36, 20 S. W. 2d 316, is controlling here. The holding there is opposed to appellee’s contention. The language used in the deed in this Steele case is as follows: ‘ ‘ This property to be used for school or church purposes, and in case of its abandonment as a church or school site, title is to revert to the grantor.” This language is, in effect, the same as that used in the instant case. In the Steele case, there had been a consolidation of two school districts and no school held in the school building from January, 1925, to the summer of 1926. The school building had been abandoned for school purposes when the grantor in the deed to the school district notified the school board that he was taking possession of the school building under the reverter clause in his deed to the school district. We held: (Headnote 2) “Where a grantor took possession of a school building under a deed reverting the title to the grantor, in case the' property was abandoned as a church, or school site, where the undisputed evidence showed an actual abandonment of the building, it was not necessary to show official action by the school board declaring the property abandoned. ’ ’
From what we have said, we conclude that appellee hád abandoned the land and school building thereon for all school purposes; that the school building, when placed upon the land, became a part of the realty, and therefore reverted with the land to S. S. Gray, under the reverter clause, supra, and that the trial court erred in holding otherwise. The judgment is reversed, and the cause remanded with directions to enter a judgment awarding possession and title to the land and school building in question to appellant. | [
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McHaney, J.
Appellant brought this action to recover “damages for a personal injury caused by the negligence of the defendants named herein, at a point where the state highway No. 271 crosses the railroad tracks of the Missouri Pacific Railway Company.” Appellant’s abstract. In addition to said railroad company and its trustee, a number of other parties were jointly sued, it being alleged that they had erected large sign boards along the right-of-way which obstructed the view to the crossing. To an amended complaint appellees, or some of them, filed demurrers, which were sustained. Appellant refused to plead further and his complaint was dismissed. This appeal followed.
Appellees move to affirm the judgment for failure of appellant to abstract the amended complaint and we think this motion is well taken. In order for this court to determine whether the complaint states a canse of action and whether the trial court erred in sustaining a demurrer to it, the appellant should either set out the complaint in full in his abstract or state fully the substance of it therein. We cannot tell from appellant’s abstract whether he was injured on appellee’s crossing by the operation of a train, or just how he was injured. In his abstract he states that the original and amended complaint are fully set out in the transcript and he knows of no way of abridging them or making them shorter than they appear in the transcript. He says: “We, therefore, call the court’s attention first to the entire amended complaint. Second, to paragraph 9, paragraph 10, paragraph 11, paragraph 12 and paragraph 13, which is to be found on pp. 12, 13 and 14 of the transcript of record. We also call the court’s attention to paragraph 14 of the amended complaint (Tr. p. 15), also paragraphs 15,16 and 17 (Tr. of Record, pp. 16 and 17).”
But nowhere does appellant either set out these paragraphs that he calls the court’s attention to or state the substance thereof. There is only one transcript and there are seven judges of this court, and in' order that all may be able to pass upon the sufficiency of the complaint, it is necessary that it be copied in full or fully abstracted. Manifestly, the transcript cannot be passed around to all the judges, and Rule 9 was adopted to conserve the time of the court and to facilitate its business. We have often said that we are not required to and will not explore the transcript. Particularly is this true where the sufficiency of the complaint is brought in question by a demurrer interposed and sustained. This .cannot be done by a meager or insufficient abstract, one that does not even let the court know what the lawsuit is about, or how the accident happened.
The judgment is accordingly affirmed.
McF addin, J., dissents. | [
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McHaney, J.
Appellant was convicted of involuntary manslaughter on a charge of murder in the first degree for the'shooting and killing of her'sister, and sentenced to a year’s imprisonment.
She has appealed from that judgment and the only ground urged for a reversal is that the court erred in admitting in evidence, over her objections and exceptions, the voluntary statement made by her at coroner’s inquest and which statement was reduced to writing by the deputy prosecuting attorney in the presence of the coroner and the jury impaneled by him, and she signed same. She was sworn as a witness and before testifying she was told that she was not required to testify and that any statement she made would be used against her. She was 1C years old at the time and was brought to the inquest by the sheriff. The statement, dated January 11, 1943, follows: “My name is Alice Dunham. I am a sister' to Lois Creel. Last night, or late yesterday afternoon, my husband, my sister, Lois, and my father and mother were at my parents ’ home. Lois and I began fussing. She sat clown beside my husband and said that he was good.looking and that she would like to take him out. I said, ‘Hell, yes,’he is good looking,’ and that I was going to take her husband out. I then threw a rouge box at her and she threw it back at me. My husband thought Lois and I were mad at one another. He told us to quit fussing. About 6:00 p. m., my husband, Lois and I went to town and my husband and I ate supper at.Zeno’s Cafe. We all then went to the show. Lois sat in front of us. My husband and I left the show before Lois did. We went to Lewallen’s Cafe, and wgre drinking Coca-Cola. Lois came in and started talking with some soldiers she knew. As soon as we finished drinking, we left without saying anything to Lois. My husband took me home in a taxi and then left for camp. In a little while Lois came and wanted to sleep with me. I told her at first she couldn’t. My father then told Lois to sleep with him and Mamma. She slept with them. I did not get up at all this morning until about 10:00 or 10:30. Lois was not up at this time. She got up about 11:00. When she got up we started going on at one another. We were cursing each other. She called me a damned old............. I called her Hitler and things like that. We were always talking to each other that way, even when we were in a good humor. This morning Lois and I got pretty loud with each other, calling one another bad names. I often call people, including my husband, ‘You crazy son-of-bitch’ or ‘You crazy bastard.’ This morning, after Lois got up,.she and I were going on at one another. She was standing on one side of the stove and I was on the other side of the stove. I got the gun clown and pulled the hammer back. I did not shoot immediately. We were calling each other bad names. Before Lois got up, mamma dropped something-on the floor, the poker, I think. Lois said she wanted to sleep — that she couldn’t sleep with a racket going on. I tlien kicked something and made a noise. When I did this, Lois said, ‘ Oh, you fool. ’ I then said something back to her. Lois then got up. We started spatting back and forth at each other across the stove. She reached over across the stove towards me. I do not know whether she tried to slap me or not. I got the shotgun and sat down with the gun across my lap. Lois was still standing on the other side of the stove. I got up and pulled the hammer back and pointed the gun at her. T think I had .the hammer pulled back while I was sitting down. When I pointed the gun toward Lois and she was facing me, I pulled the trigger. The gun fired and Lois fell dead.
“Lois got married last December 27th. She came home January 10th, about 4:00 p.m., for the first time since she married.
“I have made the foregoing statement of my own free will and I hereby sign same after being warned that any statement made by me might be held against me, and my statement is set out on the preceding six pages and this one.”
It is earnestly insisted by counsel for appellant that the admission in evidence of this statement, without which a conviction could not have been obtained, was error. It is said that its admission is in violation of the latter part of subdivision (c) of § 8, art. 2, of the constitution of this state, providing: “. . . nor.shall any person be compelled, in any criminal case, to be a witness against himself; . . .” But the undisputed proof is that she was not compelled to be a witness against herself. When called as a witness before the inquest she was warned that she did not have to testify and that, if she did, it would be used against her. This was not an invasion of her constitutional rights. Voluntary statements of the defendant before the coroner’s inquest were held to be admissible in evidence on his trial in Tiner v. State, 110 Ark. 251, 161 S. W. 195, and again in the same case, 115 Ark. 494, 172 S. W. 1010, as a declaration against interest, but held such statements admissible on behalf of the State whether against interest or not. See 35 C. J. 629. In 22 C. J. S., Criminal Law, § 733, p. 1255, the general rule is thus stated: “Provided they were made voluntarily, admissions by accused at a coroner’s inquest may be received against him. The fact that accused was subpoenaed, or the equivalent thereof, to appear at the coroner’s inquest does not render his statements thereat inadmissible against him on a subsequent trial, if such statements were, in fact, voluntarily made.”
Appellant quotes and relies on the provisions of §§ 3-956 and 3957 of Pope’s Digest to exclude the statement, but we think they have no application here.' The former relate's to cases where two or more persons are jointly concerned in the commission of any crime or misdemeanor, either may be sworn as a witness in relation thereto, but the testimony so obtained cannot be used against the witness in a prosecution against him for the same offense. This statute has no application, as appellant is not jointly charged with any other person and she Avas not called as a witness against any other person. The latter (3957) permits the accused to be a Avitness in his own behalf, at his oAvn request, but not otherwise, and the fact that he fails to make the request shall create no presumption against him. This statute changed the rule formerly existing which precluded the accused from testifying for himself. Here., appellant did not avail herself of the privilege granted by this statute, but her failure to do so creates no presumption against her.
She Avas convicted on the voluntary statement made by her at the coroner’s inquest, which, as we have already stated, was admissible,, and the judgment is accordingly affirmed. | [
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Holt, J.
September 2, 1941, appellees herein, R. E. Dent et al., executed in writing an instrument addressed to “American Security Company, Little Rock, Arkansas,” which, in part, is as follows: ‘ ‘ G-entlemen: You are hereby authorized to procure for me a loan of $162,500 dollars ($162,500') bearing interest at 4% per annum, (to be secured by a mortgage on 3,600 acres of land in Crawford county, Arkansas) . . . For negotiating the loan I agree to pay you a cash commission of two per cent payable when loan is closed. ... If loan is approved as applied for and I refuse or fail to complete said loan within a reasonable time, then I agree to pay you the above named commission. . . .” The instrument contained no provision for time limitation and was not exclusive as to the company.
April 6,1943, this instrument, for value, was assigned by the American Security Company to appellant, Hogan Oliver, who was its Arkansas agent at the time.
Shortly after the execution of the above instrument, Mr. Oliver submitted appellees’ application to Connecti cut General Life Insurance Company for the loan of $162,500, which the company declined to make.
Approximately a year after appellant had advised appellees that the insurance company had declined to make the loan, appellees obtained a loan of $92,000 from the Connecticut General Life Insurance Company, Secured by 3,000 acres of the land described in the instrument, supra.
Appellant, April 7, 1943, sued appellees for an alleged broker’s commission, based upon the above instrument. Appellees denied liability and by agreement, the cause was submitted to the court, sitting as a jury, which resulted in a judgment foivappellees. This appeal followed.
At the conclusion of all the testimony, appellant requested certain findings of fact and conclusions of law by the court, which were refused. At the request of appellee, however, the court found: “That on September 2,1941, the American Security Company, assignor of the contract sued on, entered into a contract with E. E. Dent, as administrator of the estate of G. T. Cazort, E. E. Dent, individually and Yivian Cazort Dent, whereby as agent it assumed to procure a loan in the amount of $162,-500 bearing interest at four and one-half per cent. Contract made no provision as time limitation.
“Pursuant to execution of contract, American Security Company applied to The Connecticut General Life Insurance Company for such loan, through its loan department. After an examination of the properties offered as security, the loan as set out in contract was denied. Major Dent by letter after contacting Mr. Hogan Oliver, in charge of loan department of American Security Company, advised his brother of the loan rejection, suggesting that the Jefferson State Life Office might be interested, or that a sale might be had as suggested by Mr. Oliver. Apparently from the evidence, a considerable lapse of time occurred after the loan rejection and both parties to the contract rather assumed that the negotiations had ended. Mr. Dent stated that he heard nothing further concerning the loan. Later, Mr. Dent, with the assistance of his attorney, Mr. Joseph E. Brown of Fort Smith, Arkansas, executed a new application in the amount of $92,000 for a loan with the Connecticut General Life Insurance Company and this loan was granted at a higher rate of interest than originally requested in the first application. When this loan was consummated, Mr. Oliver, being the owner of the rights and claims of the American Security Company, if such there were, called upon Mr. Dent and insisted that a commission be paid upon the loan as actually made. Mr. Dent denied liability and thereupon Mr. Oliver instituted the present suit.
“There is nothing in the record to disclose that American Security Company took any active steps or rendered any material assistance in the making of the actual loan. Plaintiff Oliver did contend that he advised Mr. Dent that a loan might be granted if application made.”
The court then concluded, as a matter of law, that the instrument sued on, creating the relationship of principal and agent, was not exclusive as to the principal and that so long as Mr. Dent acted in good faith, he was not precluded from securing a loan in person; that by conduct of the parties, the original contract of agency was terminated when the original loan was rejected, and that by lápse of time from the date of the original contract until the procurement of the loan, all parties considered the contract abandoned and at an end; that appellant seeks to recover on the original contract and there being-no agreement or modification of the original contract or any understanding as to any commission that might be subsequently due under a supplemental application, the court held, as a matter of law, that appellant had no contract upon which to predicate recovery.
After a review of the testimony, we think it supports the court’s findings of fact and that the conclusions of law based thereon are correct.
Here, the broker, under the instrument involved, was authorized to negotiate a loan for a specified sum, $162,- 500. His agency was not exclusive. At the broker’s request, appellees made application for the loan with the Connecticut Life Insurance Company. The application was refused, and appellant so notified appellees. Appellant made no further effort to procure the loan, but requested that the land be listed with him for sale. Appellees refused appellant’s request for a listing.
Thereafter, in 1942, appellees sold 510 acres of the land described in the instrument or contract, supra, for $56,000'. Approximately one year later, appellees obtained a loan of $92,000 from the Connecticut General Life Insurance Company, secured by a mortgage on 3,000 acres of the land referred to in the contract, supra. We find no evidence that appellant was prevented from procuring the loan of $162,500 by the fault of appellees. We think the court, on substantial testimony, was warranted in finding that appellant did nothing in procuring the loan, had abandoned the contract, and through no fault of appellees had failed to obtain the loan under the terms of the contract, supra. These findings were based on appellant’s testimony that he had advised appellees the Connecticut General Life Insurance Company had refused to make the loan and requested that the land be listed with him for sale.
Appellant testified that some time after the loan had been turned down, he had requested that the application be resubmitted. However, appellees denied this and the trial court found this issue in favor of appellees.
The rules governing the rights of real estate brokers ’to recover commissions for the sale of real estate apply with equal force to brokers employed to procure loans on real estate. This court so held in Biscoe v. Deming Investment Company, 148 Ark. 525, 230 S. W. 592, where it is said: “These rules, of.course, are applicable to brokers employed to procure a loan on real estate as well as to brokers who are employed to sell real estate.”
In Murphy v. Bradley, 200 Ark. 208, 138 S. W. 2d 791, 128 A. L. R. 427, this court said: ‘ ‘ The general proposition is well established that if property is placed in the hands of a broker for sale at a certain price, and a sale is brought about through the broker as a procuring cause, he is entitled to commissions on the sale even though the final negotiations are conducted through the owner, who in order to make a sale accepts a price less than that stipulated to the broker. The law will not allow the owner of property sold to reap the fruits of the broker’s labor and then deny him his just reward. After stating the general rule to be as above quoted, the annotator (43 A. L. R. 1100) states an exception to the general rule as follows: ‘Exception to rule. When the contract between the broker and his principal expressly makes the payment. of commissions dependent on the obtaining of a certain price for the property, the broker cannot recover, even though the owner sells at a less price to a person to whom the broker first shows the property unless the broker is prevented from making the sale by the fault of the principal.’ A large number of cases are cited by the annotator from many jurisdictions fully sustaining this exception, and no cases are cited to the contrary. See, also, Johnson v. Knowles, 169 Ark. 1089, 277 S. W. 868.” Appellant falls within the exception to the general rule.
Finding no error, the judgment is affirmed. | [
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Holt, J.
June 2,1943, appellees sued appellant. Appellee, S. T. Leeper, sought to recover for damages to his automobile and appellee, Alberta McGrhee, for personal injuries. Among other things, they alleged that while they were traveling on highway 26 near Arkadelphia, in a car driven by appellee, Leeper, “they met a car belonging to the defendant, Checker Cab Company, and being operated for them at the time”; and that while said car was being so operated by defendant, defendant “carelessly and negligently permitted the car to come over on these plaintiffs’ side of the road and collide head-on with plaintiff’s, S. T. Leeper’s, car, and injured these plaintiffs,” and Leeper’s car. After setting forth the extent and nature of the injuries to appellee, Alberta McGhee, and damages to Leeper’s car, they prayed for judgment in the amount of $225 for damages to the car and for $1,000 for appellee, Alberta McGhee, for alleged personal injuries.
Service of summons was had upon appellant on the same day the complaint was filed. June 19, 1943, appellant filed answer denying all material allegations and in addition alleged that the car which collided with that of appellees’ was at the time being driven by "W. It. Lair, who had leased the car from appellant in the regular course of business; that Lair was a capable and competent driver, was not employed by appellant in any capacity, was on no mission for appellant, and was engaged solely in a private enterprise of his own, at the time of the alleged injury, and denied any liability.
August 6, 1943, the following judgment (captioned “Default Judgment”) was awarded appellees: “Now on this the 6th day of August, 1943, the same being a day of the regular July term of court, this cause coming on to be heard, the plaintiffs appearing in person and by their attorney, J. H. Lookadoo, and the defendant coming not, although defendant had filed an answer herein, but the defendant comes not, although three times called at the bar of this court. And thereupon the plaintiffs demanded a trial and the case was submitted to the court upon the complaint, with the exhibits thereto, filed herein, the summons issued herein against the defendant and the return of the sheriff of Garland county, Arkansas, thereon showing proper service for the time and in the manner required by law, and the evidence introduced by plaintiffs, from all of which, and other things, matters and proof before the court, the cóurt doth find: that this is the day which was regularly set for the trial of this cause; that the defendant has been duly served with summons for more than twenty days before the first day of this court term, as required by law; that the defendant filed its answer but failed to defend. It is, therefore, by the court considered, ordered and adjudged that the plaintiffs, S. T. Leeper and Alberta McGhee, do have and recover of and from the defendant, Checker Cab Company of Hot Springs, Arkansas, any amount that may be adjudged later on by a jury properly empaneled to hear the evidence pertaining to the amount of damages, together with all plaintiffs’ cost herein paid, laid out and expended for all of which execution may issue if and when the jury has properly awarded judgment.”
January 24, 1944, appellant moved to have the alleged “Default Judgment” of August 6th set aside. This motion, which does not appear to be set .out in the record, was overruled, whereupon on this same day, it being the first day of the regular January term of the Clark circuit court, all parties being present and ready- for trial, the question of the amount of damages to appellee’s, Leeper’s automobile and the amount that Alberta McGhee should recover for personal injuries was submitted to a jury on instructions, not complained of here, which resulted in a verdict in favor of appellee, Alberta McGhee, in the amount of $800, and for S. T. Leeper in the amount of $213.54.
In apt time, appellant filed its motion for a new trial, in which it alleged: “1. That the court erred in refusing to set aside the default judgment heretofore rendered in this case, and that the said default judgment is contrary to law; 2. That the damages allowed the plaintiff, S. T. Leeper, are excessive under the evidence; 3. That the damages allowed to the plaintiff, Alberta McGhee, are excessive under the evidence.” The court overruled this motion and this appeal followed.
Appellant says: “The only question for consideration on this appeal from the judgment by default is whether the allegations of the complaint are sufficient to' authorize the judgment. A judgment by default upon a complaint failed to state facts sufficient to constitute a cause of action is reversible on appeal.”
It will be observed from the record of proceedings in this cause that after appellees filed their complaint and service of summons was duly had upon appellant, appellant answered. The issues were thus joined. On the pleadings on August 6, 1943, the cause was ready for trial. Appellant did not appear. No motion had been filed by appellant to make the complaint more definite and certain. Appellees were entitled to a trial. (§ 1533, Pope’s Digest.)
The judgment of August 6, 1943, recites that the court, upon consideration of the complaint, service of summons, answer, “the evidence introduced by plaintiffs (appellees), from all of which, and other things, matters and proof before the court,” found that appellant was liable to appellees in amounts “that may be adjudged later on by a jury properly empaneled to hear the evidence pertaining to the amount of damages,” etc. While this August 6th judgment was captioned “Default Judgment,” it was not in fact a default judgment, for the reason that an answer had been filed, issues joined, and testimony heard by the court. In these circumstances, even though the complaint imperfectly stated a cause of action, in the absence of a showing to the contrary, we must assume that it was treated as amended to conform to the proof. The judgment of August 6th was in, effect an interlocutory judgment, in which the liability of appellant was properly determined and the amount of damages left to be assessed, and was assessed, by a jury at a later date, January 24, 1944. We find no error in these proceedings. See McLain Surv. v. Taylor et al., 9 Ark. 358.
Appellant next contends that the judgments wefe excessive. It could serve no useful purpose to detail here the testimony on this-point. It suffices to say that after a review of the record, we are of the opinion that there is ample testimony to support the finding of the jury, both as to damages to Leeper’s car and as to personal injuries received by Alberta McGhee.
Finding no error, the judgment is affirmed. | [
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Smith, J.
Appellant, George Brasko, and appellee, Mike Prislovsky, own farms on opposite sides of Highway 11, about 4 miles north of Stuttgart. This highway runs north and south, and the Brasko farm is on the west side of the highway, while appellee’s farm is on the east side. There are ditches on both sides of the highway, parallel with it, which were designed when the highway was built to carry away the rainfall or surface water. The surrounding lands are part of a prairie, and are virtually level. There is no discernible water fall in any direction nor any water course of any kind.
Prior to 1943, one D. F. Fowler owned the farm now belonging to appellee, and which he sold to appellee in that year. In 1929 or 1930, Fowler dug a ditch, at his own expense and for his own use, running east across his land from Highway 11. After purchasing the land from Fowler, appellee, in 1943, dug a ditch for irrigation purposes along his west line, which was parallel to the highway. This last ditch crossed the first ditch at a right angle and operated to dam the extreme west end of the first ditch, and this suit was brought to compel the removal of the dam and to recover damages for its construction and from a decree denying that relief is this appeal.
Had the relief prayed been granted, the surface water on Brasko’s land, which flowed through a culvert placed in the highway at the time of its construction, would have flowed into the ditch running east through appellee’s land, hut to reach that ditch the surface water would have flowed over the highway ditch, which had been designed to afford drainage, but did not accomplish that result, because this ditch paralleling the highway had not been kept open, but had been allowed to fill up. In other words, the court was asked to require appellee to remove the dam which he had constructed by building his irrigation ditch at the head, of the ditch running east through appellee’s farm. .
The testimony is to the effect that while the ditches running parallel to the highway, which were constructed when the highway was built, carried away the surface water so long as those ditches were left open, they did not now accomplish that purpose inasmuch as the highway ditches were not kept clear and open.
With the head of the ditch running through appellee’s farm dammed up, surface water cannot escape through the culvert running under the highway, and impounds and backs up over portions of Brasko’s farm to his injury and damage, and the purpose of this suit is to compel appellee to permit this surface water to escape by running through appellee’s ditch, running east across his field. If this relief were granted, appelle.e would he under the continued necessity of keeping the ditch open to prevent the flow of surface water over his land, and it might not accomplish that purpose at all times.
We are cited to a numbér of cases dealing with the consequences of obstructing water courses and the power and duty of courts to afford protection from that action. But these cases are not applicable here, for the reason that there has been no obstruction of a water course.
In the case of Leader v. Mathews, 192 Ark. 1049, 95 S. W. 2d 1138, we approved the definition of a water course appearing in the case of Boone v. Wilson, 125 Ark. 364, 188 S. W. 1160, where it was said:
“A watercourse is defined to be a running stream of water; a natural stream, including rivers, creeks, runs and rivulets. There must be a stream, usually flowing in a particular direction, though it need not flow continuously. It may sometimes be dry. It must flow in a definite channel, having a bed and banks, and usually discharges itself into some other stream or body of water. It must be something more than mere surface drainage over the entire face of the tract of land occasioned by unusual freshets or extraordinary causes.”
The leading case relating to the right a landowner has to fend against surface water is that of Little Rock $ Fort Smith Ry. Co. v. Chapman, 39 Ark. 463, 43 Am. Rep. 280, which case has been cited and approved in many later cases. It was there said:
“And, with regard to surface-water, the common law courts generally agree that each proprietor has the right to fend off the surface-water flowing naturally or falling upon his own soil, so as .to divert its course, and may even throw it back upon his neighbor from whose land it came. The point, however, upon which there is amongst them great conflict, and no little obscurity, is as to whetheir this right is absolute at the will of the lower proprietor, or whether its exercise must be reasonable for proper objects, and with due care to inflict no injury beyond what may be fairly necessary. The question rather concerns the good faith of the act, and the manner of doing it, than the right itself. If necessary, the right is generally unquestioned, and if done with due care of the property of another, although the latter may be injured, he has by the common law no remedy. ’ ’
The case of Leader v. Mathews, supra, after reviewing a number of our earlier cases announced the law to be that a landowner may fend against the flow of surface water, unless in so doing he unnecessarily or willfully damages another. See, also, Honey v. The Bertig Co., 202 Ark. 370, 150 S. W. 2d 214.
There is no evidence - that appellee has acted willfully or maliciously. He would hardly have gone to the expense and trouble of digging a ditcb entirely across bis field for tbe mere purpose of damming tbe bead of tbe four-foot ditcb wbicb runs east tbrougb bis field. On tbe contrary, bis purpose was to fend against tbe flow of surface water over bis land, a right wbicb be bad.
Another plaintiff in tbe suit below named Brasko, joined in tbe suit, and prayed tbe same relief, but it does not appear that be has appealed, but, if so, bis appeal may be disposed of by saying that be showed no greater right to tbe relief prayed than did tbe other Brasko.
Tbe decree is correct and is, therefore, affirmed. | [
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Knox, J.
There is little or no conflict in the material facts presented by this record. On the 7th day of July, 1941, appellant issued a policy of insurance, insuring the life of John Freeman in the amount of $250. One Rosie Freeman was designated as beneficiary. One provision set out in the policy reads as follows: “Reinstatement— If the policy lapse for nonpayment of premiums, it may be reinstated upon application of insured made within one year from the date to which premiums have been duly paid and payment of all arrears, provided evidence of the insurability of the insured satisfactory to the company, be furnished, but such reinstatement shall not take effect, unless at the date thereof the insured is living and in sound health. ’ ’
It is undisputed that John Freeman, the insured died on August 7, 1943. Thereafter appellee instituted this action, alleging that although her real name was Rosie Walters she was in fact one and the same person as the “Rosie Freeman” designated as beneficiary in the policy, and this fact is not seriously questioned by appellant.
Rarely were premiums paid when due, and defaults in payments thereof were more often the rule than the exception. For several weeks prior to August 3, 1943, the insured had failed to pay premiums. On that date the sum of $3.06 was paid to E. E. Thompson, agent for appellant, and an application for reinstatement of the policy, purporting to have been signed by the insured was delivered to Thompson. Appellee, Rosie Walters, testified that she actually made this payment. She introduced a receipt, which she testified was delivered to her by Thompson, and which reads as follows: “Life & Casualty Insurance Co. of Tennessee. Home Office Life & Casualty Building, Nashville, Tenn.
“8/3/1943
“Received from John Freeman $3.06, being the arrears of policy to 8/16, which the applicant desires the company to revive.
“Under no circumstances will the company he liable under said policy in case of sickness, accident, or death, until the policy has been revived on the hooks of the com pany and the money credited in the premium receipt book belonging to said policy.
“E. E. Thompson, Agent.
“If the company accept the revival application, the amount will be credited on the premium receipt book belonging with, the policy, otherwise the money will be refunded. ’ ’
As before stated, the insured, John Freeman, died on August 7, 1943', but appellant, the insurance company, was not promptly advised. On August 16,1943, the application for reinstatement by John Freeman came up for consideration in the home office of appellant insurance company, and such company still having no information as to the death of insured, the home office approved such application.
Thereafter this action was brought, and at the trial, appellant insurance company requested a peremptory instruction, ‘on the ground that the approval of the application for reinstatement by the home office having occurred after the death of the insured was ineffectual to reinstate the policy. The request for such peremptory instruction was denied, and the cause submitted to the jury, resulting in a verdict in favor of appellee, Rosie Walters. The sole question argued by appellant here is whether the policy was reinstated by the action taken in the home office after the death of the insured.
Appellee contends that the record contains testimony to the effect that there had been defaults on prior occasions for such lengths of time as would cause the policy to lapse under the strict terms thereof, but that at such times appellant had accepted overdue premiums without requiring an application for reinstatement, and counsel for appellee says: “Rosie Walters testified that she had been as many as six payments or six weeks behind in the payment of premiums and that even when she was behind six weeks, which was two weeks more than the four weeks ’ provision in the policy for it to lapse, there never was even a request for an application for reinstatement and that the agent accepted this payment for this length of time and recorded it in the receipt book. It is onr contention that this was the custom established by thé company in dealing with this negro woman. It waived the provisions in its policy which they argue on this appeal when it allowed their agent to carry on their business with this insured in this manner, and they are estopped now, it is our contention, from claiming the strict provisions of the policy, which they argue as a defense. ’ ’ Appellant contends not only that appellee has failed to testify to facts which could be construed as a waiver of this condition, or estop it from claiming the benefit of such provision, but it goes further, and quoting at great length from her testimony, argues that when considered as a whole the effect of appellee’s testimony is that appellant’s previous actions were not such as to justify the assumption that it had waived or was estopped to enforce such provision.
In the case of American National Life Insurance Co. v. Otis, 122 Ark. 219, 183 S. W. 183, L. R. A. 1916E, 875, Mr. Justice Wood, speaking for the court, said: “We know of no ground of public policy which forbids an insurance company from including the above (conditions respecting reinstatement) as one of the conditions upon which its policyholders . . . who have been suspended for nonpayment of premiums may be reinstated. . . . In the absence of some statute or some well recognized ground of public policy forbidding1 such conditions the parties have a right to make them and are bound by them.”
The rule was again recognized and applied in the case of McCann v. Supreme Tribe, 171 Ark. 614, 285 S. W. 361.
An exhaustive note on the subject is found at 105 A. L. R. 478, which discloses that the Arkansas decisions are in accord with the weight of authority.
Since we have no statute forbidding the inclusion of such provision in the policy, and since such provision is not in conflict with public policy, and the parties have elected to make it a condition of the contract, they are bound by such provision.
Appellee appears to concede this as a general principle 'of law, but contends that under the facts here, appellant, on account of its prior dealings with the appellee and the insured in cases of previous defaults, has waived such provision and is estopped to enforce the strict letter of the contract. As authority for her contention appellee relies largely upon, the case of United Friends of America v. Avery, 192 Ark. 620, 93 S. W. 2d 652. The second headnote succinctly states the rule declared as follows: “An insurance company’s conduct in accepting for considerable time payment of premiums after expiration of days of grace estopped it from declaring the policy forfeited for failure to pay premiums till grace period had expired; and if it intended in the future to insist upon compliance with the by-laws in that regard, it must notify its policyholders to that effect. ’ ’
A wide divergency exists between the facts set out in the opinion in the Avery case and the facts presented by the record in the case at bar. At the trial of the Avery case the insurance company had introduced the record of premium payments covering a period of nearly seven years. In the opinion prepared in that case for this court, Mr. Justice Butler, at great length reviewed the facts reflected by such record, and declared: “This record conclusively shows that from the inception of the contract the provisions of the by-laws with respect to the payment and acceptance of premiums were consistently ignored and disregarded. ’ ’
To point out each and all of the material distinctions existing between the facts in the two cases would require a long and useless exploration, comparison and discussion of the facts revealed by both records. The investigations which we have already made are sufficient to convince us that the facts in the two cases are so different that the rule of the Avery case has no application in the case at bar. The record in the Avery case covered seven years, with many defaults which worked forfeitures of the policy, while here the period of time is much shorter, and defaults of a character which caused the policy to lapse far less frequently. In fact appellant argues that only once before had there occurred a default of such character as would have justified appellant in demanding a formal application for reinstatement, when it was admitted no formal application was required. In the Avery case the insurance company defended on the ground that the policy had automatically forfeited for nonpayment of premiums — no formal application for reinstatement, such as we have here, had been executed and was pending at the time of death. These few points of difference are, we think, sufficient to reveal that the rule of the Avery case has no application here.
We are of the opinion that the trial court erred in refusing appellant’s request for a directed verdict, and the judgment is therefore reversed and the cause dismissed. | [
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Griffin Smith, Chief Justice.
The question is, Did Circuit Court err in rendering judgment on a jury’s ver diet awarding $400 in damages to one for whose benefit a telegram was sent from Arkansas to Indiana?. The message, as written, would have informed Appellee Elizabeth K. Standridge that her sister-in-law, Ada, died Wednesday morning, April 7, and that the body would be buried Friday. As received, the wording was, “Idad died,” etc.
Believing, that her father had died, Mrs. Standridge left by train for her parents’ home in Russellville, accompanied by her husband and their three small children. The Standridges sued jointly. Allegations were that great mental and physical distress were suffered; that the husband lost six days from his work in a defense plant, amounting to $90, and that railroad fare and meals cost $109.14. The sum asked was $2,999.
' From a directed verdict against J. R. Standridge he has appealed. .Western Union appeals from the judgment in favor of Mrs. Standridge because instructions permitted the jury to consider mental anguish as an element of recovery.
A directed verdict against appellee’s husband was proper. One whose name is not mentioned in a telegram, and whose interest in the subject matter is not brought to' the carrier’s attention in a way that would cause a prudent person to believe that injury might result from the carrier’s mistake, has no cause of action. Western Union Telegraph Company v. Swearengen, 94 Ark. 336, 126 S. W. 1071. See, also, Primrose v. Western Union, 154 U. S. 1, 14 S. Ct. 1098, 38 L. Ed. 883. Gist of the Primrose case is that the measure of responsibility depends upon knowledge of the special circumstances to be affected by failure of the carrier to properly transmit. The rule was affirmed by this Court in Western Union Telegraph Co. v. Hogue, 79 Ark. 33, 94 S. W. 924; Chicago, R. I. & P. Ry. Co. v. Miles, 92 Ark. 573, 123 S. W. 775, 124 S. W. 1043; Southern Telephone Company v. King, 103 Ark. 160, 146 S. W. 489, 39 L. R. A., N. S., 402, Ann. Cas. 1917B, 780, and cases there cited.
Some of the instructions in the case at bar clearly informed the jury that mental anguish and physical distress should be considered. Such mental anguish, said the Court, “. . . must he real and with cause, and not the result of a too sensitive mind or morbid imagination. ’ ’
It is true that in Instruction No. 7 the law was declared to be that mental anguish and suffering would not of themselves warrant a verdict, and “. . . unless you further find that plaintiff in addition suffered physical distress ... in conjunction therewith . . . your verdict should he'for the defendant.”
If construction of this language is that recovery be denied unless the distress followed physical injury, still the difficulty is that grief and disappointment were the proximate causes and pain peculiar to Mrs. Standridge was the result. A mild shock, such as the use of profanity or a threatening attitude assumed toward a third person might cause a sensitive woman to suffer mental anguish followed by headache or kindred ill, whereas another, of different fiber, would be unaffected by the transaction. The want of a basis for measuring mental anguish has caused lawmakers and courts to deal with it at arm’s length when considering elements of recovery ex contractu or ex delicto, although in some jurisdictions compensation is allowed, irrespective of physical pain or injury as the terms are ordinarily understood. By Act of March 7, 1903, Pope’s Digest, § 14258, it was sought to fix liability on all telegraph companies doing business in this State, “for mental anguish or suffering, even in the absence of bodily injury or pecuniary loss.” The statute applied where negligence in receiving, transmitting, and delivering messages was shown.
But in May, 1914, the United States Supreme Court (opinion by Mr. Justice Holmes) struck down a South Carolina statute similar to ours (Civil Code of that State, 1902, § 2223) to prevent what the Court thought would be extraterritorial effect of a domestic law. The judgment considered gave compensation because of Western Union’s negligent nondelivery of an interstate death message.
In July of the year the Holmes opinion was adopted, the telegraph company appealed to this Court from a judgment in favor of G. D. Compton, based upon the Act of 1903. Western Union Telegraph Co. v. Compton, 114 Ark. 193, 169 S. W. 946. Following affirmance, and before the judgment became final, the Supreme Court of the United States decided against Brown in the South Carolina case. On rehearing here (opinion by Chief Justice McCulloch) the former action was set aside and the law as pronounced in the Brown case was applied.
Substance of the Brown decision is that enforcement of a statute creating rights sought to be conferred by the Mental Anguish Act would impose a burden on interstate commerce. The Holmes opinion also excludes any thought-that interference with commerce among the States was not a ground upon which the decision rests. This was stated by Judge McCulloch on rehearing in the Compton case.
In seeking to serve society as a whole, a law may sometimes be unjust to an individual. That is true here. It would seem that any casual consideration of the message delivered to Mrs. Standridge should have suggested an inquiry. The word “Idad” of itself is meaningless. True, there might be the presumption that it was a term of endearment applied to father or grandfather, brought forward from childhood days; but the unusual combination of letters should have warned any responsible agent of appellant that probably the message had been garbled. That the recipient was distressed is too obvious to require more than a statement of circumstances and relationships. Reason'is not served nor logic dignified by the abstract assertion that Law prevents redress for the injured party; and yet, when the decisions are examined, there is no satisfactory answer unless it be that differences in sensibilities and susceptibility to shock, the wide range of capacity for affection and the lack of uniformity in reaction, preclude reasonable minds from measuring, for purposes of compensation, the damages that flow from a particular transaction. So again it must be said, ‘ ‘ this is the law” as to interstate messages.
The judgment against J. R. Standridge is affirmed. The award to Mrs. Standridge is modified to include only the actual expenses of $37.20. It is affirmed for this amount.
Pains in head and back, requiring application of hot pads for a period of two weeks, were testified to by Mrs. Standridge.
This section of the Digest erroneously shows the Act to have been passed in 1913.
Western Union Telegraph Co. v. Brown, 234 U. S. 542, 34 S. Ct. 955, 58 L. Ed. 1457. | [
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Smith, J.
This is an appeal from the judgment of the chancery court, sitting in probate, disallowing the claims-of Mr. and Mrs. Hale Davis, who are husband and wife, against the estate of one C. J. Nipper. They testi fiecl that Nipper was an elderly man, living alone, his wife being dead, and that they moved into the Nipper home in the spring of 1938, and that Mrs. Davis became the housekeeper, and did the household work, and on occasions worked in the field, and, in addition, operated an ice cream station, from which an income of $312 was derived, and sold chickens which she raised in the sum of $120, and that these sums were expended in the operation of the Nipper farm. Mr. Davis testified' that he worked as a general farm hand, from 8 to 10 hours per day, and each testified that their services were reasonably worth $1.50 a day, making altogether a claim of $3,794, for which sum judgment was prayed, less a credit of $40 for a heifer.
In June, 1938, Nipper executed a written instrument, which he called a will, devising all of his property, both real and personal, to Davis and wife. This instrument recited that:
“The conditions of the above will is such as follows:
“The above named beneficiaries shall nurse and care for me in my sickness and contribute to my needs at all times; and at my death they shall erect a monument in exact size and dimensions as I now have erected at the grave of my deceased wife. This is my last will and testament. ’ ’
This will was never probated, although it was found with Nipper’s papers after his death, and no rights are claimed under it except as an evidence that Nipper intended that Mr. and Mrs. Davis should be compensated for. their services.
Mr. and Mrs. Davis lived with Nipper until January 12, 1941, when they voluntarily left his home, and on •June 19, 1941, Nipper executed another will in which he devised all his property to R. L. Blair, who was named as executor. Blair found both wills with Nipper’s papers, and gave the first will to Mr. Davis, and probated the •last one, and no question is made about the validity of the will which was duly probated. The claim here sued on was presented to Blair, as executor, who disallowed it, as did also the court after hearing the testimony, and from that order and judgment is this appeal.
The judgment and decree must be affirmed for two reasons, the first being that Davis and wife offered no testimony in support of this claim, except their own and the unprobated will. The opinion in the recent case of Wilson v. Dodson, Admr., 203 Ark. 644, 158 S. W. 2d 46, is decisive of this question. It was there said:
“The very recent case of Campbell, Admr., v. Hammond [203 Ark. 130], 156 S. W. 2d 75, is conclusive of that question. The facts in the two cases are very similar. The rendition of the services, and the value thereof, were shown in each case by the testimony of the claimants, without other testimony to substantiate the claims. The claims were allowed in each case upon this testimony alone, and, in reversing the former judgment, it was held that where appellees filed claims against the estate of appellant’s intestate, they were, under § 2 of the Schedule to the Constitution and § 5154, Pope’s Digest, incompetent to testify to transactions had with the intestate forming the bases of such claims, and that judgment was reversed, as this one must be, for the lack of competent testimony to support it.”
The writing referred to as the first will was not executed as an inducement to Mr. and Mrs. Davis to move into Nipper ’s home, as it was, executed after they became members of this household. Moreover, it will be observed that if ever valid, as a will, it recited that the conditions of the will are that the beneficiaries should nurse and take care of him and erect a monument in his memory, all of which they failed to do. The court made the finding of fact that the writing was not a will, but would be considered as “A circumstance and partial explanation of the claimants continuing to live on the farm and work thereon.” But-the court made other findings of fact which led to the conclusion that the claim should not be allowed, and these are the second reason why the judgment should be affirmed.
Among these findings are the facts that: “Although piuor to his death, they made no effort to have any séttle ment of their claim with him during his lifetime,” and also that “Claimants apparently had more property when they moved awajr than when they moved on Mr. Nipper’s farm.” Other findings of fact which we think.the testimony sustains are, “That checks introduced show that Hale Davis was paid one-half of the AAA rental checks ’ ’; that “Several checks are in evidence (from Nipper to Mr. and Mrs. Davis) showing payments to appellants which they have not explained,” and that two or more disinterested witnesses testified that appellants and Mr. Nipper had arrived at a settlement when appellants moved off the farm.
The testimony of the two witnesses referred to by the court as being disinterested was to the effect that they heard Nipper say in Mr. Davis’ presence that “We have settled up; I have paid Juanita (Mrs. Davis) and Hale (Mr. Davis) what I owed them and they paid what they owed me,” and this statement when made was not questioned by Davis. These witnesses were indefinite' as to whether Mrs. Davis was present when this remark was made, but they testified that if not present “she was about the premises.” This testimony was denied 'by appellants, but was accepted as true by the court.
Davis admitted that when he left the Nipper home he took with him 40 bushels of corn and two loads of hay, and it is undisputed that Nipper gave Davis and his wife several small checks which the court found were unexplained by the claimants. There were nine of these checks, and two of them to Mrs. Davis contained the notation that they were for picking cotton. A bank deposit slip was offered in evidence showing deposit by Nipper of $87.50, representing a rental payment by AAA, and a check from Nipper to Davis for $43.78, being one-half of this deposit, was also offered in evidence. Another check from Nipper to Davis bore the notation “For one-half of 1939-40 rental check from AAA.” Mrs. Davis testified that Nipper gave her his chickens, and that she took the increase with her when she left.
Blair testified that after probating the last will, Mr. Davis told him that Nipper owed him $15 for taking care of a mare, and that Davis then claimed no other amount.
We conclude the judgment should be affirmed for two reasons. First, there is no competent evidence of the debt, and, second, the preponderance of the evidence, both competent and incompetent, sustains the finding that no debt was due. The decree is, therefore, affirmed. | [
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McHaNEY, J.
Appellee brought this suit to enjoin appellants, as commissioners of the Howard-Sevier Road Improvement District, from refunding its past due bonded indebtedness and interest under the provisions of act number 114, Acts of 1927, on the ground that said act- had been rejjealed by act 126 of 1927. Appellants demurred to the complaint, which was overruled, and, on declining* to plead further, the injunction issued. To determine the.correctness of this action of the court this appeal is prosecuted.
Act 114 is entitled, “An act to authorize road improvement districts in the State of Arkansas to refund present indebtedness, and for other purposes,” and was approved March 4, 1927. Act 126 is entitled, “An act to provide for the refunding .of the indebtedness of local improvements districts,” and was approved March 7, 1927. These acts will be found on pages 337 and 338, respectively, of the Acts of 1927. Act 114 applies to road districts only, whereas act 126 applies to all local improvement districts, including road districts, levee and drainage districts. Act 114 is a specific declaration of the Legislature, authorizing, not requiring, road districts to refund their bonded indebtedness which became due prior to January 1, 1927, whereas act 126 is a general declaration of the Legislature, applicable to all improvement districts, authorizing them to refund their “bonded or other indebtedness” becoming due at any time, either prior or subsequent to January 1, 1927. Act 114 is rather in the nature of an emergency measure to provide a quick and easy method of refunding* past due and pressing debts in defaulting districts, whereas act 126 is a permanent measure, designed to take care of improvement district debts at any time in the future. We have made this comparison of these acts as a premise for .our conclusion that 114 is hot repealed by 126. We do not deem it necessary to set these acts out, nor to pursue a further comparison of their provisions.
This court, in McPherson v. State, 29 Ark. 225, quoted with approval:
“ ‘A statute,’ says Dwarris, ‘can be repeáled only by an express provision of a subsequent law, or by necessary implication. " To repeal'a statute by implication, there must be such a -positive repugnancy between the provisions of the hew law'and the old that they cannot. stand together or be consistently recognized.’ Dwar. Stat. 155. And Sedgwick says: ‘A general statute, without negative words, will not repeal the particular provisions of the former, unless the two acts are irreconcilably inconsistent.’ Sedg. Stat. Law.”
In the same case it is further said:
“There is, however, another rule of construction sometimes employed, which we should perhaps notice, which is that, where the Legislature takes up a whole subject anew, covering the whole ground, revising the whole subject-matter of a former statute, and evidently intending to enact a substitute, the old statute is repealed, although the new statute contains no express words to that effect.”
In Baugher v. Rudd, 53 Ark. 418, 14 S. W. 623, this court said:
“The rule of construction is that a general affirmative statute does not repeal a prior particular statute or particular provisions of a prior statute upon the same sxibject, unless there is an invincible repugnancy between the two.”
This case was cited in Nemier v. Bramlett, 103 Ark. 209, 146 S. W. 486, and the above quotation was cited with approval.in Ward v. Wilson, 127 Ark. 266, 191 S. W. 917.
There are numerous cases in this court holding to the same rule of construction and none to the contrary. Under this rule it is manifest that act 126 does not repeal act 114. The repealing clause in act 126 does not expressly repeal act 114. It merely recites that all laws in conflict are repealed, and to hold that the one repeals the other we would have to say that there is such a repugnancy in the later act that the earlier is necessarily repealed, or that the Legislature took up the whole subject-matter anew in the later act and evidently intended to enact the later as a substitute for the earlier, which we cannot do under the rule announced.
Both acts were passed by the same session of the Legislature, and approximately at the same time, 114 being finally passed through the Legislature on March 3, and approved by the Governor on March 4, and act 126 was finally passed through the Legislature on March 4 and approved by the Governor on March 7.
And there is another rule of construction, that contemporaneous statutes enacted by the same session of the Legislature should be so construed as to give effect to both of them as to come “within the reason of the rule governing the construction of statutes in pari materia.”
In Arkansas Railroad Commission v. Stout Lumber Co., 161 Ark. 164, 225 S. W. 912, this court quoted with approval from Smith v. People, 47 N. Y. 330, as follows:
“Statutes enacted at the same session of the Legislature should receive a construction, if possible, which will give effect to each. They are within the reason of the rule governing the construction of statutes in pari materia. Each is supposed to speak the mind of the same Legislature, and the words used in each should be qualified and restricted, if necessary, in their construction and effect, so as to give validity and effect to every other act passed at the same session.”
In 25 Ruling-Case Law, 930, it is said:
“Effect should be given, if possible, to statutes in pari materia, enacted at the same legislative session, and where two acts relating to the «ame subject were under consideration and enacted at the same session of the Legislature, the courts, it has been said, will exhauist all the resources of interpretation before coming to the conclusion that there is an irreconcilable repugnancy between them and that one repeals the other. Acts passed at the ,same legislative session are construed as one act on the same subject. And, instead of holding such acts repugnant, the courts will give effect to both, although, in order to dp so, it becomes necessary to engraft one on the other, or incorporate the earlier into the later act, as an exception to its provisions * *
And this rule has been long adhered to in the decisions of this court, for, in McFarland v. Bank of the State, 4 Ark. 410, it is said:
“This view of the case is strengthened by considering that both the general and special law of interest were before the Legislature at one and the same time, •and that there were only four days between their respective dates. The proximity of these dates raises a violent presumption, if it does not amount to full proof, that the term ‘corporation’ used in the general law of interest was never intended to embrace or apply to the transactions of the bank.”
Under this rule we cannot say that act 126 repeals act 114.
We do not deem it necessary to discuss the other questions raised in the complaint of appellee, as the case was decided by the chancellor on the ground that act 126 repealed act 114 by implication. However, we may say that we have examined carefully the provisions of act 114 and do not find it subject to the criticisms' set out in appellee’s complaint.
It necessarily follows, from what we have said, that the court erred in overruling appellant’s demurrer to the complaint. The cause will be reversed, and remanded with directions to sustain the demurrer to the complaint, and for other proceedings according to the principles of equity and not inconsistent with this opinion. It is so. ordered. | [
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Humphreys, J.
Appellant instituted suit against aippellee in the first division of the chancery court of Ouachita County to restore a lost deed to the SE.% section 26, township 15 south, range 15 west, in said county, alleged to have been executed in or about the year 1897, by Ida Bell and her husband, John Bell, to appellant on account of services rendered by appellant to Mrs. Bell’s father and his family, as well as to Mrs. Bell’s family. In addition to the allegations of the execution and loss of the deed, the continuous occupancy of the land and payment of the taxes, appellant alleged that appellee procured an affidavit from herself and daughter .on August 19, 1922, disavowing the ownership of the land upon representation that it was necessary to sign such an affidavit in order to invalidate an oil lease which appellant had made to H. C. Cade, which affidavit was recorded on the deed records of said county.
The prayer of the' complaint was for the cancellation of the affidavit and the restoration of the deed.
Appellee filed an answer, denying the material allegations of the complaint. She admitted that appellant and her daughter made the affidavit disavowing any interest in the land, but denied that it was procured through the misrepresentation that it was necessary for them to sign it in order to invalidate the lease appellant had made to H. C. Cade, and alleged that it was executed by appellant in order to clear the title of any claim she might assert on account of continued possession and the payment of taxes for a long period of years, so that appellee could make an oil lease thereon to John Seips, who had offered her $2,000 in cash and certain royalties for an oil lease on the forty.
The cause was submitted to the court upon the pleadings and testimony adduced by the respective parties, which resulted in a decree dismissing appellant’s complaint for the want of equity, from which is this appeal.
The following facts appear to be undisputed in the record: Appellant is a negro woman, about eighty years of age, who was for many years the family servant of Dr. A. P. Farris, who owned a large amount of land in said county. Dr. Farris was the father of several children, including Ida, who married J. F. Bell. Appellant was a servant in the Farris home when Ida was born, and was with his wife when his last daughter, Carrie, was born. Mrs.. Farris died when Carrie was only five months old, and Dr. Farris prevailed upon appellant to rear the baby girl by promising her a home forever. During Dr. Far-ris’ lifetime appellant occupied a place owned by him a mile from the forty-acre tract in question. The doctor agreed to convey her the forty upon which she was residing at the time of his death, but he died before he did so. After his death his lands were partitioned amongst his children, the forty upon which appellant resided being assigned to Lucian Farris, and the forty in question and the forty just north of it being assigned, with other lands, to appellee. After the lands were partitioned, appellant moved onto the forty-acre tract in question in the year 1897, by consent of appellee, where she and her family have continuously resided and upon which she has paid all of the taxes.
The testimony is conflicting relative to the issue of the execution of the deed and the purposes for which the affidavit was made. Appellant testified that she moved upon the forty-acre tract in question at the direction of Mrs. Ida Bell, in the' winter after the lands of Dr. Farris had been divided among his children, and that, during the time that she was making her first crop, Mr. Bell brought a deed to her for it, signed by Mrs. Ida Bell, J. F. Bell and Carrie Farris, who was about fifteen years old when she moved onto the forty; that the- deed was made by and signed before Joe F. Cook, and that it was filled out on a blank with ink; that she put the deed in the bottom of her trunk, where it remained for years and until it disappeared ; that she paid the taxes every year and wrapped the tax recéipts around the deed; that Mrs. Bell told her to keep the' taxes paid and. never to mortgage the land to any one; that she bought the forty-acre tract north of her forty from Mrs. Ida Bell and her husband, and conveyed it to her son, Lucian Farris ; that she gave some kind of an oil lease to IT..C. ¡Cade; that Mrs. Ida Bell told her to sign an affidavit so as to get H. C. Cade off the record, and she would lease the forty of John Seips for $2,000 and give her $1,000 and all the royalty, and make her a deed in the place of the one that was lost; that she signed the affidavit not knowing its contents, received the $1,000, but when Mrs. Bell tendered her a deed to the forty, it only conveyed a 1/32 royalty for the oil-, and that, upon advice of her son, she refused to accept- the deed, and brought this suit. -
Stella Arnold, a daughter of appellant, testified that she married about six years prior to the time she testified, and built a house upon the forty, in which she and her husband resided; that she lived upon the land with her mother nearly all her life, and was present and signed her mother’s name to the affidavit on the 19th day of August, 1922, without reading it, on representation that its purpose was to.get H. C. Cade-off the record.
Sam Farris,- a soil of appellant, 37 years of age, testified that he had resided at home with his mother most of the time, and had seen the deed from appellee and her husband to his mother many times, and that.it was.lost; that she kept it in her trunk; that Mr. Gray Rogerson, a white man, owned a forty adjoining his mother’s forty; that he was helping Mr. Rogerson build a division fence between the two forties, and Mr. Rogerson requested him to get the deed-so that he could be certain about the fence line; that he got the deed, and Mr. Rogerson examined it and found out what he wanted to, after which witness took the deed back and put it in the trunk; that the deed had been lost about ten years.
• Lucian Farris, another son of appellant, who was 49 years of age, testified that Mr. and Mrs. Bell conveyed the southwest quarter of the southeast quarter of said section, township and range to his mother after they had lived on the forty awhile; that it adjoined the forty occupied by Mr. and Mrs. Bell; that his mother kept the deed in her trunk, where he had seen it a hundred times; that in 1900 his mother purchased the forty north of her forty from Mr. and Mrs. Bell, and conveyed it to him in 1909 for having remained at home with her and having helped pay off the debts; that, when his mother conveyed his forty to him, he took the deed Mr. and Mrs. Bell gave his mother to his forty and his deed to his home and produced and attached them as exhibits to his testimony.
Gray Rogerson, a white man, who owned and resided upon a forty-acre tract adjoining the forty claimed by appellant, testified that he wanted to build a fence between the forty he owned and the forty upon which appellant and her husband resided; that appellant’s boy, Sam, was helping him, and he sent him after his father and the deed; that the boy returned with the deed, but said that his father was not at home; that his purpose was to see whether appellant owned the forty and to have an agreement about the fence line; that witness examined the deed particularly with reference to the description,, and knows that the southwest quarter. of the southeast quarter of said section, township and- range was described therein; that it could not have been a deed to the north of appellant, else it would not have joined his land; that the deed ivas acknowledged before Joe F. Cook.
Joe F. Cook testified that he lived in the neighborhood of the southwest quarter of the southeast quarter, section 26, township 15 south, range 15 west, in Ouachita County, from 1863, except a short time, until 1917, when he moved to Camden; that witness was justice of the peace for that township for about twenty years previous to 1906; that he was well acquainted with both appellant and appellee; that he was appointed one of tlie commissioners to divide Dr. Farris’ land between his heirs, and that appellant and her husband were living on the forty-acre tract which was assigned to Lucian Far-ris in the partition; that Lucian was not willing for them to remain on the forty assigned to him, so they moved onto the southwest quarter of the southeast quarter of section 26, township 15 south, range 15 west,' which had been assigned with their lands to appellee;-that, some time after they moved onto that forty, Mrs. Ida Bell and her husband called him to their home and stated that appellant had been promised a home by Dr. Farris, and that they wanted her to live as close to them as possible, and asked him to prepare a deed from them to appellant covering that forty, stating that it had a house upon it and some of the land was cleared; that the forty they instructed me to make a deed to was adjoining the forty upon which they lived themselves; that witness filled out a blank deed, describing the forty referred to, which was signed and acknowledged by Mr. and Mrs. Bell; that appellant was present at the time 'the deed was written, and possibly had some of her children with her; that he has no distinct recollection now of the particular description he inserted in the deed, further thhn remembering that the forty was north of the forty upon which Mrs. Bell resides, and that, according to the plat before him, the desoription was- as given above; that he is certain that Mrs. Bell directed him to make a deed to appellant to the forty right north of her home; that in the conversation one reason assigned by Mrs. Bell for wanting -to make the deed to appellant was the fact that she had raised her sister; that witness'is able to tell from the map that the deed made at that time was to the northwest quarter of the southeast quartér of said section, township and range.
Mrs. Ida Bell, appellee herein, testified that at the time her father, Dr. Farris,-died, appellant was living on a forty that was given in the partition of the lands to witness’ half brother, Lucian Farris;-that, after she was dispossessed as a result of the division of the lands, appellant moved into a little house on witness’ land, which is the subject-matter of this lawsuit; that witness told appellant she could move on the forty and live there all of her life if she would pay the taxes upon it; that appellant 'bought the forty just north of the forty upon which she lived, and subsequently conveyed it to her son, Lucian; that she conveyed the north forty to appellant in 1900, but never at any time conveyed any other land to •her; that Mr. Cook never wrote any other deed than the one in 1900 from them to appellant for the forty north of where appellant resided; that appellee never made a deed to the southwest quarter of the southeast quarter of said section, township and range to appellant until after oil was discovered in Ouachita County, which deed appellant refused to accept; that oil was discovered in Ouachita County in 1922; that a negro by the name of II. C. Cade procured some kind of an option from appellant on the southwest, quarter of the southeast quarter of said section, township and range, and proposed to witness that, if she could straighten out the option and get appellant as much as $1,000 in cash and deed her the land, witness might have the royalty; that witness accepted •the proposition, and agreed in addition to give her a 1/32 royalty, provided she would raise no question or trouble about the title to the land; that, pursuant to the arrange ment, she sold a lease to John Seip for $2,000 in cash and reserved the nsnal royalty; that, before Seip would buy the oil lease, he required that appellant make an affidavit stating that she had no interest in the land; that she had paid the taxes thereon in lieu of rent to appellee; that she had nothing" to do with the preparation or the execution of the affidavit; that, after Mr. Seip accepted the lease and paid witness $2,000, she divided it with appellant and tendered her a deed to the land and 1/32 of the royalty, which she refused.
■ John Seip testified that he discovered that H. 0. Cade had obtained an option for about three years from appellant on the southwest quarter of the southeast quarter of said section, township and range, but that the-title to said land was in Mrs. Bell; that, after making that discovery, he negotiated with Mrs. Bell for several days for a lease on the land; that he finally paid her $2,000 cash and certain oil royalties for the lease, on condition that appellant make an affidavit that she had no interest in the land and that she had paid the taxes on the land in lieu of rent to Mrs. Bell; that appellant and appellee had some kind of trade between themselves, of which he was not cognizant; that he does not remember the particulars with reference to the preparation of the affidavit nor whether he received it from appellant or appellee; that-he was in the bank when Mrs. Bell paid appellant $1,000, and remembers that she accepted it contrary to the advice of her son.
The affidavit referred to by the several witnesses is as follows: “Louis Farris and Stella Arnold state on oath: We are over the age of twenty-one years, resident of Ouachita County, Arkansas, and each have lived in said county and State for more than 25 years, and are well acquainted with the southwest quarter of the southeast quarter section 26, township 15 south, range 15 west, located in Ouachita County, Arkansas. We have known this land for at least 25 years. During that time we have known it by it being the property of and belonging to John Bell and his wife, Ida. Bell. We have lived upon this land for a number of years, as tenants of John Bell and Mrs. Ida Bell. We have never heard any one make claim to this property except them. During the time we have lived upon said land we have always paid rentals to Mrs. Ida Bell, and we recognize the land as being her property. It is our understanding that she has paid all taxes assessed against this land for several years past.
“We have no interest in the purposes for which this affidavit is made. ’ ’
In order for appellants to obtain a reversal of the decree the record must reflect clear, conclusive and satisfactory proof that appellee executed the deed to her, conveying the southwest quarter of the southeast quarter, section 26, township 15 south, range 15 west in said county, which she lost. Jacks v. Wooten, 152 Ark. 515, 238 S. W. 784; Wasson v. Walker, 158 Ark. 4, 249 S. W. 29; Erwin v. Kerrin, 169 Ark. 183, 274 S. W. 2; Langston v. Hughes, 170 Ark. 272, 280 S. W. 374. In determining whether the deed claimed to have been lost was executed, the duration of the possession of the land, its value, whether, held adversely, and all the surrounding circumstances, may be considered by the court. Carpenter v. Jones, 76 Ark. 163, 88 S. W. 871; Jacks v. Wooten, 152 Ark. 515, 238 S. W. 784.
Tested by these rules we think the decree is contrary to a clear preponderance of the testimony. • The testimony of the parties bearing upon the execution of the deed is in irreconcilable conflict, but appellant is corroborated by her daughter, two sons and two white men Avho have no interest whatever in the result of the suit. Gray Rogerson examined the deed particularly with reference to the description, and says he cannot be mistaken because the forty described in the deed was adjoining his land, and had the description covered the north forty it would not have joined his land. Joe A. Cook was the justice of the peace in the township, and testified just as positively as one well could that the description in the deed was the southwest quarter of the southeast quarter of said section, township and range. He based his testi mony solely upon the maps he had before him and the location of the said forty with reference to the forty where Mrs. Bell herself lived. He testified that Mrs. Bell assigned as a reason for making the cleed to appellant, the promise her father had made to her, the services she had rendered the family, especially in rearing the youngest child, and her desire to have her close to her so that she could render services to the family in the future. The great length of time, however, appellant occupied the land and paid the taxes thereon is the most potent circumstance corroborating appellant’s testimony to the effect that the land was conveyed to her. We attach little importance to the affidavit made by appellant, as the facts it purports to state are untrue according to the undisputed evidence. Appellant never paid- any rent to appellee, and nothing occurred between them during her occupancy of twenty-eight years that indicated the relationship of landlord and tenant. Appellee never-paid any of the taxes after appellant moved upon the land. Both appellee and John Seip remember little about who prepared the affidavit and who procured the signature of appellant thereto. They rather disclaim any immediate connection with it. Appellant and' her daughter say that it was signed hurriedly under misapprehension on their part of its contents.
On account of the error indicated the judgment is reversed, and the cause is remanded with directions to grant the prayer of the complaint. | [
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. McHaney, J.
Appellees brought two separate suits in the Arkansas Circuit Court, Southern District, one against , appellant, Camden Fire Insurance Association of Camden, New Jersey, and the other against the Mississippi Fire Insurance Company of Jackson, Mississippi, to recover on separate policies issued by appellants, insuring the appellees against loss by fire in the sum of $6,493.50 each, on rough rice while located in the granary of the appellee, Meloy, in the Southern District of Arkansas County. The cases were consolidated and tried together, resulting in a judgment for the amount sued for against each company, in the sum of $6,437.50, or a total of $12,875, with interest from March 10, 1925, at 6 per cent, and the statutory penalty, and was based upon proof satisfactory to the jury that there were 10,300 bushels of rice in the granary, of the value of $1.25 ppr bushel. After the verdict and judgment were rendered, the question of the attorney’s fees to be fixed by the court was postponed to an adjourned day, at which time the testimony of several witnesses on behalf of the attorney for the plaintiffs was taken, and the court, after hearing such testimony, fixed the attorney’s fees at $2,000, for which judgment was accordingly rendered. There was no objection or exception, on the part of counsel for appellants to the action of the court in so doing. Thereafter,' in due time, a motion for a new trial in each case was filed, overruled, and an appeal was prayed and granted to this court, where they have been submitted and briefed together on one transcript.
Appellants first urge as a ground for reversal that appellees were not entitled to recover because they failed to comply with what is known in one of the policies as the “iron-safe” clause, and in the other as the “record warranty” clause. These clauses are almost identical, and, in substance, provide that the assured shall, at the beginning of each season, make a complete itemized inventory, showing the quantity and kind of rice on hand, “and if same has been graded, priced, bought or sold, will preserve an exact record of such grade of rice;” that he shall keep a set of books and a record showing the quantity and kind of rice on the premises, and removed from the premises, and ‘‘if any of the rice * * * is graded, bought or sold by the assured, shall produce accurate records of the grades, quantities and prices involved in such transaction; that the assured shall keep such inventory, books, records, accounts, including record of grades and prices * * * securely locked in a fire-proof safe at night, and at all times when such books or records are not actually in use, and/or failing in this, shall keep same in some place not exposed, to fire which would destroy aforesaid premises.” And further provides, if this is not done, the policy shall be null and void. '' ¡ I; ■ ■
B.. A. Scott, a witness for appellees, testified that he kept a daily record of the number of bushels of rice threshed and put in the granary, but appellants insist that this is not sufficient, because he did not claim to have kept any record of the grades. A sufficient answer to this is that the policies do not require that a record of the grades be kept unless the “same has been graded, priced, bought or sold.” The rice in the granary had not been graded, neither had any riee been bought and none sold, except 650 bushels delivered to the Rice Growers’ Association prior to the 18th day of February, the date of the issuance of these policies. The same amount of rice in the granary at the time of the issuance of the policies was still there at the date of the fire. There had been no change in any respect, and a sufficient record of the amount of rice put in the granary was kept by the appel-lees. It is manifest from a casual reading of these clauses that they can have no application in the case of' a farmer or other, person who was not buying or selling rice as a dealer or warehouseman whose stock is subject to change from day to day by the increase of the amount bought, or the decrease thereof by the amount sold. In the case of Queen of Arkansas Insurance Co. v. Dillard, 96 Ark. 378, 131 S. W. 946, where the property insured in the policy was “$400 on office furniture, fixtures and supplies, including desks, tables, chairs, stands, type, type cases, presses and electrical fixtures as are necessary to bis .use, and such other furniture and fixtures,” this court, in disposing of the contention of the insurance company that the insured violated the “iron-safe” clause by keeping no books and making no attempt to comply therewith, said:
“The requirements of the iron-safe clause have reference to such articles of merchandise as constitute the stock in trade of the insured, and has no application to property in a policy like that under consideration.”
Again the court said:
“The object in requiring a set of books to be kept showing a record of the business transacted and of the changes taking place from day to day in the stock of goods of the insured, is that the insurer may have the means of ascertaining the amount and value of the goods destroyed. Southern Ins. Co. v. Parker, 61 Ark. 207 [32 S. W. 507]. In cases like this, where no stock of goods or other wares are kept on hand, it is apparent that the requirement of the iron-s.afe clause can serve no useful purpose, and the maxim that ‘the law does not compel one to do vain or useless things,’ applies.”
In the case of Miller v. Delaware Ins. Co., 14 Okla. 81, 75 p. 1171, 65 L. R. A. 173, 2 Ann. Cas. 17, the court ■used this language:
“This inventory and iron-safe provision is intended to have reference only to such articles of merchandise as constitute stock in trade, and the purpose of the clause is to provide evidence from which to determine what the actual loss sustained is, in case of fire. * * * General merchandise, however, is a character of property which is at all times changing. . The amount of stock in trade on hand one day is but little, if any, evidence of what may be on hand at another timé. Upon the one hand, the stock is being depleted'by sales made, while, upon the other, it is being replenished by purchases. All business men know that the amount of stock kept by any merchant fluctuates very materially. *• * *”
Since Meloy was not a dealer in rice, but was only storing bis own rice in bis own granary, and no change taking place in the amount thereof from day to day, it would be a vain and useless thing to say that he must comply with these so-called “iron-safe” and “record-warranty” clauses by keeping a set of books and doing the other things required therein.
Appellants’ nest contention is that the record, such as was kept, showing the amount of rice in the granary, was not exhibited to their adjuster, and that the failure to do this canceled the policies. Powell, the adjuster, testified that he asked Meloy to show him the record, and that Meloy had nothing to show him, but Meloy testified on this point as follows: “Q. Did you have that book at the time? A. It may have been at the house. I didn’t show it to Mr. Powell. It was. at the house, and Mr. Powell did not want to see it. I showed it to the State Fire Marshal; he copied it;” and further testified that Powell said the only question was the amount of the rice. The record of the amount of rice threshed and put in the granary was introduced in testimony, and showed the exact amount of rice in the granary at the time the-policies were issued and at the time of the fire, and the jury has decided this question against appellants’ contention.
Furthermore, the demand and acceptance of the premium after the fire, and after the adjuster had made his •investigation, and with full knowledge of the alleged breach of the “record-warranty” or “iron-safe” clause, constituted a waiver of these-defenses. After Powell had been to see Meloy about adjusting the loss in the latter part of April, and after the appellees had furnished original and supplemental proofs of loss, and 54 days after the fire, appellants demanded and accepted, on the 8th day of May, the premiums on these policies. They did not return the same or offer to return same up to and including the time, of the trial. Under these circumstances, appellants will be held to have waived these defenses.
In Scottish Union & National Ins. Co. v. Wylie, 110 Miss. 681, 70 So. Rep. 835, the court said:
“By the acceptance of the premium by the agent of the insurance company after the fire, when he had knowledge both of the mortgage on said property and of the other additional insurance upon the same, he waived all irregularities which might or could have existed, either in the issuance or during the continuation of said policy.” Insurance Co. v. Smith, 79 Miss. 144, 30 So. 362; Insurance Co. v. Dobbins, 81 Miss. 623, 33 So. 504; Farmers’ Alliance Ins. Co. v. Ferguson, 78 Kansas 791, 98 Pac. 231; Manning v. Connecticut Fire Ins. Co., 176 Mo. App, 678, 159 S. W. 750.
It is next urged that the court erred in refusing to postpone the trial on appellant’s motion so to do from 6:30 in the afternoon until the following morning, instead of adjourning to 7:45 p. m. This is based on the ground that the father of one of the attorneys for appellant was seriously ill and was calling for his son to be with him during the night, and the attorney wished to be with his father during the night. A physician, who was the brother of the attorney, testified to the effect that the presence of his brother at his father’s bedside was unnecessary, and the record further shows that appellants were ably represented by another attorney, who proceeded with the trial of the case. The court overruled the motion, and took an adjournment to 7:45 p. m. Appellants do not undertake to show that they were prejudiced in any way by the absence of the other attorney. This was a matter wholly within the discretion of the trial court, and its action will not be disturbed on appeal, unless there is a positive showing of abuse of such discretion, or prejudice against appellants’ right.
It is finally insisted that the action of the court in fixing the attorney’s fee in each case at $1,000 is erroneous and excessive, in view of the decisions of this court in Maryland Casualty Co. v. Maloney, 119 Ark. 434, 178 S. W. 387; Mutual Life Ins. Co. v. Owen, 111 Ark. 554, 164 S. W. 720, and in other oases where the fees were reduced to 10 per cent, of the' amount of the judgment. We would follow these cases in this case if the record reflected that counsel for appellants objected and excepted to such allowance as being excessive. But the record in this case does not show that appellants either objected or excepted to the ruling and judgment of the court, and we cannot therefore'reduce it.
We find no error in the record, and the judgment is accordingly affirmed. | [
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Smith, J.
Appellee filed a complaint on February 9, Í925, against appellant, which contained the following allegations:
That, on or about September 3Ó, 1918, he purchased from the defendant a steel granary, to be used by him in storing his rice crop. Said granary was warranted to be fit and suitable for the purpose for which it was sold and to be so constructed as to keep rice stored therein perfectly dry and prevent any damage on account of excessive moisture. The granary was installed in the fall of 1918, and, in October of that year, plaintiff stored Ms 1918 rice crop therein, where it remained until the early part of 1919,' and, upon removing the rice from the granary, it was found that said granary had permitted such a large inflow of water that 250 bushels of the rice were destroyed. The defendant, upon being notified, attempted to repair the granary, and assured plaintiff that it had been repaired and would not leak, and that rice could be stored therein without loss or damage. Belying on this representation, and believing that the granary would no longer leak, plaintiff stored his 1919 rice crop in the granary in the fall of that year, but, upon removing it in January, 1920, it was found that 300 bushels of the .rice had been totally destroyed and was unfit for market by reason of having become wet. The defendant was notified of this damage, and again undertook to repair the granary and to put it in such condition that it would prevent the inflow of water, and, after making such repairs, again informed plaintiff that rice could be stored in said granary safely and without any fear of loss or damage on account of leakage. Belying On defendant’s assurance that such granary was in such condition that rice could be stored therein with safety, plaintiff stored his 1920 crop therein in the fall of that year, Tout, when removed in tlie following spring, it was found that 300 bushels of the rice had been totally destroyed. Said granary was purchased for the price of $769, of which $300 was paid upon its installation. The balance of $469- was evidenced by a promissory negotiable note, which had passed into the hands of an innocent purchaser for value before maturity, and plaintiff was required to pay it. Said granary was wholly unfit for the purpose for which it was sold, and is entirely without valúe, and plaintiff offered to return it, and made tender thereof. "Wherefore plaintiff prayed judgment for the purchase price of the granary, and for damages to his crops of rice.
To each of these causes of action the defendant interposed a demurrer upon the ground that it affirmatively and necessarily appeared from the face of the complaint that each cause of action was barred by the statute of limitations.
The court overruled the demurrer to the paragraph of the complaint" in which judgment for the purchase price of the granary was asked, but sustained the demurrer to the three paragraphs praying damages for the loss of the rice. The defendant stood upon its demurrer, and declined to plead further, and judgment was rendered against it for the purchase price of the granary, and the complaint was dismissed as to the claims for damages to the rice. From this judgment the defendant has appealed, and the plaintiff has prosecuted a cross-appeal.
Appellant insists that all the causes of action sued upon are barred, and that the court erred in not so' holding, while appellee insists that none are barred except the action for the damage to the rice stored in the granary in the fall of' 1918.
Section 6955, C. & M. Digest, reads as follows: “Actions on promissory notes, and other instruments in writing, not under rseal, shall be commenced within five years after the cause of action shall accrue, and not afterward.” ' ■ ' :
The granary was sold under a written contract, and the applicable statute of limitations to the action for damages for its breach is the statute quoted. Sims v. Miller, 151 Ark. 377, 236 S. W. 828.
Appellant insists, however, that, as more than five years expired between the installation of the granary and the institution of this suit, the cause of action to recover-for the breach of the warranty is barred.
Ordinarily a cause of action for breach of warranty in the sale of personal property accrues upon the delivery of the property, the warranty being- broken when made, and the. statute of limitations runs'from the date of delivery. This is true because the commencement of the limitation is contemporaneous with the origin of the cause of action. Woodland Oil Co. v. Byers & Co., 132 Am. St. Rep. 737, 223 Pa. 241, 72 A. 518.
A well-considered case, which supports appellant’s contention, is that of Fairbanks, Morse & Co. v. Smith, 99 S. W. 705, which was affirmed by the Supreme Court of Texas in 102 S. W. 908, 101 Tex. 24. The syllabus in that case reads as follows:
“Where there was a breach of a warranty that a gasoline engine would develop 34 horsepower-and would be suitable for pumping water to irrigate a crop of rice, the statute commenced to run against the buyer’s right of action and counterclaim for damages when the engine was installed, and not subsequently, when consequential damages arose in the loss of his crop, without regard to when he discovered the breach, and though the seller, after installing the engine, undertook to render it effective.”
The authorities, however, are divided on this question. The case of P. H. Sheehy Co. v. Eastern Importing & Mfg. Co., 44 App. D. C. 107, is extensively annotated in L. R. A. 1916F, 810. The syllabus in that case reads as follows: ’
“The statute of limitations upon an action for breach of warranty upon a sale of canned goods to a wholesaler for resale does not begin to run until the breach is dis covered, or should have been discovered, by t.he retailers, where it was not practicable for the wholesaler to open the cans for inspection. ”
In the annotator’s note to the case last cited a number of cases in harmony with it are reviewed. Among other cases reviewed is that of Felt v. Reynolds Rotary Fruit Evaporating Co., 52 Mich. 602, 18 N. W. 378, in which the opinion was written by Cooley, C. J. ■ In that case a fruit evaporator had been sold under a warranty, which was broken, and the manufacturer made an effort to fix the machine so as to make it comply with the warranty, but the attempt failed. . After keeping the evaporator for some months the purchaser tendered it back and demanded the return of the cash payment made and the surrender of notes given for the balance of the purchase money. When the offer was declined, suit was brought, and the statute of limitations was pleaded, it being insisted there, as it is here, that the statute of limitations against the action for the breach of the warranty began to run from the date of the 'delivery and installation of the machine. The contract of sale contained no provision for a test to be made of the machine before the sale thereof should be complete, but Judge Cooley said that the contract contemplated - that a test should be made both as to the capacity of the machine and the quality of fruit turned out by it, these being matters covered by the warranty, and that, if suit had been brought at any time before the test, it would apparently have been a defense to the suit that there had not been, as yet, a reasonable time for testing the result of its workings, “for the parties respectively were continuing their experiments with it for some time longer; the one trying it and the other endeavoring to perfect it; and their acts are the best criterion as to the time required for these purposes.” It was there held' that the statute of limitations did not begin to run "against the cause of action for the breach of the warranty until there had been a failure, after test, to make the machine comply with the warranty.
In the annotator’s note, sufra, the annotator says, after reviewing the Michigan-ease, that ‘-a decision somewhat in conflict, however, with the above Michigan case, and seemingly not so much in accord with reason and justice, is that of Fairbanks, M. & Co. v. Smith (Tex. Civ. App. 1907), 99 S. W. 705, affirmed in 101 Tex. 24, 102 S. W. 908.”
Other cases are cited in the annotator’s note which are in accord with the views expressed by Judge Cooley;
In the ease of Dyke v. Magdalena, 171 Ark. 225, 283 S. W. 374, a refrigerator had been sold under the warranty that it would preserve meats. It failed to do this, and the manufacturer attempted by repairs to make it do so. The attempt failed, and the purchaser sued for the breach of the warranty and for the damage to the meats which had been placed in the refrigerator. It was insisted that the purchaser was in default in failing to sue' promptly for breach of the warranty, but we held that such was not the case because of the attempts which were made to remedy the defects.
We hold therefore that, while the statute of limitations ordinarily begins to run against an action for breach of warranty upon the sale and delivery of a chattel which ■ does not comply with the warranty, yet the statute is tolled so long as the vendor insists that the defect can be repaired and is attempting to do so. It follows therefore that the suit to recover the purchase money was brought before the bar of the statute had fallen, and, inasmuch as the complaint alleges and the demurrer admits that the granary was without value, and the return thereof had been tendered, the measure of damages was the price paid, and the judgment rendered for that amount will be affirmed. • ■
We are of the opinion that the court was correct in sustaining the demurrer to the counts of the complaint praying damages for the loss of the rice. . When the rice was damaged a complete cause of action accrued. The first damage was sustained in Í919, the next in 1920, and the last in 1921, and more than three years inter vened after the last damage was sustained before tbe institution of this suit. ■ ' • -
Tbe attempts to repair were made pursuant to a verbal promise so to do and a verbal warranty that tbe attempts would be successful. Any rights growing out of these promises to repair and the attempts to make tbe repair rested upon a parol agreement, and tbe applicable statute of limitations against such contracts is threé years. Had tbe attempts to repair tbe granary "been successful, so that thereafter it would have complied with the warranty, this would not have satisfied tbe claim for damages which bad already accrued. In any event, the suit for the damages to the rice accrued when the damage to the rice was discovered, and any promise that the damage would not recur in the future could not affect the right to sue for damages which had already been sustained. Suits for the damage to the rice should therefore have been brought within three years after its occurrence, and, as this was not done, the court below properly held that the suits therefor were barred. .
• - The judgment of the court below appears to be correct upon both propositions, and it is therefore affirmed. | [
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Humphreys, J.
This is an appeal from the circuit court of Nevada County dismissing the complaint of appellant seeking to recover one hundred dollars from appellee as surety upon an appeal bond which he signed for J. 0. Shankles, who took an appeal, to tlie circuit court of Clark County from a judgment of conviction in the mayor’s court of Gurdon, Arkansas, for transporting whiskey, in violation of a city ordinance of said- city. When the case for unlawfully transporting liquor was called for trial in the circuit court of Clark County, J. C. Shankles failed to appear, whereupon his appeal was dismissed and the cause remanded to the mayor’s court of Gurdon, with directions to enforce the judgment. Immediately after giving the appeal bond J. C. Shankles left the city, so this suit was brought before a justice of the peace in Nevada County against appellee on the bond, where a judgment was obtained, from which judgment an appeal was duly prosecuted to the circuit court of Nevada County. The appeal bond contained a provision that, in case the appeal was dismissed, the obligors therein would pay the judgment of the mayor’s court, together with the costs of the appeal.
On trial anew in the circuit court of Nevada County the court decided that the exclusive remedy of appellant herein on the appeal bond was to have taken judgment by default thereon in the circuit court of Nevada County. Appellee had such remedy, and it was the most direct and appropriate one, but certainly not the exclusive one. Section 7559 of Crawford & Moses’ Digest provides for the recovery of lines, penalties and forfeitures by a municipal corporation in addition to any other mode provided, in any court of competent jurisdiction, Aside from this statute, the bond was an undertaking upon which suit' might be brought for a breach thereof wherever service could be obtained upon the obligors.
The judgment dismissing the complaint of appellant is therefore reversed, and judgment will be entered here for one hundred dollars and costs against appellee. •• | [
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McHaNey, J.
From June 5, 1911, to 1923, appellee, Judge L. Hunter, was in the employ of appellant as its attorney on an annual retainer of $200 and expenses, and, in the event the business of appellant should take him outside Clay County, he was to receive additional compensation for his services. This agreement was entered into between, the parties June 5, 1911, but was not so expressed in the minutes of appellant until the meeting of the .board of directors of appellant on'June 2, 1913, where the following appears:
“C. M. B. Cox called attention to the fact that the minutes of the meeting of June 5, 1911, at which time he and L. Hunter were employed as attorneys, did not set out the agreement then entered into, whereupon, on motion of J. L. Bartlett, it was ordered that the said agreement then entered into between the board of directors of the Central Clay Drainage District and C. Ml B. Cox and L. Hunter, attorneys, be here set out. It was agreed at the said meeting of June the 5, 1911, that each of said attorneys should receive for their services the sum of two hundred dollars per year (and necessary expenses) [words in parentheses are inserted with ink.] But it was further agreed that, in the event said attorney should be called upon to attend to matters outside the county of Clay, they should receive extra compensation. ’ ’
These minutes are in the regular minute-book of appellant, and a copy thereof was attached to the complaint, and the minute-book was exhibited in evidence by the secretary. Appellee, with the other officers of' appellant, were thereafter regularly elected every two years, or annually, as it appears latterly. In 1921 and 1922 he was directed by appellant to look after certain litigation with the Inter-River Drainage District, which took him on two trips to St..Louis, .Missouri, with litigation in the Federal District Court; two trips to Poplar Bluff, Missouri, and examination of records of Inter-River Drainage District; two trips to Little Rock, in case in Federal District Court; and two trips to Cape Girardeau, Missouri, for all of which he claimed a fee of $1,050. Appellant refused to pay for this extra service, and appellee brought suit therefor on September 29,1925. Other items were claimed in the complaint, but it was agreed at the trial that they were barred by limitations. The case was tried to a jury, which resulted in a verdict and judgment against appellant for $713.63-, with interest at six per cent, from May 1, 1922, from which comes this appeal.
Appellant assigns eight errors of the trial court for a reversal of this case. Wo will not discuss them in detail, as many of them refer to the same subject-matter, and will be disposed of together, especially those assignments relating to the written -contract of employment, heretofore set ont. There was no error in overruling appellant’s demurrer, either general or specific. Apparently it is sought to raise the question of the statute of limitations by demurrer. This cannot be done in an action at law, unless the complaint shows on its face that the action is barred and the non-existence of any ground of avoidance. McCollum v. Neimeyer, 142 Ark. 471, 219 S. W. 746; Flanagan v. Ray, 149 Ark. 411, 232 S. W. 600; Brown v. Ark. Power & Light Co., ante p.— 294 -S. W. 709. The complaint stated a good cause of action on a valid contract, to which only the five-year statute of limitations is applicable, and as it is undisputed in the evidence that appellee was employed during all these years, from 1911 to 1923, under the same contract, the plea of the statute cannot avail appellant anything, since it is likewise undisputed that the services were rendered within the statutory bar. The written minute of the meeting is a sufficient written memorandum signed by the party to be charged, appellant, which was accepted and performed by appellee, and both parties have continued to recognize it and be bound by it for a period of twelve years, from year to year, and appellant cannot now be heard to say that it is not the written evidence of the contract, or that it was conceived in iniquity or born of sin and fraud, as intimated; and, if fraudulent, it must be that of the officers of appellant alone, for it is not shown that the minute-book has ever been out of their possession.
In the case of McDermott v. Mahoney, 139 Iowa 298, 115 N. W. 35, 116 N. W. 788, the court said:
“ Where a written agreement signed by one party is accepted and adopted by the other and acted upon, it becomes their contract in the same sense as though both parties had signed it. ’ ’
We cannot ‘therefore appreciate the force of the contention that the record or minute book was incompe tent. The book was identified by the secretary and the former secretary as the minute-book of appellant. The book was the best evidence, and was properly admitted, and it could not be impeached or the written contract varied by the witness, Bartlett.
Neither was it error for the court to refuse an offer to amend the answer so as to set up a new defense that would impeach the record. The right to amend pleadings during the course of the trial, setting up new defenses, rests in the sound discretion of the court, and its action will not be reversed on appeal unless there is a manifest abuse of such discretion. St. L. I. M. & S. R. Co. v. Cooper & Ross, 120 Ark. 595, 180 S. W. 203.
Other assignments relate to the giving and refusal of instructions. We do not deem it necessary to set them out and comment on them at length, as it would unduly extend this opinion. Suffice it to say that we have examined these assignments carefully, and find no reversible error. The judgment is accordingly affirmed. | [
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Smith., J.
This appeal involves the question of the testamentary capacity of J. E. Mahaffey to make a will, and from a verdict and judgment sustaining’ the will the contestants have appealed, and, for a reversal of the judgment, insist that the undisputed testimony shows the lack of testamentary capacity, and that error was committed in permitting the introduction of a certain letter over the objection of the contestants. No complaint is made of the instructions under which the case was submitted to the jury.
J. E. Mahaffey, the testator, was married three times, and:the contestants here are the children; by'his first marriage, and the contestee is the only child of his second marriage. The third wife bdre testator no children. Under tlie terms- of the will the testator devised to the children of his first wife one hundred dollars each. To L. E. Mahaffey, the child by the second wife, there was devised a certain farm, and to the..third wife there was devised'another farm-for life,-with-'the -rem'ai-nder to L. E. ¡Mahaffey:" >'¡ v>dj h d Urn /<! ;i
The testimony shows that the money with which the farm was purchased which was devised to L. E. Mehaffey' was derived from the sale of property owned by his mother. . cah-ilu t If , \ m'/ V.
The testator-h^dj^oyppieidy liy^d p^r.jQhio, and the first wife’s'children continued to live in that State, but the d'esfeték’^e’híóNed1 fd thi§r'!S'tateffáfídr‘re’sided! líé'r'e at ’rh w.,a;'!U;\rf M‘¡":*
, .*»:• ,.op ÍS to the effect that’ the testator ivas m.#re than.-eightyf-years pjduhn?l'.-tfi# hi-S health, ymsippor,, ariduhis.jneni^liby/had declined-.un-til ibe had then&infbof a'jmer.e*.ohild,'’and^enter-tainédí'the^delnsi'OU'thatsh'cwasdieih'g^pU'rs'üdd-'by-’peT'Sons IfhPpvérd-hfidída^óiiB^dcÍPdHMpPT’kBukTidbMicpt There bore date one day after the date of the will, m which th'e'1wfitter''féféí,'í',‘edí :to'ithe'iD’odr,‘c'©hdii>i.dil'df'{ti§i-fa{her’s health, and the delusion under whiohUVé'^abo-fedpU- .v/>’
¡; ObiMinff effepiptestee’ thqd^j^paoft^,?^ toftlie effect #xcep t; that ¿he rwM wjOTí Ipebfe,, ¡a^d ^jfejpeff tad ,-j /$$$%’ f during which he had delusions. The contestee testified hJa^t-Jie ^9(S ajLQjt present, when tj^e yálfwftn-íPyep'ared;, and did mphknpw its.provi^ions ¡antif nf^er; hipffaffierts' death; apd tlmt-the wifi Tpg$ left i# tjipiPjassespiqn.el.ithe.sprivpn.er who.prepared,it?,?/ .:■» ;. .,■;.> ;j.,j ..¡ü Mo-r// vffi.-mNff
i[-.,,.{. A.'.P'a'feoribing!líwi.:tiies:S;.;tp tfeei will testified, (ffnff.lm iieín'ember,eGl;the.’'ci'rc9ms;tnnqes,of itgf e^ecutipn,, ancl, tlrat he taí'hedrWith• the testator.,pn.that ¡oeeasipny ¡andfdbÚPg that day,; and jfcb# h-,e johserypd,. nothing p^rpajg wiffirfhe testator,-, except ,that,]ie. appe.ar§d' to/he Ne-yyifeebleffrqni his.- iadynpced,a,ge.i):>iQthpr,1p¥j.ti3Leppepitestified, that -tjiey had; noticed/nothing, ab.o uf-the, de^ntopj tp jndigate £$$$}? of.mentaíliitjn.excqptppidydlieuííOhteaess/.Qfi-Ql’d.jageM-'f^.,!;
,-r.v.Á¡physician wl^o had.Jqtnwn thG^qs-tatorffpr twenty - pne.years,, and who ha;d.;pres.9(cib.odfi.pA’-.hihiifinr-seypral occasions, testified that h(£rf.;M.ahaffey:'vyasipuff^ring;;fior!3 cystitis due to old age, and that he had talked with Mr. Mahaffey on many occasions, and regarded him as a rational man, although a feeble one. This witness further testified that Mr. Mahaffey, who lived in the country, always came to see hint when in.,fq)vn, either professionally or socially, and that Mr! Mahaffey paid him a social visit on the day the will wáá executed, aiidthát he did not observe, anything wrong with his-mind at that time. .The wilhwas dated:February 38, 1923, and the-testator died on October 17, 1925.• - ■ ' ;
Under this testimony we' cannot say that the verdict of the jury upholding, the will1 is. not supported by sufficient, testimony.', • ,s ...
On July 26, 1923, the. testator was visiting the home of K. W. Mahaffey, one -of the; contestants, who lived in Ohio. Oil the datemiehtiohed'Jenny Mahaffey, the wife ,bf K. W. Mahaffey, wrote- 'ap'pplíéé _ ar lettér, !or rather .two. letters in one, tile first .part .being .signed by K. W. Mahaffey, and the last was signed “.Father.” This-last letter-contained questions about, the, crops, and the garden, and gave certain directions about a heifer anchtwo ponies which the testator owned. This letter indicated an intelligent appreciation of the affairs of the testator at his home. The admission of this letter is assigned as error.
It was testified by L. E. Mahaffey and not denied by K. W. Mahaffey, who also testified as a witness, that their father conld not read or write, and that Mrs. K. W. Mahaffey wrote the letters for J. E. Mahaffey when he was in her home, and that Mrs. Mahaffey conducted such correspondence as her husband, K. W. Mahaffey, had. The letter in question was. written to L. E. Mahaffey in response to a letter from him, was written by the person who wrote for K. W. MaHaffey, and the latter did not deny any of the statements contained in the letter, nor did he deny his wife’s authority to write it. We conclude therefore there was no error in the admission of the letter.
We find no error in the record, and, as the testimony is sufficient to support the verdict, the judgment must be affirmed, and it is so ordered. | [
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McHaney, J.
Two separate suits were brought by appellee, I. M. Phillips, against appellant, one in his own right and one as father and next friend of Lorena Phillips, to recover damages alleged to have been received by Lorena as a result of the negligence of appellant, which occurred as follows: Lorena, a child just a few days more than five years of age, and her mother were passengers on one of appellant’s trains from Ash-down to Fayetteville, via Spiro, Oklahoma, and Fort Smith, Arkansas, on July 16, 1925. The mother held !a ticket issued by appellant providing for a change of cars at Spiro to another train of appellant to Fort Smith, and from thence over the Frisco to Fayetteville. No ticket was procured for- Lorena, although she was more than five years old. After boarding the train the ticket was- taken up by the auditor and a proper hat-check was placed in the seat occupied by them, showing that Spiro was their destination on that train. They thereafter changed seats to the other side of the car, to get on the shady side, without changing the hat-check. When the train approached Spiro, the brakéman called the sta.tion of Spiro, and, as he says, announced the change of cars for Braden, Peno a,nd Fort Smith. Mrs. Phillips says the station was called, but she did not hear the change announced. The train stopped at Spiro a sufficient length of time for Lorena and her mother to have got off, but they did not do so, and were taken on the same train to Sallisaw, where it was discovered that they should have changed at Spiro, and they were put off the train, as Lorena’s mother says, about a half mile from the depot, in the night time, and compelled to walk such distance to the station at Sallisaw; that, in walking this distance, Lorena became very warm, from which she later contracted a severe cold, which resulted in an abscessed condition in her .ears, involving one of the mastoid processes, necessitating a serious operation, and that she was damaged as a result thereof. A trial of these eases, which were consolidated, resulted in a verdict and judgment in favor of appellee. I. M. Phillips, in the sum of $500, and in favor of Lorena Phillips in the sum of $950, from -which comes this, appeal.
Appellant has assigned and urged many errors of the court for a reversal of these cases, among them being his request in each case for ;a directed verdict.
After a careful consideration of the matter, this court has reached the conclusion that the liability, if any, in this case is governed by the law of Oklahoma, where the negligence of appellant, if any, occurred, and not by the law of the State of Arkansas.
Conceding, for the purposes of this case, that Mrs. Phillips had no notice of the necessity to chang-e cars at Spiro, and conceding, which we do not decide, that the injury to Lorena occurred in the manner claimed, and that the negligence of appellant was the proximate cause of the injury, still we are of the opinion that, under the law of Oklahoma, as announced in the .case of Hill v. New, 88 Okla. 208, 212 Pac. 422, there is no liability in this case, and the lower court erred in refusing to direct a verdict for appellant. This case was decided in 1923, and seems to be the first case on the subject in that court. No other subsequent eases in that court have been cited by counsel, and our search has not disclosed any additional cases thereon. The facts in that case and' the holding of the court, quoting- from the opinion in that case, are as follows:
“ The facts upon which plaintiff relies for a recovery, briefly stated, are that, on the 29th day of November, 1916, he purchased a railroad ticket of defendants’ agent at Hitchita, a station on defendants’ railroad, which ticket entitled him to transportation from Hitchita to Oklahoma City; that, at about 10:30 p. m. of said day, he boarded one of defendants’ trains and entered a passenger coach thereof; that, when the conductor in charge of said train took plaintiff’s ticket, plaintiff made a request of said conductor for a berth in the Pullman car, that he might sleep on the way to Oklahoma City. The conductor informed him that he could not obtain a berth then, but could obtain one at' Henryetta. Thereupon plaintiff stated to the conductor that he could sleep in the chair car, and the conductor replied that it was a good place to sleep; so plaintiff seated himself in a chair car and was soon asleep. The plaintiff had made frequent trips from Hitchita to Oklahoma City, but had always ridden in a Pullman direct to Oklahoma .City, and did not know’ that it was necessary for passengers in the day coach to change trains between Hitchita and Oklahoma City. As a matter of fact, it was necessary to change from the railroad of the defendants to the Port Smith & Western Railroad at Dustin. At the conclusion of plaintiff’s evidence, the defendants interposed a demurrer thereto, which was sustained by the court, and judgment rendered for the defendants. Prom this judgment the plaintiff has appealed, and contends that, because he was ignorant of any change of trains being necessary before arriving at his destination, and'because he’ told the conductor that he could sleep in the chair car, and the conductor seeing and hearing all this, and having taken up plaintiff’s ticket, which showed his destination, it was the duty of the conductor to awaken him at Dustin, and inform him that a change of cars was necessary, and that a failure on the part of the conductor so to do constituted negligence upon the part of the defendants. According to the plaintiff’s own evidence, he made no attempt to inform himself ¡as to whether or not a change of trains was necessary, or whether the train he was on went to or stopped .at his destination. He purchased a ticket from the defendants, which he says he did not notice at the time, but admitted, on cross-examination; that this ticket entitled him to passage on the Missouri, Oklahoma & Gulf Railway at Dustin, and from theré over the Port Smith & Western Railway to Oklahoma City. He did not make any inquiry either of the agent who sold him the ticket or of the conductor, whether or not defendants’ line afforded him a direct route to Oklahoma City, or whether a change would be necessary, and neither the agent who sold him the ticket, the conductor in charge of the train, nor any other employee of defendants told him that defendants had a direct route to Oklahoma City. The train stopped at Dustin a sufficient length of time for the plaintiff and all other passengers to transfer from said train to the train of the Port Smith & Western Eailway Company, and the conductor did in fact awaken the plaintiff, but not in time for him to change to the Port Smith &* Western Eailway.
“It was the duty of the plaintiff to inform himself as to whether or not a change of trains would be necessary, and whether the train he was on went to and stopped at his destination, and, if he made a mistake, not induced by the defendants, against which ordinary care would have protected him, he has no remedy against the defendants for the consequences (citing cases).
“The plaintiff did nothing whatever -to ascertain whether a change of trains was necessary, and paid no attention to his ticket. This ticket was notice to him that the train of defendants did not go to Oklahoma City, and that a change at Dustin was necessary. It is well settled that it is the duty of a railroad company, in order to afford a passenger an opportunity to leave the train at the station of his destination, or where a change of trains is necessary, to have the name of such station announced upon the arrival of the train, and to stop the train for a sufficient length of time for him to -alight with safety, but there is no duty upon the part •of the railroad company to awaken a passenger who has fallen asleep in a chair oar, in order to advise him that his destination has been reached, and to enable him to alight there” (citing cases).
We have a somewhat different rule in this State, and, we think, a better rule, ¡as was held in Davis v. Wells, 159 Ark. 156, 251 S. W. 371, where, in the course of the opinion, the court used this language: ‘ ‘ Plaintiff was not entitled to personal notice, and the instruction does- not so declare the law, but she was entitled to notice, and the instruction did not leave out of consideration the fact that she might have had this notice from the form of her ticket, because the third instruction so declared the law.” St. L., I. M. & S. R. Co. v. Needham, 122 Ark. 584, 184 S. W. 47, Ann. Cas. 1917D, 486.
But, as heretofore ' stated, the law of Oklahoma, where the injury, and negligence occurred, is the . test of the right to recover and the measure of damages. In the case of American Ry. Express Co. v. Davis, 152 Ark. 259, 238 S. W. 52, this court said: “The injury having occurred in the State of Oklahoma, the right to recover and measure of recoverable damages, must he tested by the laws of that State. ’ ’
Therefore, applying the law of Oklahoma to the facts in this case, it was the duty of Mrs. Phillips to inform herself regarding the change of trains, and, if she “made a mistake, not induced by the defendants, against which ordinary care would have protected” her, appellee, I. M. Phillips, and Lorena cannot recover, as she was in charge of this child, having the entire care and custody of it. It would be idle to say that Lorena would have to inform herself of these matters, because she was a child of such tender years that she could not' be held to account for her own acts, but her mother acted for her. Mrs. Phillips did nothing whatever to ascertain whether a change of trains was necessary, paid no attention to the hat-check placed in her seat, moved away to another seat without taking the hat-check, heard the station of Spiro called, and made no inquiry as to whether she was to change :at that point.
It follows from what we have said that the judgment of the court must be reversed and the cause of action dismissed. It is so ordered. | [
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McHaNey, J.
Appellant, 8. W. Hollowoa, and appellees are the children and heirs at law of W. E. and Betty Hollowoa, who were the owners of 35 acres of land inside the corporate limits on the west side of the city of Russellville. The father had purchased 20 acres thereof from Lawrence Russell, $233 of the purchase price thereof remained unpaid at the time of his death in 1896. The mother owned 15 acres adjoining in her own right, and, after the death- of her husband, paid off the balance of the purchase price .on the 20-acre tract and took title thereto in her own name. Their residence was located on this 20 acres, and the mother continued to live thereon until her death on October 21, 1921. The mother had g"ven three of her children an acre of land each for a home, and all the children, except appellant, had married, he continuing' to live with his mother and look after her in her old age. The proof shows appellant to be without education,-being unable to read and write, but can sign his name with difficulty. Three days prior to her death the mother made a will, which was not properly attested, in which she gave all her property to appellant, except $1 to each of the appellees, and the request that appellant convey an acre of land to her daughter, Stella Burke, in order to equalize matters among all the appellees. An exact copy of the will is as follows: .
“I, Bettie Hollowoa, do make this my last will and testament, hereby revoking all former wills by me made.
“First: To my beloved son, J. W. Hollowoa, and my beloved daughters, Irene Buck, Stella Burke and Lizzie Moore, I give one ($1) dollar each, and no more; I have heretofore given them out of my estate; that is all, except Stella Burke, which I will hereafter provide for to make her equal with the others.
“Second: I give, devise and bequeath all the rest of my property, personal, real and mixed, to my beloved son, Sullivan Hollowoa, he having stayed at home and cared for me in my last day; it is my request that he pay the debts incurred by my last illness, my funeral expenses, and all my other just debts, out of my property, and that he deed Stella Burke one acre for a home and to make her equal with the other children.
‘ ‘ Third: I hereby appoint my beloved son, Sullivan Hollowoa, as executor of this my last will and testament.
“This October 18, 1921.
. “Bettie Hollowoa.
‘‘Witness:. W. D. Yance, J. W. Hollowoa, Irene Buck. ’ ’
This will was probated October 28, 1921. Appellant continued to live on the land from the death of his mother, and in March, 1922, married a wife who was objectionable to some of the appellees. A day or two after his marriage, appellee, Irene Buck, advised appellant that they were going to contest the will unless he made a settlement with the other heirs. He then went home with Irene Buck and, in the presence of appellee, Lizzie Moore, and in the hearing of appellee, Stella Burke, agreed that, in order to avoid litigation, they would make a division of the land, employ a surveyor, and lay off the tracts in substantially equal parcels, be to retain tbe residence and seven acres of ground, and eacb appellee was to pay appellant $60., Pursuant to this agreement, a surveyor was employed, tbe tracts laid off, in wbicb appellant assisted, eacb appellee took possession of bis or ber respective tract, appellees Buck and Moore fencing their tracts with the knowledge, consent and without objection from appellant. They engaged counsel, who prepared deeds, conveying tbe respective tracts in accordance with tbe agreement, wbicb were signed by all the heirs except appellant. The final closing up of the matter dragged along until the year bad expired in which to appeal from tbe order probating tbe will, whereupon appellant refused to carry out tbe agreement by executing the deeds, and, in December, 1922, tore down tbe fences placed there by bis sisters, with bis knowledge and consent, in pursuance of such settlement agreement, and took possession of said lands. Suit was thereafter brought against appellant to enforce this agreement, as a family settlement, for specific performance. Tbe chancery court entered a decree carrying out the settlement, from which comes this appeal.
Appellant insists that, although be entered into the agreement and settlement heretofore set out, it was without consideration and void, for the reason there was no valid ground on which to base a contest of his mother’s will. In 5 R. C. L., § 6, page 881, it is said: “A doubtful or disputed claim, sufficient to constitute a good consideration for an executory contract of compromise, has been defined as one honestly and in good faith asserted, arising from a state of facts upon which a cause of action can be predicated, with the reasonable belief on the part of the party asserting it that he has a fair chance of sustaining his claim, and concerning which an honest controversy may arise, although in fact the claim may be whollv unfounded.”
Again, on page 883, it is said: “Hence it is a general rule in this country that comuromises are to be favored, without regard to the nature of the controversy com promised, and that they cannot be set aside hecanse the event shows all the gain to have been on one side and all the sacrifice on the other, if the parties have acted in g-ood faith, and with a belief of the actual existence of the rights which they have respectively waived or abandoned; and, if a settlement be made in regard to such subject, free from fraud or mistake, whereby there is a surrender or satisfaction, in whole or in part, of a claim upon one side in exchange for.or in consideration of a surrender or satisfaction of a claim in whole or in part, or of something of value, upon the other, however baseless may be the claim upon either side or harsh the terms as to either of the parties, the other cannot successfully impeach the agreement in a court of justice. If the settlement is characterized by good faith, the court will not look into the question of law or fact in .dispute between the parties and determine which is right, even though it ultimately appear that the claim was unfounded in the law; provided, however, it is not wholly without leg’al basis or upon an inherently illegal and void consideration.”
Then, again, this was a family settlement of property rights, fairly made, and will not be set aside except for very strong and cogent reasons; neither will the consideration for the settlement nor the prior legal rights of the parties be minutely inquired into. As was said in Pate v. Johnson, 15 Ark. 275: “Amicable and" family settlements are to be encouraged, and, when fairly made, * * * strong reasons must exist to warrant interference on the part of a court of equity.”
The above was quoted in Martin v. Martin, 98 Ark. 93, 104, 135 S. W. 348, 353, where it was said:
“This was, in effect, a family settlement of the interests of these members of the family in these two remaining tracts of land which came from these two estates of the family. Courts of equity have uniformly upheld and sustained family arrangements in reference to property where no fraud or imposition was practiced. The motive in such cases is to preserve the peace and harmony of families. The consideration of the transaction and the strict leg'al rights of the parties are not closely scrutinized in such settlements, but equity is anxious to encourag’e and enforce them.” Campbell v. Hopkins, 15 Ark. 51; Turner v. Davis, 41 Ark. 270; Giers v. Hudson, 102 Ark. 232, 143 S. W. 916; Felton v. Brown, 102 Ark. 658, 145 S. W. 552; Dudgeon v. Dudgeon, 119 Ark. 128, 177 S. W. 402.
It is therefore not necessary for us to determine whether a contest of the will might have been successful. The forbearance of appellees in this regard was sufficient consideration to support appellant’s agreement to settle. '
There is no merit to the contention that, since appel-lees failed to make tender to him of the $60 each agreed to pay, he was justified in refusing to execute the deeds. The proof shows he tore down the fences and notified them to stay off the premises, and refused to carry out the agreement. It would have been a vain and useless thing to have made a tender under such circumstances, which the law does not require. Moreover, the proof shows that, if he had executed the deeds and deposited them in the bank, as he was requested and directed to do, for delivery on payment, same would have been paid.
The only other question of sufficient importance to consider here is, was it necessary, under the facts in this case, for the settlement or agreement to be in writing, since it involved the conveyance of real estate? This question must also be decided against appellant. The undisputed proof shows that at least two of the appellees actually entered into possession of their tracts, fenced them, pastured them, and exercised other acts of ownership over them with appellant’s full knowledge and consent. They were therefore in the same attitude as a vendee who has been put in possession by the vendor under a parol contract to purchase, which takes the contract out of the statute of frauds, and, if taken out as to one, it is out as to all. In Ashcraft v. Tucker, 136 Ark. 447, 206 S. W. 896, it is said:
“It lias been held by this court that delivery of possession of land to tbe vendee nnder a parol contract of purchase takes the case out of the operation of the statute of frauds; and that possession alone is sufficient part performance of an oral contract for the sale of land to sustain a decree for a specific performance.”
The above language was quoted with approval in Central Bank v. Downtain, 162 Ark. 46, 257 S. W. 746, and the same rule has (been adhered to in a long line of cases.
We find no error, and the decree is accordingly affirmed. | [
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Humpheeys, J.
This is an appeal from the decree of the chancery court of Pulaski County sustaining the demurrer to and dismissing appellants’ complaint against appellees, which sought to permanently enjoin them from taking any steps or doing anything looking to the enforcement of act No. 119 of the General Assembly of 1927, known as the revolving loan fund law, upon the g'round that said act is void.
The purpose and intent of the act in question is to create a ’revolving loan fund to be borrowed from the permanent school fund and loaned to needy school districts, to repair, erect and equip necessary school buildings, and to pay outstanding indebtedness on buildings already erected and equipment already purchased. The act is lengthy, and we deem it unnecessary to set it out in order to determine the questions involved on the appeal. Section 2 of the act provides that the State.shall sell its own bonds and use the proceeds to discharge its debt to the permanent school fund. Section 3 provides that, immediately after the cancellation of so much of the State’s debt to the permanent school fund as can be retired by the proceeds of the sale of bonds authorized by § 2, the State shall immediately reborrow from the permanent school fund on new non-interest bearing State bonds for the purpose of creating said revolving loan fund. The same arrangement is made in § 4 of the act for the use of the cash on hand to the credit of the permanent school fund the first of July in each year. Section 5 of the act empowers the State Board of Education to make loans out of the revolving fund to needy school districts, under certain restrictions. Section 9 provides that loans made to school districts shall be secured by the bonds of the district which does the borrowing, the whole debt of the borrowing- school district to be secured by mortgage on its physical property, together with the pledge of the sinking fund created for the purpose of paying the loan and interest.
The first reason alleged and urged in support of the invalidity of the act is that it authorizes the State to lend its credit to school districts which secured loans thereunder, contrary to § 1 of article 16 of the State Constitution. The constitutional inhibition is that the State shall not lend its credit for any purpose whatever. There is nothing in this inhibition to prevent the State from using its credit for proper purposes. If the State could not use its credit for governmental purposes, a situation might arise where it could not function. In considering this section of the Constitution, our court has sanctioned the right of the State to borrow money to pay obligations incurred by governmental agencies, as well as money with which to construct a highway system. Hayes v. McDaniel, Treasurer, 130 Ark. 52, 196 S. W. 934; Bank of Commerce v. Huddleston, 172 Ark. 999, 291 S. W. 422; Bush v. Martineau, ante p. 214. Certainly, if it can be said that the construction and maintenance of highways throughout the State is a proper purpose for which the State may use its credit, it may be said, with equal propriety that the education of the children of the State is also a governmental purpose for which the State may use its credit. In fact, article 14 of our Constitution recognizes the importance of the education of the young children of the State, and imposes the duty upon the Legislature to provide for a public school-system. Section 1 of said article is as follows:
“Intelligence and virtue being the safeguards of liberty and the bulwark of a free and good government, the State shall ever maintain a general, suitable and efficient system of free schools whereby all persons in the State between the ages of six and twenty-one years may receive gratuitous instruction.”
The education of the young people of the State, then, is distinctively a governmental and proper purpose for the use of the State’s credit. In using its credit to obtain money to lend to needy school districts for the purposes mentioned in said act, is not in any sense lending its credit.
The next reason alleged and urged in support of the invalidity of the act is that it authorizes the State to assume and pay debts which are prohibited under article 12, § 12, of the State Constitution. That section prohibits the State from assuming or paying- the debts or liabilities of corporations unless such debts or liabilities shall have been created to repel invasion, suppress insurrection, and to provide for the public welfare or defense. If reborrowing the permanent school fund on non-interest bearing bonds of the State for the purpose of lending the money to needy districts upon security could be characterized as assuming the debt of needy school districts, the prohibition would have no application to school districts. Corporations referred to in the section are private corporations, or corporations engaged in private enterprises. Bank of Commerce v. Huddleston, and Bush v. Martineau, supra.
The next reason alleged and urged in support of the invalidity of the act is that it violates § 2, article 14, of-the Constitution of the State, which is as follows:'.
“No money or property belonging to the public school fund, or to this State for the benefit of schools or universities, shall ever be used for any other than for the respective purposes to which it belongs.”
The contention is that the permanent school fund is made up largely of proceeds of the sale of the sixteenth section lands which were granted by Congress and accepted by the State for the use and benefit- of the inhabitants of the townships in which said sections were situated, and that in providing that the fund may be loaned to needy school districts indiscriminately constitutes a diversion of the fund and violates said section of the Constitution. The question was settled adversely to the contention of áppellant by this court in the case of Sloan v. Blytheville Special School District, 169 Ark. 77, 273 S. W. 397, in which statutes were upheld as constitutional directing, that the funds arising from the sales of the sixteenth section school lands be credited to the permanent school fund of the State rather than to the fund of the -school district in which the sixteenth section was situated. .
The next reason alleged and urged in support of the invalidity of the act is that it violates the eighteen-mill school tax amendment to the State Constitution, which is as follows:
“The General Assembly shall provide by general laws for the support of common schools by taxes, which shall never exceed in any one year three mills on the ■dollar on the taxable property in the State, and by an annual per capita tax of one dollar, to be assessed on every male inhabitant of this Stale over the age of twenty-one years. Provided,..that the General Assembly may, by general law, authorize school districts to levy by-a vote of the qualified electors of such districts a tax not to exceed eighteen mills on the dollar in any one year, for the maintenance of schools, the erection and equipment of school building's and the retirement of existing indebtedness for buildings. Provided, further, that no such tax shall be appropriated for any other purpose nor to any other district than that for which it is levied.”
The contention is that article 14, § 3, of the Constitution, as amended October 5, 1926, contemplates an annual vote and tax levy, whereas § 6 of act 119 authorizes the electors of the school district in their vote, in order to apply for a loan, to vote a sinking fund to he levied for collection each succeeding year until the money borrowed by the district from the 'revolving loan fund, together with all interest thereon, shall be paid. We find no prohibition in the amendment (against the Legislature authorizing the electors in school districts to vote a continuing levy. The prohibition is that the tax shall not exceed eighteen mills on the dollar in any one year.
The next reason alleged and urged in support of the invalidity of the act is that it is discriminating in that it. empowers the Arkansas Board of Education arbitrarily to. grant aid to some districts and to withhold it from others, and to charge one district a greater rate of interest. than it charges another. We find nothing in the Constitution inhibiting. the Legislature from conferring this power upon the State Board of Education. Really there is no discrimination, because the income or interest derived from the loans to the several needy districts must be placed in the common school fund for equal distribution to the school children of the State per capita, as directed in §§ 8993 and 8999 of Crawford & Moses’ Digest, with the exception of a very small per cent, set aside for carrying the act into effect.
The next reasons alleged and urged in support of the invalidity of the act are that it frees the State from the oblig’ation in the grant of the sixteenth section lands to invest the proceeds thereof in some productive fund, and authorizes the State to make a profit on the permanent school fund. Neither contention is tenable. Under the rule announced in the Sloan' case, .supra, the State is the sole judge of the best method of executing the grant, as long as it uses the proceeds for school'purposes. But, aside from this rule, we think lending the principal of the permanent school fund through the route of the -revolving school loan fund on secured interest-bearing bonds amounts t'o an investment thereof in a productive fund in full compliance with the grant. We do not agree with appellant’s interpretation of the act to the effect that it enables the State to make a profit on the permanent school fund.. It is true that the act authorizes the State to substitute its own - bonds for the permanent school fund in order that same may be converted into a revolving loan fund, but the act authorizes the State Board of Education to lend the revolving loan fund thus created to needy school districts upon well secured interest-bearing bonds. The interest derived therefrom, less a small per cent, for the administration of the fund, must be paid, under the provisions of the act, into the common school fund for distribution per capita among the schoolchildren of the State.
In view of wha.t we have said, we think there can be nothing in the contention of appellant to the effect that act 119 makes a gift of the permanent school fund to the various school districts, so we pass that objection without further comment.
The nest and last reason alleged land urged in support of the invalidity of the act is that it constitutes a delegation of legislative powers to the State Debt Board and the State Board of Education. The power or authority conferred upon these State agencies by the act in question is one of enforcement of law after making certain investigations, and is not a delegation of legislative powers. Howard v. State, 154 Ark. 430, 242 S. W. 818.
No error appearing, the decree is affirmed.
Kibby, J., dissents. | [
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Wood, J.
W. Radican, the county surveyor of Prairie County, was directed by the county judge-of that county to do some surveying where certain contractors were building and repairing public roads of the county. The county judge agreed with Radican that he. should receive $10 a day for himself and $2.50 a day for his helper. The county judge endeavored to have the county surveyor do the work for $5 per day, but Radican refused, stating that he could not do it as county surveyor. The county judge directed him to do the work as civil engineer, and the judge stated that he did not expect Radican to do the work because he was the county surveyor. He had confidence in his ability, and employed him to do the work as civil engineer and not as county surveyor.
Eadican testified that his duties’wer e to survey lines and locate corners as county surveyor. He had done similar work for' other engineers, and charged $10 per day and his expenses. He had been doing- other work, such as laying out corners, surveying rice farms, levee work and ditch work for years, and had been getting $10 per day. The customary price for such work was between ten and twenty dollars per day. When the work was completed he presented his claim to the county court, charging for such work the sum of $10 per day. The total amount of the claim presented was $195, hut only $140 of this was for work done under the direction of the county judge. Witness was issued scrip for the sum of $140. The county court of Prairie County called in all outstanding warrants for reclassification, and Eadican’s warrants were reclassified and ordered reissued on the basis of $5 per day instead of $10 per day, as claimed by him.
The issue as to whether Eadican was entitled to $10 per day for his services instead of $5 per day reached the circuit court on appeal. That court held that he was entitled to $10 per day for his services, and rendered a judgment in his favor for the entire sum claimed by him against the county, holding that he was entitled to the sum of $10 per day for his services under the contract with the county judge. From that judgment the county duly prosecutes this appeal.
Section 4596 of Crawford & Moses’ Digest provides that the county surveyor shall be allowed fees.as follows: for each day he may be engaged, either under order of the court or otherwise, $5. This section of the Digest was amended by act 224 of the Acts of 1921 so as to read as follows: “For each and every day he may be engaged, either under an order of court or otherwise, .$5. The term ‘each day .he may be engaged’ shall include the day or days necessarily required in going from the home of the surveyor to the premises to be surveyed and then returning to his home.”
The only question for decision is whether or not, under the above statute, the county judge of Prairie County was authorized to employ the appellee, who was surveyor of the county, to perform the services which he rendered the county and to pay him for such services the sum of $10 per dáy. The statute is unambiguous, and leaves no room for construction. The work was done by the appellee, for Prairie County under the order of the county judge.
Sections 6985 to 7091, Crawford & Moses’ Digest, inclusive, is a chapter designated “Logs and Logging.” Under that chapter the county surveyors are, by virtue of their office, made timber inspectors, and when they are called upon, as they may be under the provisions of that chapter, by the owners of logs, timber or lumber, to perform duties prescribed by that chapter in the scaling and measurement of logs, etc., they are allowed for that service certain fees therein designated. See § 7003, C. & M. Digest. Sections 1861 to 1866 define certain duties of county surveyors with reference to making surveys of county lines when called upon by the county courts, and prescribe compensation for such services. Section 1866 provides: “The accounts of such surveyors shall be paid by their respective counties and each surveyor shall be allowed the sum of four dollars for each mile surveyed and marked and five cents per mile for traveling from his place of residence to such line and back.” Sections 1884 to 1905, inclusive, define and prescribe certain other duties and obligations of the county surveyor. Sections 5232, 5242 and 5243 prescribe the duties of county surveyors with reference to assisting viewers, when called upon, in laying out and surveying or altering any roads that may be ordered laid out, surveyed, or altered by the county court. The compensation allowed surveyors under § 5243,. supra, is $5 per day for each day necessarily employed therein be charged as costs and expenses paid out of the county treasury.
Section 9930 of C. & M. Digest provides that the county court may call upon the surveyor to make surveys of sections or parts of sections under certain circumstances therein designated for purposes of taxation, and makes it the duty of the county surveyor to promptly comply with and obey such order of the county court. These are the statutes concerning county surveyors.
Article 6, § 46, of the Constitution of 1874 provides, among other things, for the election of “one county surveyor for the term of two years, with such duties as are now or may be prescribed by law.”
Now, it was not contemplated by the framers of the Constitution and the makers of the above statutes that the county judge and the county surveyor could enter into contracts affecting the public service for which they could fix any other compensation for such services than that prescribed by law. In other words, our lawmakers did no't intend that public officers should enter into contracts affecting the public service as private individuals and arrange compensation for such services as though private individuals were contracting with each other with reference to the services to be performed. When these officers enter into contracts affecting’ the public service they cannot divorce themselves from the duties and responsibilities of their office and the compensation fixed by law for such duties; and, unless some special compensation is prescribed for the duties they perform by virtue of their office, they are not allowed to charge extra compensation for same.
In Allen v. Davis, 138 Ark. 154, 211 S. W. 151, we said: “This court is committed to the doctrine that fees can only be-taxed as costs when authorized by statute and that statutes allowing' fees are to be strictly construed and pursued.” See cases there cited, and, in addition to these, Independence County v. Young, 66 Ark. 30, 48 S. W. 676; Darden v. Sebastian County, 73 Ark. 305, 83 S. W. 1048; Keeling v. Searcy County, 88 Ark. 386, 114 S. W. 925; Swaim v. Lonoke County, 167 Ark. 225, 268 S. W. 366.
.In the last case it is said: “It is the settled rule of construction of statutes similar to the one under review that, where the provision of law fixing the compensation (of an officer) is not clear, it should be given the construction most favorable to the Government. ”
The work which appellee was employed to do was in connection with the public roads. The county judge ordered him to do the work, and, while he testified'that he did not expect him to do the work as county surveyor, he further testified that, as county judge, he did order the appellee to do the work, and tried to get him to do it for $5 per day. The testimony shows conclusively that the county judge ordered the appellee to do the work, and that it was work on the public roads which the county judge was having done. We believe it conclusively appears from the testimony of the county judge that he ordered the appellee to do the work because he was the county surveyor, for the county judge, in his cross-examination, testified: “ I tried to get him to do the work at $5 per day, and he said he couldn’t do that. He said he could do it as county surveyor but couldn’t do this work for $5 per day.” He further testified that-he did not expect the appellee to do the work because of the fact that he was county surveyor; that he did not think that he had to do it as county surveyor, but did not know about it.
The only conclusion which reasonable minds can draw from the testimony as a whole is 'that the county judge, as county judge, ordered the county surveyor, as county surveyor, to do the work in connection with the county roads, and they agreed that the surveyor should have as compensation for his services the sum of $10 per day, when the statute fixes the compensation of the surveyor, when engaged under order of the court or otherwise, at $5 per day.
It follows that the county judge and the surveyor had no authority to enter into such contract under the law. The judgment is therefore reversed, and the cause will be remanded with directions to the circuit court to render judgment in favor of the appellee for his services in the sum of $5 per day, and to certify its judgment to the county court, with directions to that court to allow the same. | [
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Hart, C. J.,
(after stating the facts). It is earnestly insisted that the chancery, court erred in holding the written instrument of November 8,1924,'signed by Albert L. Wilson, to be a contract instead of a receipt merely. The same instrument may be a receipt and a contract. Where a writing, though in form of a receipt, embodies the elements of a contract, it is in its nature subject to the same rules as any other contract and is not open to variation or contradiction by parol evidence. 22 C. J. 1138 and cases cited; Seitz v. Brewers’ Refrigerating Machine Co., 141 U. S. 510, 12 S. Ct. 46, 35 L. ed. 837; and Huckins Hotels v. Smith, 151 Ark. 167, 235 S. W. 787. This is in application of the well-settled rule that, when a written instrument contains such terms as import a complete obligation, which is definite and unambiguous, it is conclusively presumed that the whole agreement of the parties, and the extent and manner of their undertaking, were reduced to writing. In' such cases the instrument is in the nature of a contract and cannot be varied or contradicted by parol evidence, in the absence of fraud or mistake.
In the application of these principles to the writing under consideration, it may be said that Wilson might have contradicted the receipt feature of the instrument by parol evidence that the payment of $750 was not made in whole or in part. However, the contract feature of the instrument was complete in itself, and contained definite terms and bound the parties to mutual agreements. In this respect the instrument was contractual in its nature and stands upon the footing of other written contracts, and cannot be varied or contradicted by parol evidence. Hence it was not proper to show that one of the terms of the contract was that Wilson should deduct his living expenses before Nugent should receive one-third of his compensation. This would simply have had the effect of varying or altering the terms of the contract, which the parties had reduced to writing and which had been signed by the party sought to be charged.
It is insisted by Wilson, however, that the contract should be reformed so as to show that he was entitled to deduct his living expenses from the salary due him by the corporation before Nugent and the firm of Hutch-ins, Abbott, Allday & Murphy were entitled to receive anything. In this connection it may be stated that the Hutchins firm has been settled with by compromise and their rights are not involved in this appeal.
It is well settled in this State that evidence justifying the reformation of á written instrument must be clear, convincing and decisive. Welch v. Welch, 132 Ark. 227, 200 S. W. 139, and cases cited; and Meador v. Weathers, 167 Ark. 264, 267 S. W. 787. Tested by this rule, the chancellor was correct in holding that the written contract should not be reformed. While the testimony of Wilson made out a case for himself, it was contradicted by the testimony of Nugent and of two members of the Hutchins firm. Hence we are of the opinion that the court did not err in refusing to reform the contract.
The court held that the letter of February 1, 1925, signed by Nugent and delivered by his secretary to Flanery, constituted a breach of the contract, but that Wilson waived the breach by recognizing the contract as still in force after the letter had been written. In so far as Wilson is concerned, we are only required to deal with the latter phase of the question. It is a well settled principle of law, that, where one party, with knowledge of a breach of a contract by the other, recognizes the contract as, still in force, he will be held to have waived a breach thereof. Alfred Bennett Lumber Co. v. Walnut Lake Cypress Co., 105 Ark. 421, 151 S.W. 275; Clear Creek Oil & Gas Co. v. Brunk, 160 Ark. 574, 225 S. W. 7; Friar v. Baldridge, 91 Ark. 137, 120 S. W. 989. Tested by this well-settled principle of law, we are of the opinion that the facts in the record warranted the chancery court in holding that Wilson waived the breach of the contract committed by Nugent by allowing the letter just referred to to be delivered to Flanery. After this letter had been delivered to Flanery and used by him to the injury of Wilson and the other stockholders of the Oil Fields Corporation, Wilson allowed Nugent to continue as associate counsel in the management of the affairs of said corporation and recognized him as such associate counsel. This he did by writing him letters concerning the conduct of the litigation then in progress, by consulting him about the conduct and management of that litigation and the other affairs of the corporation, and by signing his name to pleadings, in the pending litigation. ■
Wilson seeks to escape responsibility for so doing on two grounds. In the first place, he insists that he had no knowledge that Nugent had committed this breach of the contract at the time he wrote him the letters and consulted him about the management of the litigation and the other affairs of the Oil Fields Corporation. It is a well-settled principle of law that notice of facts and circumstances which would put a man of ordinary intelligence on inquiry is equivalent to knowledge of all the facts that a reasonable inquiry would disclose where there is a duty to make the inquiry. In short, where one has sufficient information, to lead him to a fact, he shall he deemed cognizant of it. Waller v. Dansby, 145 Ark. 306, 224 S. W. 615; Jordan v. Bank of Morrilton, 168 Ark. 117, 269 S. W. 53; Walker-Lucas-Hudson Oil Co. v. Hudson, 168 Ark. 1098, 272 S. W. 836; and Richards v. Billingslea, 170 Ark. 1100, 282 S. W. 985.
Wilson admits, in his own testimony, that he had suspicioned the loyalty and good faith of Nugent before the letter in question was written, and that, shortly after it was written, he had knowledge of its contents, and believed that Nugent was acting in bad faith towards himself and the other stockholders of the Oil Fields Corporation. Wilson then could have ascertained by inquiry from Nugent the circumstances under which Flanery secured Nugent’s signature to the letter and his bad faith in taking the letter away from Nugent’s office during the latter’s absence. If will be remembered that Nugent testified that he had told Flanery that the letter should not be delivered to him until he had received the sanction of Wilson and the Hutchins firm to use the letter. If Wilson then had doubted the good faith of Nugent and the truth of his statement in regard to the letter, he could have found out all about the matter by inquiry from the Hutchins firm and other sources at his command. Whether he believed Nugent guilty of bad faith or not in the matter, he knew the result of his action, for the letter was written and secured by Flanery, and he should have then declared the contract to be at an end, and his subsequent conduct in writing to Nugent about the conduct of the litigation of the Oil Fields Corporation and his recognition of him as associate counsel by consulting about the manner and conduct of the litigation will be deemed in law a waiver of such breach of the contract.
Another ground relied upon by Wilson to relieve him from a waiver of the breach of the contract is that he feared, if he discharged Nugent at that time, it would injuriously affect himself and other stockholders, in the conduct of the litigation then pending in the State and Federal courts. This constitutes no excuse. It will he remembered that Wilson was out of money, and that the employment of Nugent was largely due to the fact that he advanced sufficient money to notify the stockholders aúd persons interested in the oil and gas leases of the Oil Fields Corporation about the existing condition of its affairs. Wilson regarded this of such importance that he was willing to give Nugent one-thircl of his salary as attorney for such corporation in order to secure such advancement and to have his assistance otherwise as counsel in the case. He could not play fast and loose in the matter. He could not wait until the litigation had proceeded to a successful termination and then discharge Nugent and claim that the discharge should take effect as of a date several months prior to his actual discharge. If he thought it best to overlook what he considered a breach of the contract on the part of Nugent, he had a rig*ht to do so, and it did not make any difference what his motive was in doing so. The important thing is that he considered it best for his own interest to continue to recognize Nugent as his associate counsel, and this he had a right to do, if he thought it was to his best interest to do so, no matter what his reasons were. Therefore the chancellor was right in holding, under the facts and circumstances presented by the record] that, under the contract entered into between Wilson and Nugent, the latter was entitled to one-third of the salary received by Wilson from November 8, 1924, to June 22, 1925.
On the cross-appeal the decision of the chancellor was correct. The record shows that, during the progress of the receivership proceedings, Wilson was allowed a fee of $5,000, and Nugent claims that he should be allowed one-third of that fee under the terms of the contract. The record shows that, at the time Wilson received this fee, he insisted that it should be put in the defense fund as his contribution thereto, and he actually placed the sum in that fund, which the parties had agreed should be used to pay the living expenses of Wilson as well as the costs of the pending litigation. Nugent allowed Wilson to do this, and, under the principles of law above announced, will be deemed to have agreed to the course pursued by Wilson in the matter. If he deemed such course of conduct on the part of Wilson to have been a breach of the contract, he should have objected at the time. He could not stand by and acquiesce in his action in the premises and afterwards claim that it was a breach of the contract and that he was entitled to one-third of the fee.
Again, it is insisted by counsel for Nugent that he should be allowed an additional fee because other amounts were earned and will be allowed to Wilson, and that, under the terms of the contract, Nugent was entitled to one-third of the entire compensation. On this branch of the case we think the chancellor was right in not allowing Nugent to share such extra compensation. As we have already seen, the chancellor held that the Flanery letter constituted a breach of contract on the part of Nugent. Such holding of the chancellor was correct. It is true that Nugent explained that the letter had been secured by Flanery during his absence and against his explicit directions in the matter. He says that he did not intend for Flanery to obtain possession of the letter until he had secured the consent of Wilson for Flanery to use the letter. This did not make any difference as to the'result. By his own fault or carelessness in the matter, Nugent allowed Flanery to obtain posses.sion of the letter and to use it injuriously to the interest of Wilson, and thereby cause some of the-stockholders of the Oil Fields Corporation to lose confidence in his management of its affairs,. The record shows that the affairs of the corporation had become very complicated and were very much involved in litigation, which resulted in a disagreement among the stockholders about the conduct and management of the affairs of the corporation. The stockholders were numerous, and resided in various ■States, and it required a circular letter to bring to their attention any matter involving their judgment. It was necessary for them to contribute such sums of money as might be necessary for the conduct of the litigation, and this they would not he likely to do if they lost confidence in either the integrity or good judgment of Wilson in managing the affairs of the corporation and directing the course of the litigation.
The result of our views is that Nugent is not entitled to maintain his cross-appeal, and that the decree of the chancery court should he affirmed. It is so ordered. | [
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Mehaeey, J.
The plaintiff, Wiley Kelly, administrator of the estate of Earl Brewer, deceased, brings suit against the DeQueen & Eastern Railroad Company, alleging that said railway company, on the 18th day of May, 19'26, negligently backed or switched its train against two box-cars and that said box-cars were struck with such force that they ran over Earl Brewer and killed him. That said Earl Brewer was either sitting or standing on the track.
There is only one witness who testifies about the accident or who was where he could see the said Earl Brewer when he was struck, and that is witness K. Bledsoe. This witness testifies that Earl Brewer was on the track, with his back to the planer. That, when witness saw him, he was coming, and that this was about ten minutes after eleven, and that he was killed about ten minutes before twrelve. Witness was asked this question: “How Long did he remain there?” And he answered that he remained there until he was killed at something like ten minutes to twelve.
It is difficult to know just what the witness means, because he first says that he was coming, evidently meaning that Brewer was moving towards him, and then he says he remained there until he was killed. Whatever he means, this is. the 'only evidence from any witness, except witnesses who saw the body after the accident. Whether he was standing on the track or endeavoring to walk across -it, or lying down or sitting down, no one who testified knows. At any rate, he was a trespasser at the time he was killed, and the suit is brought under what is known as the lookout statute. The lookout statute, -which is § 8568 of Crawford & Moses’ .Digest, makes a person operating a train liable for damages resulting from neglecting to keep a lookout, notwithstanding the contributory negligence of the person injured, where, if such lookout had been kept, the employee or employees in charge of such, train of such company could have discovered the peril of the person injured in time to prevent the injury by the exercise of reasonable care after the discovery of such .peril. And the burden is upon the railroad to show that the lookout was kept. In this case there was a brakeman on top of the train, but, operating the train as the employees were at the time, it was impossible for him to see the deceased where he was when struck, because of the two cars between them.
We think the law requires the railroad company to keep an efficient lookout, and if the person on the train is so situated that it is impossible to keep ia lookout to ascertain whether persons are in danger of being hit by moving the cars, it would then be the duty of the railroad company to keep such a lookout as would discover persons that might be hit by the moving of the train.
This court has said:
“This statute is an amendment to § 6607 of Kirby’s Digest, our first statute requiring a lookout to be kept by the operatives of a railroad train, which was enacted to avoid the effect of certain of the court’s decisions relative to the liability of railroad companies for the injuries caused by the operation of their trains. The court construing it held that it did not affect the defense of contributory negligence in the case of a trespasser, and-that it was not its purpose to abolish the rule of contributory negligence in such cases.” St. L. I. M. & S. Ry. Co. v. Gibson, 107 Ark. 431, 155 S. W. 510.
But in the same case the court also said:
“But now the company is liable if, by proper care and watchfulness, it could have discovered and avoided the danger. * * * It was the evident purpose of this act to provide a different rule of liability against a railroad company causing an injury by the operation of its trains, in case of failure to keep a lookout for persons on its track, than was prescribed by the old act, which required the same lookout to be kept, and placed the burden of proof upon the railroad company in case of an injury, to establish the -fact that the duty to keep ia lookout had been .performed. It was not intended, how ever, that, upon proof of the killing .of a trespasser by the operation of a train, the presumption should arise that the killing was negligent and the plaintiff entitled to recover damages without showing anything further,' and casting the burden of proof upon the company to show that it was not guilty of any negligence, causing the death, as declared in said instruction numbered 1. ’ ’
In the case of Central Ry. Co. v. Lindley, 105 Ark. 294, 151 S. W. 246, this court said:
i£In other words, the statute makes it the duty of the railroad company to keep a lookout for property upon its tracks, and it makes it liable for all injuries that occur by reason of its failure to perform this duty.. Under the lookout statute, when the plaintiff has proved facts and circumstances from which the jury might infer that his property had been injured on account of the operation of the train and that the danger might have been discovered and the injury avoided if a lookout had been kept, then he has made out a prima facie case, and the burden is on the defendant to show that a lookout was kept as required by the statute.”
But has the plaintiff proved in this case, by facts and circumstances, from which the jury might infer that Brewer was killed on account of the operation of the train, and that the danger might have been discovered and the injury avoided if the lookout had been kept? We do not think the plaintiff met this requirement of the law. The burden was upon the railroad company to show that it kept a lookout, and it failed to do this. But the plaintiff must show by facts and circumstances that, if the lookout had been kept, the injury could have been avoided by the exercise of reasonable care.
As we have said, the only proof about the accident is that Bledsoe saw him coming on the track and about forty minutes later the train struck him. Whether he stayed on the track the whole time or what his position wias when he was struck is not disclosed by the evidence of this witness or any other. Evidently, if he had seen him at" the time, he would have known and testified about his position. It is true he says, when asked how long lie remained there, “until he was killed,” hut remained there might mean in that immediate vicinity, because, as we have said, he was moving at the time witness first saw him, and he does not tell when he stopped or where he stopped, and he does not tell whether he crossed the track, or what he did. We think the' plaintiff would have been required to show these facts before he was entitled to recover. We think it cannot be assumed that witness meant that he remained at the same place until he was struck, when he testifies positively that, when he first saw him, he was coming, although on the track. Rut, about his movements, or whether he stopped, or what he did from that time until the time he was killed, there is not a word of testimony. It is true he might have stayed right there and been killed, but it is also equally true that, if he was moving, he may have moved across the track or may have stayed on it. But certainly this witness, if he was where he could see him during that forty minutes, and did see him, must have known. We do not think the railroad company is liable for hitting a trespasser on the track, unless the plaintiff shows that the injury might have been avoided if a proper lookout had ‘been kept, and we do not think the plaintiff has shown that in this case.
The case of St. L. I. M. & So. Ry. Co. v. Gibson, above quoted from, was again before this court, and the court said:
“The effect of our holding in the former opinion is that, where proof has been introduced by the plaintiff of an injury to a person by the operation of a train under such circumstances as to raise a reasonable inference that the dangér might have been discovered and the injury avoided if a lookout had been kept, then the burden is shifted to the railway company to show that such lookout was kept.” St. L. I. M. & So. Ry. Co. v. Gibson, 113 Ark. 418, 168 S. W. 1129.
It will be seen that the court held that the plaintiff must introduce proof of the injury under such circumstances as to raise a reasonable inference that the danger might have been discovered and the injury avoided if a lookout bad been kept. And tbis must be done by the plaintiff. The burden is on him, and, since there is no accounting for the deceased during the forty minutes after be was seen walking on the track, it occurs to us that it is just as reasonable to suppose that be stepped on the track immediately in front of the cars as it is that be was lying down or sitting down or standing on the track in front of the cars.
It is true that the proof must be viewed in the most favorable light to the plaintiff. But, when tbis is done, the evidence appears to be legally insufficient to support a verdict. As to whether the injury to deceased could have been avoided if an efficient lookout bad been kept, is entirely conjectural. The evidence not being legally sufficient to support a verdict, the circuit court did not err in directing a verdict for the defendant, and the judgment is affirmed. | [
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Hart, 0.-J'.,
(after stating the facts). In Browning v. Waldrip, 169 Ark. 261, 273 S. W. 1032, it was held that certiorari lies to quash a void judgment even though the judgment might have been vacated and set aside on appeal. In Miller v. Tatum, 170 Ark. 152, 279 S. W. 1002, it was held that a judgment that is not void cannot be quashed on certiorari, but, if held erroneous, it may be reversed on appeal. It was further held that an application for certiorari to quash a judgment that is not void will be treated as an appeal, where the time for appeal has not expired. Again, in Taylor v. Bay St. Francis Dramage District, 171 Ark. 285, 284 S. W. 770, it was held that an appeal might be taken from a void order or judgment of the county court to the circuit court. Hence, for the purpose of this appeal, it need not be determined whether certiorari was the proper remedy to be resorted • to by the landowner in this case. He adopted that remedy and also took an appeal from the order of the county court within the time provided by statute. Both cases were consolidated and tried together in the circuit court.
The circuit court held that the order of the county court was void. It was then directed that the judgment of the circuit court be certified to the county court and become the judgment of that court. In any event, under the undisputed facts, the judgment of the county court was erroneous. The record shows affirmatively that a strip of land twenty feet wide and about 2,000 feet long was ordered to be condemned over the land of Joe Knight and A. W. Collison, without notice to them, for the purpose of draining the roadbed of the Paragould-Hopkins Bridge Highway. The land was outside the limits of the highway. The condemnation order of the county court did not make any provision for the payment of compensation to the landowners, and shows on its face that no notice of the application was given the landowners whose land was made the subject of the condemnation order. The record also shoAvs that the proposed ditch was not part of the original plans for the construction of the highway, but that it was made afterwards upon the suggestion of the State Highway Department.
In Road District No. 6 v. Hall, 140 Ark. 241, 215 S. W. 262, it was held that the Legislature might provide such a method as it sees fit for ascertaining the compensation of land condemned for the construction of improved highways, provided only that the tribunal is an impartial one and that the landowners have an opportunity to be heard. In that case it was further held that, where the lands were not taken or damaged at the time the assessment of benefits was made, compensation must be paid to the landowners out of the funds of the district. The reason is that the assessors could not have taken into consideration, in assessing the benefits, the damages to the land which had not been taken and which was not intended to be taken at the time thé assessment of benefits was made. In that respect it was differentiated from the case of Dickerson v. Tri-County Drain. Dist., 138 Ark. 471, 212 S. W. 334, for the reason that in that case the statute provided for the payment of damages for lands taken at the time the assessment of benefits was made, and the record shows that the damages had accrued and must have been considered by the assessors in assessing the benefits to the land.
Again, it may be said that no provision was made for compensation. to the landowner in the order condemning the land, and, in this respect, the case must be governed by Independence County v. Lester, 173 Ark. 796, 293 S. W. 743. In that case it was expressly held that the county had no right to enter upon land taken for a State and Federal highway under Crawford & Moses’ Digest, § 5249, providing for the opening of new highways, and making changes in existing highways, without paying the owner compensation therefor. As we have just seen, compensation in the present case could not have been awarded the owner in assessing benefits for the reason that at that time the construction of the proposed ditch for the purpose of draining the roadbeds of the highways was not a part of the plans for the improved highway and could'not have been taken into consideration by the assessors in assessing the benefits to the land.
The result of our views is that the judgment of the circuit court was correct, and it will therefore be affirmed. | [
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Mehaffy, J.
This suit was begun in the Cleburne Chancery Court to set aside a tax sale made by the collector of said county June 12, 1922, and especially the sale of the northeast quarter of the southwest quarter and the southeast quarter of the southwest quarter of section 14, township 9 north, range 10 west, and to cancel whatever right or claim defendant acquired from the State by virtue of such sale.
The plaintiff alleged that the tax assessor failed to indorse the special oath upon the assessment list for the year 1921, as provided for by § 9874, C. & M. Digest. Second, that the county- clerk of said county failed and neglected to attach to the taxbook a warrant authorizing the collector to collect the taxes assessed against the lands described in. said taxbook for the year 1921, as required 'by § 10016, C. & M. Digest.
Defendant answered, denying the material allegations of plaintiff’s complaint, and set up a claim under a donation certificate, and alleged that the value of the use of the lands was no more than the expense incurred by defendant. The defendant, appellant here, also urges that plaintiff is barred by the statute of limitations contained in § 10119 of C. ■& M. Digest.
The circuit clerk testified that he was the clerk and custodian of the records of Cleburne County. He examined the assessment record for 1921, and testified that he found-no affidavit of assessor of that time, as provided by § 9874,. C. & M; Digest. He also testified that he had examined the real estate taxbook for 1921 and found that it did not contain warrant of county clerk authorizing the sheriff to collect taxes of 1921, attached thereto. He found on the book the lands described in plaintiff’s complaint, and found that said lands were advertised as shown by the record and sold to the State for taxes June 12, 1922, for* taxes of 1921. He also testified that he had examined the real estate taxbook for the year 1922 and found that the clerk’s warrant was not attached thereto authorizing- the sheriff to collect the taxes. The warrant authorizing the sheriff to collect was not attached to the taxbook for said county for the years 1923 and 1924, and does not appear on either record. '
On cross-examination witness said he had not examined the personal as well as the real property taxbooks for 1921, and subsequent years. That he had examined these records, and found that the clerk’s warrant authorizing sheriff to collect said taxes is not attached to either record. That he did not know whether or not any such warrant was attached to any records mentioned at time same were placed in hands of collector, except the year 1925, but knows that no such warrant was attached. That his attention had been called to warrants for some years typewritten on sheets of legal paper and attached to the taxbook by pasting in the'book or sticking them in the book with mucilage.' That that had been done sometimes in that county. That the books he had examined were permanent records in his office and used by the collector in collecting taxes on' real property in the county.
Robert Wildman testified that he was in possession of the land' described in plaintiff’s complaint, holding-under a certificate of donation issued to him by the Commissioner of State Lands the 21st day of June, 192’4.
The court found that the tax sale was' void, and decreed a' cancellation of such sale and quieted title to said lands in appellee, who was plaintiff in the court below. An' appeal was prayed and granted. •
It is unnecessary to set out more of the testimony, beoaiise the only questions for this court to determine are whether the suit was brought iu time, and whether there was a failure of the clerk to attach the warrant authorizing the collector to collect taxes, and, if said warrant was not attached, whether this made the sale void.
Section 10119 provides: “All actions to test the validity of any proceeding in the appraisement, assessment or levying of taxes upon any land or lot, or part thereof, and all proceedings whereby is sought to be shown any irregularity of any officer, or defect or neglect thereof, having any duty to perform, under the provisions of this chapter, in the assessment, appraisement, levying of taxes, or in the sale of lands or lots delinquent for taxes,'or proceeding's whereby it is sought to avoid any sale under the' provisions of this chapter, or irregularity or' negléct of any kind by any officer having ally.- duty or 'thing' to perform under the provisions of this chapter, shall'be commenced within two years from the daté of sale, and not afterward.”
• It-is'- contended by the appellant that" this statute is a bar 16 plaintiff’s cause of action, because it was'not begun within thé twó'years/ We do not think that appellant is'correct in this contention. This court has decided several times that the two-year statute of limitations, reli'ed on by appellant in this case, has no application as to 'jurisdictional matters or vital defects in the proceedings relating to a tax sale, but only to irregularities.
: The failure of the clerk to attach his warrant authorizing the-collector to collect taxes, as provided in § 10016, is not a mere irregularity but is such a defect that it is not cured by the two-gear statute of limitations, relied on by appellant. Hewitt v. Ozark White Lime Co., 120 Ark. 528, 180 S. W. 199.
Appellant insists that,' when the ' assessment of taxes is shown, the burden is on the party assailing to prove they are illegal, and relies on Memphis L. & T. Co. v. St. Francis Levee Dist., 64 Ark. 258, 42 S. W. 763. The Question decided in that case was a wholly different question - from the one presented here, and the rule announced in that' case has no application. In that casé some parts of the record were read in evidence, but they did not purport to be a complete record, and there was no evidence of the contents of the record not read and no proof of what they did or did not contain. But in this case the law requires the warrant of the clerk to be attached, and we think the-proof sufficiently shows that no warrant was attached. At least the chancellor evidently found from-the proof that no warrant was ■attached, and we cannot say that his finding is against the preponderance of the evidence.
While it is true ordinarily that officers are presumed to perform their duty, we do not think that this presumption is sufficient to take one’s property away from him. It has been said: ■ ■ ■ ,
.“I have no' doubt whatever that it is essential, in order to give the surrogate jurisdiction of the persons of the heirs, that this provision of the statute should be strictly complied with. It is the only process to bring them into court, and without it they are- without their day in court. And I think that notice for the full time required by the statute is equally indispensable; that short notice would be as no notice. And I think it was a fact which the defendant in this case was bound affirmatively to establish.” Sheldon v. Wright, 7 Barb. (N. Y.) 39.
The Missouri court, in deciding a similar question, said:
“I will now pay some attention to the general doctrine invoked by the plaintiff’s counsel. I hold it is true that, in ex parte and summary proceedings, the law must be strictly pursued. In the case of McClung v. Ross (5 Wheat. 116, 5 L. ed. 46) it was decided by the Supreme Court of the United States that, under the laws of Tennessee, where lands are sold by a summary proceeding for the .payment of taxes, it is essential to the validity of the sale and of the deeds made thereon that every fact necessary to give the court jurisdiction should appear upon the records.” Morton v. Reeds, 6 Mo. 64.
This court said, in one of the cases referred to: “The statutory presumption in favor of a conveyance of lands forfeited for taxes, executed by the Commissioner of State Lands, has been overcome in this case by proof that the land was not assessed by a sufficient description to identify the land.” Cotton v. White, 131 Ark. 273, 199 S. W. 116.
The presumption that an officer has done his duty is not sufficient to justify depriving one of his property, where the proceedings of the officer are ex parte and where the statute expressly required that certain duties shall be performed which are jurisdictional. However,, in this case, as we have already said, the court was justified in finding that the warrant of the clerk was not attached.
Since we hold that the attaching of the warrant by the clerk was jurisdictional, and that the court’s finding that.this warrant was' not attached is not against the preponderance of the testimony, it follows that the case must be affirmed, and it is so ordered. | [
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Smith, J.
Four suits were filed in the Pulaski Chancery Court, involving the lands here in question, which were consolidated for trial. The court below rendered a decree in which the rights of the respective litigants were adjudged, and this appeal is from so much only of that decree as adjudicated the rights of Lee, as curator of certain minor heirs, and those of H. G. Martin. These suits involved the title to a portion of the southwest quarter of section 36, township 1 south, range 11 west, and a portion of the north half of section i, township 2 south, range 11 west.
Appellant Simpson has a record title to a tract of land described as the south half of section 36, township 1 south, range 11 west, north of the river. Appellee Martin has a record title to a tract of land described on the plat of the original Government survey as the fractional southeast quarter on the right bank of the river, section 36, township 1 south, range 11 west, and the minor heirs, for whom appellee Lee is curator, have a record title to certain land in section 1, township 2 south, range 11 west.
All these tracts of land are fractional parts of the sections in which they are located, and are made fractional by the fact that, at the time of the original Government survey, the Arkansas River flowed east through the south half of section 36, township 1 south, range 11 west, and made a sharp bend as it flowed into and through section 31, township 1 south, range 10 west, and section 6, township 2 south, range 10 west, and.flowed from the last mentioned section in a southeasterly course through section 1, township 2 south, range 11 west.
The land owned by appellant Simpson was described in the patent from the State and the other muniments of title through which he claims as the southeast quarter of section 36, north of the river. It appears therefore that, at the time of the original Government survey, the land to which appellant Simpson has the record title was north of the Arkansas River, and the lands to which appellees have a record title were south of that stream.
At some time after this survey was made the river changed its course, and now flows in a southeasterly direction through section 1, township 2 south, range 11 west, and section 6, township '2 south, range 10 west, and does not now touch either section 36 or 31 above referred-to at any point, but flows south of both these sections.
It is the contention of appellant Simpson that the south bank of the river gradually caved and washed away until the bend of the river had entirely disappeared, and that, as this was done, the north bank gradually moved southward by the accretions to that shore, and that the original lands to which appellees had a record title gradually disappeared and became a part of the channel of the river, until finally the accretions to appellant’s lands occupied the area which once comprised the land of appellees, together with other lands contiguous thereto and south thereof, all of which appellant Simpson claims as an .accretion to his land.
Upon the authority of the case of Wallace v. Driver, 61 Ark. 429, 33 S. W. 641, 31 L. R. A. 317, appellees concede that appellant would have title to the land in controversy if it were shown that the land in dispute formed as an accretion to 'appellant’s land, as the river changed its course in the manner stated long before the passage of act No. 127, approved April 26, 1901 (Acts of 1901, page 197), which appears as § 6783, C. & M. Digest, or the decision of this court in Wallace v. Driver, supra.
In this respect the instant case is identical with that of Bush v. Alexander, 134 Ark. 307, 203 S. W. 1028, in which case the act of 1901 is quoted, and it may be said here, as it was there, that the rights of the parties became vested prior to the passage of this act, and it is unnecessary to consider what the effect would be on the titles of these litigants had the facts above recited occurred subsequent to the decision in the Driver case and the passage of the act of 1901.
In .addition to appellant’s claim to the land in litiga - iion as an accretion to his own, he also claims title thereto by adverse possession.
Appellees deny tlxat these lands were an accretion to appellant’s land. On the contrary, they assert their land never disappeared through the action of the river, but has remained as original land at all times since the Government survey, which was made in 1826, ■ and, in addition, they say they have title to certain lands also involved in this litigation a-s an accretion to their own land. They also say that, at some time subsequent to 3 826, the river changed its course as the result of an avulsion or cut-off, and the court below sustained this contention, and entered a decree accordingly, and, upon this finding of fact, apportioned to appellees and certain other riparian owners the accretions to lands which are south of the river according to the survey of 1826. The apportionment of this accretion was one of the subjects involved in the cases consolidated with the cases here appealed, but, as the parties to those suits have not appealed, we need not consider this feature of the case.
The appeal of the appellant Simpson does raise the question of the correctness of the court’s finding of fact, but the appeal presents no other question than this question of fact, except only the question of law as to the burden of proof concerning the manner in which the river changed its course.
The question for decision may therefore be stated as follows: Did the river leave the bend shown by the survey of 1826 by the process of accretion, or by an avulsion or cut-off?
In a case presenting many issues of fact similar to the present case, the Supreme Court of Tennessee, in the case of State v. Muncie Pulp Co., 119 Tenn. 47, 104 S. W. 437, held (to quote a syllabus), that “the presumption is in favor of the permanency of boundary lines, and the burden of proof is on the one averring' that the location of the line has 'been changed by the action of the forces of nature.” See also 9 C. J. 271, and Bissell v. Fletcher, 27 Neb, 582, 43 N. W. 350.
Inasmuch as appellees are in possession of land shown to be land by the original Government survey, the patents from the United States to the State of Arkansas, and from the State to appellees’ predecessors in title, we think the burden was upon appellant to show that the land described as such disappeared and later formed as an accretion to his own land, and this would be true whether he was the plaintiff or the defendant in an action in which that question arose.
Appellant calls attention to the decision of this court in Bush v. Alexander, 134 Ark. 307, 203 S. W. 1028, which •was a suit in ejectment to recover possession of a tract of land described as “the southwest fractional quarter (west of Arkansas River), section 31, township .1 south, range 10 west, containing, according to the Government survey, 15.61 acres.”
The land just described is adjacent to the land here claimed by appellee Martin, being separated from it by the range line between range 10 west' and range 11 west. In the former case the plaintiff claimed that the land described remained as original land as shown by the Government survey, and that the river cut across the bend, so that the land was then on the opposite bank, whereas the defendant claimed the land as an accretion to other lands owned by him.
That case was a suit at law, and the court there found for the defendant, and adjudged accordingly. In other words, the circuit court found that there had been no avulsion, whereas the decree in the instant case is based upon the finding- that there was an avulsion. Appellant insists that, inasmuch as we affirmed the judgment of the circuit court on the former appeal, we should reverse the decree of the chancellor in the present appeal, for the reason that the land involved in the two cases is adjacent, and must necessarily have the same history. This does not necessarily follow, notwithstanding the findings are inconsistent. The parties are not the same, nor is the subject-matter of the litigation identical, although it is similarly situated.
It was there insisted, as the former-opinion reflects, that the judgment of the circuit court was not sustained by the testimony, and that the finding of the circuit court contravened the physical facts, and the opinion recited that we would be required to so hold and reverse' the judgment of the circuit court if the testimony .of the appellant in that case was treated as undisputed. This téstimony'was not undisputed, and we did not pass upon its truthfulness. It was our function only to pass upon the legal sufficiency of the testimony. In the discharge of that duty we held the testimony was legally sufficient to support the finding there made, that the land in^litigation was an accretion. In the discharge of our duty in this respect we affirmed the judgment of the circuit court, as there was sufficient legal testimony to support the finding made.
In this appeal, as in the former case, the testimony is sharply conflicting. The present appeal is from a decree based upon a finding of fact made in the chancery court, and we now try the case de novo, and it is our duty to affirm the decree, unless we conclude that the chancellor’s finding is contrary to the preponderance of the evidence. Leach v. Smith, 130 Ark. 465, 197 S. W. 1160.
The testimony in the record now before us is both voluminous and conflicting, and much of it is identical with or similar to the testimony offered in the case of Bush v. Alexander, supra, and no useful purpose would be served in setting it out in detail.
The case for appellant rested largely on the testimony of certain civil engineers, who testified as experts, and that of a witness named Allen, whose personal knowledge of the land extended further back than that of any other witness who testified in the case. Allen testified that he had been familiar with the land since 1868, and that there had been no cut-off in the river since he had known it. This testimony merely shows that, if there was a cut-off, it occurred prior to 1868. ■
According to the testimony of the engineers,. the land is an accretion, but these witnesses conceded that this is not true if there is timber on the land as much as seventy-five to ninety years of age, and the testimony on the part of appellees is to the effect that there is timber on the land at least one hundred years old.
Appellee Martin, who is a civil engineer, testified that he was also an expert in determining the age of trees, and that he located the land in 1872, while -making a- survey for the Iron Mountain Railroad, and that his attention was particularly drawn to this land by the circumstance that he expected to find it on the south side o.-f the river, where the, field-notes of the Government survey_ showed it to be, whereas the river was then flowing to the south and west of the land, and that he then noticed large timber growths of cottonwood, gum, ash and sycamore trees.
After this litigation was begun, M-artin, and other witnesses who claim to be timber experts, 'counted the rings in several old stumps, and counted many rings in one old stump which indicated the age of the tree at the time it fell was at least seventy-five years. These witnesses also testified that there were standing trees some of which were five feet in diameter, and that the deep crevices in the bark indicated lan age of at least one hundred years. These witnesses further testified that, while a tree is growing its bark is smooth, but, after it obtains its growth, the bark thickens, and is characterized by deep indentations, and that there were trees with indentations which indicated that they had reached a great age — as much as a hundred years.
There was testimony to the effect that these cut-offs frequently occurred in the river, and, when they did, occur, the river changed its cpurse suddenly, and that a lake was always left where the former bend in the river had been. The engineers who testified on behalf of appellant gave, as one of the reasons for their opinion that there had been no avulsion in this case, the fact that there was no lake where the former bend in the river-ha.d been. But witnesses on behalf of appellees testified to the fact that there had been a lake at this place, although it had practically filled up, and had been drained by the digging of a drainage ditch.
Upon a consideration of all the testimony, we have concluded that the finding of the court below, that the land was not an accretion, is not against the preponderance of the evidence.
Upon the question of the title by adverse possession it suffices to say that the testimony shows only the erection of certain fences across portions of the land, but that the land was not inclosed, and certainly not for a period of seven years.
As the decree does not appear to be against the preponderance of the evidence, it is affirmed. | [
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Hart, C. J.,
(after stating the facts). Counsel for appellant claims that he only desires the court to pass upon the question of whether or not the defendant special school district could issue bonds in payment of the current expenses of the schools of the district. To pass upon the question insisted upon by appellant could not possibly result in any benefit to him. It is fairly infer-able from his own complaint that the bonds had been issued and sold to the Bankers’ Trust Company, which is not made a party to the action, before the present suit was brought. The affidavit of the secretary of the board filed in this court shows that the bonds had been sold and the proceeds spent. There is no denial of this fact. The purchaser or holder of the bonds not having been made a party to the action, his rights could not in any wise be affected by any decision we might make. Hence a decision of the question presented by the appeal, even if favorable to the contention of the appellant, could not result in any practical benefit to him. The court could not make any order relative to the bonds which would affect the holder of them. The sum realized from a sale of the bonds has been expended by the district. It could only declare what it believed the law to be upon the issue attempted to be raised by appellant. It has never been the policy of this court with respect to litigated cases to decide cases AVhich, by reason of intervening facts, seemed to be of no practical application to the controversy between the parties. It is the duty of the courts to decide actual controversies by a judgment or decree which can be carried into effect, but not to give opinions upon controversies or declare principles of law which cannot be executed or which cannot have any practical effect in settling- the rights of the litigants under the judgment or decree rendered. Mabry v. Kettering, 92 Ark. 81, 122 S. W. 115; Kays v. Boyd, 145 Ark. 303, 224 S. W. 617; Blakely v. Newton, 157 Ark. 351, 248 S. W. 907; Mills v. Green, 159 U. S. 651, 16 S. Ct. 132, 40 L. ed. 293; Jones v. Montague, 194 U. S. 147, 24 S. Ct. 611, 48 L. ed. 913; Wilson v. Shaw, 204 U. S. 24, 27 S. Ct. 233, 51 L. ed. 351; and So. Pac. Terminal Co. v. Int. Commerce Com., 219 U. S. 498, 31 S. Ct. 279, 55 L. ed. 310.
We do not pass upon the issue attempted to be raised by appellant in this appeal, but, following the principles of law announced in the decisions above cited, we dismiss the appeal without prejudice to the rights of any one. It is so ordered. | [
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Smith, J.
Tlie appellant, Commercial Credit Company, is a corporation domiciled at New Orleans, and is engaged in the business of buying notes from automobile dealers given in payment of second-band cars. Appellant furnishes to its customers from whom it buys notes a blank contract, .which is filled out at the time a car is sold, and attached to this contract is a promissory note, which the dealer takes for the balance of the unpaid purchase price of the car. Appellee Blanks Motor Cbmpany sold a second-hand ca.v to Oren Curtis, who was a minor only nineteen years old, for the sum of $496.15. Of this amount $148.85 was paid in cash. The balance of $347.30 was evidenced by the note of Curtis to the order of appel-lee, and was payable monthly at the rate of $28.95 per month.
The custom prevailing between appellant and appel-lee and other customers in regard to the purchase of notes was as follows: The dealer would attach' the note for the unpaid balance due on a car and the contract of sale to a draft drawn on appellant and payable in New Orleans. Appellant would pay the draft and take up the note and contract, and would then have from twenty to thirty-five days in which to determine whether it would keep or return the note. . This time was employed in investigating the responsibility of the purchaser, references being required for that purpose, and, if the report was favorable, appellant kept the note, otherwise it would return the note and the sales contract to the dealer with the draft attached for the amount paid for the note.
Curtis had made four of the monthly payments, and then defaulted and informed appellee that he would not complete the payments, whereupon appellee ■ advised appellant of that fact, and appellant sent a representative to see Curtis about the payment then past due. Curtis advised this representative that he was only nineteen years old, and did not intend to complete his payments, but would surrender the car if that was desired. The car had been so badly used that appellant’s representative refused to accept it in satisfaction of the note.
It appears that appellee’s agent who sold the car to Curtis knew, at the time of the sale, that Curtis was a minor, yet the contract of sale which Curtis signed stated his age to be twenty-one.1 Appellant did not know that Curtis was a minor when it bought the note, and was not so advised until after Curtis had declined to complete the payments on the note.
Appellee offered testimony to the effect that, after appellant had paid the draft to which the note was attached, a letter was received from appellant calling attention to the fact that answers had not been written into certain of the spaces of the sales contract, and appellee supplied the required information, and thereafter appellant wrote that it would not take the note “without recourse,” as was the custom, but would require a guaranty on appel-lee ’s part that the note would be paid.' Appellee declined to give this guaranty, and advised appellant, if it was not willing to take the note “without recourse,” to redraw for the sum paid by appellant for the note with the note and contract attached to the draft.
The exact testimony of L. W. Blanks, appellee’s managing officer, was that, “I answered them and told them that I would give them no warranty on that note, and I would not be liable on it, and i'f they did not want it on those terms, to return it to us, and redraw on us.” The testimony on appellant’s part was that no guaranty of payment had been asked, and none was refused, but we must assume, in view of the verdict returned in appel-lee’s favor, that the testimony in its behalf was credited by the jury.
The note in question was indorsed as follows: “For value received, pay to the order of Commercial Credit Company, Inc., New Orleans, La., without recourse,” signed, “Blanks Motor Company, by L. W. Blanks.”
The general contract under which appellant bought notes from appellee gave it a reasonable time — which was shown to be from twenty to thirty-five days — in which- to determine whether it would keep any particular note, after paying the draft covering the amount of the "note, and appellant had the right, if it elected, after investigation, not to keep the note, but to return it with draft attached, and the court so instructed the jury, but, over appellant’s, objection, the court also instructed the jury .as follows: “If you should believe from the greater weight of the testimony that, within said time (reasonable time for investigation), the plaintiff refused to accept the note with the assignment of defendant ‘without recourse’ but wrote demanding guaranty of the col lection by defendant, and tliat defendant refused to guaranty said collection, but requested tlie return of said note and contract, and offered to repay the plaintiff the amount of the draft he had drawn and collected, then this abrogated and put to an end the contract between-the parties (plaintiff and- defendant), and the defendant would not be bound on his indorsement, although the original maker, Curtis, was a minor at the time of his signing the note, and your verdict should be for the defendant. ’ ’
We think, under the facts stated, that the instruction was erroneous. We assume that appellant demanded a guaranty of payment, and that appellee refused to give this guaranty, and directed appellant to return the note if it was not willing to keep it without a guaranty, but we think there was nothing in this correspondence which-operated to free appellee from a liability as indorser which was not dependent upon the existence of a special contract of guaranty. In electing not to return the note, but to keep it without payment being guaranteed, appellant took the note with such rights — -and those only — -as the law gave it. What are those rights?
As Curtis was a minor, the contract and note for the purchase of the automobile was void and unenforceable. Arkansas Reo Motor Co. v. Goodlett, 163 Ark. 35, 258 S. W. 975. But appellant was an innocent purc-haser of the note. The express and affirmative representation had been made in the contract of sale, to which the note was attached, that Curtis was twenty-one years of age, and there is no contention that appellant was advised to the contrary until Curtis defaulted in his payments.
The note was indorsed “without recourse” by appel-lee, and negotiated with this indorsement by delivery to appellant, and, this being true, § 7831, C. & M. Digest, fixes the rights and obligations of the parties thereto. This section reads as follows:
“Every person negotiating an instrument by delivery or by a qualified indorsement, warrants: (1). That the instrument is genuine and in all respects what it pur ports to be; (2) That he has a good title to it; (3) That all prior parties had capacity to contract; (4) That he has no knowledge of any fact which would impair the validity of the instrument or render it valueless. But when the negotiation is by delivery only, the warranty extends in favor of no holder other than, the immediate transferee. The provisions of subdivision 3 of this section do not apply to persons negotiating public or corporation securities, other than bills and notes.”
There was nothing in the refusal of appellee to guarantee the payment of the note which operated to prevent this section of the statute from applying to the transaction between the parties. One who negotiates a note by delivery, or by a qualified indorsement, warrants that the maker has the capacity to contract. Appellee did this because the négotiable instruments law so provides, and the parties are conclusively presumed to have contracted with reference to this law, although neither of them may have known anything about the statute. There was no contract that the statute should not apply. Appellee did refuse to assume any responsibility for the payment of the note, but this is a very different matter from refusing to warrant that the maker of the note had the capacity to make it.
Appellant took title to the note by delivery under a qualified indorsement, and the law imputed into the transaction the warranty that the maker of the note had' the capacity to make it, and the .refusal of appellee to guaranty its payment was insufficient to discharge it from a liability to which its refusal did not relate.
.We find it unnecessary to determine whether parol testimony is admissible to prove what effect the parties intended by the indorsement “without recourse,” as the testimony offered is not sufficient to show that the indorser intended to absolve itself from the effect which the statute quoted gives to an indorsement of that character. Smith v. Barner, 188 Pac. 216, 95 Ore. 486.
The court erred therefore in giving the instruction set out above, and the judgment must therefore be reversed, and, as the canse appears to have been fully developed, and no valid defense has been shown, judgment will be rendered here against appellee for the unpaid balance due on the note. | [
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Humphreys, J.
The original appeal in this case is from the decree of the chancery court of Ouachita County, Second Division, approving the master’s report disallowing appellant’s claims against appellee and in dismissing their intervening petitions for want of equity. The cross-appeal is from the decree approving the master’s report disallowing appellee’s claims against appellants in accordance with the prayer in its response and cross-complaint to the intervening petitions of appellants. The suit in which appellants filed intervening petitions was brought by Frank W. Lowe against G-ordon Ingalls, Gordon Ingalls, trustee, Gordon Ingalls, trustee for Kosse Mutual Ownership Pool (Richard Rader Mineral Deeds Syndicate), Gordon Ingalls, trustee for Robert E. Miller Mineral Deed Syndicate, and appellee, the Oil Fields Corporation, to -recover about a million and a half dollars alleged to have been furnished by Frank W. Lowe and his associates to Ingalls, Dashko, Forbes, and other syndicates, to purchase oil and gas leases, charging that they used only a part of the money to purchase leases, fraudulently appropriating the greater part thereof to their own uses. He prayed that a receiver be appointed to take charge of the propert}^ in possession of the Oil Fields Corporation, which had taken over the properties of the several syndicates, and that same be sold and disbursed among the investors.
Upon the filing of the complaint, J. H. Meek of Camden, Arkansas, was appointed receiver to take charge of the property of the defendant, the Oil Fields Corporation, the property of the other defendants having been previously conveyed to the Oil Fields Corporation.
The Oil Fields Corporation filed an answer, setting up a merger agreement by which the properties of the syndicates made defendants in the case were acquired by and duly assigned to the Oil Fields Corporation. It prayed that the transfers be upheld as valid and that the property taken over by the receiver be turned back to it.
The intervening petition of T. B. Novick was for $5,751.85, based upon an alleged exchange of one complete drilling rig and double set of standard cable tools, valued at $14,676.31, for one standard rig and string of tubing and casing and other items of credit, valued at $8,944.46, as per itemized account attached as an exhibit. He prayed .judgment in the sum of $5,751.85, together with interest thereon at the rate of 6 per cent, per annum, and that his claim be allowed to take precedence over the claims of unit-holders and stockholders whose interests are or may be asserted herein, and that the receiver be authorized, empowered and directed to pay said claim.
The intervening petition of J. S. Dashko was for $21,956.90, based upon itemized statements attached as Exhibits W, A, B, C, D, E and F, representing rentals on drilling rigs, promissory notes, checks, salary, and money advanced to pay certain items of expense. He prayed for judgment in the sum of $21,956.90, together with interest thereon at the rate of 6 per cent, per annum, and that his claim bo allowed to take precedence over claims of all unit holders and stockholders whose interests are or may he asserted herein, and that the receiver herein be authorized, empowered and directed to pay said claim.
Appellee filed an answer to the intervention of T. P. Novick, denying that it owed him any amount.
Appellee also filed an answer to the intervention of J. S. Dashko, denying’ that it owed him anything, and, by way of estoppel, interposed a merger bulletin issued by J. S. Dashko, at the time the syndicates assigned their respective properties to appellee, tó the effect that the only indebtedness of appellee was $5.37 on an outstanding check.
Appellee also filed a supplemental answer and cross-complaint to the interventions of both T. P. Novick and J. S. Dashko, as follows:
“On June 22, 1925, the Oil Fields Corporation filed its supplemental response'to the intervening petitions of T. P. Novick and J. S. Dashko, in which it charged, in addition to its original response to said intervening petitions, and as a counterclaim against said T. P. Novick and J. S. Dashko, that, on or about the 15th day of February, 1924, the said T. P. Novick and J. S. Dashko, who was the vice president of the Oil Fields Corporation, scheming to defraud this corporation and to transfer to said T. P. Novick, for J. S. Dashko, a large quantity of oil well supplies and material then belonging to this defendant, Oil Fields Corporation, pretended to exchange the drilling rig and tools mentioned in the claim of the said T. P. Novick for said oil well supplies, and material, and placed the value of said drilling" rig and tools at $14,676.31, and received therefor said oil well supplies and material to the amount of $7,898.76, and claimed a balance due from this defendant, Oil Fields Corporation, as stated in the claim of said T. P. Novick, and this defendant alleges that said drilling rig and tools were the property of this defendant, Oil Fields Corporation, and were of the value not to exceed $3,000; that, by pretending that the defendant, T. P. Novick, owned said drilling rig and tools, the said T. P. Novick and J. S. Dashko obtained from tlie defendant, Oil Fields Corporation, said oil-well supplies and material to the amount of $7,898.76, without consideration having been received therefor by this defendant, Oil Fields Corporation. Wherefore it demanded a judgment against said T. P. Novick and J. S. Dashko for $7,898.76, the value of said oil-well supplies and material so obtained, with interest thereon at 6 per cent, per annum from February 15, 1924. ’ ’
A master was appointed to state an account between appellants and appellee, and the cause was heard upon the pleadings, testimony and supplemental report of the master.
In the main case the court rendered a decree, from which an appeal was not taken, in substance as follows:
“On the 27th day of November, 1925, the court made and entered its decree in the main case, finding the issues joined in favor of the Oil Fields Corporation and against the plaintiffs and' all interveners, decreeing all property taken into the custody of the receiver to belong to the Oil Fields Corporation, and ordering it restored to the receiver as of midnight, November 30, 1925, directing .the receiver to assign all of the property to the Oil Fields Corporation and make up his final account.”
The proceedings involved in this appeal are the supplemental report of the special master, the exception filed thereto by appellants, and the judgment overruling the exceptions and approving the master’s report.
Appellee prayed and secured a cross-appeal, but, as he failed to file any exceptions to the master’s report, there is nothing before us for consideration on the cross-appeal, as it does not appear from the face of the report or from the evidence in the cause that it is erroneous. Sections 7161 and 7163, Crawford & Moses’ Digest.
The supplemental report of the master is as follows:
“Comes B.. K. Mason, master herein, and, for his sup-pi omental, report herein, upon the claims of T. P. Novick and J. S. Dashko, statesThat the testimony taken upon ■the interventions of said T. P. Novick and J. F. Dashko is not sufficiently clear and convincing, in the opinion of the master, to justify tlie court in allowing tlie claim of said T. P. Novick or tlie claim of said J. S. Dasliko; and that the testimony tends to show that said Novick and Dashko had and held possession and control of properties and funds exceeding the amounts claimed by them, respectively, and have not made proper accounting’ to show the disbursement and disposition thereof; and that it is uncertain whether a proper stating of account would show the other defendants herein indebted to Dashko and Novick, or would show Dashko and Novick indebted to other defendants herein. Wherefore the master recommends to the court that the claim of T. P. Novick he denied, and that the claim of J. S. Dashko be denied.”
Exceptions filed to the master’s report by appellants are as follows:
“Come T. P. Novick and J. S. Dashko, and file the following exceptions to the report of the master filed in this cause, and state: That said report of the master is contrary to the evidence, contrary to the law, and contrary to both the law and the evidence. That the master erred in holding that the testimony taken upon said interventions is not sufficiently clear and convincing to justify the court in allowing the claims of T. P. Novick and J. S. Dashko; that the master erred in holding the testimony on said claim tended to show that said Novick and Dasliko have held possession and control of properties and funds exceeding the amount claimed by them, respectively; that the master erred in holding that said Novick and Dashko have not 'made proper accounting to show disbursement and disposition of property, and funds in their hands; that the master erred in holding that the evidence failed to show whether said Novick and Dashko were indebted to the Oil Fields Corporation or whether the Oil Fields Corporation was indebted to the said Novick and Dashko; that the master erred in ruling that claims of T. P. Novick and ,T. S. Dashko be denied.”
The judgment of the court overruling the exceptions to the master’s report is as follows:
■“Now on tliis day come Powell, Smead & Knox, and the exceptions heretofore filed to the master’s report on the claim of T. P. Noviek and John Dashko coming on to be heard, the court, after hearing statement of counsel, and being well and sufficiently advised in the premises, is of the opinion that said exceptions should be overruled. It is therefore considered, ordered, adjudged and decreed by the court that the exceptions of T. P. Noviek and John Dashko to the master’s report should be and the same are hereby overruled, and the master’s report is in all things approved by the court.”
We have read the testimony very carefully with a view to ascertaining whether the claims of appellants are bona fide claims. It could serve no useful purpose as a precedent to set-out the testimony, and to^do so would only unduly extend this opinion. Suffice it to say that we have concluded that the claims are fictitious. The decree is therefore affirmed. | [
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Humphreys, J.
This is a suit in unlawful detainer by appellant as landlord against appellee as tenant for a certain farm in Jackson County. It was alleged in the complaint that appellant let to appellee said farm for the year 1925, and that he was willfully and unlawfully holding the possession thereof after written demand for same. ■
Appellee filed an answer, denying that he was unlawfully holding over, and alleging, by way of cross-complaint, that in August, 1925, he leased the farm for the year 1926, and had been unlawfully evicted, for which he prayed damages in the sum of $200. The cause was submitted upon the pleadings, testimony adduced by the respective parties and instructions of the court, which resulted in a judgment dismissing appellant’s complaint and for damages in the sum of $37.50 on appellee’s cross-bill, from which is this appeal.
The testimony introduced by appellant, plaintiff below, tended to show that she leased the farm to appel-lee, the defendant below, for the year 1925, but that they were unable to agree upon terms, and, on that account, failed to consummate a contract for the year 1926.
The testimony introduced by appellee tended to show that, in August, 1925, an oral rental contract was entered into between the parties whereby it was agreed that appel-lee should keep’the farm for the year 1926 upon the same terms provided in the rental contract for 1925.
In December, 1925, an attempt was made to get appellee to sign a written contract to pay $15 an acre for the land, which he refused to do, claiming that he had already entered into an oral contract whereby he was to have the farm for the year 1926 for one-fourth the cotton and the cotton seed, and $10 an acre for that part of the land upon which he might plant corn and hay. The testimony is conflicting as to whether he then claimed the right to hold the farm under an oral contract for two years, 1925 and 1926, when he first moved there, or under an oral contract made in August, 1925.
Appellant’s first contention for a reversal of the judgment is that instructions numbers 2 and 6 given by the court, over her objection and exception, are in conflict and misleading. The instructions are as follows:
“The burden of proof is upon the plaintiff, Miss Fannie Smith, to show, by the greater greater weight of evidence or by a preponderance of the evidence in the case, her right of possession to the premises at the time of the filing of the suit. Under the testimony and the law governing this cause, the plaintiff would be entitled to the possession of the premises at the time suit was filed, and she was entitled to the possession of them at the time the suit was filed, unless you believe from the evidence that the defendant, Pearce, had a contract which had been entered into prior to the time of the filing of this suit between Miss Fannie Smith and himself, whereby he was to have possession of the land and the right to cultivate the lands in question during the year 1926. And the terms of this contract should have been plain and should have been understood and agreed to by both parties prior to the institution of this suit.”
“There has been some testimony, gentlemen, relative to a purported contract for the rental of the premises for the term of two years. The defendant is not claiming, on his part, under such a contract as that, so he alleges. The plaintiff, however, claims that he made that complaint to the plaintiff at one time. I instruct you that a contract of rental of real estate for more than one year would not be enforceable in this court, unless it was in writing. ”
We see no conflict in the instructions. Number 2 relates to the issue of fact as to whether appellant and appellee entered into an oral lease in August, 1925, for the farm for the year of 1926, and number 6 relates to the issue of fact as to whether appellant and appellee entered into an oral lease for the farm for -two years, 1925 and 1926, when he moved on the place. The court told the jury in the two instructions, when read together, that, if they should find that the contract was made in August, 1925, for the use of the farm for 1926, it would be a valid contract, whereas, if made for the years 1925 and 1926, at the time he moved on the place, it would be void under the statute of frauds. There is no inconsistency whatever in the instructions.
Appellant’s next contention for a reversal of the judgment is that the court should have given her request for a peremptory instruction. This insistence is based upon the theory that the undisputed evidence showed that appellee claimed the right to hold the farm by virtue of an oral contract to lease same for two years, 1925 and 1926. The evidence was conflicting upon this point, and appellant was' not entitled to an instructed verdict. The conflict made the issue one for the jury.
Appellant’s next and last contention for a reversal of the judgment is that the instruction as to damages was erroneous. The instruction told the jury that, if they found in favor of appellee, they should assess such damages as they might find from the evidence he had proved as a result of being evicted from the premises. There was testimony to the effect that appellee was compelled to hire two teams for several days and use his own much longer in moving to a place he rented three miles from appellant’s farm. The instruction was not abstract, and, if appellant desired a more definite instruction on the measure of damages, he should have made a request to that effect.
No error appearing, the judgment is affirmed. | [
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McHaNey, J.
Appellant instituted this action in the Pulaski Chancery Court, challenging the constitutionality of acts Nos. 11 and 80 of the Acts of 1927, approved February 4 and March 3, 1927, respectively, commonly referred to, as the State Highway Acts. A demurrer to the complaint was sustained, and, as appellant declined to plead further, his complaint was dismissed for want of equity, from which comes this appeal.
The title of act No. 11 is “An act to amend act No. 5 of the extraordinary session of the Forty-fourth General Assembly of the State of Arkansas, approved October 10, 1923,” and § 1 of the act declares a definite policy on the part of the State with reference to "its State highway system in this language: “It is-hereby declared to be the policy -of the State to take over, construct, repair, maintain and control all the public roads in the State comprising the State highways as defined herein.” The original act, of which this is amendatory, the Harrelson Act, has been before this court for consideration and has been sustained in the following cases: Bonds v. Wilson, 171 Ark. 328, 284 S. W. 24; Cone v. Hope-Fulton-Emmett Road Imp. Dist., 169 Ark. 1032, 227 S. W. 544.
Before proceeding (-o a discussion of the issues raised by this appeal, we deem it proper to premise our remarks by two fundamental rules of construction announced and adhered to throughout the history of this court. First, that the Constitution of this State is not ^a grant of enumerated powers to the Legislature, not an enabling, hut a restraining act (Straub v. Gordon, 27 Ark. 629), and that the Legislature may rightfully exercise its powers subject only tó the limitations and restrictions of the Constitution of the United States and of the State of Arkansas. St. L. I. M. & S. Ry. Co. v. State, 99 Ark. 1, 136 S. W. 938; Vance v. Austell, 45 Ark. 400; Carson v. St. Francis Levee Dist., 59 Ark. 513, 27 S. W. 590; Butler v. Board, etc., 99 Ark. 100, 137 S. W. 251. In other words, as was said in McClure v. Topf & Wright, 112 Ark. 342, 166 S. W. 174: “It is not to he doubted that the Legislature has- the power to make the written laws of the State, unless it is expressly, or by necessary implication, prohibited from so doing by the Constitution, and the act assailed must be plainly at variance with the Constitution before the court will so declare it.” Second, that an act of the Legislature is presumed to be cohstitutional, and will not be held by the courts to be unconstitutional unless there is a clear incompatibility between the act and the Constitution; and further, that all doubt on the question must be resolved in favor of the act. State v. Ashley, 1 Ark. 552; Eason v. State, 11 Ark. 481; Dabbs v. State, 39 Ark. 353, 43 Am. Rep. 275; Sallee v. Dalton, 138 Ark. 549, 213 S. W. 762; and in Standard Oil Co. of La. v. Brodie, 153 Ark. 114, 239 S. W. 753, this court quoted the language of the Supreme Court of the U. S. in Hooper v. California, 355 U. S. 657, 35 S. Ct. 207, 39 L. ed. 297, that “the elementary-rule is that every reasonable construction must be resorted to in order to save the statute from unconstitutionality. ’ ’ There are a great many decisions of this court announcing and following these rules under a great variety of circumstances, and we do not therefore cite or quote from more of them.
Bearing in mind these elementary rules of construction, let us now take up the specific objections to these acts pointed out .by appellant as rendering the acts unconstitutional.
It is urged that, since-act No. II provides for the issuance by the State of interest-bearing evidences of indebtedness, it is- in violation of § 1 of art. 16 of the Constitution, which reads as follows:
/‘Neither the State nor any city, comity, town or other municipality in this State shall ever loan its credit for any purpose whatever; nor shall any county, city, town or municipality ever issue any interest-bearing evidences of indebtedness, except such bonds as may be authorized by law to provide for and secure the payment of the present existing indebtedness, and the State shall never issue any interest-bearing treasury warrants or scrip/’
We will not quote the acts questioned in full, but only such parts as appear to be pertinent. Section 4 of act 11 is as follows:
“It shall be the duty of the Commission to-construct the roads in the State highwajr system which are not now constructed, the work of construction to 'be pushed as rapidly as funds are available for that purpose. The Commission shall begin the work of construction in those counties in which the roads embraced in the State highway system have not been constructed by improvement •districts, or in which only a small portion of such roads have been constructed, and shall continue construction work in such counties until the completed roads in each county in the State have been brought to a parity, after which construction work shall be distributed throughout the counties so as to maintain the parity, as far as practicable.”
Section 5, after making it the duty of the State Highway Commission to make certain allotments for the construction of new roads for. the next four years, provides :
“To provide the funds to meet this requirement, the State shall borrow each year whatever amount may be necessary, in addition to the money derived from automobile .licenses and fees, gasoline and motor-oil taxes, and from Federal aid, on such terms as to interest and maturities, and subject to the limitations hereinafter set out, as may be determined to be for the best interest of the State highway system, and to issue State higirway notes for. the amount borrowed, to be secured by a pledge of the revenues derived from gasoline, motor-oil and automobile taxes, and to pledge said revenues, or so much thereof as may be necessary, for the payment of said notes,” etc.
“Such notes issued by the State shall be known as State highway notes, shall be signed by the Governor, the State Treasurer and the State Highway Commissioner, and attested by the Secretary of State, and shall state in the face of said note that the revenues derived from gasoline, ' motor-oil and automobile taxes are pledged for the payment of such notes.”
The above section of the Constitution appears quite simple. The first thing prohibited therein is the lending of its credit by the State, city, etc., for any purpose. It is not proposed in the act under consideration that the State shall “loan its credit,” but only use its credit. The second prohibition in said section leaves the State out of the thing prohibited altogether, and lays the restraining hand only on “any county, city, town or municipality” in the issuance of interest-bearing evidences of indebt- • edness, except to cover the then existing indebtedness. The State was not left out of this second prohibition or limitation by inadvertence, oversight or mistake, but by intention or design. Hays v. McDaniel, State Treasurer, 130 Ark. 52, 196 S. W. 934.
The third prohibition in this section of the Constitution applies to the State alone, that is, that it “shall never issue any interest-bearing treasury warrants or scrip.” This third prohibition manifestly can have no application to this case, for it is not proposed to issue any interest-bearing treasury warrants or scrip.
This court has held directly contrary to this contention of appellant. In Jobe v. Urquhart, 102 Ark. 470, 143 S. W. 123, Ann. Cas. 1914A, 353, it was said:
“The General Assembly has plenary powers to contract for and create interest-bearing indebtedness on the part of the State, except to issue interest-bearing treasury warrants or scrip.”
This case was cited with approval in Hays v. McDaniel, State Treasurer, supra, where it was again held that the Legislature could authorize the issuance of interest-bearing evidences of indebtedness for its purposes, and we do not think the court intended to limit the power of the Legislature in this regard to the particular “purpose” then under consideration. If the Legislature has “plenary power to contract for and create interest-bearing indebtedness,” when “the authority to bind the State to the payment of interest on her indebtedness” is plainly expressed in the act, as held in Jobe v. Urquhart, supra, then it would appear to be certain that it could validly exercise such power for the building of roads, when the act expressly declares it to be the policy or “purpose” of the State so to do. Appellant concedes on this point that these decisions are contrary to his contention, and that we should reconsider the rule in Hays v. McDaniel, with which we do not agree, and further says that the act in question is violative of the spirit of this section of the Constitution. But we cannot strike down a solemn enactment of the Legislature on any supposed spirit of the Constitution. As before stated, we can only do so when the power is expressly, or by necessary implication, prohibited.
In 1 Cooley’s Constitutional Limitations (8th ed.) page 351, the author says:
“Nor are the courts at liberty to declare an act void because in their opinion it is opposed to a spirit supposed to pervade the Constitution, but not expressed in words, when the fundamental law has not limited, either in terms or by necessary implication, the general powers conferred upon the Legislature. We cannot declare a limitation under the notion of having discovered something in the spirit of the Constitution which is not. even mentioned in the instrument.”
We therefore hold this point not well taken.
It is next urged that the acts create permanent State offices, in violation of § 9, art. 19, which provides that “the General Assembly shall have no power to create any permanent State office not expressly provided for by this Constitution,” for the reason, as stated, that the acts do not limit the time' of the existence of the offices created. On this point appellant is again precluded by the former decisions of this court. Greer v. Merchants’ etc., Bank, 114 Ark. 212, 169 S. W. 802: Fort Smith Dist. of Sebastian Co. v. Eberle, 125 Ark. 350, 188 S. W. 821.
The next contention is that the form of the notes proposed to be issued by the State is without authority in the act itself (act 11), in that they are made direct obligations of the State, for which the full faith and credit of the State are pledged. The notes are to contain-this clause: “The State of Arkansas also covenants that this and all other obligations of this series will be paid promptly as they mature, and to their payment the full faith and credit of the State are irrevocably, pledged.”
Section 5 of the act, heretofore set out, provides that the State shall borrow the money and that the State shall issue the notes. There is no provision for 'the Highway Commission to borrow the money and issue its notes, although the commission and the note board are agencies of the State for the’ purpose, for the language of the act is “to provide the funds to meet this requirement, the State shall borrow each year whatever amount may be necessary,” etc. It is difficult to perceive why the State’s full faith and credit should not be pledged, if it is to borrow any money. The fact that it pledges the funds arising from the tax on gas, oil and motor vehicles does not relieve the State otherwise. The State is not and should not be in any different or more favorable situation in this regard than an individual. A farmer who borrows money from his hank and mortgages his crop to secure the payment of his note is not relieved of payment in the event of crop failure. All the faith. and credit be has, in addition to tlie crop, are pledged to the payment of his' debt. Necessarily it must be so with the State. Even if the notes were made payable only out of this particular fund, yet if the fund failed, or was insufficient, there would-be a moral, if not a legal, obliga-gation on the State to pay. The only difference between the obligations of an individual and the State is that the individual may be compelled to pay in a civil action, whereas the State can never be sued in any of her courts, even though morally and legally obligated to pay. There can be no just reason in law why the notes should not contain this clause, and we therefore hold that these notes, when issued, will be the direct obligations of the State, for the payment of which the full faith and credit of the State are pledg-ed.
There is no merit to the contention that, since the act provides that the notes “may” be made payable in St. Louis or Chicago, they cannot be made payable in New York, as the form of the notes provides. The word “may” is here used in its permissive-sense and nob in a mandatory sense, such as is imported in the words “must” or “shall,” unless it plainly appears “that the Legislature intended to impose a duty and not merely a privilege or discretionary power, and that the public or third persons are interested and have a claim of right to have the power exercised.” Little River Co. v. Buron, 165 Ark. 535, 265 S. W. 61; Washington Co. v. Davis, 162 Ark. 335, 258 S. W. 324. The legislative intent was to vest in the board the discretionary power of making the notes payable wherever sold, and St. Louis and Chicago were mentioned in the belief that they might be sold at one or both -of these places.
It is next contended that, because act No. 11 provides for the payment, in whole or in part, of the existing bonded indebtedness by the several road districts, it violates § 12 of art. 12 of the Constitution, which is as follows:
“Except as herein otherwise provided, the State shall never assume or pay" the debt or liability of any county, town, city or other corporation whatever, or any part thereof, unless such debt or liability shall have been created to repel invasion, suppress insurrection or to provide for the public welfare and defense. Nor shall the indebtedness of any corporation to the State ever be released or in any manner discharged save by payment into the public treasury.”
The limitation here provided is that “the State shall never assume or pay the debt or liability of any county, town, city of other corporation.” Unless it can be said that a road improvement district is a “corporation” within the meaning’ of this section, it is plainly manifest that this section of the Constitution can have no application. Counties, towns and cities are corporations, and we are of the opinion that the words “or other corporation” has reference to the same kind of organization referred to in § 2 of art. 12 which prohibits the Legislature from passing any special act conferring corporate powers. Concerning this latter section, in Carson v. St. Frances Levee Dist., 59 Ark. 535, 27 S. W. 590, this court said:
“Giving corporate capacity to certain agencies in the administration of civil government is not the creation of such an organization as was sought to be prohibited by article 12 of the Constitution. The mere fact that the organizations (quasi corporations) are declared in the statutes to be bodies corporate has little weight. We look behind the name for the named. Its character, its relations and its functions determine its position, and not the mere title under which it passes.”
Continuing, the court said: “The principle announced in these decisions, and the numerous authorities cited therein for their support, meet our views on the subject; and the main doctrine therein announced, to the effect that conferring corporate powers by the Legislature upon agencies of the State, appointed to perform some public work, in the course of the administration of civil government, in order to the more efficient performance of the duties imposed, is not such an act as is pro hibited by tlie Constitution, we think, is founded upon sound reasoning' as well as authority. ’ ’
The effect of this holding is that a levee district is not such a corporation as mentioned in § 2, art. 12. Any number of road improvement districts have been created by special act of the Legislature, and all of them are declared to be bodies corporate for the purpose of their creation, and this court has held directly that a road, improvement district is not a corporation within the meaning’ of § 2, art. 12, of the Constitution. They have been held to be quasi governmental or State agencies of special and limited powers. Burt v. Road Imp. Dist., 159 Ark. 275, 253 S. W. 1. Furthermore, under the rules of construction announced -at'the outset, to the effect that .the act must be sustained unless the power is expressly or by necessary implication prohibited, it might be held that the qualification, “unless * * * .to provide for the public welfare,” eliminates State highways from this prohibition, as they are for the public welfare ip a sense. But we do not deem it necessary to discuss this point, as- we hold that road districts are not such corporations mentioned in .§ 12, article 12, of the Constitution. Bank of Commerce v. Huddleston, 172 Ark. 999, 291 S. W. 422.
It is finally claimed that the acts in question were hot passed in accordance with the requirements of § 22 of art. 5 of the Constitution, as follows:
“Every bill shall be read at length on three different days in each house, unless the rules be suspended by two-thirds of the house, when the same may be read a second or third time on the same day; and no bill shall become a law unless, on its final passage, the vote be taken by yeas and nays, the names of the persons voting for and against the same be entered on the journal, and a majority of each house be recorded thereon as voting in its favor.”
This contention is without merit. As was said in Road Imp. Dist. No. 16 v. Sale, 154 Ark. 551, 243 S. W. 825:
“The rule is firmly established in this State that an enrolled statute signed by the Governor and deposited with the Secretary .of State raises the presumption that every requirement was complied with, unless the contrary affirmatively appears from the records of the General Assembly, and that this presumption is conclusive unless the records, of which the court can take judicial .knowledge, show to the contrary.”
Furthermore, we have examined the journal entries ■ and find every constitutional requirement regularly complied with.
. We find no error, and the decree is accordingly affirmed.
Wood and Ivikry, JJ.', dissent. | [
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McFaddin, J.
This appeal raises the question of the effectiveness of limitations and laches when pleaded by a demurrer to the complaint.
On September 8, 1943, appellant filed this suit in the Sebastian chancery court against Nancy J. Webb and the appellee, Yiola Earle Rigney. The amended and substituted complaint, omitting caption and prayer, was as follows:
“Comes the plaintiff and for her amended and substituted complaint, herein, states that she is the child and sole surviving heir-at-law of James G. Webb, deceased, by his first marriage and that the defendant, Nancy J. Webb, is his widow, and stepmother of the plaintiff.
“That on April 7,1902, James G. Webb and his first wife, mother of plaintiff, sold a parcel of real estate in Fort Smith, Arkansas, same being their homestead and that of plaintiff, and invested the proceeds of said sale in the purchase of lot three (3) in block sixty-three (63) of the City of Fort Smith, Arkansas, the deed having been executed to James G. Webb and his heirs, and recorded Deed Record ‘MM,’ at page 415.
“That shortly thereafter the first wife of James G. Webb, and mother of plaintiff, died, and James G. Webb later, intermarried with the defendant, Nancy J. Webb.
“Plaintiff states that on May 21, 1928, a conveyance of the said property was made to one Prances Kemp, and that said deed is recorded in Deed Record 49, page 540, and that on the same date Prances Kemp executed a deed to James Gr. Webb and Nancy J. Webb, his wife, thereby purportedly vesting an estate by the entirety in them. The later deed is shown of record in Book 31, page 499.
“Plaintiff states that James Gr. Webb died on or about July 18, 1928, and that on March 17, 1939, the defendant, Nancy J. Webb, as his widow, attempted to convey the property aforesaid to her co-defendant, Yiola Earle Rigney, as is shown by a warranty deed recorded in Book 68, page 640.
“Plaintiff states that at the time the defendant, Nancy J. Webb, induced the said James G. Webb to transfer the title in said property so as to attempt to create an estate by the entirety, the said James Gr. Webb was, by reason of age, senility, feeble-mindedness and the undue influence of his wife over him, lacking in his capacity to understand what he was doing or the effect of his acts, so that he was entirely lacking in capacity to make such conveyance; that the defendant paid no consideration for said conveyances, but designedly took advantage of her relationship with James G. Webb, and of his enfeeble mind and intellect, knowing-him to be about to die, in an attempt to defraud this plaintiff of her inheritance ; and that the deeds executed as a result should be cancelled and set aside.
“Plaintiff states that she resides in Little Rock, Arkansas, and has so resided at all times hereinbefore mentioned, and that she knew nothing of the things and matters herein complained of, until long after they had occurred, and that when she did learn of said fraudulent transactions, she immediately filed her suit in this court. ’ ’
The prayer was for quieting of title in plaintiff, as sole heir of James G. Webb, and for other relief. No exhibits of any kind were attached to the original com plaint, or to tlie amended and substituted complaint. Nancy J. Webb, was constructively summoned and no pleading was filed by her, and no default taken. Yiolia Earle Rigney filed against the. complaint a general demurrer: “That the said amended complaint does not contain facts sufficient to constitute a cause of action.” The chancery court sustained the demurrer and dismissed the plaintiff’s complaint upon her refusal to plead further; and the plaintiff has brought this appeal.
For reversal, appellant contends: (1) that a complaint which states a cause of action, although defectively, affords no ground of demurrer; (citing Shreve v. Carter, 177 Ark. 815, 8 S. W. 2d 443); and (2) that every reasonable inference in favor of the complaint should be made, and if, when so considered, there is a cause of action stated, then the demurrer should be overruled; (citing Claxton v. Kay, 101 Ark. 350, 142 S. W. 517, Ann. Cas. 1913E, 972; McLaughlin v. Hope, 107 Ark. 442, 155 S. W. 910, 47 L. R. A. N. S., 137; Sharpe v. Drainage District, 164 Ark. 306, 261 S. W. 923; and Dillinger v. Pickens, 200 Ark. 218, 138 S. W. 2d 388).
On the other hand, for affirmance, appellee claims that the demurrer was properly sustained: “Upon the ground that appellant was barred by limitations and laches”; and appellee cites McGinnis v. Less, 147 Ark. 211, 227 S. W. 398, where this court said:
“Either laches or the statute of limitations may be raised by demurrer in a suit in chancery, where the allegations of the complaint are sufficient to show the existence of these defenses. In such an action these defenses go to the equity of the complaint, and may, therefore, be raised by demurrer. ’ ’
The test is whether the complaint shows limitations- or laches on its face. If it does, then the defenses can be raised b.y demurrer; otherwise, the defenses should be pleaded b'y answer and shown by evidence. Since the action of the trial court in sustaining the demurrer is defended on the ground of. (1) limitations, and (2) laches, we proceed to consider these points.
I. Limitations.
James G. Webb made tbe deed (which led to the entirety estate) in 1928, and died the same year. His widow did not convey the land to appellee until 1939. This suit was instituted in 1943. When did limitations commence to run? If limitations started on the death of James G. Webb then appellant is barred. If it started on the execution of the deed to appellee, then appellant is not barred by limitations.
In Brinkley v. Taylor, 111 Ark. 305, 163 S. W. 521, the widow had only a dower right, but by adverse holding she acquired the fee as against the heirs, even though they never had dower assigned to her. We said of her entry on the land: “This entry should be presumed to be permissive, and not in hostility to the heir unless that fact affirmatively appears.” In that case, the nature of the adverse holding was shown by evidence. In the case at bar no such adverse holding is alleged in the complaint.
In Boyd v. Epperson, 149 Ark. 527, 232 S. W. 939, the widow, Frances Harmon, occupied the land from 1911 until 1919 under a will which devised her the land in fee simple. After her death the pretermitted children of the husband brought suit against the heirs of the widow; and this court, in holding that limitations did not begin to run against the pretermitted children of the husband until the death of the widow, said: “It was their duty to assign dower to the widow, and the widow’s occupancy pending the assignment of dower was not an adverse holding. Brinkley v. Taylor, 111 Ark. 305, 163 S. W. 521. Therefore the statute of limitations did not begin to run in favor of the appellants until after the death of their mother, who was the widow of Mack Harmon, deceased.”
In Clark v. Wilson, 174 Ark. 669, 297 S. W. 1008, this court reviewed a number of cases on this question as to when the holding by the widow is adverse to the heirs and quoted from Watson v. Hardin, 97 Ark. 33, 132 S. W. 1002, as follows:
“ ‘It is true that her claim and possession might have been of such a nature as to amount to an entire disseizin of the heir and an entire denial of his rights, so as to result in an acquisition of title by adverse possession; but, before her possession could become adverse, it was necessary for her to first repudiate the title (of her husband) and to disavow any claim thereto as his widow; and it was also essential that notice of such disavowal by her of title as widow should be brought home to the heir.’ ”
And then we continued:
“But it was there also said that the widow might acquire title by adverse possession against the heir if her disclaimer and hostile possession was so open and notorious as to raise a presumption of notice to him.”
Reaves v. Davidson, 129 Ark. 88, 195 S. W. 19, affords no support to appellee. In that case the ancestor, while insane, had conveyed lands and delivered possession to a third person. When his children brought suit to set aside the deed to the third person, we held that limitations started to run against the children on the death of the insane ancestor. But in that case the possession was held by a stranger, and such possession was necessarily notice to the children of the'adverse claim. In the case at bar, possession was held by the widow; and under the authority of Brinkley v. Taylor, Boyd v. Epperson, and Clark v. Wilson, the heirs had a right to assume that the widow’s possession was under her marital light of unassigned dower until notice of her adverse holding was notorious.
In the case at bar there was nothing alleged in the complaint to show any acts of the widow adverse to the heirs until the deed to the appellee herein. The complaint, copied in full, does not show any date of the recording of any of the instruments. So, on the face of the complaint, limitations was not shown and could not be pleaded by the demurrer, but should be set up by answer.
II. Laches.
There are no facts alleged in the complaint that show laches. Such facts may be shown by the evidence, but they do not appear on the face of the complaint. Without citing and-discussing our many cases on the elements of laches as a defense, we give the statement contained in 19 Am. J. 343, which comports with our cases, and is as follows:
“A suit is held to be barred on the ground of laches or stale demand where and only where the following facts are disclosed: (1) Conduct on the part of the defendant, or of one under whom he claims, giving rise to the situation of which complaint is made and for which the complainant seeks a remedy, as, for example, an invasion by the defendant of the complainant’s right, such as the right to the possession of property; (2) delay in asserting the complainant’s rights, the complainant having had knowledge or notice of the defendant’s conduct and having been afforded an opportunity to institute a suit; (3) lack of knowledge or notice on the part of the defendant that the complainant would assert the right on which he bases his suit; and (4) injury or prejudice to the defendant in the event relief is accorded to the complainant or the suit is not held to be barred. ’ ’
The case of Norfleet v. Hampson, 137 Ark. 600, 209 S. W. 651, does not support the appellee’s contention of laches. In that case the complaint alleged full knowledge of all of the facts by the plaintiff for nineteen years, whereas, here, the absence of knowledge was alleged. This ignorance on the part of the appellant is no defense on limitations, but is a circumstance to be taken into consideration in the plea of laches. In Norfleet v. Hampson, possession and use of the lands by the defendants were alleged; whereas, in the case at bar, nothing is alleged about posséssion or use. In Norfleet v. Hampson, the complainant alleged that from 1903 to 1916 there was no payment by the defendants, and that during all that time the defendants were — to the knowledge of the plaintiff- — appropriating all rents to defendants’ own use; whereas, in the case at bar, the deed to appellee was executed only three and one-half years before, filing of the suit; and this was the first act to show any claim adverse to the plaintiff; and, as we have previously stated, the widow is not presumed to be holding adverse to the heirs •'until that fact is shown. In Norfleet v. Hampson, this court held, that with all of the facts recited in the complaint the plaintiff should have set 'out facts that negatived the idea of laches; whereas, in the case at bar, the facts are so meagerly set out that the case of Norfleet v. Hampson could have no application. The presence of facts was emphasized in the reported case. It is the absence of alleged facts confronting us in the case'at bar. The rule in Norfleet v. Hampson finds no application here, because the complaint fails to show any facts suggesting laches. So, on the face of the complaint, laches was not shown, and could not be pleaded by the demurrer, but would have to be shown by the evidence.
It, therefore, follows that the tidal court was in error in sustaining the demurrer, and the cause is therefore reversed and remanded with instructions to overrule the demurrer, and for further proceedings not inconsistent with this opinion. | [
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McFaddin, J.
This appeal involves the Initiated County .Salary Act of Independence county adopted in 1936 and effective January 1, 1937. The Act, in essentials here under consideration, is similar to the Clay County Salary Act considered in Terry v. Thornton, No. 7531, ante, p. 1019, 183 S. W. 2d 787, this day decided. From a decree enjoining further diversion and rendering-judgment against the County General Fund of Independ ence county for sums diverted in 1940,1941 and 1942, and fixing a lien for the recovery thereof, the appellants (defendants below) have appealed.
All of the questions decided in case No. 7531 are presented in this case No. 7462,' so the decision in case No. 7531 disposes of all issues here except the contentions herein discussed.
I. Jurisdiction of Equity. The appellants urge that the appellees here were seeking only a money judgment; and therefore the chancery court was without jurisdiction. It is clear that something more than a mere money judgment must be sought in a case like this before equitable jurisdiction can be sustained in the face of a timely objection, as was made here. But the answer to the appellants is found in the pleadings filed and relief prayed at the time the contention was made. At such time appellees (plaintiffs below) had pending: (1) the amended complaint, and (2) amendment thereto. In the amended complaint the plaintiffs alleged that there was a diversion, and prayed in part as follows:
“Third: That if upon a final hearing of this cause, it be determined that § 16, of Initiated Act Number One of Independence county is unconstitutional and void, that the court make such further orders as- may be necessary to insure the common school fund of Independence county and the several school districts of said county against any further illegal, unlawful and fraudulent appropriation of the school funds aforesaid to the County General Fund of Independence county, or to any other fund, that he have his costs, and all other proper and equitable relief. ’ ’
The amendment did not waive this prayer, because the prayer in the amendment concluded with this language: “. . . and in all other things he prays as in his amended complaint previously filed herein.” It is therefore clear that the plaintiffs below prayed for an order against the diversion of school funds, and that part' of the relief that the court granted was a lien for the recovery thereof. So the appellants’ contention in this regard must be denied.
II. The Judgment and Lien for Refund. The chancery court found that for the years 1940, 1941 and 1942 certain school district funds had been transferred to the County General Fund of Independence county in the amount of $7,773.57 in one instance, and $521.12 in another instance. The court found that the County General Fund for each of tne years had been exhausted; but the court decreed a lien on all the future County General Funds until the amount of said school funds so trans-. ferred should be repaid. This lien feature of the decree was not presented in case No. 7531;. But even so, this judgment and lien were erroneous, and that part of the decree must be reversed for the reasons stated in case No. 7531; The attempt to decree a lien on the County General Fund was an indirect effort to recapture funds that had been lost beyond recapture. As was shown in case No. 7531, Constitutional Amendment No. 10 intervenes.
To summarize and conclude: (1)- We hold that § 16 of the Independence County Salary Act is unconstitutional in so far as any attempted transfer of school funds is concerned; and (2) all of the decree of the chancery court is affirmed except so much thereof as rendered judgment in the sums of $7,773.57 and $521.12, and adjudged a lien against the County General Fund for these amounts. That portion of the decree is reversed. The costs of the lower court and of this court are to be paid one-half by appellants and one-half by appellee. | [
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Knox, J.
Appellant, a real estate broker, seeks a reversal of a decree denying him judgment against appellees, alleged to be due on account of services rendered by him in connection with sale of their home.
On June 4, 1943, appellant wrote the following letter to Mrs. Sneed: “I am wondering if you would not like to sell your home on West Southline Street here in Searcy? Inasmuch as you are now living in Springfield, thought.maybe you would sell it, and should you ever come back to Searcy after the war is over, you could build you a home maybe you would like better.
“We have'a prospect that is in the market for a home in Searcy, and he is from out of the state. In fact lives in Missouri. I’m going to lose him if I don’t find him something nice pretty soon.
“If you and Mr. Sneed care to sell, and will give us a reasonable price on the dwelling here, I believe I can sell it for you at a good price.
“Please let me hear from you. Our commission will be 5 per cent, of the sale. Will appreciate it very much if you will give an immediate reply, as I am anxious to land this prospect before he gets off the proverbial dine.’ Kindest regards.” . '
On June 7, 1943, Mrs. Sneed replied: “Your letter of June 4th received in regards to our home in Searcy.
‘£ I am planning tu be in Searcy sometime next week, and will contact you and it may be that I will sell, however we had never thought of selling, for it is a good investment.
“Mr. Sneed is out of town and will be in this weekend and I willhalk it over with him, however we would want $4,000 for it, as we had just redecorated it throughout before we left.”
On June 19, 1943, Mrs. Sneed again wrote appellant as follows: “It will be the first of July before I can come to Searcy, and if you can sell this man our home for $4,000 go ahead and sell, but please use tact, as I don’t want to lose the Blackburns as renters; if I should not sell, and I don’t want it listed in paper for sale.” Copy of a letter from appellant to Mrs. Sneecl written in reply to her letter, of June 19th was introduced in evidence. The date line which was somewhat smeared appeared to be June 20, 1943, but some of the witnesses seemed to think that this was error, and that the letter had in fact been written several days later than June 20th. This letter reads as follows: “Your letter of June 19th received and note it will be July 1st before you will get to Searcy. When you come, would like for you to come around to our office and see us, and list the property here on W. Southline Street with us for sale. I have never seen the dwelling inside, but do not know what it looks like. If it looks as good inside, as it does from the out, I think I can sell it for $4,000.
“We ’ll be looking for you when you'come to Searcy. ’ ’
Appellant explains that he wrote this last letter because while he had authority to sell the property it was not an exclusive agency, and he wanted appellees to list the property with him on his form, so that he would have an exclusive agency — the witness then said, “I will not put any pressure behind one unless I have it exclusively. ’ ’
Appellant testified that the man from Missouri referred to in his letter of June 4th was operating a mill at Bradford, Arkansas; that this man did not return to Searcy after appellant received authority to sell, and he therefore could not and did not offer the property to him.
Late in the afternoon of Saturday, July 3rd, Mrs. Aldean Cain, who with her husband resided next door to appellant, saw appellant in his front yard and advised him that they were having to give up the home which they were'renting, and asked if he had any suitable property for rent or sale. Appellant told her that he could sell her the Sneed property for $4,000; that Mrs. Sneed would be down the next week, at which time he would show the property to Mrs. Cain and talk to her further relative to the proposed sale. At her request he promised her that he would not show the property to anyone else until she had first seen it.
Unknown to appellant, Mr. and Mrs. Sneed were in fact in Searcy at the very time appellant was talking to Mrs. • Cain, they having arrived the day before. On the morning following the day of her conversation with appellant, Mrs. Cain attended church services, where she encountered Mr. and .Mrs. • Sneed. Impulsively she told them that she had heard their house was for sale and that she was interested in it. Arrangements were made for an inspection of the property, and on Tuesday, July 6th, an agreement was reached for the sale and purchase of such property for $4,250. During the course of the negotiations, Mrs. Cain asked if the property had been listed with a real estate dealer; and Mrs. Sneed assured her that it had not. Mrs. Sneed testified that she and her husband arrived in Searcy Friday, July 2d; that she saw appellant for the first time at his office between 10:30 and 11:30 a. m. Tuesday, July 6th, at which time appellant tried to get her to list the property with him, and she refused. She testified that the acceptance on the part of Mr. and Mrs. Cain was conditioned on their being able to negotiate a loan, which was not assured until July 24th, and that for this reason and also because 'she regarded it'as a matter concerning which she was entitled to no information she did not advise appellant relative to the sale to the Cains. Appellant admits that Mrs. Sneed was in his office on the date mentioned, but denies that there was any conversation between them relative to listing the home for sale. Mrs. Sneed, however, is corroborated, in part at least, by a Mr. Bloodworth, who was in the office at the time and overheard the conversation.
Mrs. Cain testified, and in fact it appears, to be accepted by all parties, that her first and only information that the property was for sale came through her conversation with appellant.
Neither appellant nor Mrs. Cain advised appellees, or either of them, that appellant had told Mrs. Cain the property was for sale, and it is undisputed that appellees did not know that appellant had communicated any in formation concerning1 the property to Mrs. Cain until after the sale to the Cains had been consummated.
While the decree dismissing appellant’s complaint contains no findings of facts, or conclusions of law, it is apparent from the findings that the trial court based its decision upon the ground that there was no contract of employment between the parties by which appellant was authorized to offer the property to Mrs. Cain, or to anyone other than the man from Missouri, referred to in appellant’s letter dated June 4, 1943. Appellees based their defense on this contention in the trial court,, and takes the same position here.
At 12 C. J. S., “Brokers,” § 60, p. 134 et seq., we find the following’ statement: “The right of a broker to recover a commission or other remuneration for his services must be predicated on a contractual relation, he must have been, employed to negotiate the contract or transaction in connection with which his services were rendered, and the employment must have been by the person from whom the commission is claimed or by some one acting for him. Where there is no employment or binding contract for the payment of commission and the broker acts as a mere volunteer, he is not entitled to compensation for his services, although such services are the efficient cause of bringing the parties together and result in a sale or other contract between them.”
The statement of the text writer above quoted is in accord with decisions of this court. Vanemburg v. Duffey, 177 Ark. 663, 7 S. W. 2d 336; Nickel v. Dashko, 174 Ark. 818, 298 S. W. 204.
The limits of appellant’s authority to offer the property depends on the construction placed upon the language contained in letters passing between him and Mrs. Sneed, particularly that contained in his letter of June 4th, and hers of June 19th.
At 8 Am. Jur., “Brokers,” § 18, p. 999, we find the following statement: “The general principles of law governing the construction of contracts generally are applicable to the construction of a broker’s contract of employment. Such a contract should be construed as a whole, and in a reasonable manner. Any doubt, however, as to the broker’s powers thereunder should be resolved against him.” A real estate broker’s authority is limited and is such only as is specifically conferred on him either expressly or by necessary implication. 12 C. J. S., “Brokers,” § 20, p. 58; Swift v. Erwin, 104 Ark. 459, 148 S. W. 267.
While it is true, that appellant in his letter to Mrs. Sneed, dated June 4th, requested general authority to act as broker for her in the sale of the property he pointed out that he had in view as a prospective purchaser a certain man from Missouri. In her letter of June 19th she said, “If you can sell this man our home for $4,000, go ahead and sell. ’ ’ The trial court construed this to confer on appellant authority to offer the property to the man from Missouri and to no one else. In other words, the trial court held that appellant failed to show that he had authority from appellees to offer the property to Mrs. Cain; and failing to establish a contract clothing him with such authority he could not recover a commission, even though his actions were the procuring cause of the sale; that in his dealings with Mrs. Cain appellant was acting as a volunteer.
Appellant contends that such construction of the letters is not justified because, he says, the real interest of appellees was the purchase price of $4,000; that it was immaterial to them who paid this amount so long as they received it. Counsel for appellees point out that Mrs. Sneed explained in her letter that she did not want to lose her renters in case a sale was not made, and she did not want them inconvenienced, as they doubtless would be if the'property was listed and shown generally. The question is not whether appellant’s authority was fixed within reasonable bounds, for unquestionably appellees had the right to limit the extent of such authority within such confines as they chose. The real question is what is the extent- of the authority granted? Or stated more definitely did Mrs. Sneed’s letter give appellant authority to offer the property to Mrs. Cain? If he was unauthorized to enter into negotiations with Mrs. Cain, then there would be no liability on the part of appellees to compensate him for his services unless they had later ratified his unauthorized acts. This rule is stated at 8 Am. Jur., p. 1093, as follows: “Where a broker enters into a contract that is not in accordance with his employer’s instructions, the latter is under no liability to compensate him for his services unless such unauthorized acts of the agent are ratified by the principal. The fact that the contract negotiated is more advantageous than that which the broker was authorized to enter into, does not alter the operation of the rule or do away with the necessity of ratification on the part of the employer.” Of course, there is no contention here that there was ratification by appellees of the acts of appellant in offering the property to Mrs. Cain, it being acknowledged that appellees did not know of appellant’s conversation with Mrs. Cain until after they had disposed of the property.
In the case of Breen v. Rives, 44 N. Y. S. 672, 16 App. Div. 632, the Supreme Court of New York, App. Div., held that authority given to a broker to sell to a particular named person did not authorize the sale to another person.
In view of the fact that a real estate broker’s authority is limited and is such only as is specifically conferred, either expressly or by necessary implication, and in view of the further fact that in determining the extent of the authority the contract of employment must be strictly construed and all doubt relative to such authority resolved against the broker, we are of the opinion that the trial court correctly construed the letters passing between appellant and Mrs. Sneed as constituting a contract of limited employment by which appellant was given authority to offer this property for sale to the prospective purchaser mentioned in his letter of June 4, but that he was not authorized, expressly or by implication, to offer the property to any other purchaser.
The decree is, therefore, affirmed. | [
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Robins, J.
These two cases, involving the same subject-matter, were consolidated and tried together in the lower court. Each was brought in the municipal court of Fort Smith, Arkansas, by a tenant against the landlord to recover under the provisions of the Emergency Price Control Act, enacted by Congress on January 30, 1942, 50U.S.C.A. App., § 901. Appellant, Chester Bowles, administrator, Office of Price Administration, asked and was granted leave to intervene in circuit court. The circuit court, on appeal from judgments of the municipal court, sustained demurrers of the defendants, holding that the municipal court had no jurisdiction of the subject-matter involved, and dismissed both suits. The correctness of the findings and orders of the circuit court is' challenged on this appeal.
These suits are based on the following provisions of the Emergency Price Control Act of Congress:
“Sec. 205 (e). If any person selling a commodity violates a regulation, order, or price schedule prescribing a maximum price or maximum prices, the person who buys such commodity for use or consumption other than in the course of trade or business may bring an action either for $50 or for treble the amount by which the consideration exceeded the applicable maximum price, whichever is the greater, plus reasonable attorney’s fees and costs as determined by the court. For the purpose of this section the payment or receipt of rent for defense-area housing accommodations shall be deemed the buying or selling of a commodity, as the case may be. . . . Any suit or action under this sub-section may be brought in any court of competent jurisdiction and shall be instituted in one year after delivery is completed or rent is paid. 50 U.S.C.A. App., § 925(e).
“It shall be unlawful . . . for any person . . . to demand or receive any rent for any defense-area, housing accommodations, ... in violation of any regulation or order under section 2, . . . or of any price schedule effective in accordance with the provision of section 206, . . . or to . . . agree to do any of the foregoing.” 56 Stat. 28, c. 26, Title I, § 4, act January 30,1942, 50 U.S.O.A. App., § 904.
Wilful violation of the act is also made punishable by fine of not more than $5,000 or imprisonment for not more than two years. Section 205 (b) Idem.
In the case of Bynum v. Patty, it was alleged in count 1 of the complaint that appellant, Bynum, rented from appellee, Patty, for the month of February, 1943, a certain apartment in Fort Smith, and that said appellee had charged and collected as rental therefor $35 per month, whereas the maximum rental for said apartment as fixed by the Fort Smith Rental Office, Office of Price Administration, under the Emergency Price Control Act of Congress, was $30 per month. Recovery of $5 excess rent paid, $50 damages and a reasonable attorney’s fee was prayed in this count. The complaint contained-seven other counts, alleging similar overcharge, and asking similar relief, for each of the months from March to September, 1943, inclusive.
In the ease of DeVilbiss v. Thompson, appellant, De-Yilbiss, alleged in count 1 of her complaint that appellee, Thompson, charged said appellant $8.50 as rent for a room in appellee’s home in Fort Smith, together with linens and laundry service, for the week beginning July 20 and ending July 27, 1943, whereas the maximum weekly charge for said rental and service as fixed by the Fort Smith Defense Rental Office, Office of Price Administration, was only $8 per week. Damages of $50 for said excessive charge, together with reasonable attorney’s fee and costs were demanded. Twenty-one other counts, each covering subsequent weeks up to and including the week of December 14 to December 21, 1943, showing similar overcharge and demanding like relief, were contained in the complaint.
The civil jurisdiction of the Fort Smith Municipal Court is thus fixed by § 9905 of Pope’s Digest of the laws of Arkansas: ‘ ‘ Concurrent with justices of the peace and exclusive of the circuit court in all matters of contract where the amount in controversy does not exceed the sum of one hundred dollars, excluding interest; concurrent with justices of the peace and with the circuit court in matters of contract where the amount in controversy does not exceed the sum of three hundred dollars, exclusive of interest; concurrent with the justices of the peace and with the circuit court in suits for the recovery of personal property where the value of the property does not exceed the sum of three hundred dollars; and concurrent with the justices of the peace and with the circuit court in all matters of damage to personal property where the amount in controversy does not exceed the sum of one hundred dollar's. . . .”
A municipal court, like a justice of the peace court, is a court of limited and restricted jurisdiction. Under art. VII, § 11 of the Constitution of Arkansas, all judicial power not lodged in other courts by express constitutional or statutory provision is vested in the circuit court. Evans v. Percifull, 5 Ark. 424; Payne v. Rittman, 66 Ark. 201, 49 S. W. 814; Whittaker v. Watson, 68 Ark. 555, 60 S. W. 652; State v. Sams, 81 Ark. 39, 98 S. W. 955.
To hold that the municipal court had jurisdiction of these suits it would be necessary to find these suits were “on contract,” because (save as to certain suits for recovery of personal property and for damage thereto) under the statute a municipal court is given no civil jurisdiction except as to suits “on contract.” These were not suits to enforce a contract, or to establish liability under a contract, or to recover for breach of a contract. On the contrary, they were suits to recover damages for doing what was denounced as illegal by the Emergency Price Control Act. Therefore the suits were not “on contract” so as to be cognizable in the municipal court.
We do not have here an attempt to recover back money obtained by extortion or deceit, in which case the law sometimes implies a promise by the one unjustly enriched to repay the amount wrongfully obtained (17 C. J. S. Contracts, § 6, p. 324; Caldwell v. Missouri State Life Insurance Co., 148 Ark. 474, 230 S. W. 566); but appellants here are seeking statutory damages, allowed as a punishment for an alleged overcharge in rent. While there are some decisions in which courts have apparently held that a statutory liability might be enforced as- a gwasi-contractual liability, on the theory that there was an implied assumption of the burdens of the statute by all parties, in our opinion the reasoning on which these decisions is based is not sound, and this theory has already been rejected by us in the case of State ex rel. v. Ehle, 112 Ark. 385, 166 S. W. 535. There the question involved was the state’s right to have a writ of attachment levied against the property of a non-resident defendant in an action to recover for violation of the anti-trust laws of the state. At that time the statute authorized attachment proceedings against the property of a nonresident only in actions for ‘ ‘ debt or demand arising upon contract. ’ ’ In support of the state’s right it was urged that-there was an implied contract on the part of the defendant to satisfy all just demands of the state. Chief Justice Mc-Culloch, speaking for the court, said in that case: “The Attorney G-eneral also relies upon the general principle that when a non-resident or foreign corporation does business in the state there is a contract implied that the laws of the state will be complied with and all just demands of the state satisfied. There is, in a sense, an implied contract to respond to all just demands and liabilities, whatever the source may be; but that is not what is meant by our statute, which was intended to embrace only debts and demands, that is to say, liabilities, based upon contractual relations voluntarily established by the parties.”
Much of the argument on behalf of appellants has been devoted to a contention that these were not suits to recover a penalty. We do not find it necessary to determine whether the amounts recoverable under the federal law relied on here were penalties. It suffices to say that these are not suits “on contract”; and it was essential to jurisdiction of the municipal court that they be of that nature.
Since the municipal court had no jurisdiction of these suits the circuit court acquired none on appeal. Harnwell v. Hollenberg Music Company, 178 Ark. 98, 13 S. W. 2d 297.
The judgments of the lower court dismissing both suits for want of jurisdiction were, therefore, correct and are accordingly affirmed. | [
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McFaddin, J.
There are two cases in this Court of the same style, being No. 7474 and No. 7461. Both arise from the same transaction. We dispose of them separately.
No. 7474
On January 29,1943, O. R. Winn and Maurine Winn, his wife, as lessors, executed a mineral lease to W. A. Collins, as lessee, which lease, omitting only the identification of the parties, the relinquishment of dower and homestead, the signatures, and the acknowledgment, is as follows:
“That the said Lessor, for and' in consideration of the sum of ONE DOLLAR, cash in hand paid by the said lessee, the receipt of which is hereby acknowledged, and the further covenants and agreements herein contained to be performed, kept, and paid by the said lessee, lessor does by these presents, demise, let and lease unto the said lessee, for the sole purpose of prospecting for, mining upon and operating thereon for bauxite, and for the building of temporary and permanent structures thereon to produce, save, care for and market bauxite, all that certain tract of land situated in the county of Pulaski and State of Arkansas, to-wit: Southwest % of the northwest 14 in section 9 township 1 south, range 12 west and containing 40 acres, more or less.
“It is agreed that this lease shall remain in full force and effect for a period of 30 days from the date hereof thus determining its marketability, and at the expiration of the first 30 day period, then lessee shall have an additional 60 days in which to begin active mining operations on the said lands.
“If within 90 days from the date of this lease no active mining operations shall have been begun on this lease, then this lease shall be void in all of its terms and all rights granted herein shall revert to the lessor herein. However if active mining operations shall have been begun within the said 90 days from the date of this lease, then this lease shall be and remain in full force and effect so long as active mining operations are conducted therein, with this provision, that a minimum tonnage of 12,000 tons per annum is removed from said lands annually. This lease shall continue in full force and effect until the merchantable bauxite is removed therefrom.
“In consideration of the premises herein contained the said lessee covenants and agrees to deliver to the lessor, free of cost the sum of 50c per long ton of dry bauxite mined and removed from the land as royalty. This royalty shall be paid to the lessor in person, or as the lessee shall direct in writing, on or before the 10th day of each month following production.
“If lessor owns a less interest in said lands than the entire fee simple title, then royalties shall be paid to lessor in proportion to the interest lessor owns bears to the entire fee simple title.
‘ ‘ Lessee shall have the free and unrestricted right to ingress and egress to said lands.
“Lessee shall not be liable for any damages, water damages, excavation damages, gangue pile damages, water flow damages or any other damage done to said lands by his operations thereon.
“Lessee shall, at all times, have the right to remove any buildings, structures, equipment, machinery, or properties placed on said lands by lessee in the conduct of his operations thereon.
“The rights of assignment is expressly reserved to both lessor and lessee, as their respective right may ap pear and such right of assignment shall extend to their heirs, representatives, administrators, and assigns.
“No change in the ownership of said lands shall be binding upon lessee in the payment of royalties unless written notice of such change of ownership shall he given lessee at least thirty days prior to the due date of any such royalty payment.
“The intention of this lease is that the lessee shall begin active mining operation on said lease within 90 days from the date hereof and shall continue such operations in a.workmanlike and business manner until such bauxite deposits is exhausted, or as long as bauxite can be mined and marketed at a profit to the lessee.
“Lessor hereby agrees to warrant and defend the title to said lands against all lawful claims whatever.”
By mesne assignments the Aluminite Mining Corporation and Pioneer Construction Company became the assignees and owners of the lease, and are the real parties in interest, and the appellees in this court.
The appellants, C. B. and Maurine Winn, on January 31, 1944, filed suit in the Pulaski chancery court, praying that the lease be canceled and forfeited, and alleged: (1) that appellees had failed to fulfill the sixty-day provision in the lease as to beginning active mining operations; (2) that the appellees' had failed to market from the land the minimum tonnage of 12,000 tons per annum within the year ending January 28, 1944; and (3) that appellees had failed to continue work on the premises in a workmanlike and business manner, and had failed to properly develop the premises.
Appellees denied all allegations in 'the complaint, alleged expenditure of over $100,000 in the mining operations on appellants' land, and claimed that appellants “by their general non-cooperative attitude (and particularly by placing restrictions upon the piling, of spoil dirt),” had retarded the mining operations.
At the trial on April 25, 1944, it was shown that on November 10, 1943, appellants had received $50 as roy alty on bauxite mined from tbe land. A further tender of $5,950 was made by appellees in open court, and rejected by the appellants for three reasons stated by appellants’ counsel: (a) the lease did not provide for payment of royalty in lieu of development; (b) the lease provided for the mining of 12,000 tons of bauxite during the first year, and the year terminated on January 29, 1944; and (e) if the lease be construed to let mining operations extend for one year from April 2, 1943, then the year expired on April 2, 1944, and the 12,000 tons of ore had not been mined from the land by that last-mentioned date.
The cause was heard by the chancery court on oral testimony, and the record of evidence and exhibits is quite extensive. The chancery court decreed: .(1) that the appellants were not entitled to cancellation of the lease; (2) that the complaint should be dismissed for want of equity; (3) that the appellants were enjoined from interfering with the action of the appellees in dumping spoil dirt on certain described portions of the land; (4) that each party pay its own costs; and (5) that the $5,950 tendered should be held in the registry of the court pending further orders.
From the decree appellants have appealed.
I. The Sixty-Day Provision. The lessee had thirty days from January 29, 1943, to determine the marketability of the lease or product therefrom, and sixty days thereafter to begin active mining operations. While the complaint alleged that there had been a failure to fulfill these requirements, the proof shows otherwise. As early as February 7, 1943, (less than ten days after the execution of the lease) test mining began on the land. In the early part of April, 1943, a shaft was being sunk to see if the bauxite could be mined by that method. It was discovered that the bauxite would have to be mined by open pit; and on April 28th a scraper and a tractor were in use removing the overburden. The recital of these dates shows that active mining operations began in due time. The ninety days from January 29, 1943, did not expire until April 29, 1943; the scraper and tractor were in use removing the top soil before that date.
The evidence amply supports the Chancellor’s findings that appellants were not entitled to claim a forfeiture under the sixty-day provision in the lease.
II. The Year in Which to Remove 12,000 Tons of Bauxite. The appellants contend that the appellees had one year from the date of the lease (January 29,1943) in which to remove 12,000 tons of bauxite. The appellees claim that the year started on April 28,1943, when actual mining operations began on the land. These respective contentions necessitate a consideration of the language of the lease. We have copied the entire lease. The language in question reads:
‘ ‘ However if active mining, operations shall have been liegun within the said 90 days from the date of this lease, then this lease shall he and remain in full force and effect so long as active mining operations are conducted therein, with this provision, that a minimum tonnage of 12,000 tons per annum is removed from said lands annually. ’ ’
Neither side has cited us to any case where this particular language has been construed; and our search has failed to discover such a case. We have, however, reached the conclusion that the lease intended, and the language means, that the lessee should have one year from the beginning of active mining operations in which to produce the 12,000 tons of bauxite. The bauxite could not have been removed until after the beginning of active mining operations. The language last quoted above stated that if the mining operations had been begun within the ninety days, then the lease would remain in full effect (1) so long as active mining operations were continued; and (2) as long as 1,2,000 tons of bauxite per annum were removed. The beginning of the active mining operations was the date necessarily fixed for the continued mining operations. Thus, since the “beginning of active mining operations” was the date for continuation of mining-operations, so also it was the time from which the 12,000-tons-per-annum requirement started; and “beginning of active mining operations” thus becomes the point at which the mining year begins. This construction means that if active mining operations began on April 28, 1943 (when the tractors and scraper were first used to remove the top soil for open pit mining) such- was within the .ninety days from January 29, 1943, and appellees had until April 28, 1944 (one year from the beginning of the said active mining operations) to produce the minimum of 12,000 tons required under the lease. Such is our holding.
III. Premature Filing of This Suit, . The appellants filed this suit for forfeiture and cancellation on January 31,1944, claiming a forfeiture for failure of the appellees to mine the annual minimum of 12,000 tons by January 28, 1944. As we have previously stated, the appellees had until April 28, 1944, to mine the minimum of 12,000 tons: so this suit was prematurely filed.
In 1 Am. Juris. 451 the rule is stated: “A cause of action must exist and be complete before an action can be commenced; the subsequent occurrence of a material fact will not avail in maintaining it. The rights.and liabilities of tbe parties — that is, their rights to an action or to judgment or relief — depend upon the facts as they existed at the time of the commencement of the action, and not at the time of trial. ’ ’
And in 1 C. J. S., § 125, p. 1391, the general rule is stated: “In equity, if there is no cause for equitable relief at the time the bill is filed, it cannot be maintained upon a cause accruing thereafter, . . .”
Our own cases are in accord with this general rule. In Hornor v. Hanks, 22 Ark. 572, this 'Court said in an equity case: ‘ ‘ The law is expressly written, that the right of. a plaintiff must be adjudicated upon as it existed at the time of the filing of his bill. Adams. Eq. 413; Barfield v. Kelly, 4 Russ. 359. And this court has decided that where a bill disclosed a good cause of action, but which had not accrued when the bill was filed, the bill could not be maintained. Phebe v. Quillin, 21 Ark. 490.” To the same effect, see Shreve Chair Company v. Manufacturers’ Furniture Company, 168 Ark. 756, 271 S. W. 954. See Annotation in 125 A. L. R. 612.
Therefore, we conclude that appellants could not claim, in this case, any forfeiture for appellees’ failure to mine the minimum of 12,000 tons of bauxite by April 28, 1944, because this suit was instituted on January 31, 1944, which was prior to the expiration of the year for such removal, and appellants had no cause of action on the minimum tonnage requirement at the time of the filing of the suit.
TV. Appellants Are Estopped-to Claim a Forfeiture Pendente Lite. Furthermore, the appellants could not claim a forfeiture that occurred after the filing of this suit to cancel the lease, because the period of time that the suit, was pending would not count against the appellees. The rule in oil and gas cases in many instances is not applicable to a case involving solid minerals because of the fugitive nature of oil and gas. But in Thornton’s Oil and Gas (5th Edition), vol. 2, § 276, we find this statement, which we think is applicable to the case at bar, involving a solid mineral:
“By unjustifiably bringing suit to cancel a lease, a lessor may postpone the development of the leased premises and put himself in a position to debar his right to insist upon a forfeiture for nondevelopment of the premises within the time fixed by the lease. Even conduct denying the validity of the lease and expressing an intention to terminate it may he such as will debar his right to have it forfeited for failure to develop the premises on time. Such conduct will usually postpone the development so long as it is indulged. The lessee is not hound to expend money, so long as such a threat overhangs the validity of the lease, in developing it.”
The Texas Court of Civil Appeals in Wisdom v. Minchen, 154 S. W. 2d 330, in discussing this question said:
“In Morgan v. Houston Oil Company, (Tex. Civ. App.), 84 S. W. 2d 312, 314, it was held: ‘It is well settled that when a lessor determines to forfeit or cancel an oil and gas lease, and puts the lessee on notice thereof, he cannot complain if the latter suspends operations under the contract, pending the determination of the asserted right of the lessor to forfeit or cancel. Lane v. Urbahn (Tex. Civ. App.), 265 S. W. 1063, par. 3 (writ refused); Edgar v. Bost (Tex. Civ. App.), 14 S. W. 2d 364; Johnson v. Montgomery (Tex. Civ. App.), 31 S. W. 2d 160 (writ refused).’ See, also, Gwynn v. Wisdom, 119 Tex. 320, 30 S. W. 2d 298. The owners of the working interest were not bound therefore to continue after such notice of forfeiture to develop the lease, and the lease will not be held to have expired because they did not continue such development. ’ ’
See, also, Amerada Petroleum Corp. v. Doering (5th C. C. A.), 93 Fed. 2d 540, 114 A. L. R. 1385; Hamilton v. Empire Gas & Fuel Company (8th C. C. A.), 297 Fed. 422; Leonard v. Busch-Everett Co., 139 La. 1099, 72 So. 749; Lieber v. Ouachita Natural Gas & Oil Company 153 La. 538, 95 So. 538; Stine v. Oasis Oil Company (Tex. Civ. App.), 290 S. W. 302.
While not directly in point, the language of this court in Millar v. Mauney, 150 Ark. 161, 234 S. W. 498, shows the trend of the decisions, in that case involving the mining of diamonds, Mr. Justice Wood said: “Good faith is required of both parties in the observance of their covenants. If the appellees, by their conduct in instituting lawsuits or in any other manner, put obstacles in the way of appellants which caused them to fail to perform their covenants, then the appellees would he estopped from setting up an abandonment or forfeiture by the appellants.”
And in Rogers v. Magnolia Oil & Gas Co., 156 Ark. 103, 245 S. W. 802, we find this language: ‘ ‘ The institution of the action to cancel the lease was a repudiation of the continued existence of the contract, . . .” '
Appellants, by prematurely filing this suit, are es-topped from claiming any forfeiture that might have occurred during the pendency of the suit; and the period of time from the filing of this suit until its final disposition is not to he counted against the appellees as a part of the year for the mining of-the minimum of 12,000 tons of bauxite from the lease.
At the trial the appellees tendered to the appellants $5,950, which, with the $50 received by the appellants in November, 1943, would total $6,000, and is the amount of royalty appellants would have received if the appellees had mined the minimum of 12,000 tons of bauxite in the year. We do not regard this tender as compliance by the appellees with the mining provision in the lease, because the lease here did not — as the one did in Arkola Bauxite Company v. Horn, 184 Ark. 1044, 44 S. W. 2d 352 —allow the payment of royalty as an alternative to the actual mining. But we regard this tender as evidence of the appellees’ good faith, and as going to show the appellees would mine the bauxite as soon as the litigation is terminated.
Y. ' Due Diligence in Developing and Mining the Bauxite. Finally, and entirely independently of the minimum tonnage requirements as just discussed, appellants claim that they are entitled to a cancellation of the lease because of the failure of appellees to'continue the mining. The lease contract stated:
“The intention of this lease is that the lessee shall begin active mining operation on said lease within 90 days from the date hereof and shall continue such operations in a workmanlike and business manner until such bauxite deposits is exhausted, or as long as bauxite can be mined and marketed at a profit to the lessee.”
Appellants rely not only on the above provision of the lease, but also on the duty implied by law that the lessee will develop the property. Some of the cases recognizing and declaring the implied covenant of development with reasonable diligence are: Mansfield Gas Co. v. Alexander, 97 Ark. 167, 133 S. W. 837; Millar v. Mauney, 150 Ark. 171, 234 S. W. 498; Smith v. Housley Mining Company, 188 Ark. 1083, 69 S. W. 2d 865; Rains Coal Corporation v. Southern Coal Company, 202 Ark. 1077, 155 S. W. 2d 348. In 60 A. L. R. 901 there is an annotation on “Duty of Lessee or Purchaser of Mineral Rights Other Than Oil and Gas as- to Development and Operations,” There is no question about the law on this point; the difficulty is in the facts in each case. As was well said by Judge Van Devanter, while a member of the Eighth Circuit Court of Appeals, in Brewster v. Lanyon Zinc Co., 140 Fed. 801, 814:
‘ ‘ The object of the operations being to obtain a benefit or profit for both lessor and lessee, it seems obvious, in the absence of some stipulation to that effect, that neither is made the arbiter of the extent to which or the diligence with which the operations shall proceed, and that both are bound by the standard of what is reasonable. This is the rule in respect of all other contracts where the time, mocle, or quality of performance is not specified, and no reason is perceived why it should not be equally applicable to oil and gas leases. There can, therefore, be a breach of the covenant for the exercise of reasonable diligence, though the lessee be not guilty of fraud or had faith.
“But while this is so, no breach can occur save where the absence of such diligence is both certain and substantial in view of the actual circumstances at the time, as distinguished from mere expectations on the part óf the lessor and conjecture on the part of mining enthusiasts.”
In the case at bar, did the appellees “continue such operations in a workmanlike and business manner”?— did they exercise reasonable diligence in mining the bauxite? The facts show that prior to the filing of the suit activities of the appellees were:
(1) They had drilled twenty-nine test holes, and had located the bauxite some seventy feet below the surface.
(2) A shaft had been sunk before it had been determined that the bauxite could be obtained by pit mining better than by shaft mining.
(3) Equipment and machinery had been placed on the premises for removal of the top soil. This soil was also called “overburden,” and was between seventy and seventy-seven feet in thickness, and had to he removed before the ore conld be mined. The places where the top soil was piled were called “spoil hanks,” and naturally became quite high as the pit became deeper. By December, 1943, 142,000' yards of top soil had been removed from the pit. and placed in the spoil hanks.
(4) In October, 1943, thirty-one tons of bauxite were actually mined from the property.
(5) Before the filing of this suit the appellees, in addition to the expenditure of $100,000 heretofore mentioned, had exposed 20,000 tons of ore for mining.
(6) Work was actually going on when this suit was filed.
Without detailing all of the testimony, we have reached the conclusion that the preponderance of the evidence shows that appellees continued the operations in a business and workmanlike manner, and used reasonable diligence in mining the bauxite and developing the property. The chancery court found that appellants were not entitled to have the lease canceled on this point, and we affirm the decree.
There is also in the record considerable evidence, tending to sustain appellees’ allegations that appellants had retarded the mining operations. Appellants had interfered with the work in the location of the spoil banks, and in the routes of ingress and egress taken by the trucks in removing the top soil from the pits, and also in frequent threats of litigation, thereby placing obstacles in the way of the appellees within the rule previously quoted from Millar v. Mauney, 150 Ark. 161, 234 S. W. 498:
“If the appellees, by their conduct in instituting lawsuits or in any other manner, put obstacles in the way of appellants which caused them to fail to perform their covenants, then the appellees would be estopped from setting up an abandonment or forfeiture by the appellants.”
From all these facts the chancery court found that appellants were not entitled to have the lease canceled, and that the complaint of appellants should be dismissed for want of equity. We affirm the action of the chancery court in all respects in Cause No. 7474.
No. 7461
Pending the appeal in Cause No. 7474, supra, the chancery court appointed a receiver to take charge of the property and receive $1.30 per ton from all bauxite mined from the premises and to hold the said moneys subject to the orders of the chancery court. From the order appointing the receiver, appellants prosecuted a separate appeal, which is Cause No. 7461 in this court. During pendency of the appeal the parties stipulated — without prejudice to either party — that the amount to be held by the receiver should be $2.10 per ton instead of $1.30 per ton, as fixed by the chancery court.
In this court the appellees have filed various pleadings in the receivership appeal, showing that during pendency of this appeal, some 60,000 tons of bauxite have been produced from the premises, and $30,000 of accumulated royalties were tendered to the appellants. The appellants have countered these pleadings with a motion to strike.
Many interesting questions are presented as to the regularity and correctness of the procedure. Even the question of jurisdiction is raised. But we forego discussion of any of these matters, because we regard the entire appeal in Cause No. 7461 as rendered moot by our decision and opinion in Cause No. 7474.
The purpose of the receivership was to allow the appellees to mine the bauxite and deliver a good title thereto pending final decision of this court in Cause No. 7474. The purpose of the receiver’s holding $2.10 per ton was to compensate appellants for any damages that might have accrued if the lease should be held canceled in Cause No. 7474. Since the lease has been held to be in full force and effect in Cause No. 7474, it follows that appellants are entitled only to the contract royalty of fifty cents per long ton of dry bauxite mined and removed from the land.
Therefore, being moot, the receivership appeal is dismissed, and the chancery court is left free to proceed to make distribution of the funds in accordance with the respective rights of the parties as fixed in the opinion in Cause No. 7474.
The costs of this court in Cause No. 7474 and also in No. 7461 are taxed against appellants. | [
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Holt, J.
A jury convicted appellant, Roy Thompson, of the crime of receiving stolen property, (§ 3144, Pope’s Digest), and fixed his punishment at a term of one year in the state penitentiary. Prom the judgment on the verdict comes this appeal.
The information charged that appellant in “November, 1943, in Greene county, Arkansas, did unlawfully and feloniously receive two Firestone automobile tires valued at $60, the same being the property of Fountain Ladd, for the purpose of depriving the true owner of his property therein, knowing at the time that they were stolen property. ”
The testimony most favorable to the. State is to the following effect. Melvin 'Stewart and Arliss McLean testified that they, together with Odell Simms, on the night of November 27, 1943, drove from Paragould, Arkansas, into Missouri, stole two new Firestone tires and on the same night brought the tires to Paragould, delivered the tires to appellant, and that appellant paid them $20 cash for them. These tires were never recovered and were not in evidence. J. F. Ladd testified that two new Firestone automobile tires, 6-16, 4 ply, were taken from his place of business in Missouri in the night-time on November 27, 1943. Odell Simms denied that he had anything to do with the theft of' the tires.
Stewart and McLean further testified that Odell drove the car and when they returned to Paragould on the night of the larceny of the tires, they were joined by appellant who paid them $20 for the two tires and they then went to the home of Chester Thompson, a brother of appellant, and there they all concealed the tires in the hay in the loft of Chester’s barn. They further testified that the car used by them was a 1941 Ford coach, in excellent condition, newly painted black, with two aerials, one on each side of the body, and with white side walls on the tires.
Officers testified that they ar-rested Chester Thompson and, upon taking him to jail, he made a statement to them in which he admitted that the tires were received by Roy Thompson from the accomplices and hidden in his (Chester’s) hay loft and that he assisted in their concealment. In explanation of this statement to the officers, Chester testified that he made the statement for the purpose of obtaining his release from custody and to avoid being placed in jail and that he told the officers he would tell the truth when he was put on the witness stand. This was contradicted by the officers. Chester Thompson’s statement to the officers was not made in the presence of appellant.
Appellant concedes that the tires in question were stolen by Stewart and McLean in Missouri, but insists that Stewart and McLean were accomplices and that appellant could not be convicted on the uncorroborated testimony of accomplices; that the testimony of Chester Thompson, given in the absence of appellant, was hearsay and without corroborative force.
After a careful review of all the testimony, we have reached the conclusion that there is lacking any substantial evidence, which standing alone and independent of the testimony of an accomplice, tends to corroborate the accomplice and connect the appellant with the crime charged. It is expressly provided in § 4017 of Pope’s Digest that “A conviction can not be had in any case of felony upon the testimony of an accomplice, unless corroborated by other evidence tending to connect the defendant with the commission of the offense; and the corroboration is not sufficient if it merely shows that the offense was committed, and the circumstances thereof.”
This court has many times construed this section of the statute, and in one of our most recent cases, (Underwood v. State, 205 Ark. 864, 171 S. W. 2d 304) said: “The corroborating testimony required by this statute must be of a substantial character which, of itself and independently of the statement of the accomplice, tends in some degree to connect the defendant with the commission of the crime, although such evidence need not in itself be sufficient to support a conviction. Cook v. State, 75 Ark. 540, 87 S. W. 1176; Brewer v. State, 137 Ark. 243, 208 S. W. 290; Middleton v. State, 162 Ark. 530, 258 S. W. 995; Breed v. State, 198 Ark. 1004, 132 S. W. 2d 386; Bennett & Holiman v. State, 201 Ark. 237, 144 S. W. 2d 476, 131 A. L. R. 908. Evidence which merely raises a suspicion that accused may be guilty, or which is as consistent with defendant’s innocence as guilt is not sufficient. O’Neal v. State, 192 Ark. 1178, 96 S. W. 2d 780; Wilson v. State, 190 Ark. 651, 80 S. W. 2d 925; Roath v. State, 185 Ark. 1039, 50 S. W. 2d 985; 22 C. J. S. 1412, § 812.”
While we agree with the State’s contention that there is some substantial evidence aside from the testimony of the accomplices that the car used in the larceny of the tires belonged to appellant, we do not think this alone sufficient corroboration to connect appellant with the crime. Appellant denied receiving the tires or any knowledge of their theft. The tires have never been found. Without the testimony of the accomplices, we find no substantial competent evidence tending to connect appellant with commission of the crime.
The statements of appellant’s brother, Chester Thompson, to the officers, are clearly hearsay and without probative value tending to establish appellant’s guilt. The only purpose for which these statements were admitted was to discredit or impeach the witness. On this point the jury was correctly instructed that any statements Chester Thompson may have made in the absence of the defendant could not be used as evidence against the defendant, but were admitted solely for the purpose of testing the credibility of the witness.
Appellant next argues that the court erred in giving the following instruction: “If you find the defendant guilty in this case you will assess his punishment at a term in the state penitentiary for a period of time, not less than one year or not exceeding twenty-one years.” Appellant says: “We contend that the giving of the instruction-constituted reversible error for the reason that there is no showing as to whether or not the taking constituted grand or petty larceny. It is also our contention that one cannot be convicted in this state for knowingly receiving stolen property, when it is shown that the property was stolen in another state.”
We thipk, however, that this contention of appellant is untenable. Appellant is charged here with the crime of receiving stolen property in G-reene county, Arkansas. The crime is committed where the property is received. The laws of Missouri can have no force or effect here. Professor Beale, in his “Treatise on The Conflict of Laws,” Volume 2, § 428.2, p. 1354, says: “The crime of receiving stolen goods is committed where the actual receiving is done, though the goods were stolen in another state. The crime of bringing stolen goods into the state is committed in the state into which the goods are brought. It is, therefore, immaterial whether the goods were taken in a state which made the ■ taking larceny. If the taking would be stealing in the state into which they are brought, the crime is committed though the taking was not stealing where the goods were taken, and if the taking would not be stealing in the state into which the goods are brought, the crime is not committed, though the act was stealing where the goods were taken.”
Section 3144 of Pope’s Digest, under which appellant was indicted, provides: “Whoever shall receive or buy any stolen goods, money or chattels, knowing them to be stolen, with intent to. deprive the true owner thereof, shall, upon conviction, be punished as is, or may be, by law prescribed for the larceny of such goods or chattels in cases of larceny. ’ ’
Section 3134 of Pope’s Digest on the punishment for larceny provides: “Whoever shall be guilty of larceny, when the value of property stolen exceeds the sum of ten dollars, upon conviction thereof shall be punished by imprisonment in the penitentiary not less than one nor more than twenty-one years, etc.”
While the proof that the value of the tires exceeded ten dollars was perhaps not as clear as it might have been, -we think it substantial and there was no error in giving the above instruction.
Finally, appellant argues that “the court erred in excluding competent, relevant and material evidence, over the objections and exceptions of defendant,” and “in admitting, over the objections and exceptions of the defendant, irrelevant, immaterial, incompetent and prejudicial testimony, particularly the testimony of” seven witnesses, naming them. Appellant does not point out the alleged competent and incompetent testimony. The objections are of the most general character and do not present any question for our consideration. McClintock v. Frohlich, 75 Ark. 111, 86 S. W. 1001, and Edmonds v. State, 34 Ark. 720.
For the error indicated, the judgment is reversed and the cause remanded for a new trial. | [
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Griffin Smith, Chief Justice.
November 12, 1943, Mrs. Jact T. Oaks was granted a decree of divorce on her complaint charging cruelty. In addition to other property settlements, effectuated through commissioners provided for by tbe Court, tbe plaintiff (appellant here) was awarded half in value of U. S. Savings Bonds worth, at tbe time of trial, $2,874. Tbe decree also authorized Mrs. Oaks to use her maiden name, Tommye Louise Cooper.
Jack T. Oaks formerly owned and operated, in Pine Bluff, a liquor store, a lunch stand, and later a road house called the Casino. He married Miss Cooper in October, 1938, at Shreveport, Louisiana, where she was employed by the J. C. Penney Company. Formerly she had been in Pine Bluff and had worked for Oaks. After marriage appellant began' helping her husband. She testified that the business was in the nature of a partnership. Most of the bonds were purchased by appellant with partnership funds, although in a few instances transactions appear to have been handled by the husband. For a while the securities were kept in the couple’s Casino room, but at Mrs. Oaks’ insistence were transferred to a Simmons National Bank lock box, to which husband and wife had access. The bonds were payable to “Jack T. Oaks or Mrs. Tommye Oaks, 620 Cherry Street, Pine Bluff.”
Mrs. Oaks left Pine Bluff July 12th and visited friends in Chicago. When she returned Jack informed her of his divorce intentions. On the eighth of July she had opened the lock box and had seen the bonds. Her husband testified that the only time he had opened the lock box was two days after his wife returned from Chicago, on July 22, and the bonds were missing.
By petition of December 1st the former wife asked that Oaks be required to appear in Court for further examination. Responding, Oaks challenged the Court’s authority to reopen the decree. When overruled on this point Oaks again denied having the bonds, or knowing where they were, or who had them; but, when asked to sign an affidavit approved by the Treasury Department (in consequence of which duplicates would be issued) he first expressed a willingness to do so, but when told by counsel in open court that he should not subscribe, declined. After considerable argument at cross purposes, Oaks, in effect, gave as a reason for his attitude an unwillingness to assert that the bonds were lost, stolen, or destroyed.
The Court ruled that, in view of attending circumstances, the respondent could not be compelled to sign the affidavit. This was correct. Physical compulsion could not be applied; nor could the judicial process be carried to the extent of commanding acquiescence to the exclusion of alternative privileges. '
But the Court was not without a remedy if evidence preponderated in support of petitioner’s position that Oaks, through wilfulness rather than inability, failed to meet the issue fairly. The record reflects a possibility that the respondent shrewdly took advantage of the way questions were asked, and while answering truthfully from a literal point of view, withheld information that might have solved the Court’s problem. It is quite possible that Oaks did not take the bonds; that he did not know where they were; that he did not know anyone who knew where they were or who might have them. When asked a question involving knowledge of the bonds and related facts, Oaks replied, “I will answer that question all at one time: I didn’t get the bonds, I don’t know where the bonds are, and I haven’t seen them.”
It will be observed that this answer does not exclude the possibility that, without getting the bonds, without seeing them, and without knowing where they were at any time subsequent to July 8th, Oaks could have connived with another to assist in such manner that he (Oaks) would not know who had the securities, who actually took them from the box, or where they were being kept. It is in evidence that a confidential adviser to Oaks, following the divorce hearing, stated that the defendant was well satisfied with the results, and after three years had run (affording immunity against prosecution for perjury) could cash the bonds.
Appellee’s conduct in refusing to sign the affidavit and in declining to seek reissue of the bonds can be explained only on the theory that he hopes to avoid consequences of the decree. The' reason assigned does not carry conviction. If he intended, by the testimony given, to say that he did not, directly or indirectly, have anything to do with disappearance of the bonds, and did not know where they were, nor have any means of ascertaining that information or power to recover them, then, certainly, they were lost insofar as he was concerned. Mrs. Oaks had testified unequivocally that they were lost to her.
The decree will be reversed and the cause remanded with directions, (a) to render judgment against appellee for $1,437 and interest, and (b) if not paid within ten days or secured to the satisfaction of’ appellant, to remand appellee to jail as for contempt, unless, in the meantime, he shall fully cooperate in the procurement of duplicate bonds by signing the affidavit in question, or by turning over to appellant half of the bonds now missing. | [
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Bobins, J.
Appellant, Clyde M. Widders, filed suit in the lower court against his wife, appellee Virginia Mae Widders, asking for divorce and custody of their threevear-old child, Eva Buth Widders. For ground of divorce appellant alleged adultery by appellee with one P. T. Wollert. Appellee filed answer and cross-complaint denying the material allegations of appellant’s complaint and alleging that appellant had been guilty of such indignities, abuse and physical violence to the person of appellee, as well as drunkenness, as to make life for appellee intolerable ; and appellee prayed that she be granted a. divorce from appellant and given the custody of their minor child.
. From the decree of the lower court dismissing his complaint for want of equity and granting appellee a divorce and custody of the minor child appellant prosecutes this appeal.
Appellant and appellee were both reared in Fayetteville, Arkansas, and were married there on June 10,1939. In June, 1942, they went to San Diego, California, where appellant obtained employment. On November 11, 1942, appellant was inducted into the United States Army, from which he was honorably discharged on March 30, 1943. While living at San Diego appellee became acquainted with P. T. Wollert and his wife. For a time after her husband was inducted into the army appellee lived with appellant’s brother, who was in business at San Diego. Ik January, 1943, appellee went from California to Waterloo, Iowa, in company with Mrs. Wollert and remained with Mrs. Wollert until the latter’s child was horn. On February 26, 1943', appellee, accompanied by her child, went to Daytona Beach, Florida. A few days thereafter Wollert followed her to Florida.
During the time appellee was in Florida she corresponded regularly with her husband, hut sent her letters to Waterloo, Iowa, to he mailed to her husband so that he would not know that she had left Waterloo. When appellant was discharged from the army he went to Waterloo for the purpose of taking his wife and child back to San Diego, at which place he expected to resume his former work. When he arrived at the Wollert home in Waterloo, where he expected to find his wife, Mrs. Wollert apprised him of the situation and of the relationship between appellee and Wollert. Mrs. Wollert also turned over to appellant certain letters which she had received from Wollert and appellee, in which they frankly admitted their mutual infatuation and asked Mrs. Wollert, who had four ■ children by her husband, to give up her husband so that appellee might marry him. Wollert was in the navy but was stationed in Florida. In one of these letters written by appellee to Mrs. Wollert appellee' said: “It seems that I am just a woman stepping in and breaking up a home. But, Jeannie, if I didn’t love Tag (Wollert) more than life itself and have been deprived of happiness so long, I would turn my back and walk out. But honestly, Jeannie, Tag seems to love me as much as I do him and I could never live without him and I am led to believe that he feels the same way toward me. Life to me just wouldn’t be the same if I ever had to give him up and I am living on my prayers that the navy doesn’t send him out to sea. . . . But there are no words that can explain my feeling for Tag. I worship him. In fact I would like to put him on a pedestal and worship him forever. Our love has been shared such a short length of time that it seems impossible that two people could care so much for one another.” In the meantime appellee was writing very devoted letters to her husband in the army, in which she did not hint at any difference between them.
On the witness stand appellee frankly admitted her infatuation for Wollert and stated that she did not expect to live with her husband any more. When asked why she wrote affectionate letters to her husband while he w;as in the army she admitted that she was deceiving him but said: “I was trying to keep up his morale.” She denied any wrongful conduct with Wollert. This appears in the record of her testimony: “While you were down there with Tag trying to break up his home, were you getting pay from your husband in the army? A. I was receiving my government check. Q. And you were spending it, getting his money, flirting around with Tag, wanting to marry Tag and break up his home. A. That’s right.” She was asked if Wollert had obtained a divorce from his wife and answered that he had not. <£Q. He has never filed for one as far as you know? A. No. Q. That will mess up your plans, won’t it? A. I don’t have to marry the man. Q. You want to though, don’t you? A. I would love to.” While appellee in general terms denied aduL tery with Wollert, we are unwilling to say that her conduct in deceiving her husband as to her whereabouts, in making a trip across the continent so as to be near another woman’s husband whom she brazenly says she loves was that of an innocent wife.
To sustain the decree of divorce granted appellee by the lower court counsel for appellee argue that it clearly appeared at the trial that a reconciliation between the parties was impossible, and the record shows that counsel for both parties stated that a divorce was desired. In 'other-words, it is argued by counsel for appellee that appellant in effect consented and agreed to the decree of divorce and cannot be heard in this court to ask that same be set aside.
Under the law (except where it is expressly provided otherwise by statute) divorce is a remedy for the innocent against the guilty. 27 C. J. S. 623. In Nelson on Divorce and Separation, vol. 1, <§> 428, it is said: ££Divorce is a remedy provided for an innocent party.” To the same effect is the statement of the law in these authorities: Stewart on Marriage and Divorce, § 314; Brown on Divorce, p. 84; Wilson v. Wilson, 128 Ark. 110, 193 S. W. 504; Malone v. Malone, 76 Ark. 28, 88 S. W. 840; Healy v. Healy, 77 Ark. 94, 90 S. W. 845. Mr. Bishop in his work on Marriage, Divorce and'Separation (vol. 2, p. 165) uses as his text this quotation from an opinion by Lord Ardmillan: ££I think that there enters inherently and deeply into the contract of marriage an obligation before God and man that the contract shall be faithfully kept by both of the contracting parties. Divorce is in my opinion a remedy provided for the innocent party, and is not in tended for cases in'which both parties are guilty. There is the highest authority in the law of England to that effect.”
Before a suitor may be granted a divorce it must ordinarily appear that the party asking for the divorce is innocent and the one from whom the divorce is sought is guilty of some act or.conduct which the law has designated as ground for divorce. Nor will the consent of the party against whom the decree is rendered authorize the granting of the divorce. “A divorce proceeding is one in which the public is interested. The parties can waive nothing essential to the validity of the proceeding, and all statutory requirements must be observed.” Whitford v. Whitford, 100 Ark. 63, 139 S. W. 653.
When the rules above stated are applied to the evidence in this case it must be held that the lower court erred in granting a divorce to appellee. While the only evidence of appellee’s misconduct with Wollert was contained in the testimony of appellant and in the admissions of appellee, which, under the law, was not sufficient to authorize the granting of a divorce to appellant, it was conclusive of such guilt on the part of appellee as would require a denial of a divorce to her.
The evidence showed that appellee purposed to leave her child with appellee’s mother. Appellant expected to leave the child with his mother, who testified that she had had the care of the child at one time for about sixteen months, was devoted to it and was willing to care for it. The conduct of appellant, as shown by the testimony, has been far from exemplary, but no criticism whatever was leveled against appellant’s mother, and this cannot be said of any of the other leading characters in the sordid drama reflected by the record in this case. Decisions in cases involving the custody of a child of tender years are the most difficult ones that judges have to make. The natural ties of affection of the parent, especially of a mother, for the child must be considered, but the paramount consideration in cases of this kind must always be the welfare of the child. The mother of this child, to whom the lower court awarded'its custody, admitted not only loss of love for her husband bnt a shameless desire and intention to break up another home and take a husband away from his wife and a father away from liis four small children. She expressed no regret for her infidelity. Nor did she offer any promise of reformation. We conclude that it is unreasonable to assume that appellee will give to this little girl the necessary care and guidance or will exert on it the proper influence during the formative years of the child’s life.
So much of the decree of the lower court as denies a divorce to appellant is affirmed and the remainder of the decree is reversed, and this cause is remanded with directions to the lower court to dismiss the cross-complaint of appellee for want of equity, and to award the custody of the child of appellant and appellee, Eve Ruth Widders, to appellant, with the right on the part of appellee to visit said child and to have said child visit her at such times and under such conditions as the lower court may deem proper; and all costs of both courts to be assessed against appellant. | [
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Knox, J.
Appellant, through habeas corpus proceedings, sought to obtain his discharge from the State Hospital for Nervous Diseases, where he was confined as a patient by order of the Probate Court of Pulaski county. His prayer for relief was predicated upon the following allegations set out in the petition: (1) that he was then and at all times had been sane; (2) that the proceedings of the Probate Court committing him to the State Hospital were void for the reasons that (a) such proceedings were conducted in the absence of appellant and without his knowledge because he was not given notice of the institution and pendency of such proceedings or the nature of the charge, or the time when and the place where the hearing thereof would be had; (b) the court failed to empanel a jury to inquire into and determine the question of appellant’s sanity; and (c) no competent evidence was introduced tending to establish appellant’s insanity.
At tlie time the original proceedings were instituted, appellant was living in Little Bock, Arkansas, at a home which had been occupied'by him and his wife for a number of years prior to her death, and where he had resided with his son and daughter-in-law until the son’s death. After the death of his son, appellant continued to occupy this home with his daughter-in-law.
Curtis Woods, brother of appellant’s daughter-in-law, filed the “citizen’s affidavit of insanity” authorized by § 12545 of Pope’s Digest. The proceedings in the probate court also show that interrogatories and answers of doctors R. E. Rowland and Glen M. Holmes which purport to have been taken in accordance with the provisions of § 12546 of Pope’s Digest, were filed. The “citizen’s affidavit” is marked filed March 16, 1943, and the interrogatories and answers of the physicians appear to have been filed on March 17,1943. Mr. Woods was called as a witness in the habeas corpus proceedings, and he testified that the “citizen’s affidavit” and the interrogatories and answers of the physicians were filed at the same time; that on the day prior to the filing of these instruments, he (Woods) had procured from the clerk of the court the necessary blanks and had caused Doctor Rowland to examine appellant and fill in the answers to the interrogatories. Mr. Woods testified that some time in February, 1943, Doctor Holmes had administered anti-rabies treatment to appellant following a dog bite wound which he had received, and that Doctor Holmes filled in the answers to the interrogatories in March without seeing appellant or propounding any questions to him.
According to the testimony of Mr. Woods, which is not disputed, he took the “citizen’s affidavit” and the interrogatories and answers of the two physicians to the clerk’s office, had them marked filed, and then presented them to the Judge of the probate court, who thereupon issued the warrant for commitment directing the Sheriff to take appellant into' custody and deliver him to the Superintendent of the State Hospital for Nervous Diseases.
Appellant was not present at the time these papers were submitted to the Probate Judge, and he was not notified in any way of the proceedings relating thereto. The warrant of commitment was delivered to the Sheriff, bnt Mrs. Barbee and her brother requested the Sheriff to hold it until they decided to put appellant in the hospital. Their explanation of such delay was that they wanted to see if they could care for him without the necessity of such action. On May 26,1943, Mr. Woods and Mrs. Barbee requested the Sheriff to execute the commitment, and the Sheriff thereupon took appellant into custody and delivered him to the State Hospital for Nervous Diseases.
On June 3, 1943, appellant was examined by the staff of the State Hospital, and the diagnosis arrived at from such examination was “senile psychosis, confused type, plus paranoid trend. ’ ’
At the hearing in the habeas corpus proceeding, Doctor Pat Murphy, a well known psychiatrist who had been employed by appellant’s attorney to make an examination, was called and testified as to appellant’s condition. Doctor Murphy’s diagnosis was “senile psychosis.” The witness testified that appellant probably would not recover sufficiently to take' care ’ of himself physically or in the business world; that he would require supervision; that he was not able to take care of himself, was apt to wander away and get lost; that appellant could get along as well in a private institution if someone would look after him; that he needed someone who knew how to handle this kind of a case, and that he did not know how many it would take.
Doctor Hollis, a member of the staff of the State Hospital, was also called as a witness for appellant, and he testified as to the findings of the staff. He also testified that in his opinion, appellant was insane, and that in all probability he would become worse rather than better; that he would require constant care and supervision, and would need to be prevented from wandering-off and exposing himself to weather and hazards of traffic. Doctor Hollis testified that the entire staff of the hospital agreed that appellant was an insane person and a proper subject to be placed in a hospital for the insane.
Appellant appeared at the trial in the habeas corpus proceeding and testified in his own behalf. The trial court thus had an opportunity to observe appellant and note his condition. At the close of the testimony the trial court denied appellant’s petition.
After, the issuance of the warrant of commitment, but before appellant was actually confined in the hospital, Act No. 241 of the Acts of 1943 had become effective. This act is rather comprehensive and greatly modifies prior law relating to who, and methods by which persons, may become patients in and be discharged from the State Hospital for Nervous Diseases. Since the proceedings in which appellant was adjudicated insane were had before the effective date of Act 241, we must look to the then existing law to determine whether he was properly committed. A proper consideration of that question would require not only the construction of many provisions of the prior statute, but also extended research into constitutional requirements of due process, and, also, consideration of what effect if any on the question was occasioned by the adoption of the constitutional amendment vesting probate jurisdiction in the judges of the chancery courts, and legislation providing for direct appeals to this court. Determination of those questions as applicable to the prior statute would serve little use as precedent for future guidance, because the decision thereon might be quite' different under the provisions of Act 241 of the Acts of 1943. The lack of benefit as a precedent would, of course, be immaterial if a determination of such questions .were necessary or proper to a decision of this case. On the other hand, if a determination of such questions would not chánge the final result of this litigation, then a consideration of such questions would be academic, and such questions should be reserved for consideration at a time when and in a cause where determination thereof becomes necessary to a decision.
In view of the fact that the undisputed evidence in this record, established by the testimony of witnesses called on behalf of appellant, is to the effect that appellant is of unsound mind and a proper subject to be placed in a hospital for nervous diseases, we have reached the conclusion that for the present, at least, it is unnecessary for us to determine whether the original proceedings, authorizing and directing appellant’s admission to the hospital, were regular and in conformity with the then existing law. For the purpose of this opinion we may, and do, assume, without deciding, that such proceedings were not in conformity to then existing law. It is not contended that the warrant for commitment was void on its face. On the contrary such warrant was introduced in evidence hy appellant’s attorney, and the copy thereof set out in the record before us discloses that the same was, on its face, in all things regular.
Since appellant, indubitably an insane person, was delivered to appellee Kolb under a warrant of commitment regular on its face, such appellee acquired rightful custody of appellant, and became charged with certain dutie'S and responsibilities with respect to him, regardless of whether the inquisition for determination of his sanity was. entirely regular.
In the case of Ex parte Smith, 167 Ark. 80, 266 S. W. 950, this court sustained, the action of Pulaski Chancery Court in refusing to direct the discharge of a patient from the U. S. Veterans Hospital, who had been placed therein by his guardian without the formal order of any court, the insanity of such patient having been admitted by demurrer to the response. Chief Justice McCulloch, speaking for the court, said: “Under those circumstances, the petitioner is not entitled to an absolute discharge from the custody of the hospital authorities. According to the allegations of the response, which must be taken as true, the hospital authorities rightfully received petitioner into their custody, and the ccfurt should not require them to turn him loose and permit him to go at large, if he is afflicted in the manner and to the extent set forth in the response. In this respect the hospital authorities are in the same attitude and are charged with the same duties as any other person having rightful custody of an insane person. The duty is not to abandon an insane person until he can be taken into custody by such person or institution as is charged by law with the duty to care for the insane. The statutes of this state provide that, when a person is insane so as to endanger his own person or the person or property of others, ‘it shall be the duty of his guardian, or other person under whose care he may be, and who is bound to provide for his support, to confine him in some suitable place until the next term of the probate court for his county, which shall make such order for the restraint, support and safekeeping of such person as the circumstances of the case shall require.’ Crawford & Moses’ Digest, § 5854. Adequate provision is made by law for the custody and care of insane persons, and, of course, these statutes have full application to an insane person in the United States Veteran’s Hospital, but, until some steps are taken for the legal care and custody of such insane person, the court will not require the absolute discharge of the patient from custody. The facts of the case, as detailed in the response of the superintendent of the hospital, do not show that petitioner is entitled to an absolute discharge, and the chancery court was correct in refusing to grant relief.” '
At 28 Am. Jur. 679, it is said: . . if the evidence indicates that one committed to an institution for the insane is actually insane, the court should not order his discharge, regardless of the invalidity of the proceedings under which he was committed, but should direct his continued restraint until such time as proper proceedings can be had for a formal adjudication of insanity. ’ ’
Under certain conditions specified in Act 241 of 1943, the superintendent may admit persons to the hospital as patients without the order of a court. Under the provision of § 7 of that act he may discharge any person from the hospital who in his opinion is then mentally competent whether such person was admitted with or without an order of court. Of course, the superintendent would have no authority to indefinitely hold in involuntary custody any person who had not been committed by proper order of a court of competent jurisdiction. Recognizing that patients admitted without a formal commitment, or through irregular process, might later demand their discharge at a time when their condition was such as to require tlieir continued confinement, the lawmakers, by § 6 of the act, specifically authorized the superintendent to apply to and obtain from the probate court of the county of any such patient’s residence a writ of commitment.
If appellant’s present mental condition is such that his discharge would not be dangerous for either himself or society, and if his mental condition is such that his own best interest does not require that he remain in the hospital for further treatment and supervision, then he should be discharged, but if his condition is to the contrary he should continue as a patient in such institution.
■ If appellee Kolb is of the opinion that appellant should be discharged he is clothed with ample authority to effect his release; on the other hand, if he entertains a contrary conviction in the matter he may and should apply to the Probate Court of Pulaski county for the issuance of a writ of commitment in accordance with the provisions of § 6 of Act 241 of 1943.
The decree will be modified so as to provide that appellant’s petition will be dismissed without prejudice to his right to again assert all matters alleged therein if appellee Kolb shall fail to apply within thirty days from this date to the Probate Court of Pulaski county for a writ of commitment in accordance with the provisions of § 6 of Act 241 of 1943, and as so modified the decree will be affirmed; | [
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Smith, J.
This cause was heard in the court below, upon an agreed statement of facts, from which we copy the following recitals.
Identical petitions were filed by qualified electors of both the Ft. Smith and Greenwood districts of Sebastian county, on March 11, 1944, in each of which petitions it was prayed that an election be called and held in and throughout Sebastian county, and in every ward and precinct therein, to determine whether or not license should be granted for the manufacture, or sale of intoxicating liquors, to be held on a day to be fixed by the county courts of Sebastian county. It was prayed that the elections be held pursuant to the provisions of Act No. 1, adopted by the people at the 1942 general election.
These petitions were regular in every respect, and on the same day duplicate originals were filed in the county courts for both the Ft. Smith District and the Greenwood District of Sebastian county, and all were signed by exactly the same persons.
After public hearing, had upon these petitions, the County Court for each district made identical orders calling the elections prayed for. The order made by the county court for the Greenwood District ordered that an election be held in the Greenwood District of Sebastian county, for the sole and only purpose of voting on the question presented by the petitions “within the said designated territory. ’ ’ The order made by the county court for the Ft. -Smith District was identical, except for the substitution of the Ft. Smith District, for the Greenwood District.
Pursuant to these orders of the county courts of the respective districts, the election was held, separate and distinct ballots being prepared for use in each district. The ballot for the Greenwood District read as follows:
“OFFICIAL BALLOT '
Special Election
April 18, 1944
In the Greenwood District of Sebastian County,-Arkansas, and in Sebastian County as a whole County.
FOR the manufacture or sale of intoxicating liquors. AGAINST the manufacture or sale of intoxicating liquors.
INSTRUCTIONS: Each elector shall cross or strike out the parts of the ballot in such a manner that the remaining part be as he wishes to vote. ’ ’
The ballot used in the Ft. Smith District was identical except that it read, “In the Ft. Smith District of Sebastian County,” instead of reading as did the other ballot, “In the Greenwood District of Sebastian County.”
The returns of the election showed the vote in the Greenwood District to be, for the sale of liquor, 471; against the sale of liquor, 1,313, a majority against the sale of liquor of 842. In the Ft. Smith District the vote was, for the sale of liquor 4,647; against the sale of liquor, 3,066, thus showing a majority in favor of the sale of liquor in the Ft. Smith District of 1,581, and a majority for the sale in the entire county of 739.
The expenses of the election conducted in each district were defrayed from the funds of each separate district, and upon the certification of the returns showing the results above stated, the county courts of these districts made and entered orders on March 20,1944. These orders recited the finding, made on the order calling the election, that 15 per cent of the qualified electors of each district, and of the entire county, had petitioned that the election be called and held, and it was by the court, ‘ ‘ Ordered, Adjudged and Declared that under the provisions of section 5 of art. 13 of the Constitution of the State of Arkansas relating to Sebastian county, and the enabling Acts passed pursuant thereto, that the result of the election in Greenwood District of Sebastian county must be declared separately and apart from the result of the election in the Ft. Smith District of Sebastian county, and that the vote of the Greenwood District of Sebastian county is not affected by the vote in the Ft. Smith District of Sebastian county. . . . It is by the Court further considered, ordered, adjudged and declared that it shall be unlawful for the Commissioner of Revenues of the State of Arkansas, or any county or municipal official to issue any license or permit for the manufacture or sale, barter, loan, or giving away of intoxicating liquor in the Greenwood District of Sebastian county, for at least two years, and thereafter, unless the prohibition shall he repealed by a majority vote as provided in § one of the Initiated Act No. 1.”
Notwithstanding this order, appellant, who shows himself to he a proper person to whom a liquor permit could he issued, where it could be lawfully done, brought mandamus against the Commissioner of Revenues of this state, praying that the Commissioner he directed and required to issue him a permit. This prayer was denied, and from that order is this appeal.
The county court orders hereinabove recited are predicated as they expressly recite, upon the provisions of § 5, art. 13 of the Constitution of this state, which reads as follows:
“ Sebastian County may have two districts and two county seats, at which county, probate and circuit courts shall he held as may he provided by law, each district paying its own expenses. ’ ’
The history of this unique and unusual provision found in our Constitution is narrated in the opinion in the case of Jewett v. Norris, 170 Ark. 71, 278 S. W. 652, and will not be repeated.
The effect of this provision of the Constitution is not to establish two county, probate and circuit courts in Sebastian county, hut is rather to establish courts for each district of the county, so that the Ft. Smith District has a county court, and so also has the Greenwood District, and each has jurisdiction over its respective area.
The county court of the Greenwood District has the same jurisdiction within that district that the county court of another county would have in that county, and so also with the county court of the Ft. Smith District. Section 28 of art. 7 of the Constitution defines that jurisdiction and it reads as follows:
“The county courts shall have exclusive original jurisdiction in all matters relating to county taxes, roads, bridges, ferries, paupers, bastardy, vagrants, tbe apprenticeship of minors, the disbursement of money for county purposes, and in every other case that may be necessary to the internal improvement and local concerns of the respective counties. The county court shall be held by one judge, except in cases otherwise herein provided. ’ ’
The jurisdiction thus conferred is exclusive and the county court of the Ft. Smith District and the county court of the Greenwood District, each, has exclusive jurisdiction of the matters mentioned in this section of the Constitution, each exclusive of the other as completely as if they were held in separate counties, each having sole and exclusive jurisdiction of those matters mentioned within the district, of which they are a part, but neither has jurisdiction over the county as a whole as to these matters.
Following the holding in the case of Freeman v. Lazarus, 61 Ark. 247, 32 S. W. 680, it was held in the very recent case of Yarbrough v. Beardon, 206 Ark. 553, 177 S. W. 2d 38, that: “The issuance of a license to sell liquor is a matter of local concern,” as much so as the removal of a county seat and for that reason ,it was held that the jurisdiction to determine a contest of the vote upon the question of liquor license is in the county court.
Now it does appear that the order made by the county court of the Greenwood District, and also the order made by the county court of the Ft. Smith District, each calls an election for the entire county, but it is also true that the order of the county court for the Greenwood District called an election to be held in that district and the order of the county court for the Ft. Smith District called an election to be held in that district, so "that separate orders called for the respective elections in the' respective districts. The order of the Greenwood District directing an election to be held not only in that district, but in the entire county, was effective only as to that district, and so also was the order of the Ft. Smith Dis trict directing an election to be held in that district and in the entire county.
There appears to have been no misapprehension which operated to confuse the electors in voting. Separate ballots were prepared for each district and they voted separately and separate returns were made by each district, these showing that one district voted wet, the other dry, and the vote of one district was not affected by the vote of the other.
It is pointed out that Initiated Act No. 1, pursuant to which the election was held, makes no provision for holding elections by districts of a county, but directs that the election “Be held in such County, Township, Municipality, Ward or Precinct to be affected thereby.” Now of course under this Act an election might be held in any township, municipality, ward or precinct of either district of Sebastian county, but we are also of the opinion that the Act authorized an election by the districts of Sebastian county, for the reason that the districts of that county are in effect separate counties, so far as the “local concerns ’ ’ of that county are involved. Such is the effect of the opinion in the case of Jewett v. Norris, supra. That case involved the applicability of the provisions of Amendment No. 10 to the Constitution to the respective districts of Sebastian county. This amendment authorized the counties, cities and incorporated towns of the state to issue bonds to discharge their outstanding indebtedness. Under the authority of this amendment the Ft. Smith District of Sebastian county, acting independently of the Greenwood District of that county, proposed to issue bonds to pay the outstanding indebtedness against that district. A citizen questioned this authority upon the ground that the Ft. Smith District was neither a county, city nor incorporated town within the meaning of the amendment.
After reviewing the history of § 5 of art. 13 of the Constitution, it was held that the Ft.. Smith District of Sebastian county had authority to issue these bonds and so holding it was said (to quote a headnote) that: “The two districts of Sebastian county, created by Constitution, art. 13, § 5, with powers defined by Acts 1874-5, pp. 86,135, are to be regarded as separate counties within the meaning of Amendment 10 to the Constitution, authorising counties to issue bonds to pay outstanding indebtedness.”
The effect of this holding is that the districts of the county were regarded, for the purpose of the amendment, as separate counties. In other words, the separate districts of Sebastian county were as distinct as would be two separate counties, in the exercise of the jurisdiction conferred by § 28 of art. 7 of the Constitution which gives county courts jurisdiction over the fiscal affairs of the respective counties, and also confers jurisdiction in matters of local concern.
It is undisputed, in fact, it is stipulated, that the order made in each instance, called for an election to be held in the district in which the respective orders were made, although it is true that each of these orders also calls for an election to be held throughout the entire county. But this part of the order is not effective and was, in fact, mere surplusage. Had there been no authority for holding an election in the Greenwood District, except that contained in the order made in the Ft. Smith District, the election, so far as it related to the GreenAvood District, would have been unauthorized, and therefore void, but orders were entered on the same day in each district, each of which orders contained jurisdictional recitals, the truth of which is not questioned, and each order directed that an election be held in the district in which the order was made. The effect of these orders, both valid as to the district in which made, but not valid as to the other district, was to order elections throughout the entire county. However, the elections were held as shown by the returns thereof, for the districts separately, and we think effect should he given to each election, that effect being that the Ft. Smith District voted wet and the Greenwood District voted dry. Mandamus was therefore properly denied. | [
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McFaddin, J.
This case arises under the Workmen’s Compensation Law. Appellant filed claim with the Workmen’s Compensation Commission for injuries alleged to have been sustained by him on November 21, 1941, while employed by the appellee herein, Ford, Bacon & Davis, Inc. The appellant claimed that he fell to the ground from a stack of lumber on a truck, and thus received a brain injury resulting in temporary loss of speech, mental derangement and other consequences. The claim was resisted on the grounds (1) that the claimant never sustained any injury of any kind, and (2) that his mental condition was due to dementia praecox, catatonic type, and was in nowise connected with his employment or growing out of it.
The record is lengthy, consisting of three volumes and containing more than three hundred fifty pages. Over a score of witnesses testified, and intermittent hearings extended over a period of five months — from June to November, 1942. Some of the claimant’s witnesses testified to one state of facts at one hearing, and, a few months later, testified entirely at variance with the previous testimony. The place of the alleged injury varied as much as five miles between claimant’s witnesses. To set out even the substance of the testimony would require many pages, and would serve no useful purpose. Suffice it to say that there wore witnesses who supported the claimant and there were others who supported the appellee.
On this conflicting evidence the Workmen’s Compensation Commission made its findings, which are clear and exhaustive; and from which we copy the two following paragraphs as typical:
“The testimony on behalf of this claimant is shot through with contradictions and discrepancies too numerous for this Commission to ignore.
“Upon .full consideration of all the testimony, the Commission is of the opinion that this claimant left the home of his mother, Mrs. Robert Kloss, on November 22, 1941, to go to his home near Malvern, Arkansas, in good health and normal in every way, and that any disability from which he was suffering upon his arrival at his hornera Malvern was not the result of any accidental injury that arose.out of and in the course of his employment with the respondent employer.”
From an adverse finding by the Commission the claimant appealed to the circuit court where the Commission was affirmed; and from the circuit court the claimant brings this appeal to this court. The rule is now well settled in this state that the findings of fact by the Workmen’s Compensation Commission are given the same force and effect as the verdict of a jury in a case at law. Lundell v. Walker, 204 Ark. 871, 165 S. W. 2d 600; J. L. Williams & Sons, Inc., v. Smith, 205 Ark. 604, 170 S. W. 2d 82; Baker v. Silaz, 205 Ark. 1069, 172 S. W. 2d 419; Johnson v. Little Rock Furniture Mfg. Co., 206 Ark. 1016, 178 S. W. 2d 249.
The question, therefore, is: “Was there substantial evidence to sustain the findings of fact made by the Commission?” We answer this question in the affirmative: the self-contradiction by claimant’s witnesses, the medical testimony, the evidence of insanity, the testimony about the absence of any visible sign of injury, the open muteness and secret conversational ability of the claim ant, tlie almost sudden return of liis power of speech when the necessity of testifying was manifest — all these matters, when put together, make á picture well expressed in the excerpt from the Commission’s findings as previously copied herein.
Affirmed. | [
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Knox, J.
In an action of unlawful detainer the landlord was adjudged to have right of possession and tenants appeal. Tenancy was from month to month, each successive term thereof beginning on the first and ending on the last day of the calendar month.
On June 29, 1943', the landlord caused notice to be served on the tenants demanding that they quit and deliver up possession of the premises “on or before August 1, 1943.” The sole question at issue in the trial court, and presented by this appeal, is whether such notice was sufficient to terminate the tenancy. The tenants contend such notice was insufficient for two reasons, to-wit: (a) notice must require that tenancy terminates at end of one of the recurring periods of holding, and notice here did not require tenant to yield possession until first day of new ténn; and (b) words “on or before August 1, 1943, ’ ’ do not meet requirement that notice must fix with reasonable exactness the time when lease is to be terminated.
In the absence of an agreement between them providing otherwise, either the landlord or the tenant may terminate a monthly tenancy by, and only by, giving the other party thirty days written notice of his election to so terminate it, “the notice ending with a monthly period.” King v. Solmson, 188 Ark. 237, 65 S. W. 2d 19; Peel v. Lane, 148 Ark. 79, 229 S. W. 20; Reece v. Leslie, 105 Ark. 127, 150 S. W. 579; Stewart v. Murrell, 65 Ark. 471, 47 S. W. 130; Fizzell v. Duffer, 58 Ark. 612, 25 S. W. 1111.
Our own cases declare that the notice shall be one “ending with a monthly period” and it appears to be the general rule in all jurisdictions that the notice must require that the tenancy terminate at the end of one of the recurring periods of the holding. An exhaustive annotation of the cases dealing with the sufficiency of the notice to terminate such a tenancy is found at 86 A. L. E. 1346, et seq, reported in connection with the case of Oesterreicher v. Robertson, 187 Minn. 497, 245 N. W. 825, 86 A. L. R. 1344.
Designation of a day corresponding to the last and not the first day of the term has been held to be a material defect in at least two jurisdictions, to-wit: Ehode Island and District of Columbia. Waters v. Young, 11 E. I. 1, 23 Am. Rep. 409; Merritt v. Thompson, 53 App. D. C. 233, 289 Fed. 631. In each of these cases the court held that if a definite day is mentioned in the notice it must correspond with the day of commencement and not the day of the conclusion of the tenancy, and that a notice which demands that tenant yield possession on the last day of the old, instead of the first day of what would be the new, term is insufficient.
Other eases referred to in the annotation disclose that in some jurisdictions courts have declared that a day corresponding with the commencement and not the conclusion of the term should rightly be designated, while courts in other jurisdictions take exactly the opposite view. All, or nearly all, of the courts have declared, however, that where either day is designated the notice 'will not be held to be insufficient, because the day named is different from the one which the court considers to be the proper one to be designated. There appears to be little uniformity in the reasons assigned for this liberal practice.
In the case of Steffins v. Earl, 40 N. J. L. 128, 29 Am. Rep. 214, where the tenancy commenced on the 1st day of May, a notice given June 29th to quit on the 1st day of August was held sufficient and not invalid for failure to designate the 31st day of July. The court said: “By strict computation, the term set out by the present affidavit probably terminated on the last midnight of July. I think it would be carrying the rule that a notice to quit must be made with reference to the end of the term, to an illogical and unreasonable length, to hold that a notice given for the day commencing at that midnight is not a good notice. The law is ignorant of fractions of a day. The notice covers all and any period of .the twenty-four hours from midnight to midnight. The very moment the tenancy expires the tenant is. confronted with a direction to quit. On what process of reasoning can it be said that a new term has commenced before notice is given?”
The case of Steffins v. Earl, supra, is one of the leading American cases dealing with the question of termination of a tenancy by notice, and this court quoted and adopted a considerable portion of the language thereof in our early case of Stewart v. Murrell, supra. The exact question here before us was not, however, an issue in the Stewart-Murrell case. .
In the case of Lehy v. Lubman, 67 Mo. App. 191, it is said: “Strictly speaking, the day o,f the ending of a monthly term, and the beginning of another term, would be at that moment at midnight when one day ends and another begins. So it has been held that the proper month’s notice is for the term to end on the corresponding day of its beginning. Thus, if a tenancy began on the first day of the month, a notice to quit on the first day of the month would be sufficient. ... As before stated, we construe the notice in this case to be a notice to give up possession on the end of the day of June 30¡ —that is, at the time when the monthly term expired. It is, in effect, the same thing as if it had been notice to quit on the day corresponding to the beginning of the term; and since the ending of a term and the beginning of a succeeding term must be at the same'moment of time, when one day ends and another begins, we think it practical and consistent with reason to hold that a notice to quit at the end of the last day of the term, or at the beginning of the first day of what would be a succeeding term, to be one and the same thing.”
■ Convinced as we are that the conclusions announced in -each of the foregoing quotations are sound, and based upon logical reasoning, we adopt tlie views therein expressed, and hold that whenever it has appeared, or shall appear, necessary or desirable to set forth in a notice terminating a tenancy, the exact day upon which possession will be yielded, or is required, the day so designated may properly correspond with either the first day or the last day of the rental period, and where either such day is so designated therein it shall be deemed to be “a notice ending with a” rental “period.”
Appellants argue, however, that even if the first day of what would be a new term can properly be designated, still the notice here is insufficient because it failed to fix with reasonable exactness the time designated for termination, in that it did not demand possession on a day certain, but “on or before” a day certain, and counsel for appellants say that the tenants “were thereby informed that the tenancy had been or would be terminated on August first or some day prior thereto.”
In reply counsel for appellee say that “the question here presented is analogous to similar questions that arose under the uniform negotiable instrument statute, which requires all negotiable paper to be payable either on demand or at a fixed or determinable future date.” Decisions of this and other courts are cited in which it was held that, notwithstanding the provisions of the statute above mentioned, notes which were payable “on or before” a certain date were negotiable.
The decisions in those cases were founded upon two propositions: (1) that the payee could not require payment until the expiration of the full period, and (2) that the payor was given an option to pay before that date and thereby relieve himself of further interest charges.
We are of the opinion that the notice here granted no option to the tenant to vacate the premises prior to the end of the monthly term and thus relieve himself from liability for rent for that part of the rental period remaining after the date of surrender.
Such- question was squarely presented in the case of Koehler v. Scheider, 16 Daly 235, 10 N. Y. S. 101, where the landlord notified the tenant to quit “on or before April 30, 1886.” Tenant yielded possession on February 1, 1886. Landlord sued to recover rent' for period between February 1st and April 30tk. The defense in effect was: that the notice was a continuing-offer to accept surrender of the lease before April 30th, if and when the tenant elected to surrender; that by yielding possession tenant had accepted such offer, and lease was thereby and as of that time terminated. The court rejected this construction and quoted with approval the construction placed upon the notice by a trial judge at a former trial as follows: “Where a landlord gives his tenant a notice to move on or before April 30th, that means he is not to move after April 30th; that he is to move on the termination of the tenancy, the liberty to move sooner being a liberty the tenant has. A landlord' may give a tenant notice to move on or before the 1st of May, his lease being up to the first of May; but that does not mean that, if a tenant should move out the. next day, he should pay no rent. It means that the landlord will insist upon his legal right to have him move out before the last day of the term. 'On or before’ is common language of the law, meaning that, if you remain one day after, you remain at your peril; you are a trespasser,— a wrong-doer. A landlord can take nothing away from a tenant’s rights, and waives nothing by serving a notice of that kind. ’ ’
In the case of Scheuer & Tiegs v. Benedict, 173 Wis. 241, 181 N. W. 129, 12 A. L. R. 1166, it was held that a notice to quit “by April 30th” was synonymous with a notice to quit “on or before April 30th” and was valid.
In an annotation to Scheuer & Tiegs v. Benedict, supra, appearing at 12 A. L. R. 1168, it is stated the word “by” in relation to a day named means “on or before” that day. The converse of this statement should be equally true — so that the notice here properly may be construed as requiring possession “by August 1st” and thus the date of termination is fixed “with reasonable exactness,” which is the test prescribed by Peel v. Lane, supra [148 Ark, 79, 229 S. W. 22],
Furthermore, as was pointed out in Koehler v. Scheider, supra, “Tlie landlord can take nothing away from a tenant’s rights . .' . by serving such a notice.” The use of the words “on or before” did not shorten the rental period. The words were surplusage, meaningless and ineffectual. The notice, therefore, should be read as if no such words were incorporated therein — in other words, as if it required that the tenant quit “on August 1,1943.”
From .what has been said it is clear that the judgment must be affirmed. Appellee, however, contends that the appeal was taken for delay and the penalty provided by § 2784 of Pope’s Digest should be assessed. The questions presented by the appeal are somewhat technical, but, as was said in Peel v. Lane, supra, “The notice is technical. . . . The rights of both parties are fixed by it and are dependent upon it.” The questions presented by this appeal had not heretofore been directly considered and passed upon by this court. Under the circumstances we think an imposition of a penalty would not be justified, but appellee is entitled to an immediate mandate. The judgment is affirmed, and the clerk is directed to immediately issue the mandate. | [
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Griffin Smith, Chief Justice.
In Davidson, Sheriff, v. Chandler, 206 Ark. 375, 175 S. W. 2d 567, the judgment was reversed. A concluding paragraph of the opinion is-:
“Our conclusion is that the act of Burton in killing Chandler was not done under color of his office on the facts here presented, and that Sheriff Davidson and his surety are not liable therefor. Burton was not a defendant in this action, and whether his bond to the Sheriff may be liable for his.tort is not before us.”
It was then said: “The judgment is accordingly reversed and the cause remanded.”
There was no express direction that a retrial be had to determine Davidson’s liability; but, even though this Court found that a judgment against Davidson and his surety was improper, the trial court was justified in construing the order to be one for a' new trial.
The defendant now seeks by prohibition to prevent a retrial of the cause. It may be, as petitioner insists, that another trial would be unavailing, and this will be. so unless substantial testimony in addition to that previously considered is introduced. Railway Company v. Morgart, 56 Ark. 213, 19 S. W. 751. However, the court below is not without jurisdiction, nor is its proposed action in excess of its jurisdiction; and prohibition does not lie.
Petition denied. | [
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McHaney, J.
Appellee, as ■ administratrix of the estate of her deceased husband, W. S. Keeton, brought this action under the Federal Employers’ Liability Act against appellant to recover damages for herself for loss of contributions and for said estate on account of alleged conscious pain and suffering, on account of the alleged negligent injury to and death of her said husband. The complaint alleged that said intestate was employed by appellant as a conductor on a train from Braggs, Oklahoma, to Camp Gruber, and that while so employed and in the discharge of his duties, he was, through the negligence of appellant and its engineer, knocked and caused to fall from said train and was thereby seriously and fatally injured; that intestate was riding upon one of the cars of said train while it was being moved which the engineer knew or should have known; and that said engineer “ carelessly and negligently and without signal or warning suddenly and violently stopped said engine and cars with a hard, sudden, violent and unusual jerk and jar, thereby throwing deceased with great force and violence from the said train,” resulting in serious injury from which he died about 3 or 4 days later. The answer was a general denial and a plea that intestate’s injury and death were occasioned by his own negligence.
Trial resulted in a verdict and judgment for appellee for $20,000 for loss of contributions and $10,000 for conscious pain and suffering, a total of $30,000, from which is this appeal.
The facts are that, on May 29-30, 1942, the train crew of which intestate was a conductor was engaged in switching cars from Braggs, Oklahoma, to Camp Gruber, a distance of about iy2 miles by rail; that Roy Brown was the engineer, Fry was fireman, and Vaughn and Plunkett were the brakemen; that they would take loaded cars out to Camp Gruber and bring back to Braggs empties; that at the time of the accident, they were pushing six cars of sand and gravel ahead of the engine, intestate riding on the fifth car ahead of the engine, sitting astride the right or south side of an ordinary coal car and on the forward end, which car was loaded with gravel, with one foot on the gravel and the other on a grab iron on the outside, and with a switch list in one hand and a lighted lantern in the other; that on the way down they had to pick up an empty car which necessitated the making of a coupling to the forward loaded car; and that in making the coupling intestate fell from the car on which he was riding, resulting in his injury and- subsequent death on June 2, 1942. Each and every member of the train crew except Keeton, testified that the train was brought to a complete stop about 100 feet from the empty car and that thereafter the engine pushed the loaded cars up to the empty to make the coupling at a rate of one or two miles per hour at the signal of brakeman Vaughn and that the coupling was very light and easy, and not out of the ordinary in any way. The engineer and fireman testified that it was so easy that they felt no jolt or jar in the cab. Witness Vaughn testified that he gave the signal to the engineer to proceed to the empty after walking to it and gave the easy signal when the front car was about fifty feet away and that by the easy signal the engineer knew you wanted him to slow down; that he gave the stop signal when the train was about three or four feet from the empty and the engineer stopped as soon as possible; and that he went about two feet after the coupling. He said this stop was a very ordinary one, with a slight jar. When asked on cross-examination if this coupling was about as hard as he ever saw the engineer make, he answered: “No, sir, it was a very ordinary one. ’ ’ A little later, in answer to a question whether that stop was the hardest he ever saw him make there, he answered: “Yes, sir.”
Appellee testified, over appellant’s objections and exceptions to a statement made to her by her husband, as a dying declaration. She said: “He realized that he was very sick and told me he wasn’t going to get well. He told me how it happened; he said he was sitting on the corner and there was a sudden stop and he was jerked off. He was sitting on the corner of the car with a switch list in one hand and a light in the other; there was a sudden stop. After he was jerked off, he knew nothing more; just said there was a sudden hard stop and he was jerked off.”
This is the substance of all of the testimony the jury had before it on which to make a finding of negligence, and we think it wholly insufficient to show any negligence whatever in making the coupling complained of. All the members of the crew testify that it was just the ordinary coupling and without any unusual jerk or jar— so slight as to be imperceptible to the engineer and fireman. Nor do we think the dying declaration sufficient to make out a case of negligence for the jury, conceding without so holding that it was competent and does not offend against the statute, § 5154 of Pope’s Digest.
In Krumm v. St. L., I. M. & S. Ry. Co., 71 Ark. 590, 76 S. W. 1075, it was said that it was “not practical to operate freight trains without occasional jars and jerks calculated to throw down and injure careless and inexperienced persons standing in the car.” This language was quoted in Palsey v. St. L., I. M. & S. Ry. Co., 83 Ark. 22, 102 S. W. 387, 13 Ann. Cas. 121, where it was held that a railroad company ‘ ‘ cannot as a rule be said to be negligent because there are occasional jars and jerks in the operation of such trains (freight), though jars of great, unusual and unnecessary violence would.be evidence of negligence on the part of the employees operating the train.” There is nothing in any of the evidence to show that the jar resulting from the coupling was out of the ordinary or that it was made with “great, unusual and unnecessary, violence.” The most that the intestate said in his dying declaration was that “there was a sudden stop and he was jerked off — that there was a sudden stop and he was jerked off.” That language alone was not sufficient to make a question of fact for the jury as to the negligence of engineer Brown in making the contact for the coupling, especially when intestate’s precarious position on the car, with a switch list in one hand and a lantern in the other, is considered. Of course, his contributory negligence, if any, would not prevent a recovery, but the negligence of appellant must be established before there can be any recovery.
As said by the TJ. S. Supreme Court in Atchison, Topeka & Santa Fe Ry. Co. v. Saxon, 284 U. S. 458, 52 S. Ct. 229, 76 L. Ed. 397: “As often pointed out, one who claims under the Federal Act must in some adequate way establish negligence and causal connection between this and the injury. ’ ’ After quoting that language this court, in St. L.-S. F. Ry. Co. v. Childers, 197 Ark. 527, 124 S. W. 2d 964, said: “In other words, before there can be a recovery, to compensate injury to the employee, there must be negligence on the part of the employer with causal connection between that negligence and the employee’s injury.”
In the recent case of Mo. Pac. R. R. v. Guy, 203 Ark. 166, 157 S. W. 2d 11, it was held that the necessary and ordinary matter of shifting gears on a weed burning ma chine would not of itself be negligence. It quoted from Mo. Pac. R. R. Co. v. Baum, 196 Ark. 237, 117 S. W. 2d 31, and St. L.-S. F. Ry. Co. v. Porter, 199 Ark. 133, 134 S. W. 2d 546, and we think the principles announced in those cases rule the instant case adversely to appellee. The Baum and Porter cases related to liability to them as passengers on passenger trains, involving a jerk or lurch of the trains. In the Porter case we quoted from Harris v. Bush, Receiver, 129 Ark. 369, 196 S. W. 471, the following : ‘ ‘ There is much evidence tending to show that there was no unusual jerking or lurching of the train either at Argenta or while slowing down to a stop at the Little Rock station. Unless it was a negligent jerking or lurching of the train, it is apparent that appellant had no cause of action against the appellee. In other words, if the injury was purely accidental and not the result of the negligent operation of the train, appellee would not be responsible.” And in the Guy case, supra, we said: “If the doctrine with reference to lurching and jerking of trains is applicable to a passenger, as announced by this court in the above decisions, it would certainly apply more forcibly to an employee, such_as the appellee, whose duty it was to work upon and be familiar with the usual and necessary operations of the weed-burning machine. ’ ’
In the Baum case, supra, we said: “In order to make a railroad company liable to a passenger injured by a jolt or jerk of the train, the rule, as stated in 10 C. J., § 1387, p. 973, is as follows: ‘The jerk or jolt must bo unnecessarily sudden or violent; such jerks and jars as are necessarily incident to the use of the conveyance, and are not the result of negligence, will not render the carrier liable for resulting injuries.’ ”
There is no evidence in this record that the stop was unnecessarily sudden or violent, only that it was sudden and hard, but not unnecessarily so.
Appellee argues the use of the independent brake which affected only the engine, by the engineer, instead of the brake that worked on each car by application of the air, could or should be considered by the jury in determining the question of negligence, but no person testified that the use of the independent brake was improper, or that the air brakes on all the cars should have been used.
Since, as we have shown, there was no substantial evidence of negligence of appellant, the judgment will be reversed and the cause dismissed.
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McFaddin, J.
The appellee, D. C.' Webb, and bis brother, Truett Webb, signed and delivered to appellant a financial statement which read: “For the purpose of obtaining merchandise from Firestone Tire & Rubber Company, on credit, we make the following statement in' Writing, intending that your company should rely thereon respecting our financial condition as of February 15, 1940.”
Then followed in the financial statement details of assets and liabilities showing net worth of $9,550; and the statement then concluded, as follows:
“Firm name, Truett Webb. Date signed, 2/15,1940, by Truett Webb, D. C. Webb.”
The Firestone Tire & Rubber Company immediately commenced shipments as ordered, charging the shipments to “D. C. and Truett Webb.” The account continued until January 21, 1942, at which time appellant claimed a balance due and unpaid of $379:98. Action was filed in the Howard circuit court against Truett Webb and D. C. Webb for this last named amount. Truett Webb was in the United States Army, and, as to him, the case was continued under the Soldiers and Sailors Civil Relief Act (U.S.C.A., Title 50, Apx. § 501 et seq.). D. C. Webb unsuccessfully sought continuance because of the absence of Truett Webb in the military service. Then D. C. Webb filed his answer (1) containing general denial, and (2) admitting his signature on the said financial statement, but claiming that he signed only to show his financial worth for one note of $500, long since paid. Over the objection and exception of appellant, the trial court permitted D. C. Webb to testify in support of his second defense; and this is assigned as error.
The appellant asked its instruction number 3, as follows:
“The defendant, D. C. Webb, in his answer, states that at one time he did sign a note for Truett Webb to the plaintiff as an accommodation endorser, and at the time of signing the said note he did sign a financial statement to enable Truett Webb to purchase the merchandise for which the note was given, but for no other reason. That the said note has been paid, partly in cash and partly by the return of merchandise for which the said note was given. You are instructed that this statement of the answer of the defendant, D. C. Webb, is no defense and should be disregarded.”
The trial court refused to give the instruction as requested, and appellant duly excepted. Then the court, on its own motion, amended the instruction by adding at the end thereof, these words: “provided you find they were partners or joint debtors to plaintiff.” The appellant duly excepted to the giving of the instruction as amended. From a verdict and judgment exempting D. C. Webb from any liability, appellant has appealed.
I. “Firm Name” Is Synonymous With “Partnership” in This Case. It was admitted by D. C. Webb that he and Truett Webb each signed the financial statement. This financial statement read: “Firm name, Truett Webb.” The words “firm name” have in this case — in the absence of any corporate status — the same meaning as “partnership name.” Ballentine’s Law Dictionary, edition of 1930, p. 507, says of “firm name,” “the name adopted by a partnership under which it transacts its business. Such a name may be the name of one or all the members of the firm, or it may be a fictitious name, . . . ”
In 36 C. J. S., 821, of “firm” it is said: “It is said to be a conventional term applicable only to the persons who, on each particular occasion when the name is used, are members of the firm.” In 47 C. J. 647: “The word ‘firm’ is defined as the name, title, or style under which a company transacts business; a partnership of two or more persons; a commercial house. In its common acceptation the term implies a partnership. ’ ’
Webster’s New International Dictionary says of “firm”: “The name, title or style under which a company transacts business; the firm name; hence, a partnership of two or more persons;” and listed as synonyms are: “company, house, partnership.”
Bouvier’s Law Dictionary, Eighth Edition, p. 1232, says: “Firm. The persons composing a partnership, taken collectively. The name or title under which the members of a partnership transact business. The word is used as synonymous with partnership. The words ‘house,’ ‘concern,’ and ‘company’ are also used in the same sense.” See, also, “firm” in 17 Words and Phrases, Perm. Ed., p. 56; and see: In re Klein’s Estate, 35 Mont. 184, 88 Pac. 798; Thomas-Bonner Co. v. Hooven, Owens & Rentschler Co., 284 F. 377; People v. Strauss, 97 Ill. App. 47; Bredhoff v. Lepman, 181 Ill. App. 247.
So we hold that when D. C. Webb signed the statement listing the firm name as “Truett Webb,” then D. C. Webb said in law that D. C. Webb and Truett Webb were partners trading under the firm name of “Truett Webb.”
II. Parol Evidence Cannot Vary the Written Instrument. D. C. Webb testified that he signed the statement for only one note of $500, but that testimony was inadmissible, as seeking to vary or alter the written statement, which said “for the purpose of obtaining merchandise from the Firestone Tire & Rubber Company, on credit, we make the following statement in writing ...” In Outcault Advertising Company v. Bradley, 105 Ark. 50, 150 S. W. 148, the appellee had sought to show, by parol, an agreement different from the writing; and Mr. Justice Kirby, speaking for the court, said:
“Tlie statement of appellee, attempted to be introduced in evidence, related, to a matter that he claimed was discussed before the execution of the contract, and as an inducement thereto, but it was entirely at variance with its terms, as expressed in writing, and no error was committed in excluding it from the jury.
“ ‘Parol contemporaneous evidence is inadmissible to contradict, or vary the terms of a valid written instrument,’ and there is no ambiguity or uncertainty in the written instrument which would permit the introduction of parol testimony in explanation of it.”
In West-Winfree Tobacco Co. v. Waller, 66 Ark. 445, 51 S. W. 320, the appellee had signed an instrument in the nature of a guaranty bond for a salesman, and the appellee sought to show by parol that the length of duration of the guaranty was only thirty days. Denying this evidence Mr. Justice Hughes said:
‘ ‘ There is no ambiguity in the meaning of the note guaranteed by the appellees, and its proper construction was that asked to be placed upon it in the fourth instruction asked for by the plaintiff, which the court refused to give, and in so doing committed error, in our opinion.
“The testimony of Waller and of Couey was incompetent, and the court erred in admitting it. It tended to contradict or vary the terms of an unambiguous written contract. ’ ’ See, also, Ford v. Fix, 112 Ark. 1, 164 S. W. 726; Cherokee Construction Company v. Prairie Creek Coal Mining Company, 102 Ark. 428, 144 S. W. 927; Quartermous v. Kennedy, 29 Ark. 544; Richardson v. Comstock, 21 Ark. 69; Armstrong v. Union Trust Co., 113 Ark. 509, 168 S. W. 1119.
The rule of these cases applies here. The testimony of D. C. Webb sought to limit, and thereby vary, the signed statement, and was therefore inadmissible. So the trial court erred (1) in allowing D. C. Webb to testify as to the limitations of the signed statement, and (2) in refusing appellant’s instruction No. 3.
III. Partnership by Estoppel. The appellant showed that it relied on the truth of the financial statement and the fact that it was signed by D. C. Webb as a partner, and made shipments on the truth of the statement. No claim was made by D. C. Webb that he had ever notified appellant of any revocation of the statement. In Watkins v. Moore, 178 Ark. 350, 10 S. W. 2d 850, we said:
“It is well settled in this state that, when a person holds himself out, by word or deed, to another as a partner, and thereby induces him to extend credit to the partnership on the faith of such representation, he cannot shield himself from liability under the partnership. When a person holds himself out as a member of a partnership, anyone dealing with the firm on the faith of such representation is entitled to act on the presumption that the relation continues until notice of some kind is given of its discontinuance. Brugman v. McGuire, 32 Ark. 733; Herman Kahn Co. v. Bowden, 80 Ark. 23, 96 S. W. 126, 10 Ann. Cas. 132; and Gershner v. Scott-Mayer Commission Co., 93 Ark. 301, 124 S. W. 772, 27 L. R. A., N. S., 914, 137 Ana. St. Rep. 95.” See, also, Fredericktown Milling Co. v. Rider, 179 Ark. 387, 16 S. W. 2d 9.
In 40 Am. Jur. 179, in discussing partnership liability by estoppel, it is stated:
“It is a thoroughly well-settled rule that persons who are not as between themselves partners, or as between whom there is in fact no legal partnership, may nevertheless become subject to the liabilities of partners, either by holding themselves out as partners to the public and the world generally or to particular individuals, or by knowingly or negligently permitting another person to do so. All persons who hold themselves out, or knowingly permit others to hold them out, to the public as partners, although they are not in partnership, become bound as partners to all who deal with them in their apparent relation.”
And in 40 Am. Jur. 180 it is further stated:
“The liability as a partner of a person who holds himself out as a partner, or permits others to do so, is predicated on the doctrine of estoppel and on the policy of the law seeking to prevent frauds on those who lend their money on the apparent credit of those who are held out as partners. One holding himself out as a partner or knowingly permitting himself to be so held out is estopped from denying liability as a partner to one who has extended credit in reliance thereon, although no partnership has in fact existed.”
By signing the statement, D. C. Webb became liable as a partner by estoppel to appellant; and the trial court erred in amending the plaintiff’s instruction No. 3, and giving it as amended.
IV. Confession of Judgment. The deposition of Truett Webb was taken while he was in the military service, and was read in evidence. In that deposition Truett Webb admitted the amount due the plaintiff by Truett Webb to be $174.50. Tbe court gave tbe defendant’s instruction No. 3, reading as follows-:
“You are instructed that the defendant, Truett Webb, has admitted that he owes the plaintiff the sum of $174.50 and had tendered his check payable to the •clerk of this court for the said sum which includes interest to this date, and unless you find from the evidence the said defendant, Truett Webb, is indebted to the plaintiff in a greater sum than $174.50 your judgment should be for the plaintiff for the said sum of $174.50.”
Since the case had been continued as to Truett Webb, the effect of this instruction, given at the request of the defendant D. C. Webb, was to confess a judgment for $174.50 and costs if the appellant elected to accept that amount from D. C. Webb; and to leave for further determination the question of any balance claimed due by the appellant from Truett Webb. The appellant should still have that right.
V. Inadmissible Evidence. Since there is the possibility of another trial in the circuit court, we call attention to the confidential report of the shlesman to the appellant. This report was not shown to be admissible.
It follows that .the judgment of the circuit court is reversed and remanded with directions to allow the appellant to elect (1) whether to take judgment against D. C. Webb for $174.50 and interest and all costs and continue the case against Truett Webb under the Soldiers and Sailors Civil Relief Act, or (2) whether to have a new trial against D. C. Webb on remand, and continue the case against Truett Webb under the Soldiers and Sailors Civil Relief Act.
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Robins, J.
Appellant filed suit in the circuit court against appellees, who are his brothers and sisters, for a breach of covenant of warranty contained in a deed executed on February 14,1923, by all of the appellees, except LeRoy Wood and Edgar Wood, who éxecuted it at a later date. By the deed mentioned appellees conveyed to appellant one hundred and sixty acres in Clark county, Arkansas, inherited by appellees and appellant from their father, W. T. Wood, who died intestate in 1913, seized and possessed of the land in question, part of which was his homestead, and leaving surviving him his widow, Frances Josephine Wood, and eight children. The suit was transferred to equity by the circuit court on its own motion. No objection to the transfer has been raised. The cause was heard by the chancery court on the pleadings and upon-testimony taken in open court. The lower court rendered a decree, dismissing the complaint for want of equity, to reverse which decree- this appeal is prosecuted.
The evidence reflects that after the death of W. T. Wood two of his sons, appellant Albert Wood and appellee Andrew J. Wood, continued to live on the farm with their mother, and neither her dower nor her homestead was ever assigned.
Appellee, Andrew J. Wood, after the death of his father, bought the interests of several of his brothers and sisters in the land owned by their deceased father and received deeds from some of them, but these deeds were never recorded.
Appellant served as a soldier in the first World War, and then returned to the farm and continued farming operations with his brother, appellee Andrew J. Wood. Sometime in 1920, appellant bought the interest of Andrew J. Wood in the land. Appellee, Andrew J. Wood, moved away, and appellant remained on the land with his mother, Mrs. Frances Josephine Wood.
Appellant completed payment of the purchase money of the land in 1922, and in 1923 the deed herein involved was executed. In order to minimize the amount of recording fees the parties decided to destroy the .deeds previously made by some of the brothers and sisters to appellee, Andrew J. Wood, and have these brothers and sisters join with appellee, Andrew J. Wood, in the execution of the deed directly to appellant, Albert Wood. The widow, Frances Josephine Wood, did not sell appellant her interest in the land and did not sign the deed, which was on a printed form, and purported to convey the entire interest in the land, described according to government subdivisions with the usual covenant of warranty.
After he obtained the deed from his brothers and sisters, appellant married and brought his wife to live on the land. The widow continued to live on the land with appellant and his wife for a short time, but on account of family discord it became impossible for her to live there longer, and in the spring of 1925 she removed from her home and thereafter lived with other members of her family. Appellant, after his mother moved away, sold timber from the land and his mother then brought suit against appellant and the vendee of the timber for the value of the timber, and recovered judgment for a total of $1,388.59. Wood v. Wood, 203 Ark. 344, 157 S. W. 2d 36. Thereafter the instant suit was brought by appellant to recover from appellees the sum appellant was thus forced to pay his mother on account of this judgment, it being alleged by appellant that he had suffered damage in this amount as a result of the breach of covenant of warranty contained in the deed executed by appellees to him.
Appellant testified that he bought the entire interest in the land. The testimony of some of the appellees, however, was to the effect that the existence of their mother’s interest in the land was discusséd and recognized by all parties at the time the trade was made, and that appellant insisted that it was not necessary to wait until she died before the heirs conveyed their respective shares. One of them testified that while the deed was being signed the justice of the peace advised the parties that they could not beat their mother' out of her dower; that appellant understood this and talked about it frequently. Another appellee testified: “I wasn’t supposed to make a deed until after my mother died. All I ever sold was my interest.” Two of the heirs testified that they understood they were selling the entire interest.
To reverse the decree of the lower court, which in effect held that appellees in reality only sold and intended to convey to appellant their respective shares as heirs of their father in the land, appellant urges that parol evidence to vary the contents of the deed was not admissible. The rule that parol evidence is ordinarily not admissible to vary or contradict the terms of a written instrument is well established. But it is equally well settled that a court of equity may look through the form of the contract and ascertain what the real transaction was, and may correct a mutual mistake made in the drafting of the contract so as to make the contract reflect the real intention of the parties at the timé of the execution thereof. In doing this the court does not receive parol testimony to vary the contract, but to show what the contract really was and to permit the correction of mutual mistake made by the parties in committing the ‘contract to writing.
In the case of Clark v. Root, 50 Ark. 179, 6 S. W. 728, 8 S. W. 569, suit had been brought in the lower court for breach of covenant of warranty to the title of certain land, and this court sustained the contention of the defendant that in equity the deed should be reformed so as to show that the land, the title of which had failed, was not sold or intended to be Sold.
A somewhat similar situation was presented in the case of Harton v. Durham, 148 Ark. 655, 231 S. W. 193. There it appeared that Durham conveyed a certain tract to Hartón by warranty deed, the land being described according to government subdivisions. It developed that Durham’s deed to Hartón described a certain tract to which Durham had no title, and Hartón sued Durham for breach of warranty. Durham answered, moved to transfer to equity, and asked for reformation of his deed on the ground that by mutual mistake the tract referred to was included in his deed and that he did not sell or intend to convey and that Hartón did not purchase it. The chancery court reformed the deed and dismissed Hartón’s suit for damage. This court affirmed the chancery court’s decision.
Likewise, in the case of Tenenbaum v. Gerard B. Lambert Company, 140 Ark. 231, 215 S. W. 596, 8 A. L. R. 745, suit had been instituted by Tenenbaum for the nonperformance of a written contract for the sale of approximately fifty tons of scrap iron sold to him by the Gerard B. Lambert Company. The company had only delivered under this contract thirteen and one-half tons, and Tenenbaum sought damage for breach of the contract of sale. The case was transferred to chancery court and it was shown by the company that in reality it intended to sell only the scrap iron that it had on hand, which amounted to thirteen and one-half tons instead of fifty tons as stated in the contract. This contention was sustained by both courts, the contract was reformed in accordance with the contention of the company, and Tenenbaum’s claim for damage was denied.
In the case of Ingraham v. Baum, 136 Ark. 101, 206 S. W. 67, it appeared that Mary Baum had executed a deed conveying a two-ninths interest in certain land, when in fact she owned a three-ninths interest subject to the dower interest of her mother'; and this court upheld the decree of the lower court in reforming the deed so as to show conveyance of the interest which she actually owned rather than the interest described in the deed.
The New York Court of Appeals in the case of Bush v. Hicks, 60 N. Y. 298, said: “It is claimed that the plaintiff knew the terms of the description inserted in the deed, and, as the language employed was that intended to be used, there was no mistake. The answer is, that the mistake consisted in supposing the description applied to the land intended to -be conveyed, whereas it embraced much more, and a mutual mistake of this character is a ground for reforming a deed in equity.”
The Supreme Judicial Court of Massachusetts, in dealing with a somewhat similar situation, in the case of Wilcox v. Lucas, 121 Mass. 21, said: “This mistake did not depend upon the legal meaning of the words used, but upon the application of the description in the deed to the land, which involved a mere question of fact. . . . There can be no doubt of the power and duty of a court of chancery to restrict the operation of the deed to what was actually understood and intended by the parties, either by ordering the deed reformed, or by restraining the grantee from availing himself of it beyond mutual understanding. ’ ’
In the case of Combs v. Combs, 130 Ky. 827, 114 S. W. 334 the Court of Appeals of Kentucky had under consideration the question of breach of covenant of warranty in a deed executed by one brother to another for the grant- or’s interest in the lands of the deceased father of grantor and grantee. The deed involved showed a conveyance by the grantor of “his entire undivided one-fifth interest in all the real estate owned” by J. H.-Combs, “deceased . . . ’ ’ The deed contained general terms of warranty. Breach of warranty was asserted because certain tracts of land owned by J. H. Combs at the time of his death had to be sold to discharge claims against the intestate’s estate, and part of it was set aside to J. II. 'Comb’s widow as her dower. The court held that there was no breach of the warranty in the deed, summarizing its conclusion thus: “An analysis of the writing convinces us that the intention was to sell a full fifth, undivided, of such lands as had descended from J. H. Combs — being an entire share which by operation of law was vested in appellant.”
This statement of the law is made in 21 C. J. S., Covenants, § 38, p. 908: “It has also been held that where by mistake land was included in a deed which the grantor did not own, and which the grantee did not intend to buy, such fact was an equitable defense to an action for a breach of the covenant, of warranty in the deed.”
The lower court’s decree was necessarily based on a finding that there was a mutual mistake when the appellees executed and the appellant accepted from them a deed conveying an interest in the land — the dower and homestead interest of the widow — which they did not own. While the appellant’s knowledge of this outstanding interest in the land which he was buying was not in itself sufficient to bar appellant in a suit on the covenant of warranty in the deed, it was a strong circumstance to support the chancellor’s finding that appellant did not in fact buy this interest from appellees. “Such knowledge (knowledge by grantee of a defect in title) may be considered, however, in determining whether it was intended that the covenant should extend to such defect.” 21 C. J. S. 908. Other circumstances reflected by the testimony tended to show that under the real contract between the parties appellant bought and appellees sold only their interests and shares, as heirs of their father, in the land described in the deed. If this was the actual contract'between the parties, then a mutual mistake, such as equity should correct, was made in the execution of a deed purporting to convey an interest in the land that appellant did not intend to purchase and appellees did not own or intend to convey.
The lower court’s finding on this question of fact not being against the weight of the testimony, it must bo affirmed. It is so ordered. | [
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Smith, J.
Resident taxpayers of Prairie county filed a complaint against a former collector of taxes for that county, which alleged that certain taxes returned delinquent had been paid to the defendant, within the time allowed by law, and that other taxes with penalties and costs were collected after having been returned delinquent, which had not been accounted for, as appears from a tabulation made a part of the complaint. There first appears a table showing taxes alleged to have been collected and not accounted for, for the year 1937, which gave the name of the taxpayer, the number of the school district in which he had been assessed, and the amount of • the taxes. A similar tabulation covers taxes for the years 1938 and 1939.
Two motions to make specific were filed, one of which was not passed upon by the court, which would have required copies of the receipts issued by the collector, for the taxes to be made exhibits. The other motion, which was passed upon and sustained, was one to require plaintiffs to state the date upon which the respective collections had been made.
A demurrer was also filed, upon the ground that the prosecuting attorney had not been requested, and had not refused, to bring the suit, the contrary affirmatively appearing from the allegations of the complaint. The demurrer was sustained, with leave to aménd, and to make the complaint specific, and when this was not done, the complaint was dismissed, and from that decree is this appeal.
We think the complaint was sufficiently specific to state a definite cause of action, and that it was error to order that it be made more specific. There were allegations covering each of the years 1937-1938-1939 separately, showing the name of the taxpayer, the school district in which he was assessed, and the amount of taxes assessed. The truth of these allegations, if true, would, of course, appear from the tax records. In addition, the plaintiffs would have the burden of showing that these taxes had been returned delinquent after having been paid, or had been collected after having been returned delinquent.
A more serious and difficult question is presented in the action of the court in sustaining the demurrer, because of the admitted fact that the prosecuting attorney had not been called upon to bring this suit, and had not refused to do so.
Opposing counsel have cited and reviewed the numerous cases which have dealt with this subject, and it must be admitted that there are inconsistencies in these cases, in some instances more apparent than real. We will' not attempt to review and reconcile these cases, or to point out the distinctions between them, but are con tent to announce definitely and-finally the proper and permissible practice in such cases.
Section 13 of art. XYI of the Constitution provides that: “Any citizen of any county, city or town may institute suit in behalf of himself and all others interested, to protect the inhabitants thereof against the enforcement of any illegal exactions whatever.”
The first question which suggests itself is, whether the collection and failure to pay over and account for these taxes is an illegal exaction within the meaning of this provision of the Constitution. We think it is, and it is not here contended that it is not. That it is an illegal exaction appears to be settled by the opinion in the recent case of Eddy v. Schuman, 206 Ark. 849, 177 S. W. 2d 918, in which case we quoted and approved the following statements from the opinion in the case of Farrell v. Oliver, 146 Ark. 599, 226 S. W. 529:
“ ‘The Constitution (art. 16, § 13) provides that “any citizen of any county, city or town may institute suit in behalf of himself and all others interested, to protect the inhabitants thereof against the enforcement of any illegal exactions whatever.”
“ ‘This court has construed that provision to mean that a misapplication by a public official of funds arising from taxation constitutes an exaction from the taxpayers and empowers any citizen to maintain a suit to prevent such misapplication of funds. Lee County v. Robertson, 66 Ark. 82, 48 S. W. 901; Grooms v. Bartlett, 123 Ark. 255, 185 S. W. 282. The provision quoted above refers, in express terms, to citizens of any county, city or town, but the exactions from which a remedy is afforded are not those limited to counties or towns, and this provision of the Constitution is broad enough to afford a* remedy against state-wide exactions which are illegal. Such is the effect of our decision in Griffin v. Rhoton, 85 Ark. 89, 107 S. W. 380.
‘ ‘ ‘ There is eminent authority for holding, even in the absence of an express provision of the Constitution, such as that referred to above, that a remedy is afforded in equity to taxpayers to prevent misapplication of public funds on the theory that the taxpayers are the equitable owners of public funds and that their liability to replenish the funds exhausted by the misapplication entitle them to relief against such misapplication. Fergus v. Russell, 277 Ill. 20, 115 N. E. 166.’ See, also, McCarroll, Commissioner of Revenues, v. Gregory-Robinson-Speas, Inc., 198 Ark. 235, 129 S. W. 2d 254, 122 A. L. R. 977.”
This Fddy case, supra, which appears to be the last pronouncement of the court on the subject, was one brought by a citizen as a taxpayer, and his right to maintain his suit in that capacity does not appear to have been questioned.
One of our first cases relating to this subject, which many of the later cases cite, is that of Griffin v. Rhoton, 85 Ark. 89, 107 S. W. 380, which was a suit by a citizen against a prosecuting attorney to recover fees collected by the prosecuting attorney in excess of the fees and perquisites allowed by § 23 of art. XIX of the Constitution, limiting the salary of state and county officers to $5,000 “net profits per annum in par funds,” and providing that “any and all sums in excess of this amount shall be paid into the state, county, city or town treasury as shall hereafter be directed by appropriate legislation. ’ ’ It was there held that this provision of the Constitution was not self-executing, in that the term “net profits per annum in par funds” had not been defined in subsequent legislation contemplated in the Constitution.
The opinion in the Griffin case, supra, concludes with the statement: “We have not deemed it necessary to discuss, at any length, the question of appellant’s right to maintain this suit. His right to maintain it depends upon whether or not the provision of the Constitution is self-executing. If we had reached the conclusion that the provision was self-executing, then a majority of the judges are of the opinion that, inasmuch as there'is no method expressly pointed out by the Constitution for enforcing the provision, a citizen and taxpayer could bring suit to require obedience to it, after the refusal of the attorney general to do so.”
Unlike § 23 of art. XIX of the Constitution, § 13 of art. XVI of the Constitution is self-executing, and requires no enabling act or supplementary legislation to make its provisions effective. This section of the Constitution last mentioned confers the right upon any citizen to institute suits in behalf of himself and all others interested to protect against the enforcement of any illegal exaction whatever.
This is made a class suit in which any citizen may sue for the benefit of himself, and all other interested citizens, and any citizen would have the right to be made a party, and this is a right which other citizens should exercise if there were any reason to apprehend that the suit was collusive between the parties, plaintiff and defendant.
This § 13 of art. XVI of the Constitution is not only self-executing, but it imposes no terms or conditions upon the right of the citizen there conferred, and we would be required to write something into the Constitution, which does not there appear, if we hold that this right was-'conditional. However, the General Assembly has the power to prescribe the practice to be pursued in its enforcement.
"We do not hold that the attorney general, where the interest of the state is involved, or the prosecuting attorney, in appropriate cases, might not institute such an action; but we do hold that the right of a citizen is not dependent upon the inaction of these officers, or either of them. We have rather .two methods whereby the interests of affected inhabitants may be protected. We find nothing in § 13 of art. XVI of the Constitution making the refusal of any officer to. bring this suit a condition precedent to the exercise of a right given without condition imposed upon its. exercise.
It is not contended that any case has ever held that a citizen may not sue when a prosecuting attorney refuses to do so; and we find no statute which requires the citizen to allege and prove that he made snch a request, where the authority for the suit is derived from the section of the Constitution above-quoted.
It was held in the case of Gladish v. Lovewell, 95 Ark. 618, 130 S. W. 579, to quote a headnote, that:. “A suit by a taxpayer against a tax collector to compel the latter to account for taxes collected by him will not lie in equity, in the absence of an allegation of refusal of the proper officers to sue.”
The opinion in that case must be construed, however, in the light of the statute there under consideration, which was a part of Act LXXVI of .the Acts of 1879, appearing as §§ 13980 et seq., Pope’s Digest, entitled, “An Act to Protect the Public Revenue from the Fraudulent Acts of County Officials and Other Persons,” and in the opinion in the Gladish case, supra, construing the portions of the Act of 1879 there quoted, Justice Hart said: “We are of the opinion that the chancery court had no jurisdiction. The statute provides that the suit shall be brought at the instance of a taxpayer, and that the proceedings shall be summary. The primary object of the suit under the statute is to oust the collector from office, if it shall appear that the official acts complained of are fraudulent; and the decree for the moneys which he may have unlawfully detained is a mere incident to the main suit.” It was there further said: “Equity has no inherent power to oust an incumbent whose title to the office has been forfeited by misconduct or other cause. Quo warranto, is the proper remedy in such cases unless the Legislature by express enactment or by necessary implication has placed the jurisdiction elsewhere. Mechem on Public Officers and Offices, § 478, and cases cited.”
The instant suit was not brought under the provisions of the Act of 1879, and it is not sought to oust the collector from his office. ^We hold, therefore, that the opinion in Gladish v. Lovewell, supra, did not intend to deprive the citizen of the right conferred by the Constitution, and such is not its effect. The difference between the procedure in suits predicated upon the Constitution and those based upon the Act of 1879 is pointed ont in the case of Baker v. Allen, 204 Ark. 818, 164 S. W. 2d 1004, which was a suit brought by a citizen as a taxpayer to recover certain fees and costs alleged to have been wrongfully collected by a sheriff and collector, and there was no allegation that the prosecuting attorney had been requested, or had refused, to bring the suit. Indeed, the opinion contains no reference to the omission. However, it does appear that the court ordered the plaintiff in the Baker case, supra, to execute a bond for costs. This order was based upon and required by § 3 of the Act of 1879, now appearing as § 13985, Pope’s Digest, which provides that: “Before any such cause shall be heard the petitioner shall enter into bond to the defendant with security, to be approved by the circuit judge, in sufficient sum to pay any damage that the defendant might sustain by said proceedings.”
We held that it was error to require this bond, and, in so holding, said: “The suit is predicated upon and is authorized by § 13, of art. 16, of the Constitution, and we know of no requirement that a citizen suing under this authority shall give a bond for costs.”
We conclude that, appellants herein have the right conferred by the Constitution to bring and prosecute this suit, and the decree from which is this appeal will be reversed and the cause will be remanded with directions to overrule the demurrer and also the motions to make the complaint more specific. | [
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Kirby, J.,
(after stating the facts). The only question for determination is whether the mortgage given on the crop 'by Bullock to appellant, Snerly, constituted a valid and subsisting lien on the rice crop grown on the lands by Beard, a tenant, under Ms lease from Stacey and Mabry, the owners of the land.
It is undisputed that no rice crop had been planted on the lands by Bullock, who, in 1924, mortgaged one-third of the rice crop for 1925 to Snerly, at the time of his conveyance of the lands to Stacey and Mabry on the 20th day of April, 1925; that the crop of rice was planted and produced by their tenant, Beard, no supplies whatever being furnished by Bullock, who had no interest whatever in the crop produced..
Mortgages on crops to be grown in the future constitute no lien upon the land upon which they are to be produced, and the lien formerly did not attach to the crop until it came in esse. The lien then attaches only to such interest as the mortgagor may have in the crop at that time. Jones on Chattel Mortgages, § 143a; Christianson v. Nelson, 76 Minn. 36, 78 N. W. 875; Hall v. State, 2 Ga. App. 739, 59 S. E. 26; O’Connell v. St. Louis Joint Stock Land Bank, 170 Ark. 778, 281 S. W. 385.
Our statutes, C. & M. Digest, §§ 7391-2, provide that mortgages on crops to be planted shall have the same force and effect to bind such crops and their products as other mortgages now have to bind property already in being, requiring only that the crops shall be planted within 12 months after the execution of the mortgage. This statute does not change the .law with reference to the subject-matter of the chattel mortgage, so far .as enlargement of the power of the mortgagor to create a lien on the property in excess of his interest therein is concerned.
In O’Connell v. St. Louis Joint Stock Land Bank, supra, the court said:
“* •* * The fact that the mortgagor was, at the time of the execution of the chattel mortgage, in actual occupancy of the land on which the mortgaged crop was to be grown did not afford grounds under the statute to extend the lien to crops grown by other persons after the mortgagor had been legally dispossessed.”
The mortgage executed by Bullock to Snerly could uot extend to crops raised by the tenant of Stacey and Mabry after the conveyance of the lands to them, said mortgagor having no interest in such crops, which were not raised by him, but were planted and raised by the tenant of his grantees, the then owners of the land.
This holding can make no difference in the decree, however, the lower court having held that the mortgagees Df the owners of the land were entitled to payment of their claim out of the crop proceeds before anything could be realized under the crop mortgage to appellant, since there is not enough of the funds on hand to satisfy the claim of the power company under its valid mortgage.
The decree is accordingly affirmed. | [
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Humphreys,-J.
This is an application in the form of petitions to the county court of Poinsett County, under § ,9 of act No. 106 of the Acts of 1925, amending act No. 277 of the Acts of 1919, to remove appellant as a commissioner of the Ozark Trail Road Improvement District of Poinsett County. The amendatory act provided for five commissioners instead of three, two of whom should he resident landowners in the western part of the district and three resident landowners in the eastern part of the district. Appellant was one of the three commissioners named in the amendatory act for the eastern part of the district. Section 9 of the amendatory act, under which proceedings to oust him as commissioner were begun, follows:
' “Any commissioner of this district who has lost the confidence of the landowners of his division of this district as established in § 1 of this act, shall he removed and his successor appointed by the county court, if a petition calling therefor is presented to the court, signed by 75 per cent, of the landowners within his division of this district. Such a petition shall not only call for the removal of the commissioner but must also name his successor, and it is hereby made mandatory on the county judge both to remove and to appoint his successor named in said petition. However, before removing any commissioner on petition, the county judge shall give notice to the commissioner concerned of the petition, who shall have at least ten days in which to examine the petition, after which time the county court shall consider the petition and shall determine that it contains at least the required number of resident landowners of his division of the district. At this hearing the commissioners concerned shall have the right to be present and have counsel. Likewise, the' county judge shall, on a petition signed by 75 per cent, of the landowners, fill any vacancy Avhich may occur on said board. ’ ’
Seven petitions in all were filed, four on September 5 and two on September 9,1925, and one on the 9th day of March, 1926. After the six petitions were filed in September, 1925, the judge issued the notice directed by the statute to appellant, but same was not served upon him and no hearing was had upon them pursuant to such notice. After the petition was filed on the 9th day of March, 1926, the county judge issued a notice to appellant that the court would consider the petitions on the 17'th day of April, 1926. On that day the seven petitions were consolidated, over the objection and exception of appellant. Each petition, omitting the signatures, is as follows:
“We, the undersigned, state that we are resident landowners' of that division of the Ozark Trail Road Improvement District which lies east of the range line separating range six and seven east, and we hereby respectfully petition your Honor, as county judge of Poinsett County, to remove E. B. Boyd as a member of the board of commissioners of said road improvement district and to appoint in his place and stead J. L. Drace of Deckerville as a member of such board of. commissioners.”
■ Appellant then filed the following- demurrer to the several petitions:
“Comes E. B. Bóyd, the commissioner whose removal is sought in various petitions filed in the office of the county clerk, and' demurs to each of the several petitions filed, for the reason that no one of the said petitions allege the statutory cause for the removal of a commissioner, namely, that he has lost the confidence of 75 per cent, of the resident landowners of his division of the - district. ”
In addition to the demurrer a number of defenses were interposed by motion. The cause was heard by the county court upon the consolidated petitions, demurrer and motions, resulting in the overruling of the demurrer and the motions and a judgment removing appellant- as a commissioner and the appointment of J. L. Drace as his successor. An appeal was duly prosecuted to the circuit court from the judgment.
When the cause was called in the circuit court, appellant renewed his demurrer, which was overruled by the court, over his objection and exception. All the defenses interposed in the county court and several additional ones were presented in the circuit court on a trial de novo, with the result that the judgment of the county court was in all things affirmed, from which is this appeal.
In stating the case we have not set out all of the defenses interposed by appellant to the consolidated petitions, as we think the court erred in overruling appellant’s demurrer to them. The petitions failed to state thé statutory cause of action for the removal of' appellant. It was not charged in the petitions that 75 per cent, of the resident landowners in the eastern end of the district had lost confidence in appellant. This was the sole statutory ground upon which appellant could be ousted,- and such charge should have been preferred by the petition. The Legislature named the commissioners, and the intent was that each was to continue to act in the capacity of such commissioner as long as he retained the confidence of over 25 per cent, of the resident owners of real estate in his end of the district.. It was clearly the intent of the Legislature not to allow the commissioners to be removed on the ground of unpopularity merely, or because they advocated some particular character of construction, or for any ground except the loss of confidence in them by at least 75 per cent, of .the landowners residing in that part of the district from which the commissioner was appointed. Although the Legislature recognized the right of the resident landowners in each end of the district to control the tenure of the term of each commissioner, should as many as 75 per cent, of them lose confidence in one of the commissioners, it did not vest them with the power to remove a commissioner at will. In all fairness to the signers of the petitions, as well as a commissioner against whom the petitions were being circulated, the charge should have, been clearly stated. If the petitions had stated that the signers had lost confidence in the commissioner, many of them might not have signed them. The circulation of petitions without, any specific charge in them would allow the. circulators to obtain signatures on any ground they could and.would permit resident landowners to sign the petition just because they did not want him, even though they retained confidence in him. The petitions extended too large a leeway to the signers thereof and-too much latitude to the áctive opponents of the commissioner. We think the petitions should have shown on their face that the signers thereof had lost confidence in appellant in order to state a cause of action for his removal.
Appellee cites the case of Frazier v. Kibler, 145 Ark. 517, 224 S. W. 960, las an authority in point to uphold the sufficiency of the petitions. It is true that the petitions for the removal of the board of commissioners in the case cited did not allege any cause for the removal, but the statute upon which the petitions were based authorized a removal of the commissioners by a majority of the real property owners if they were the owners of a majority of the acreage, or more than 50 per cent, of the lands in the district, upon request. It was not necessary to incorporate any charge in the petitions, because the statute did not require that removal be made for cause. In the instant case the statute did .require that, if a removal were made, it must ibe for la cause specified. In the Kibler case the decision was based upon the fact that the commissioners could be removed without cause, and for that reason it was not necessary to allege any cause. The Kibler case is not parallel with the instant case and does not rule it.
On account of the error indicated the judgment is reversed, and the cause is remanded with directions-to sustain the demurrer to the petitions.and dismiss them.
Justices Wood, Smith and McHaNey concurring. | [
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McHaNby, J.
Appellant was jointly indicted with three others, tried separately, convicted on a charge of manufacturing’ liquor, and sentenced to one year in the penitentiary. From the judgment and sentence against him he has prosecuted an appeal'to this court, but has not favored us with a brief in his behalf.
He has assigned eleven errors in his motion for a new trial, the first being the refusal of the court to permit the defendants in the indictment to elect who should be tried first, after the court had granted a severance in this case. This was not error. The assignment is based on the provisions of § 3140 of C. & M. Digest. Construing that section, in the case of Clark v. State, 169 Ark. 717-736, 276 S. W. 849-856, this court said:
“The provisions of the statute have been held to be directory merely. Where defendants jointly indicted sever, they stand in court as they would had they been indicted separately. If one is not ready for trial, or is not tried when his case is reached, the next in order of succession stands for trial like all other cases upon the criminal docket of the court.” See also Sims v. State, 68 Ark. 188, 56 S. W. 1072; Burns v. State, 155 Ark. 1, 243 S. W. 963; Harris v. State, 170 Ark. 1073, 282 S. W. 680.
Appellant here was the first named in the indictment, and was therefore rightfully placed on trial.
The next assignment of error is that the court erred in refusing to permit one Elmer Johnson to testify that he talked to two men, who told him they were operating the still at the place where appellant was found when arrested. This was purely hearsay testimony, and wholly incompetent.
A number of errors are assigned because of the court’s refusal to give requested instructions, and in modifying and giving instructions as modified over appellant’s objections and exceptions. We have examined these assignments of error carefully, and find that the court committed no error in the refusal to give requested instructions, and in modifying and giving as modified other requested instructions. It would serve no useful purpose here to set out these instructions and comment on them separately. The court’s charge, taken as a whole, was full, and fairly set forth the law applicable to the case.
The last assignment of error is that the verdict is contrary to the evidence. We have read the abstract of the evidence as prepared by the Attorney General, and have verified same from the transcript, and find it sufficient to go to the jury on the question of his guilt or innocence.
No error appearing, the judgment is affirmed. | [
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Humphreys, J.
This is an appeal by Fred W. Martin and Ida IT. Martin from a judgment rendered in the circuit court of Arkansas, County on the 24th day of August, 1926, against them, J, TI, Martin and Frank IT, Martin and’each of them, , in. fayor. \\qf \\app,elje5e.¡ for $1,123.33 with interest at the rate sjk ¡pe-r. cent. _ per annum from the date of the judgment. ;It was.alleged,in the amended and substituted complaint tha|e said .appellants were members of a partnership .trading’ under, thp name of “The Martin Company,”.to .whom appellee sol.d merchandise in the amount for which suit was brought. The original complaint referred to the partnership as J. H. Martin & Company, and did not allege that Prank II. Martin was a partner.
Appellants filed an answer, denying that they or either of them were partners in the Martin Trading Company. On September 15, 1926, they filed a motion for a new "trial on the ground that no proof was introduced in support of the issue raised, and that for such reason the, judgment was without evidence to sustain it. ’ Oh December 6, 1926, appellee filed a verified motion :i;pr correct the judgment entered on August 24, 1926, so as to show that, before the rendition of said judgment, proof was introduced to establish that appellants were members of the partnership of “The Martin Company.” After hearing testimony, the court corrected the judgment' so as to embrace a recital that proof was introduced before the original judgment was entered to show that appellants were partners doing business as “The Martin Company.”- The court then overruled the motion for a new trial, over appellant’s objection and exception.
Although appellants objected and excepted to the order of the court correcting the judgment, they did not preserve the objection and exception, either in a supplemental motion for a new trial or by amendment to their original motion for new trial. This court therefore cannot determine whether the evidence adduced by appellee on its motion to correct the judgment was sufficient to justify the correction. The rule is that this court will not consider alleged errors of the trial court unless embraced in a motion for a new trial. Van Hoozer v. Hendricks, 143 Ark. 463, 221 S. W. 378.
'The'recital in the judgment, byway of amendment, tb' the .effect-that 'the- trial court'heard-evidbhóé to show íj*-í ! / ¡ ' * ] ; *}' Ü-i-1 ! ‘ * i j 1' ‘ f j ¡¡ i»ni j j i ” * '4 (J ! t * ‘■’ü ,»/ I ri * that appellants, .wOrcí;iUQ2pDGrq oí r the partnership doing línslnesNas ^Tlíe 'Martin. ,Oon%anyM/mps.t!b'éiíaióceípWd bj-'tMs-cóüiH'ás''édncliiáiye of 'tná’t f'áct;1 !
Wb’Wbioli/.tbiiik^tbe'Nátíailee ftettfedir'títe^iiyiíiefe ^tT.^H/M’aárffiñ1 Fqnrjbany,!T 'siddf ‘^Tüé' M&Má’ ’ .boifíókíí^,s> ib! :tbé "tVb: homibihints'vis ¿lifficikht; to" !ébair'átíteibzé1'' 'th'é íattef'-éMÍ ■ás';a‘,sép!arate':ári'dí,diktitíct ’ihii't.1'* Bbdhih'ppeil.-laÍLts'iVé!rél :mádé' 'déféiídáíibs _ ib ;thfe flbát,;sñlt' j&'é -jfeWéfs the second, -alid"'the"‘saíne1 áe'eoüñt'1 wa's'íhttabhedí:áh“áíh ekhibi-hto botín com^'laínts^.bo'thbáccomitsvhavmghbeen made out against “The Martin Company. Vu.iTfeei fhjst gnit .-Map' fiied! within, the- 'statnt.bEy¡'pei’Í0d.í 0-f¡ .'Hpaithtions, and the aQeqnntThquefor.&ivas not ¡'baited^ c h->; r.m rr. /■>
No error appearing, the-'judgmept'lis: affibrnieflifl-;'i<> | [
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Mehafpy, J.
The appellant, plaintiff below, instituted this suit, alleging that, on or about' the 20th day of July, 1924, he entered into a contract with the Back-ensack Apartment Corporation to install plumbing, heating, gas piping and refrigeration in an apartment building being erected by it at Fourth and High Streets, Little Bock, Arkansas; that said building is located on lots 7, 8 and 9, block 7, Deaf Mute Addition to the City of Little Bock, Arkansas; that plaintiff furnished the material and did the labor under the said contract to the amount of $34.522.67; that he completed said contract on Febru ary 1,1925; tliat there is a balance dne him of $4,166.20, bearing interest from February 10, 1925, at the rate of six per cent, per annum; that be duly filed his lién against said property for the amount due him on March 26, 1925. Plaintiff then described the manner of acquiring title by Rackensack Apartment Corporation and mortgage that had been executed on the property, and prays for judgment, and that he have a lien, and that it he foreclosed. •
Defendants answered, denying that the corporation owned the land at the time the contract was entered into,'find denying all the material allegations of plaintiff’s complaint, denying that it was indebted to him in any sum, and alleging that, if it was indebted, he had no lien, but, if it was found that he had a lien, it was inferior to other liens described.
Defendant, Rackensack Apartment Corporation, filed a cross-complaint against the plaintiff, alleging that he had been overpaid, and asking judgment against plaintiff in the sum of $2,175.15.
The chancellor found in favor of the plaintiff on his claim of $4,166.20 and found against the defendant on its cross-complaint, hut found that plaintiff was not entitled to a lien.
The testimony was somewhat conflicting, and we think it unnecessary to set it out in detail. The chancellor found in favor of. the plaintiff in the sum of $4,166.20, and this court has many times held that, where the finding of the chancellor was based on conflicting testimony, his finding would not he reversed or set aside, unless it was clearly against the preponderance of the testimony. In this case we do not think that the finding as to the indebtedness due from defendant to plaintiff was against the preponderance of the testimony, and the chancellor’s finding as to this issue and the finding against appellee on its cross-complaint will be affirmed.
The appellee contends that the appellant is not entitled to a lien prior to the deed of trust for $200,000 to the Bankers’ Trust Company, and we agree with the appellee that the claim for $200,000, secured by mortgage to the 'Bankers’ Trust Company, constitutes a prior lien to the appellant’s claim. This deed of trust or mortgage is a first lien on the property.
It is next contended by the appellee that appellant did not have any lien for the'balance because, if there was any balance, it was for profits or for the payment of overhead expenses, and is not for any portion of any labor done or for materials furnished.
This court has held, as contended by appellee, that a contractor is not entitled to a lien, under the mechanics ’ lien law, for profits, but only entitled to a lien for labor that was actually performed by him or for material furnished by him.
In the first case relied .on by appellee, the court said:
“The contract for the construction of the building was introduced in evidence, and it provided that the sum to be paid to the contractor for the work and materials should be $12,000. * * * The proof in the case shows that a certain sum of money is due appellee as contractor, but it does not show that this is a debt due him for services performed by him or for materials furnished by him. In other words, so far as the record discloses, the amount due appellee may represent all or a part of the profits made by him in erecting the building, and has no reference to materials furnished by him or labor or services performed by him. If so, appellee has no lien under the statute. The right to the lien is found in the statute, and no one can .obtain a lien unless he brings himself within the provisions of the statute.” Royal Theater Co. v. Collins, 102 Ark. 539, 144 S. W. 919.
.The appellee also relies on the case of Cook v. Moore, 152 Ark. 590, 239 S. W. 750. In that case the court said:
“According to his own testimony, he made a contract to repair Gilliam’s house on a basis , of 8 per cent, commission on the entire cost of the labor performed and the material furnished;, so far as the record discloses, nearly all of the amount claimed by Moore represents the profits.made by him in repairing the house and the amounts paid by him to laborers and mechanics for working on it.” '
Neither of these cases are like the case at bar. If one makes a contract to furnish material and perform labor for a certain amount, and the contract provides that above that amount he is to have ia certain per cent, or a certain amount of money for his profit, of course he could have no lien for a sum due him as profit. But the contract in this case is not like that. This is a contract to furnish the labor and materials for a certain sum of money, and it would be wholly immaterial whether the contractor made a profit.or suffered a loss. He has a lien for the material furnished and the labor performed in making the improvement for the amount contracted to be paid. When one furnished material to go into'a building at a certain price, it is wholly ‘immaterial whether the material furnished by him cost him more or less, or whether it cost him anything at all. He might own the material already, or he might have acquired it without cost, but, when he agrees or contracts to furnish this material and labor for a certain price, he then has a lien for the unpaid part of the contract price on the improvement made.
It is said:
“Profits and commissions are not lienable items unless included in the contract price, as where the contract provides for the payment of cost of or reimbursement for the amount actually paid out for labor and material, plus a certain percentage as commissions, profit or compensations, or unless included in the reasonable worth of the labor or materials furnished, as where the actual cost is less than the reasonable worth.” 40 C. J. 77, and cases cited.
In this case there was a contract for a sum of money for the completed job, and therefore the items of labor, as well as the cost of the material, together formed the aggregate amount of the completed job.
This court has said:
‘ ‘ The account taken from the books of appellees contained items for labor, but the labor formed a part of the price of putting in the iron work as a completed job. And the appellees were entitled to a lien, not as for labor, but as for the price of material furnished in the place to be used.” Terry v. Klein, 133 Ark. 366, 201 S. W. 801.
Here, what appellee calls profits or overhead expenses formed a part of the price of putting in the improvement as a completed job, and the appellant was entitled to a lien for the amount due him.
Section 6909 of Crawford & Moses ’ Digest provides:
“The lien for the things.aforesaid, or work, shall attach to the buildings, erections or other improvements for which they were furnished or work was done, in preference to any prior lien or incumbrance or mortgage existing upon said land before said buildings, erections, improvements, or machinery were erected or put thereon, and any person enforcing such lien may have such building, erection or improvement sold under execution, and the purchaser may remove the same within a reasonable time thereafter; provided, however, that, in all cases where said prior lien or incumbrance or mortgage was given or executed for the purpose of raising money or funds with which to make such erections, improvements or buildings, then said lien shall be prior to the lien given by this act. ’ ’
It will be seen from this section that the $200,000 mortgage which was given prior to the commencement of work by appellant was for the purpose of raising money with which to erect the building. It is said that a portion of it went to clearing the title, but we think the $200,000 Avas, under the above quoted statute, a prior lien for the full amount. The other mortgages or liens mentioned are controlled by § 6911 of Crawford & Moses ’ Digest, which reads as follows:
“The lien for work and materials as aforesaid shall be preferred to all other incumbrances which may be attached to or upon such building, bridges, boats or ves- seis or other improvements, or the ground, or either of them, subsequent to the commencement of such buildings or improvements.”
It will be seen from this section that, if the appellant had commenced the improvement that he contracted to put in, it would make no difference how little he might have done prior to any of these other liens, his lien would be prior to any lien or mortgage which was attached subsequent to the commencement of his work. And there does not seem to be any dispute in the testimony or in the record as to these other liens and mortgages. They attached subsequent to the commencement of the Avork by the appellant.
In the view' that we take it becomes unnecessary to discuss the question of appropriation of payments. The finding of the chancellor in favor of the appellant for $4,166.20 will be affirmed, and the finding of the chancellor that the appellant does not have a lien is reversed, and remanded with directions to the chancery court to enter a decree giving the appellant a lien for the amount found to be due prior to all liens and incumbrances, except the $200,000 above referred to. | [
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Humphreys, J.
Appellant brought suit in the circuit court of Union County, Second Division, against appellees to recover a balance of $375 alleged to be due her under the following written contract, to-wit:
“State of Arkansas, county of Union.
‘ ‘ This agreement between Gf. F. Dougal, J. R. G-reen, J. H. Norris, Gr. W. Dougal and E. J. Dougal, as directors of the School District No. 43, in the county of Union, State of Arkansas, and Miss Lola MoDougald, a teacher who holds a license in sáid district,'is as follows:
“The said directors agree, upon their part, in consideration of the covenants of said teacher, hereinafter contained, to employ the said Lola MoDougald to teach a common school in said district for the term’ of six months, commencing on the 27th day of July, A. D. 1925, to pay therefor, in the manner and out of the funds provided by law, the sum of one hundred and twenty-five and no/10.0 dollars ($125) for each school month. Said directors further agree that all steps required or allowed by .law to be taken by said district and its officers to secure the payment of teachers’ wages shall he so had and taken promptly, and the requirements of the law in favor of the teacher complied with by said district. The teacher on- her first part agrees to keep said school open eight hours each school day; keep carefully the register required by law; preserve from injury, to the utmost of her power, the district property; give said school her entire time and best efforts during school hours, use her utmost influence with parents to secure a full attendance of scholars, .and generally comply with all requirements of this State in relation to teachers, to the best of her ability. It is further agreed that neither party will break 'or terminate this contract unless by mutual consent of both parties to the contract. Signature: F. Gr. Dougal, J„ R. Green, H. J. Norris, G. W. Dougal, E. J. Dougal, directors. Lola McDougald, teacher.”
It was alleged in the complaint that, after appellant taught the school for three months and received pay therefor, appellees discharged her without cause, and refused to allow her to teach for the remainder of the term or to pay her for the unexpired tim.e, although she was unable to procure employment elsewhere after mak-' ing diligent effort to do so.
Appellees filed an answer, denying the validity of the contract, and interposing the further defense that they discharged appellant because she was incompetent to teach the eighth grade, and because she could not maintain order and discipline in the school.
The cause was heard upon the pleadings and the testimony introduced by appellant, ;at the conclusion of which each party moved for an instructed verdict, whereupon the court instructed the jury to return a verdict for appellees upon the return of which he rendered a judg.ment dismissing appellant’s complaint. Appellant has duly prosecuted an appeal to this court.
Appellant introduced the contract, and testified, in substance, as follows:
That, at the regular annual school meeting in 1925, she met all of the directors except E. J. Dougal, and entered into ¡a contract with them to teach the school for six months, which was to begin when the new school building was completed, at which time the contract introduced in evidence was reduced to writing, executed and delivered to her; that the names of the five directors attached to the contract were signed to it by E. J. Dougal; that she taught the school for three months, and.received pay for the months taught at the rate of $125 per month; that she had a first grade certificate, and was competent to and did teach all of the grades taught in the public schools, and maintained order and discipline in the school; that the directors discharged her at the expiration of three months without cause, claiming* that she was inefficient and unable to maintain discipline in, school.
The trial court directed a verdict for appellees upon the theory that the written contract was ineffective because not made pursuant to a valid agreement previously entered into; and because the name of director Alfred West was not signed to it, and because the signatures of the directors were signed by E. J. Dougal, without an affirmative showing that he had authority to sign their names; and because, under authority of Bald Knob Special School District v. McDonald, 171 Ark. 72, 283 S. W. 22, handed down by this court on May 17, 1926, the ratification only applied to the part of the contract performed and did not extend to the entire contract. The case relied upon by the court was dealing with an oral contract which the directors had no right to make in the beginning, and not a written contract which they had la right to make; hence the rule of non-ratification announced therein was inapplicable to the instant case.
The undisputed facts in the instant case revealed that the contract was in writing, and that the only director whose name was not signed to it subsequently sent his children for a time to the school. The directors paid her for the time she taught under the written contract, in accordance with its terms. It is unnecessary to con sider or discuss the invalidity of the written contract, for, according to the undisputed evidence, it was ratified by ¡all the directors, under the doctrine of ratification announced in the cases of Dell Special School Dist. No. 23 v. Johnson, 129 Ark. 211, 195 S. W. 373, and Davis v. White, 171 Ark. 385, 284 S. W. 764.
On account of the error indicated the judgment is reversed, and judgment is directed to be entered herein in favor of appellant in the amount of $375, interest, and costs. | [
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Smith, J.
Appellant was indicted for possessing a still, was convicted, and has appealed. For the reversal of the judgment he first insists that the verdict is contrary to the law and the evidence, 'and that the evidence was not legally sufficient to support the verdict.
The testimony on the part of the State was to the effect that appellant and three other men were found in possession of a still, which had been moved just after dark in a truck. Portions of the still had been unloaded from the truck and were being taken into an old field, and appellant was assisting. Appellant admits being in the truck, but testified that he had been picked up in a drunken condition by the men who were driving the truck, and who intended to take him home, and that he knew nothing about being in the truck until the morning after his arrest. This testimony is sufficient to support the finding that defendant was in possession of the still, his. explanation of his own connection being a question of fact, which has been passed upon by the jury.
The court gave what may be called the usual instructions, to none of which objection is made, except that the court modified the third instruction requested by appellant. Certain other instructions requested by appellant were refused.
The third instruction as requested by appellant reads as follows:
‘ ‘ The court tells the jury that you cannot convict the defendant unless you believe from the evidence in the case,- beyond a reasonable doubt, that he had in his possession a still (and the fact that a still ivas found at the place testified to by the witnesses, if you believe such to be the fact, and defendant was found there, are not alone 'sufficient to warrant a.conviction in this ease).”
The court modified the instruction by striking out the part inclosed- in parentheses, and this action is assigned as error.
No error was committed in modifying the instruction as indicated. The instruction as given told the jury that the defendant could not be convicted unless they believed beyond a reasonable doubt that he. had a still in •his possession. . It-was, of course, not essential that he have the sole and exclusive possession of the still. The portion of the instruction stricken out was objectionable as .a charge upon the weight of the evidence. Bullard v. State, 159 Ark, 435, 252 S. W. 584.
Instructions were asked by appellant upon the presumption of innocence and upon the subject of a reasonable doubt, but "the instructions given by the court fully and correctly declared the law of those subjects.
.The court refused to give instruction'numbered 8, requested by appellant, which reads as follows:
“You are instructed that the defendant has a right to testify in his own behalf, and you should give to his testimony the same fair and impartial consideration that you-give to the testimony of any other witness. You should. not arbitrarily disregard the testimony ' of the defendant merely because of the fact that he is the defendant.”. . .
In the case of Davis v. State, 150 Ark. 500, 234 S. W. 482, the court gave-an instruction on the right of the defendant to testify, which was objected to by him upon the ground that it was error to single out.the testimony of the defendant-in a separate change on"the. subject of the credibility of the witnesses. We did not reverse the judgment in that- case- because this- instruction was given, but wfe did say that, ' .‘while the practice of declaring the rule of law relative to the credibility of an accused .separate from other' witnesses is not commended, the court has ruled that it is not reversible error to do so.” ■
In the recent case of Smith v. State, 172 Ark. 156, 287 S. W. 1026, tlie court refused to give, at the request of the accused, an instruction substantially the same as instruction numbered 8 set out above, and approving’ that-ruling we there said: “Number 3 related to the rig’ht of appellant to testify in his own behalf. It is within the-discretion of the trial court to give lan instruction relative to the right of a defendant to testify in his own behalf, but it is the better practice not to refer to his right or rules governing his credibility and the weight to be attached to his evidence, but to allow him to take his place along with all other witnesses, under the general icharge relative to the credibility and weight to be attached to their testimony” (citing cases).
Instructions were asked dealing with the manner of weighing circumstantial evidence, but these instructions were properly refused, as the State did not ask a conviction on circumstantial evidence. See also Cooper v. State, 145 Ark. 403, 224 S. W. 726; Cummins v. State, 163 Ark. 24, 256 S. W. 622; Barker v. State, 135 Ark. 404, 205 S. W. 805; Garrett v. State, 171 Ark. 297, 284 S. W. 734.
No error appears in the record, and the judgment must therefore be affirmed, and it is so ordered. | [
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Smith, J.
Appellee Darr owns the southwest quarter of section 34 and the east half of the southeast quarter of section 33, township 7 north, range, 17 west* and appellant Thompson owns, the adjoining land on the west and the north, and this litigation involves the location of the true boundary line between these coterminous owners.
Appellee had a fence on what he says is the true line, and appellant removed it, and the litigation began as a suit to enjoin that action. Five surveyors testified in the ease, two on behalf of appellee and three on behalf of appellant. The court accepted as correct the survey made by E. A. Woolverton, and the decree which awarded appellee the relief prayed was based on the testimony of this witness. Woolverton testified that he had been engaged in surveying for fifty-three years, and that for twenty-six years of that time he was the county surveyor, although he was not holding that office at the time his deposition was taken. Pie testified that, in 1886, he had located the essential corners from the Government field-notes, as the bearing- trees were then standing, and that he had had occasion to survey the line running north and south between-the east half of the southeast quarter of section 33, owned by appellee, and the west half of that quarter section owned by appellant, three times, twice before either of the litigants became owners and once since appellee had purchased the interest he now owns, and that he had twice run the line between sections 33 and 34.
Woolverton testified that, when he surveyed appel-lee’s west line, he commenced at the quarter section corner between section 33, township 7 north, and section 4, township 6 north, range 37 west, and ran due east 20 chains and 20 links, and continued that line to the northeast corner of section 4, township 6-north, range 17 west, and found that it was 20 chains and 20 links to the section corner, and that this was correct, and, when he first made that survey, the bearing trees were at the corner established by the Government survey, and that his subsequent survey made by him coincided with the first survey, and was verified when he found an iron stake which he had previously embedded in the ground.
On his cross-examination Woolverton testified as follows: “I began at the southwest corner of the Thompson land because I knew that corner to be correct. I then ran east 20 chains and 20 links, and set the southeast corner of the Thompson land and the southwest corner of the Darr land, then I ran north 40 chains anid 36 links to the northeast corner of the Thompson land, which is the northwest corner of the Darr land. Now I will state that the Government field-notes only give one mile even on the south lino of section 33, but by actual measurement from corner to corner I find that it is one mile and 80 links. I therefore divided that into forty-acre tracts, giving to each forty 20 links on the south boundary of section 33. I did that when I surveyed the Cook land; Cook owned the land south of 33, and also owned the lands that Darr owns in 34, and in surveying that I surveyed from one corner of section to the other, and the witness trees at the corner were still standing. I found, as I stated, there were 80 links more in measure-, ment than the G-overnment field-notes give it, and that is why I made the division as I did, giving 20 links to each forty. My survey does not vary from the Government field-notes on the south side of section 33; I can explain that, I think, to your satisfaction. The law is, and that is the instructions that we get, too, where we find that our chain measures more than is given in the Government field-notes, we adjust our chain so as to make the measurement they do. Instead of changing my chain, I made the division by my chain as I measured it. We are compelled to accept the corners as established by the Government, and we have to adjust our measure to that. There are 80.8 acres in the east half of the southeast quarter of section 33.”
The fact that the south line of section 33 is one mile and eighty links in length, instead of an exact mile, is one of the facts out of which the differences in the surveys arise.
H. L. Wright, another surveyor, testified that Wool-verton’s survey was correct.
The surveys hv the other three surveyors give appellant the strip of land in controversy, hut there are certain differences in these surveys, which we will not set out, which make it very probable that they were not as accurate in the location of the essential corners as Wool-verton had been.
Woolverton’s testimony makes it clear that, if his survey is not correct, the boundary lines of adjacent lands, which have long been accepted as correct, are erroneous to the same extent that appellant claims the disputed line is in error.
After the depositions of a ■ large number of witnesses had been taken, the cause was submitted to the court in May, which was an adjourned term of the regu lar January, 1926, term of the chancery court. The cause was submitted under an agreement that respective counsel might file briefs and a final decree he rendered in vacation settling the boundary line, hut reserving the question of damages. A few days after the submission the court advised counsel in the case that he recalled that Woolverton testified that his last survey coincided with the one he had made thirty years previously, and that hé had decided to •sustain Woolverton’s survey. This decision gave the disputed strip of land to appellee.
The court directed counsel to prepare the decree in accordance with this finding, and, if they were unable to agree, to advise him.
The precedent for the decree was not prepared, and, when the regular June, 1926, term of the court convened it appeared that counsel for appellee had prepared a brief on the question of damages* which had been served on the former attorney for appellant but had not been served on the attorney then representing appellant, and the cause was set down for a later date to afford counsel for appellant an opportunity to file a brief on the question of damages, but, when that day arrived, appellee ■waived the damages, and a final decree was entered on the record in appellee’s favor.
At the same term of court appellant filed a petition to vacate the decree and to reopen the case and to hear further testimony, it being alleged that the original decree had been based' upon the testimony of Woolver-ton, and that Woolverton had conceded that his testimony was erroneous, and that the survey giving the disputed strip of land to appellant was correct. Accompanying this petition were the affidavits of S. Gr. Davies and B. F. Stermer, surveyors, who had originally testified in appellant’s behalf, to the effect that Woolverton had admitted the correctness of the surveys made by affiants.
The court announced that the case would not be reopened except for the purpose of determining whether Woolverton had admitted the inaccuracy of his survey, and the petition appears to have been treated as a pro ceeding under § 1316, C. & M. Digest, which provides that, when grounds for a new trial are discovered after the term at which the verdict or decree was rendered, application may he molde not later than the second term after the discovery to set aside the judgment or decree. It was agreed that the affidavits accompanying the petition should he treated as depositions, and Woolverton was orally examined before the court.
These affidavits were to the effect that, after the final submission of the cause, the affiants, accompanied by Woolverton, re-ran the lines in question, and this survey established the line for which appellant contends, and Woolverton conceded that this survey was correct and his own previous survey incorrect. These affiants recited various circumstances connected with the survey made in Woolverton’s presence, some of which Woolverton admitted, while others he denied.
The court refused to permit Woolverton to again testify as to the accuracy of his survey, hut did permit him to make the following explanation of his acquiescence in the survey of Stermer, which survey was made in the presence of himself and Davies: “At the time that Thompson was talking to me (about the survey made after the submission of the cause) I thought that Stermer had made the right division. After figuring on it that night I decided that he made the wrong division as to the line between Thompson and Darr, and next morning T went to talk with him, and learned he had gone to the bottoms. I then hunted up Mr. Davies and told him that we had made a mistake that evening before as to the location of the line between Darr and Thompson; that I wanted to go up there and check it over' from the nearest known corner and see if we had made a mistake. Mr. Davies claimed we had made no mistake, and he did not care about it, so I hired a man and went there and checked over the line from the same starting point, and I gave Thompson twenty chains and twenty links, as I did in the first survey, and I found that the iron stake that I had put up that time had been moved. I then called Thompson’s man on the farm np there and marked the. place where the line should be, at twenty chains and twenty links east of the quarter section corner on the south side of section 33, which' Stermer and Davies accepted as the true corner, and I measured east from the twenty chains and twenty links, marked the place, and called Thompson’s man down there and showed him Avhere the corner should be. ’ ’
Having thus explained his acquiescence in the Ster-mer survey, Woolverton stated that his rechecking located the corner as he had located it in his previous surveys, and that this established the line as originally testified by him, and that his former testimony was correct.
We think the finding and decree of the court fixing the line in accordance with Woolverton’s testimony is not against the preponderance of the evidence, and we are also of the opinion that the court was warranted in refusing to set aside its decree upon the ground that Woolverton conceded that his first testimony was erroneous.
In this connection it may be said that it clearly appears that the line contended for by appellee between the east and west half of the southeast quarter of section 33 has been apparently acquiesced in for many years. Appellee testified that he had lan agreement with appel-' lant’s predecessor in title as to the line under which he built the fence which appellant tore down on the line which appellee contends is correct.
It was also shown that at one time a German, whose name is not stated, was in possession of the west half of the southeast quarter section 33, and that he had cleared a strip of land along the east side thereof, and Woolver-ton testified that he made a survey at least twenty years before the trial of the line between the east and west half of this quarter section, and that it appeared from this survey that the German had cleared over the line, and the German accepted this survey as correct, and built a levee on the line as established by Woolverton, which did not extend, however, the entire length of this dividing-line.
It may be said also that Woolverton was correct in Ms apportionment of the excess of the 80 links more than the mile which the Government field-notes showed to be the length of the south line of section 33, the apportionment being the addition of 20 links to the south line of each 40-acre tract bounded by the south line of the sec-ti on.
The surveyor could llot change the corners established by the Government survey, as these fixed monuments prevail over both course and distance. Meyer v. Board of Imp. Pav. Dist. No. 3, 148 Ark. 623, 231 S. W. 12. Section 2396 of the U. S. Revised Statutes so provides. •
The Supreme Court of Wisconsin, in the case of Levis v Prien, 73 N. W. 654, 98 Wis. 87, said:
“The unvarying rule to be followed in such cases is to start at the nearest known point on one side of the lost corner, on the line on which it was originally established ; to then measure to the nearest known corner on the other side, on the same line; then, if the length of the line is in excess of that called for by the original survey, to divide it between the tracts connecting such two known points in proportion to the lengths of the boundaries of such tracts on such line as given in such survey.”
Upon a consideration of the whole case the decree appealed from does not appear to be against the preponderance of the evidence, and it is therefore affirmed. | [
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Kirby, J.,
(after stating the facts). The act under which the drainage district was organized, special act No. 93 of 1917, provides how the delinquent assessment shall be collected by suit brought for the purpose, and that “proceedings and decrees shall be in the nature of proceedings in rem,” provides for the giving of notice of the pendency of the suit and the form of it, directs how the proceedings shall be conducted, about the decree and the sale and the making of the deed by the commissioner, and provides that “all deeds made by the commissioner, after the report of sale made bv him, shall have been duly approved as required for judicial sales, shall have the effect of vesting the title of owners of said lands or said property in the purchaser, in fee simple.”
Section 7 provides tire manner of redemption of the lands from such sale hy the owner or any person interested therein within one year after the date of said sale.
Section 8 provides that the lien for the assessments upon the lands shall he paramount to the rights- of persons owning or having an interest therein; while section 21 gives such lien priority oyer the lien of the State, county, road and school district taxes,
There is.no complaint of any defect in the organization of the district or irregularity in the levy of taxes or the sale of the lands for the payment thereof. Plaintiff only contends that the lands were sold for taxes upon constructive service only, in a proceeding in which it was not a party, and insists that it is entitled to redeem from such sale within the time allowed hy act 43 of 1915, five years from the date of the sale, and also that the Saunders Mercantile Company should have redeemed the lands from the tax sale, and cannot take advantage of the purchase thereof hy the McMillans for its benefit, not having done so.
The lands having been sold in accordance with the provisions of the special act creating the district, upon the .kind of notice therein required given, there appears to he no reason why the sale, should not be held valid. In the publication of the notice Herron, who was the owner and in possession thereof, was put into the notice, as the “supposed owner,” in accordance with the provisions of. the act, and certainly it was not necessary to include the name of the first mortgagee, under the circumstances, as the “supposed owner” of the lands.
The sale of the lands appears to have been made in conformance with the provisions of the law as to the notice required given, and the Legislature had the power to make such a law, as has been frequently held. Vietz v. Road Imp. Dist., 139 Ark. 572, 214 S. W. 50.
The holding in Simpson v. Reinman, 146 Ark. 417, 227 S. W. 15, upon which the 'appellant appears to rely,-in no wise affects the authority of the above case. In the Rein-man case a person was named as the “supposed owner” who had-no claim or interest in the land, while the'true owner was in the actual possession thereof, a condition altogether different from that obtaining here, where the true owner wias in possession and named, as the “supposed owner.”
Neither do we think there is any merit in appellant’s contention that special act number 92 of 1917, under which the drainage district was created, the terms of which were complete, providing for its organization, operation and maintenance, did not affect or change the time provided in the general act No. 43 of 1915 for the redemption of lands sold for such delinquent taxes, since there is no express repealing clause. It is true that, under that act, the period for redemption from sales of delinquent lands in improvement districts is five years, and any person is allowed to redeem who would have been permitted to redeem if the sale had been made by the collector for State and county taxes. The provisions of this special act complete in itself, covering the whole subject-matter, later passed 'by the Legislature and in direct conflict with the terms of the general act mentioned relative to the time allowed for redemption and the. persons permitted to redeem, and being the last expression of the legislative will, having a particular purpose, is exclusive and necessarily repeals by implication, those prior statutes, general or special, in conflict with its provisions. Boaz v. Coates, 114 Ark. 23, 169 S. W. 312; DeQueen v. Fenton, 100 Ark. 507, 140 S. W. 716; Hampton v. Hickey, 88 Ark. 327, 114 S. W. 707.
The holder of the second mortgage was under no obligation to the holder of the first mortgage to redeem the lands in possession of the mortgagor from their sale for delinquent taxes, notwithstanding the owner was bound to the payment of such taxes by the terms of the first mórtgage. The appellant, under his mortgage, could have paid the taxes before the lands were sold as delinquent, and charged them against the mortgagor, and it could have redeemed the lands in the manner provided by the act from the tax sale within the time allowed therefor after such sale.
Appellant makes no showing of having’ been prevented from either paying the taxes or redeeming the lands by any conduct of the holder of the second mortgage calculated to lull him into- security in the belief that such taxes would be paid or redemption would be made for his benefit.
We find no error in the record, and the decree is affirmed. | [
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Humphreys, J.
This suit was brought in the chancery court of Benton County by appellant, a resident citizen and real estate property owner in said county, to enjoin W. it. Edwards, county judge of said county, and his successors, and appellees Joe Beasley, W. E. .Patton and Kit Phillips, as commissioners of public buildings in said county, and their successors, from making any contract or taking any further steps toward carrying out the resolutions of the quorum court to build a new courthouse. The questions necessary to a determination of the issues involved on this appeal are, in substance, as follows:
: ' N ¡The quorum court, at its regular term in October, 1926," made-separate specific levies in mills for six county Í|itirp‘fis'éís?':á^g<leg,ating!3% mills, and a levy of 1% mills for .general cqunty . purposes.
.--..>2. ‘ A-motion-was then passed directing the county judge' and á- committee, to be appointed by'him from 'íá'emb’efs 'Of 'the’guofuin court," to, ihake investigation of the question of remodeling the" present courthouse or Building a'newpne, and to report to the quorum court at .9,11 ftdjpnrhed term to be held.
3.'■•■■This' committee was appointed by the county judge, and made the investigation and filed its report at said adjourned term. The report, in substance, stated that the courthouse was in such bad condition that it could not be remodeled; that it was necessary to build a new courthouse; that a new courthouse, fire-proof and modern and of sufficient size and capacity to meet the needs of the county for a great many years, could be built for approximately $200,000, and that such an amount could bo appropriated and paid out of the five-mill levies for general county purposes, leaving sufficient revenue to take care of the general county expenses, and that the couiity would get out of debt from the levies already made for the fiscal year 1927. The committee recommended that a new courthouse be built.
4. The quorum court at such adjourned term, Dec. 1, 1926, took up for consideration and action the matter of making an appropriation and levy for the building of a new courthouse, to be paid for out of successive levies to be made in the year 1927 and the following years, and authorized the building of a new courthouse, and adopted the following resolution and order: “Whereas, the quorum court has under consideration the necessity of building a courthouse for Benton County and the issuance of not exceeding $200,000 of noninterest-bearing warrants of the county for said purposes; and whereas, it is deemed to be to the best interests of the county that provision be made for the issuance of said warrants by the levying of a tax to pay them as they mature: and whereas, it had been calculated, that the amount of money necessary to pay said warrants as they mature in twenty installments of $10,000 each will be realized by levying a tax of one mill; be it Benton County, Arkansas: That a tax of one mill on the dollar of he assessd value of all taxable property within the sais warrants in the total amount of nor exceeding $200,000, maturing serially $10,000 per year for twenty years, beginning in the year 1928; that, during each of the years while ay of said warrants are outstanding and pais thereon, there shall be calculated the amount of money necessary during each of said years to pay the current installment maturing during said years, and a tax at a rate sufficient to raise said sum of money shall be levied by the quorom court, ans shall be assessed and collected during each of said years, and is hereby ordered levied, and is levied in so far as this court is authorized to do so, and said money when collected, shall be used for the purpose named and for no other purpose; and the full faith and credit of Benton Couty is hereby pledged for the payment of the same in the several amounts and in the successive years above stated.
5. Thereafter the following proceedings were had and done in the county court.
(a). the building of (lie courthouse. (b). Thu commissioners reported to tlie court ilmt they liad determined tliat it was necessary to procure a new site and that they had selected and purchased such a site, located on the east side of the public square at Bentonville. (e). The county court approved and conlirmed the finding's of the commissioners and ratified and approved their selection and purchase of a new site. (d). The commissioners also employed A. 0. Clarke as architect and made a contract with him, and his selection and the contract made with him were approved by the county court. The architect submitted plans and specifications for the building- of the courthouse, which were approved by the commissioners and the county court, and the commissioners were ordered to proceed to let a contract for the building as provided by law.
(6). The report made by the committee to the adjourned term of the quorum court, which is an exhibit to the complaint, shows that they held a number of meetings and had before them a number of architects, who examined the present courthouse, and who submitted proposed plans for a new courthouse and estimated costs, and one submitted a plan of remodeling the old courthouse, with estimated cost thereof, and all were of the opinion that it was not practicable or advisable to attempt to remodel the old courthouse. The court details the reasons on which the opinions are based, also details of proposed plans for a new courthouse.
The report of the building commissioners on the question of selecting a new site, which is also made an exhibit to the complaint, also goes into details as to the reasons therefor.
Appellees filed a demurrer to the complaint, which was sustained over the objection and exception of appellant, and, upon his election to stand upon the complaint without amendment, same was dismissed for want of equity, from which is this appeal.
The validity of the order of the quorum court is first assailed upon the ground that said court had no right to appropriate any revenue except that of the current year to build the courthouse. This court ruled, in the case of Kirk v. High, 169 Ark. 152, 273 S. W. 389, 41 A. L. R. 782, that. Amendment No. 11 to the Constitution did not inhibit a county from building a courthouse because it could not be fully paid for in one year, but that it might contract for the construction of a courthouse and appropriate the payment of the cost over a number of years; however, in doing so the other necessary expenses of government must be taken into account, so that the annual payment, together, with the other necessary expenses of government, should not exceed the revenues for the current or any succeeding year. It affirmatively appears from the complaint that, after paying the necessary expenses of government, there would be ample revenue each year derived from the five-mill levy permitted by the Constitution to pay the annual installment to become due upon the proposed contract for the construction of the courthouse.
The validity of the order of the quorum court is next assailed because it does not say, in so many words, “that the sum of $200,000 is hereby appropriated to pay for the building of a new courthouse in Benton County.”
We think that, when the entire resolution of the quorum court is read, the legal effect of the language used was to appropriate not to exceed $200,000 to build the courthouse, to be paid in twenty annual installments of $10,000 each, the payment to begin in 1928. It was clearly the intent, from the language used, to appropriate $2.00,000 for that purpose, and not merely an attempt to make specific levies for future years.
The validity of the order of the quorum court is next assailed because the court was without power to make a specific levy of one mill extending over succeeding years, beginning- with a levy of that amount in 1927. What the quorum court really did was to authorize the construction of a courthouse, not to exceed $200,000, and to appropriate that amount for the purpose, payable in twenty annual installments, and estimated that a one- ~~(1~i1it ~llar~~ ~ Bi ~b~I thad~ a;i~ii~ ~i~e1ôf tlici~1 ~ S:'Wu 362~~'~ `"~``
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( I boimd~b1 o~ r~ei~lie 1~b~nf~ ~ ~f~I1~ff±iu~1 ii~t~1m!~t' I~h'Mh1 ~sVb~1~!f~11 di~ ~fl1dei~ `t1~iO~ tr~c~fff~i' 1~g~tidii~ of th~ be~~ the �ii~lidr~Od~. ti~~t~d `th~t~~th fcftir ihiflron~ They s~d ei~t~ 1ii~ t]~e cO~t~F~h$i1id~ `i'ai~� 4O Fa `Oii1~P rhe ttpI~ t~t~k� f&(~t{Ae~ess�~r *pOR~~ df r~vei ei.t;3~hd tIa�~t !w i {1~~1ev~ f�r 1~dtisC~ r~o'~~ v~cii~1d~ �ai~�
$tO;b~YO~vhibh Mild1i~' a~m~1� f~I1~ff�iu~1 ii~t~1m!~t' I~h'Mh1 sVb~1~!f~11 di~ fl1dei~ `t1~iO~ tr~c~fff~i' •thp cftBstrj.ictip.xL of ttie courthouse,'. It,. would bftimpos-.siblq,to, build a courthouse if • speculation and:conjecture .merply .should be allowed, to ,ehfer jii making the .estimates •as,to the-amounts.nepessary to p.ay the necessary;go,ve,rn-¡menh expenses,.;;In. other wwls,- a mere suggestion, that if .plight 5 take, all of .the .rpyenue in any, .cBr.rpD-f, jmr,. jto pay the necessary government expenses should, lip.f ..preclude (thp quo rum. court from authorizing^ the construction, of 'the cpurthouse,' if a'sáñé'an&'reasonable pstimate Ilis’closecl that there would be sufficient left to Touilcl'a courthouse, on the installment plan, after paying the necessary expenses of government.
The validity of the order of the quorum court is next assailed because the court made no special order directing the county court and commissioners to make a contract to build a courthouse. It is not necessary, in order ‘to build a courthouse, for a quorum court to direct the county court to proceed and let a contract to build a courthouse. The extent of the power of the quorum court is to determine whether a courthouse shall be built, the cost thereof, and manner of payment. After this has been done the courthouse is to be constructed under the orders of the county court. Lawrence v. Coffman, 36 Ark. 641.
It is also contended by appellant that, if the order of the quorum court is valid, the contract proposed to be made by appellees would be invalid, because it is proposed to deliver and issue all of the warrants when the courthouse has been accepted, instead of issuing annually the amount of the installment due for the current year.
The warrants do not bear interest, so the time of issuance places no additional burden upon the county. They are simply the evidence of an indebtedness which will' exist under the contract, whether the warrants are issued or not. There is no constitutional or statutory provision inhibiting the issuance of noninterest bearing-warrants as evidence of the-indebtedness, or against all of them being issued when the courthouse is coiftpleted. The most common and practical method for handling transactions' of this character is to issue warrants for tlie contract price, if the comity is without cash to meet the obligation. We see no objection to issuing warrants to cover the work as it progresses and to issue and deliver the balance of them when the courthouse is completed according to plans and specifications. Shoffner v. Downell, supra.
It is- also insisted that the warrants would not be .valid if made payable out of a specific levy or fund, because the quorum court can only make an appropriation out of a general levy for the current year, and because the quorum court provides that the. warrants shall be paid out of a specific fund arising- out of a specific levy.
We understand that the order of the quorum court was an appropriation of $200,000 to be paid out of a levy of five mills in 2926 and by levies which are to be made each successive year to cover all of the expenses of government and not in excess of a five-mill levy. In other words, there was not a continuing levy of one mill annually for courthouse construction. The warrants should not, in that view, be drawn upon a specific fund, but should be drawn on the general county fund out of which the appropriation was made.
It is also insisted that the warrants will be void if the contemplated provision is inserted therein that they shall take precedence over other warrants issued'against the general county fund for the current year. No such provision should be inserted in the warrants, as the necessary expenses of government, as well as these warrants, are binding obligations, and must be paid.
Lastly, it is insisted that the quorum court should have determined whether the new site should be acquired, and that no new site can be purchased if the county already owns a site, although the old courthouse would have to be removed. ‘Sections 1933-5 of Crawford & Moses’ Digest authorize the county court to select and purchase a site for the courthouse, if necessary, and the only power vested by act of 1917 in tlie quorum court is the matter of determining when a courthouse shall be built, the amount of the expenditure therefor, and the manner of payment. Thompson v. Mayo, 135 Ark. 143, 204 S. W. 747.
There can be no question about the power of the county court to sell the old site after the new site has been-acquired. State v. Baxter, 50 Ark. 447, 8 S. W. 188; Little Rock Chamber of Commerce v. Pulaski County, 113 Ark. 439, 168 S. W. 848.
No error appearing, the decree is affirmed. | [
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Hart, C. J.,
(after stating the facts). The mortgage in favor of D. T. House was executed in December, 1921, and, according to the testimony of S. M. Jordan himself, he did not go into possession of the land until in February, 1922. He then went into possession of the land as purchaser under a mortgage foreclosure decree against J. H. McLain in favor of the Farmers’ & Merchants’ Bank. In June, 1922, the chancery court entered a decree of record allowing J. H. McLain to redeem the land from the foreclosure decree of the bank. The land was correctly described in the mortgage of House as being in section 16. By mistake it was described in the mortgage to Jordan as being in section 15, instead of section 16. The mortgage to Jordan was executed on the 11th day of February, 1921, and filed for record on the 30th day of March, 1921. The mortgage to House was not executed until the 12th day of December, 1921. The record of Jordan’s mortgage containing the description of the land as being in section 15 instead of in section 16, where it was actually situated, did not constitute con structive notice that it was intended to cover the lands in controversy. Storthz v. Bank of England, 123 Ark. 451, 185 S. W. 784, and cases cited. Jordan did not enter into possession of the land until in 1922 after the mortgage had been executed to House. The mortgage of House was filed for record in 1924, before the decree of the chancery court reforming the mortgage of Jordan. Therefore we are of the opinion thiat the mortgage of House was a superior and iprior lien on the land in controversy to that of Jordan, and the chancery court erred in not so holding.
On the cross-complaint of McLain but little need be said. The testimony introduced by McLain to sustain his claim of damages for injury to his 'orchard, as abstracted in the record, is entirely too vague and general to afford him any relief. On this point counsel for Jordan abstracted his testimony, and, according to it, Jordan took good care of the orchard while he was in possession of the land as mortgagee, and did not in any wise damage it. No useful purpose could be served by reviewing and discussing in detail the evidence on this branch of the case. We deem it sufficient to say that we are of the opinion that the chancellor correctly held in favor of Jordan on the cross-complaint of J. H. McLain.
We are of the opinion, however, that the .chancery court erred in holding that the mortgage of ¡3. M. Jordan was superior to that of D. T. House, and, for that reason, the decree in this respect will he reversed, with directions to the chancery court to enter a decree that the mortgage of D. T. House is superior to that of S. M. Jordan, and for further proceedings in accordance with the principles of equity and not inconsistent with this opinion. It is so ordered. | [
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Kirby, J.,
(after stating the facts). Appellants only insist here that no authority is granted by % 3630 of C. & M. Digest to extend the ditches or improvement, the same having been completed, and that the court could not authorize it done under the provisions of § 3625 of the statutes, which only permit alteration of ’the plans for the ditches or drains before the completion of the project; and that no authority is given by law for an issuance of bonds or levying taxes upon assessment of benefits already made, the law not authorizing the further issuance of bonds to make new or additional improvements.
Section 3630 of C. & M. Digest provides as follows:
“The district shall not cease to exist upon the completion of its drainage system, but shall continue to exist for the purpose of preserving the same, of keeping the ditches clear from obstructions, and of extending, widening or deepening the ditches from time to time as it may be found advantageous to the district; to this end the commissioners may, from time to time, apply to the county court for the levying of additional taxes. Upon the filing of such petitions notices shall be published by the clerk for two weeks in a newspaper published in each of the counties in which the "district embraces lands, and any property owner seeking to resist such additional levy may appear at the next regular term of the county court and urge his objections thereto, and either such property owners or the commissioners may appeal from the finding of the county court. ’ ’
This section declares that the district shall not cease to exist upon completion of its drainage system, “but shall continue to exist for the purpose of preserving the same, of keeping the ditches clear from obstructions and of extending, widening or deepening the ditches from time to time as it may be found advantageous to the district.” * * *
This does not preserve the district for any purpose other than expressly declared, and does not authorize the district to make a new or different improvement therein not in the nature of extending, widening or deepening the ditches already constructed, after the completion of the first one, as held in Indian Bayou Drainage District v. Walt, 154 Ark. 335, 243 S. W. 575.
In Bayou Meto Drainage District v. Ingram, 165 Ark. 318, 264 S. W. 947, the court held that the plans of the improvement could he altered before the project had been completed, as originally planned, allowing the extension of the boundaries of the district to include 'additional lands, which would necessarily be benefited by the extension of the main ditch, saying, relative to the completion thereof:
“The statute clearly takes cognizance that a drainage scheme is ineffectual and incomplete unless the water is completely gathered up and an outlet provided for carrying it entirely away. In other words, the statute contemplates that a drainage ditch does not drain unless the water is taken care of and entirely carried away. So there is a clearly expressed purpose on the part of the lawmakers to authorize everything that is necessary to get the water off the land and into an outlet which will carrry it somewhere into the open channel of a stream. ” * * #
Appellants contend that-the case of Clay v. England, 172 Ark. 373, 288 S. W. 895, is in point, and holds conclusively that § 3630, C. & M. Digest, does not authorize the extension of the ditches herein. It was only held there, however, that the new canal, proposed to be constructed to furnish an adequate outlet, being no part of the original plans of the district, as approved or revised, could not be authorized constructed under the statute, the plans having been fully completed.
Authority is expressly given by said section of the statutes for the purpose of preserving the drainage system, keeping the ditches clear from obstructions and “of extending, widening or deepening the ditches from time to time as it may be found advantageous to the district.” Giving these words of the statute tbeir plain^and obvious meaning, it is manifest that the Legislature intended that the district should have the authority for extending, widening or deepening the ditches £ ‘ as it may be found advantageous to the district” to do. Extending can mean nothing else, in the connection used, but lengthening, since-authority is also given for widening and deepening the ditches already made.
It is not contemplated here that a new or different canal or ditch shall be constructed, but only that the main ditches shall be extended or lengthened to reach or terminate in an adequate outlet which was in contemplation at the time of the adoption of the original plans as suggested in the engineer’s report. In fact, the project has never been more than substantially completed, since the one ditch lacks about 50 feet and the other about 100 feet of being carried into the small channel of the river. It was substantially completed, however, since the construction was stopped at this point and the water carried by wearing its way into the channel of the river.
When the construction was stopped, the necessity for an adequate outlet was more apparent, and it was contemplated that another district might be formed, joining the one in operation, for extending the improvement on to an adequate outlet in the open lake. This was hot accomplished, and, even though the original plans may be regarded completed and the improvement constructed, preventing the change or alteration of the plans, nevertheless, under the provisions of the statute authorizing the “extending, widening or deepening the ditches,” power is given and authority conferred to lengthen or extend the ditches into an adequate outlet, as held by the lower court.
There is no conflict between this holding and any heretofore made in the construction of these statutes.
The court below found that the lands through which the extension would be constructed would not be benefited, and they could not, of course, be required to be included in the district. Tlie statute expressly authorizes the district, where necessity requires it, to obtain a proper outlet 'for the drainage system, to construct ditches on lands beyond the limits of the district and outside the jurisdiction of the county court. Section 3629, C. & M. Digest.
The lands of the district being in more than one county, the proceeding must necessarily be before the circuit court, as the statute provides, which procedure was followed in this cause.
The judgment and orders of the lower court authorizing the procuring of the right-of-way for the extension of the improvement or outlet and the assessment of benefits and issuance of bonds for the completion thereof are correct and in all things affirmed. | [
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Smith, J.
Appellant insurance company issued a policy of insurance to W. M.. Floyd, payable to bis wife, for the sum of $100, and increasing $20 per month until a maximum of $1,000 was reached. The insured died August 5, 1925, and the policy at that time, if valid, was worth $580, and the beneficiary brought suit for that amount, together with penalty and attorney’s fee. The policy was written July 8, 1923, and the insured was not required tó submit to a medical examination to obtain it. ‘ He was required, however, to make an application in which numerous questions were asked concerning the existing and previous condition of his health.
The question was asked: “Give the name and address of doctor last consulted and date,” to which question the applicant answered: “Doctor Downey, of Cecil, Arkansas — 9 years' ago.”
Certain diseases were specifically inquired about, one of these being rheumatism, and the' applicant answered: “I had one attack of rheumatism about--6 years ago.”
The application contained the question: “Have you ever had any disease of the following organs -. lungs— tuberculosis?” and to each of these questions the applicant answered: “No.”
After answering the various questions asked, the applicant signed the following statement:
“It is hereby understood and agreed that each and all of the foregoing statements and answers were made by me to ..obtain a policy of insurance in the Southern Mutual Life Association, and in consideration of the reduced- rate of the policy which may ■ be issued 'me hereon, and the fact that no medical examination is required; the Southern'Mutual Life Association, relying solely on my statements and answers, to questions contained herein for information as to -my eligibility, I do hereby warrant and declare said answers and statements to be absolutely full, trué and complete. It is hereby covenanted, declared and agreed that all statements answers and provision's contained in this application shall, together with the by-laws governing said association (now in force or which may hereafter be adopted) be the basis of and form a part of the contract between the applicant and said association, and the policy which may be issued upon this application shall be accepted by said applicant upon the express condition that, if any statements or answers in said application are untrue or are in violation of any term or condition or covenant of said policy or by-laws (now in force or which may hereafter be adopted), then said policy shall be null and void, and all benefits thereunder shall be forfeited. ’ ’
The testimony shows that the insured died of tuberculosis on the 5th day of August, 1925, and it is insisted by the insurance company that the insured was suffering frqm that disease at the time the policy was issued, and that this condition constituted a breach of the warranty to the contrary, which invalidated the policy. It is also insisted by the .insurance company that the applicant falsely stated that the last physician consulted by- him was Dr. Downey, nine years prior to the date of the application, whereas the insured had consulted and been treated by Dr. Hill, of Mulberry, Arkansas, six years before the date of the application.-
The court gave, at appellant’s request; an instruction which told the jury that the answers contained in the application were warranties, and that, if the answers were false, there could be no recovery on the policy sued on, but appellant insists that, under the undisputed testimony, a verdict should have been directed in its favor, for the reason that the insured had tuberculosis at the time of his application, and made a false statement as to the date when he had last consulted a physician.
The following testimony was offered tending,, to show that the insured had tuberculosis at the date of his application: The father of the insured, made an affidavit to that effect, but, when called as a witness by appellant, he repudiated the affidavit and testified that he could not read or write, and that the affidavit had not been read over to him, and that he did not state that his son, the insured, had tuberculosis. An attempt was made to offer in evidence an affidavit mad§ by Dr., Hill, who attended the insured in his last,, illness. In Dr. Hill’s affidavit he stated that he had. treated .the insured for tuberculosis in 1920 and 1922, which was prior to the application for the policy. Dr. Hill was dead at the time of the trial, and an objection was sustained to the introduction of his affidavit upon the ground that the matter was privileged and that the affidavit was hearsay. There was no error in this ruling. This affidavit was not a deposition, and was properly, excluded by the court. .
Dr. J. E. Johnson, a physician in charge of a hospital devoted to the treatment of tuberculosis in Fort Smith, testified that he treated the insured for. tuberculosis in June, 1924, and that the case was then chronic. This, however, was practically a year after the date of the application, and Dr. J. B. Trice, who was called as a witness for appellee, testified that the disease of. tuberculosis could become chronic in that time. .
A. B. Henderson, a druggist, testified that, in the fall and winter of 1921 and 1922, the insured was about five feet eight inches tall, weighed only about 135 pounds, arid was stoop-shouldered and thin-chested and had a sallow complexion, and that he saw Dr. Hill give the insured a medicine which was used in the treatment of tuberculosis. The witness could not state, however, that the medicine- had been prescribed for the insured himself.
We cannot say that the jury , must necessarily have found, from this testimony that the insured had tuber-ciilosis at the. date of his application.
In the very recent case of Modern Woodmen of America v. Whittaker, 173 Ark. 921, 293 S. W. 1045, it was held that the statement, of an applicant for insurance, which was made a warranty by the provisions of the application, that he was in good health, should be construed as meaning only that the insured believed himself to he in good health.
It is also insisted for the.reversal of the judgment, in the plaintiff’s favor that the insured falsely answered that he had last been treated by Dr' Downey nine years before the date of the application, whereas the testimony showed he had. been treated six years prior to that date by Dr. Hill for rheumatism.
This last testimony was elicited from the beneficiary in the policy, who testified in her own behalf. She testified that she was present, when the application for the. insurance was made, and that her husband stated to the agent of the insurance coihpany, who filled the blanks, that Dr. Hill had treated hér husband for rheumatism, six years prior to that date, but that' it appeared the agent had not written clown the answer in full.
In the case of Mutual Aid Union v. Blackmall, 129 Ark. 450, 196 S. W. 792, it was held that “knowledge affecting the rights of the insured which comes to the agent of the insurance company while he is performing the duties of his agency in receiving applications for insurance and delivering policies, becomes the knowledge of the company; and the insurance company is bound thereby, in spite of a provision in the policy to the contrary, where the agent who solicited the business was charged with the duty of asking the applicant questions ' concerning his physical condition. ” - See ■ also People's Fire Ins. Assn. of Ark. v. Goyne, 79 Ark. 315, 96 S. W. 365, 16 L. R. A. (N. S.), 1180; Springfield Mutual Assn. v. Atnip, 169 Ark. 968, 279 S. W. 15; Ark. State Life Ins. Co. v. Allen, 166 Ark. 490, 266 S. W. 449; Old Am. Ins. Co. v. Wexman, 160 Ark. 571, 255 S. W. 6; Home Mut. Ben. Assn. v. Rowland, 155 Ark. 450, 244 S. W. 719; Home Mut. Ben. Assn. v. Mayfield, 142 Ark. 240, 218 S. W. 371.
The testimony of - the beneficiary is to the effect that the applicant correctly and truthfully answered the questions as to the. names of the physicians who had treated her husband, and is. to the effect that there was no collusion between the company’s agent and the insured. Moreover, the application contains the answer that the applicant had an attack of rheumatism six years before the date of the application, so that the insurance company was advised of that fact when the policy was written, this being the occasion. when the. beneficiary testified her husband had been treated by Dr. Hill. ■ In the' application. the. insured was asked to give the names of two doctors who.knew him, and the name, and- address -of Dr.-Hill was. given, in ansiver to-this .question.,
■ • ■ Under the facts stated we cannot say, that the jury was not warranted in finding that ther.e ,-bad, been no breach of the Avarranty in either of the particula-rs stated, and the judgment-must therefore be affirmed, and it -is so ordered. . ■ . ■ . ■ • | [
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McHaNby, J.
Appellant was convicted in the justice of the peace court and fined $25 and costs on a charge of driving an automobile on a public highway or street while intoxicated. He appealed to the circuit court, where he was again tried and convicted and fined $30 and costs. From the judgment against him he has duly prosecuted an appeal to this court.
The first assignment of error urged for a reversal of the case is that the court erred in permitting the wit ness James Webb to relate a conversation be bad with the appellant on the day the offense was committed, some time prior to bis arrest, in which be told appellant, in substance, that be bad better not go on the fair grounds “cutting np with bis car” as be was. We think this testimony was competent, as, although the witness did not say positively that the defendant was intoxicated, it tended to prove intoxication at the time the witness, was riding in the car with him and gave him such advice. The witness had been picked up by the appellant on his way to the fair grounds, and rode into the fair grounds with him, and, while he stated he did not know whether he was drunk or not, he did state that he was acting funny, and the statement the witness made to appellant, and the advice given him about not going on the fair grounds ‘ ‘ cutting up that way, ’ ’ was competent, as tending to show the .condition appellant was in.
The next assignment of error relates to the refusal of the court to give appellant’s requested instructions numbered 1, 2 and 3, the effect of all of which was to tell the jury that they could not convict the appellant if they found that the offense charged against him was committed in the fair grounds. This charge was brought under § 1 of act 250 of the Acts of 1923, page 200, which reads as follows: “Hereafter it shall be unlawful for any person to drive any automobile, truck or motor-driven vehicle on any of the public highways of this State, or over or upon any of the streets of any city or town in the State of Arkansas, while in an intoxicated condition.” The principal contention of counsel for appellant is that the offense was committed, if at all, in the fair grounds, and not on any of the public highways of the State, or upon any of the streets of any city or town in the State. A careful examination of the evidence has convinced us that there was sufficient evidence to go to the jury on the question of his guilt of the charge of driving a car on a highway while intoxicated, outside of the fair grounds. It is not disputed that he passed in and out of the fair grounds several times dur ing the day and night, and up until the time of his arrest,* ■which was about 9 p. m., and that he not only drove his car in the fair grounds, but over the highway leading to the fair grounds. The court instructed the jury in No. 7, over appellant’s objection, as follows:
“I instruct you further, gentlemen, that any public highway or thoroughfare used for 'the passage of the public would be considered a public highway; and, before you would be authorized to convict the defendant, you must find that he was operating a car, an automobile, on a ‘public passageway’, thoroughfare or street, and that ■he was in an intoxicated condition, and that beyond a •reasonable doubt.”
We think the above a correct declaration of the law ■on this subject. In the case of Arkansas River Packet Co. v. Sorrels, 50 Ark. 466-472, 8 S. W. 683, Mr. Justice Battle quoted from 3 Kent, Commentaries, page 432, in part as follows: “Every thoroughfare which is used by the public, and is, in the language of the English books, ‘common to all the king’s subjects,’ is 'a highway, whether it be a carriage way, a horse way, a foot way, or a navigable river. ‘It is’, says Lord Holt, ‘the genus of all public ways.’ ”
A number of definitions of the word “highway,’.’ as defined by the different courts, may be found in vol. 4, Words & Phrases. Under these definitions, and the one quoted above, we are of the- opinion that the driving ■ of a car, while intoxicated, over the passageway, through the gates of a fair ground and over the roadways provided therefor within the fair grounds, falls vdthin the prohibition of the statute, and that appellant would be guilty of the offense charged if the proof showed the offense to have been committed within the fair grounds alone.
These are all the errors complained of. We do not set the evidence out, nor the requested instructions in full, as it would serve no useful purpose.
Judgment affirmed. | [
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Kirby, J.
This appeal comes from a decree of the chancery court of Phillips County canceling a deed made by appellees to appellant, conveying 156.86 acres of land, upon allegations that same was procured by false and fraudulent representations and impositions upon the grantors, aged and ignorant negroes of feeble mind and intellect, lacking capacity to make such conveyance.
The answer denied the allegations of the complaint; alleged that the grantors understood the nature of the transaction; that, although the deed recites only the payment of $10 consideration and other good and valuable consideration, the grantee agreed to pay $2,000 for the lands, and executed 10 promissory notes for the sum of $200 each, payable yearly, one each year, on the same date, the first one the 24th of March, 1925; that she also assumed the payment of an indebtedness to the bank of $400, secured by a mortgage on the land; had paid the interest of $40 due thereon and kept it up since; made improvements thereon amounting to $769.39; that they had put the lands into appellant’s hands to sell, and, after several unsuccessful attempts to make the sale thereof for $2,000, they had importuned appellant to purchase the lands, which was done on the terms alleged.
The testimony shows that the grantors, old and feeble, past 70 years of age, lived alone on the lands, and were not able to cultivate them; that they were ignorant and childish and incapable of intelligently comprehending their acts or making a valid conveyance of their lands; that they did not understand they had made such a conveyance anyway, but only thought they had executed a contract to convey at the end of the. 10 years, when all the consideration was paid, and that the .contract and notes would be held by the bank until it was performed. There does appear in the record a copy of a contract of the kind, bearing date two days after the execution of the deed.
The testimony is in conflict as to the mental capacity of the grantors in the deed, hut we cannot say that the finding of the chancellor, that they were incapable of intelligently comprehending or acting upon the affairs out of which the conveyance grew and understanding the nature and consequences of their act in making it, is against the preponderance of the evidence. In this kind of a conflict the chancellor’s finding has persuasive authority, and is entitled to weight and consideration.
The evidence discloses, as found, that the lands were worth about $5,000, that they were conveyed for a grossly inadequate consideration by these old negroes, and,no lien retained in the deed nor security given even for the payment of the amount agreed to be paid.
One of the witnesses, a merchant and banker, who had known and dealt with the appellees for 20 years, testified that, in his opinion, they were incapable of making a valid conveyance of their property; that they had approached him and desired to convey their lands to him if he would take care of them during the balance of their lives, but he did not believe them possessed of sufficient understanding to make a conveyance of their lands, and would not permit them to do so. Then, too, appellant’s husband, who negotiated the transaction for her, was the family physician of the grantors.
Other witnesses testified that the grantors had sufficient capacity to understand the consequences of their act and to make a valid conveyance of their lands, and that the arrangement made with appellant was really to their advantage under the circumstances, if faithfully carried out.
The rule under which such conveyances are- set aside has been followed by the court since its announcement in Kelly’s Heirs v. McGuire, 15 Ark. 555, as follows:
“While the solemn contracts between men should never be disturbed on slight grounds, yet it may per haps be assumed as a safe general rule that, whenever a person, through age, decrepitude, affliction or disease, becomes imbecile and incapable of managing his affairs, an unreasonable or improvident disposition of his property will be set aside in a court of chancery. ’ ’ See also Oxford v. Hobson, 73 Ark. 170, 83 S. W. 942; Boggianno v. Anderson, 78 Ark. 420, 94 S. W. 51; West v. Whittle, 84 Ark. 490, 105 S. W. 955; and Morton v. Davis, 105 Ark. 104, 150 S. W. 117.
The chancellor also ascertained the balance due appellant on account of payments and improvements made after charging her with rents for the time the place was occupied, and fixed a lien on the lands for the payment thereof.
On the whole case we find no prejudicial error, and the decree is affirmed. | [
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Kirby, J.,
(after stating the facts). The chancellor correctly held the transaction to be an Oklahoma contract and governed by the laws of that State. The application for the loan was made through the representative at Conway, Arkansas, of the F. B. Collins Investment Company of Oklahoma City, where it was approved and the papers evidencing the loan and mortgage securing same were prepared, the notes and bonds bearing date of that place. The papers were forwarded to Conway, Arkansas, where they were executed by Smith and wife, and .returned to the investment company in Oklahoma City, which sent its check on an Oklahoma bank to the mortgagees in Arkansas for the $1,000 loaned them. Dupree v. Virgil R. Coss Mortgage Co., 167 Ark. 18, 267 S. W. 586, 1119, and Virgil R. Coss Mortgage Co. v. Jordan, 167 Ark. 36, 267 S. W 590.
The F. B. . Collins Investment Company, an Oklahoma corporation, authorized to do business in Arkansas, was engaged in the business of lending money upon farms in this State and elsewhere, negotiating and consummating its loans through its officers, F. B. Collins, president, and T. M. Miller, vice president. Its representative in the State of Arkansas procured the application of Smith and wife for the loan of $1,000, which was made, the prin-, cipal note for the $1,000 loan being made payable to F. B. Collins, bearing interest at the rate of 6 per cent.' per annum till due, and with the interest coupons bearing 10 per cent, after due till paid. This company charged a commission or brokerage, for making said loan, of $400, evidenced by three notes, one for $40 and two for $180 each, due on December 1, 1921, ’22 land ’23, respectively, all of said notes bearing interest at 10 per cent, from maturity and payable to T. M. Miller. The first and second mortgages were executed to secure the payment of said notes. This was all one transaction, and, notwithstanding the application made by the borrower, through its Arkansas representative, appointed the F. B. Collins Investment Company of Oklahoma City his agent to procure the loan, and authorized it, as his attorney, to do so, the investment company itself made the loan and charged the brokerage through its officers, taking the loan and brokerage notes, the note for the loan payable to F. B. Collins, who was its president, and the note for the brokerage to T. M. Miller, its vice president, and in doing so was not the exclusive agent of the borrower, and necessarily acted as the agent of the lender, since the investment company could not act otherwise than through its said officials in making the loan and charging the brokerage. McHenry v. Vaught, 150 Ark. 162, 234 S. W. 995, and Dupree v. Virgil R. Coss Mortgage Co., supra.
The brokerage charged for procuring the loan by the agent of the lender with the 6 per cent, interest reserved for the use of the money, the amounts exacted were about $228 more than the ten per centum allowed to be paid, and constituted a usurious contract under the laws of this State. Green v. Conservative Loan Co., 153 Ark. 219, 240 S. W. 13, and Virgil R. Coss Mortgage Co. v. Jordan, supra. This is not relieved against by the provision that usury was not intended to be charged, since no mistake is claimed or was made in the amount exacted, which is more than the law allows to be charged.
The contract being made in Oklahoma, where it is not void for usury, will be enforced and adjudicated by the courts of this State precisely as it would be adjudicated in the courts of that State. Dodd v. Axle-Nut Sign Co., 126 Ark. 14, 189 S. W. 663; Matthews v. Payne, 47. Ark. 58, 14 S. W. 463.
The appellants recognized that the contract might be held to be an Oklahoma contract, and, in the amendment to their answer, alleged, as a counter-claim or set-off, that, under the laws of that State, the contract being usurious, they were entitled to recover twice the amount of the total interest charged or carried by the principal note, and prayed in the alternative judgment for $1,200 as a set-off.
The Oklahoma statutes relative to the legal and contract rate of interest and the forfeitures for a charge of excessive interest provide:
“The legal rate of interest shall not exceed six per cent, in the absence of any contract as to the rate of interest, and by contract parties may agree upon any rate not to exceed ten per cent, per annum. Said rates of six and ten per cent, shall be, respectively, the legal and the maximum contract rate of interest.
“The taking, receiving, reserving or charging a greater rate of interest than is provided by the preceding section shall be deemed a forfeiture of twice the amount of the interest which the note, bill.or other evidence of debt carries with it, or which has been agreed to be paid thereon. In case a greater rate of interest has been paid, the person by whom it has been paid, or his legal repre sentatives, may recover from the person, firm or corporation taking or -receiving the same, in an action in the nature of an action of debt, twice the amount of the entire interest paid; provided, that such action shall be brought within two years after maturity of such usurious contract; provided further, that, when any suit is brought ■upon any note, bill or other evidence of indebtedness or to foreclose any mortgage or lien given to secure such indebtedness, when a greater rate of interest has been collected, reserved, charged or received than is provided for in this act, the defendant, or his legal representatives, may plead as a set-off or counter-claim in said action twice the amount of the entire interest collected, reserved, charged or received in said transaction or in all of such transactions between the same parties.” (Act 1916). Sections 5097 and 5098 of the Oklahoma Compiled Statutes, 1921.
Although, under the territorial government, the maximum contract rate of interest was twelve instead of ten per cent., as now, according to the rule for the calculation of interest for testing a contract for usury, recognized as correct from territorial times by the courts of that State, the contract herein is not usurious, the $1,000 loan for 10 years at 6 per cent, only reserved $600 interest, while the three brokerage or commission notes, one for $40 and two for $180 each, secured by the second mortgage, when considered as a charge for the money loaned, only amount to $400, if paid in accordance with their terms, and the interest reserved for the loan with the commission notes only amounts to a charge of $1,000 interest on the amount of the loan for the 10 year period, and is not usurious, not exceeding the full legal contract rate, the 10 per cent, allowed to be charged, over the whole term, by the laws, of Oklahoma.
In the case of Metz v. Winne, 15 Okla. 179 Pac. 224, wherein the mortgagors borrowed $600, payable in 10 years, with interest at 7 per cent, executed one note for the principal and ten notes for $42 each, representing the interest, and alsp one note for $150, which was additional interest and claimed to have made the loan usurious, the court held otherwise, saying:
“The law of this Territory prohibits the taking or contracting for any higher rate of interest than twelve per cent, per annum, and makes it unlawful to deduct more than one year’s interest from the loan in advance, hut it is not unlawful to compute the interest for the entire time the loan is to run, and contract to pay such sums in installments of such sums and at such times as the parties may by contract agree.
“We know of no law that will prevent a borrower from paying all the interest on a loan at the end of one year, or in such installments as he may desire and the parties may agree upon, so long as the person making the loan does not exact over 12 per cent per annum, or deduct more than one year’s interest from the amount of the loan in advance. The courts do not undertake to make contracts for individuals, nor to relieve them from burdensome obligations voluntarily assumed and entered into. We are unable to discover any error in the ruling and judgment of the district court in this case.”
In Covington v. Fisher, 22 Okla. 214, 97 Pac. 618, the court says:
“It is true that in that case the interest was not taken out of the principal sum, but the case holds that the mortgagee had a right to contract for the payment of a part of the interest covering ’the entire period of the 10-year loan at the end of the first year, and for such á sum to be paid at that time as would be largely in excess of the maximum legal rate, if computed only for the period of a year; but the court holds it proper to make the computation for the entire time, and the principle to be drawn from the opinion is that the contracting for the payment of interest in advance does not make the transaction usurious. ’ ’
In Garland v. Union Trust Co., 63 Okla. 243, 165 Pac. 197, in a learned and exhaustive ’opinion the court held the contract not usurious, saying:
“There was no usury in this transaction. * * Computing the interest for the entire time the loan had to run, does the interest reserved exceed the legal rate? If so, the loan is usurious; otherwise, not. In other words, the test is as laid down in J. I. Case, etc., v. Tomlin, 174 Mo. App. 512, 161 S. W. 286. There, referring to Taylor v. Buzzard, 114 Mo. App. 622, 90 S. W. 126, the court said: ‘In that case the test of usury in a contract is said to be whether it would, if performed, result in securing a greater nate of profit on the sulbject-matter than is allowed by law.’ We are therefore of the opinion that there is no merit in defendants’ contention, in effect, that the $2,325 deducted as interest in advance, together with the exaction of a note for $2,750, with interest thereon at 8 per cent, for a year, and the further exaction of $1,572.22 as interest on the loan up to December, 21, 1912, or in all, $6,822.22, was the exaction of usury at the rate of 27 per cent, for a loan of $50,000 from the date of the mortgage up to that time. This for the reason that, although such rate seems excessive, computed, as it is, for a part only of the time the loan had to run, the same is not excessive when those payments are spread out over the entire time the contract, if performed, had to run, as we have seen.”
In Balter v. Pittsburg Mortgage Investment Co. 67 Okla. 311, 171 Pac. 24, the court held the case rightly decided by the trial court upon the authority of Metz v. Winne, supra, saying:
“The opinion in Metz v. Winne, supra, was handed down by the territorial Supreme Court in September, 1904, and the proposition of law stated in the first paragraph of the syllabus has been approved at least twice by the Supreme Court of the State since statehood. Covington v. Fisher, 22 Okla. 207, 92 Pac. 615; Garland v. Union Trust Co., 49 Okla. 654, 165 Pac. 197. In the latter case, after a very full examination and review of the authorities, the court adheres to the doctrine- announced in Metz v. Winne and Covington v. Fisher, supra.”
The rule is reaffirmed in Clements Mortgage Co. v. Johnston, 83 Okla. 153, 201 Pac. 247; see also Finerty Investment Co. v. Athey, 89 Okla. 284, 215 Pac. 611, and also American Investment Co. v. Lyons, 29 N. M. 1, 218 Pac. 183, where the 'Supreme Court of New Mexico has reached the same conclusion about the rule for testing a contract for usury under the Oklahoma law as that expressed herein.
Having reached the conclusion that the loan involved in this transaction is not usurious under the laws of Oklahoma, by which the contract must he construed and enforced, it is not necessary to consider and determine the rights of John Y. Brokaw as an innocent purchaser of the note in due course of business.
The chancellor having erred in holding the contract usurious, the decree is reversed, and the cause remanded with directions- to enter a decree for John Y. Brokaw, owner of the notes, secured by the first mortgage for the amount due thereon, with foreclosure of the lien and sale of the lands for payment, and all other necessary proceedings according to the principles of equity and not inconsistent with this opinion. | [
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Hart, C. J.,
(after stating the facts). The judgment of the circuit court was correct. The record shows that Rural Special School District No. 22 of Woodruff County, Arkansas, was created by special act of the Legislature of 1920, which was approved February 18, 1920. Said district is a rural special school district, and this court has expressly held that, when the whole of our statutes relating to our system of. organizing territory into school districts is considered, it is apparent that the Legislature did not intend that any part of thé territory once organized into a rural special school district could thereafter be taken and organized into another district of like kind. Crow v. Special School District No. 2, 102 Ark. 401, 144 S. W. 226; and Helvering v. McDougal, 119 Ark. 162, 177 S. W. 937. Again, this court has said that the sections of the Digest authorizing the county board of education to change the boundary lines' of school districts did not authorize such board to change the boundary lines of a district created by special act of the Legislature. School District No. 25 v. Pyatt Special School District, 172 Ark. 602, 289 S. W. 778; Park v. Rural Special School Dist. No. 26, 173 Ark. 514, 892, 292 S. W. 697. In a still later case the court said that, w’hen the Legislature itself creates a special school district, neither the county-board of education nor any other governmental agency has the power to change the boundaries thereof, without express authority from the Legislature so to do. Carter Special School District v. Hollis Special School District, 173 Ark. 731, 293 S. W. 722. Hence, it may be said .that the county board of education has no jurisdiction to annex territory already comprised in a special rural school district created by the Legislature to another special school district.
Again, it is insisted that the judgment of the-circuit court should be reversed because certiorari was not the proper remedy. In making this contention counsel rely-upon an act of the Legislature of 1925 providing that any party to the record in a proceeding brought before the county board of education, should he feel aggrieved by any final order of such board, may prosecute an appeal from such final order. Acts 1925, page 546.
While the parties might have- prosecuted an appeal from the order of the county board of education, this did not prevent them from quashing the order by á writ of certiorari. The reason is that the order of the county board of education, under the authorities above cited, was absolutely void, and not merely irregular or erroneous. The county board of education, in the absence of a statute giving it the power to annex rural special school districts to other school districts, special or common, had no jurisdiction whatever in the matter, and its judgment was absolutely void. Browning v. Waidrip, 169 Ark. 261, 273 S. W. 1032. This view of the matter was recognized in some of the later cases which we have cited above.
It follows that the judgment of the circuit court was correct, and will therefore be affirmed. | [
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McHaNey, J.
On the 20th clay of March, 1926, appel-lee, Rheamona Surridge Greene, entered into a contract of agency with one F. M. Messer for the sale of certain' real estate located in the city of Walnut Ridge, which is as follows, to-wit:
“I have this day placed with F. M. Messer for sale the property described on the reverse side of this card, of which I am the owner. The said Messer shall have the exclusive agency for the sale of the property for a term of three months from date hereof, and thereafter until notified by me in writing of the .withdrawal from sale, and I authorize the said Messer to sell and convey and contract with the purchaser for the sale and conveyance by warranty deed of said property, according to the price and terms herein specified, or any price or terms I may hereafter authorize the said Messer, in writing or verbally, to accept. In case of sale, abstract of title to be furnished by me,".and warranty deed with proper relinquishment of dower, properly acknowledged, to be delivered on receipt.of purchase price. Price $5,500 net, $....gross. If the property be. sold or in any manner disposed of during .period above stated, no matter by whom or in what mamier, or after the above period, on information obtained through the said Mes-ser, I ag'ree to pay a commission of 3 per cent.
‘ ‘ Hoxie, Ark., 20th day of March, 1926. Signature: Rheamona Surridge Greene. Client’s address, Walnut Ridge, Ark. ”
On the reverse side appears the following:
“Section.......township 17-1-E., range 8, lots btwn. Pine and Vine Streets,- block.., between E. Front and E. Second Str. Addition, town of Walnut Ridge. Possession immediately.:..'Date.”
Thereafter, .on April 20,1926, Messer secured a purchaser in the person of appellant, John K. Gibson, for this property for a consideration of $5,000, of which $2,000 was to be cash, $1,000 due the next fall, with eight per cent, interest, and the assumption of a $2,000 note to Barnett Brothers of Batesville, and a contract was prepared by Gibson’s attorney, on memoranda furnished by H. L. Ponder, attorney for Mrs. Greene, in his own handwriting, and in this contract Josephine R. Gibson, the wife of appellant, was named as the purchaser.
It is admitted by all of the parties that Prank Pace of Little Rock held a mortgage on this and other property of the appellee, Mrs. Greene, to secure a large sum of money due him on a promissory note, and that, before Mrs. Greene could convey a good title to the property, it would be necessary for Mr. Pace to release this property from his mortgage. Appellant contends that he was advised by both Messer and Ponder that Pace would release this property from his mortgage to any one who would purchase it, and appellee contends that the matter would have to be taken up with Pace in order to get a release of this property from the mortgage. The contract so prepared was presented to Ponder and Mrs. Greene, and both Mrs. Greene and Ponder came to Little Rock, presented the contract to'Pace, and he declined to release this property from the mortgage in Gibson’s favor, but agreed, if it were sold to appellee, Z. M. McCarroll, he would release. Mrs. Greene returned from Little Rock on the evening of April 22, and, when she got off the train, she saw Messer and talked to him about the matter of the sale, and, she says, told him that she could not make the contract, for the reason that Pace would not release the mortgage, and told him to do nothing further about the matter; that he should make no further arrangements regarding the sale of the property. This was denied by Messer. Ponder went from Little Rock to Fayette-ville, and returned to Walnut Ridge the following Sunday, which was April 25, and Messer talked to him over the telephone, making an engagement to see him at his office the next morning, April 26, and, according to Ponder, Messer came to see him the next morning, and he told Messer that it was not satisfactory with Pace for Mrs. Greene to make the sale to Gibson, and that he would not release Ms mortgage, and told Mm to let the matter drop where it wias, consider the matter ont of his hands, and not to do anything further with it; that, so far as Messer was concerned, the matter was closed; that they would pay him his commission for making the sale, but that he needn’t do anything* further about it. Messer denies having these conversations with Ponder, and thereafter, on the same day, April 26, he, assuming to act under authority of the written contract between him and Mrs. Greene, entered into a contract with appellant, which undertook to bind Mrs. Greene to convey the property to appellant, on the same terms and conditions as the proposed contract of April 20 between her and Mrs. Josephine R. Gibson, and without taking into consideration the necessity of the release of the mortgage thereon held by Pace. A copy of the written contract between Messer, as agent, and appellant was, on the same date, mailed to Mrs. Greene by registered letter, which was delivered on April 27, and this contract was also duly filed and recorded in the recorder’s office. On the night of the 27th of April Mrs. Greene executed and delivered a deed to appellee, McCarroll, for the same consideration and upon the same terms as the proposed contract with appellant, with the exception that Pace had agreed to release this property from Ms mortgage in favor of McCarroll.
Under this state of facts, and others not necessary to discuss, in view of the point hereinafter decided, on which the case hinges, appellant brought suit for specific performance of his contract, on which issue was joined, which resulted in the court’s finding1 that there was no equity in appellant’s complaint on which to base a decree of specific performance, dismissed his complaint for want of equity, and canceled the contract entered into between him and Messer on the 26th day of April, from which comes this appeal.
We think the decree of the court is sustained by a fair preponderance of the evidence, both as to the fact that there was a mortgage on this property in favor of Pace, which■ would have to be released before Mrs.Greene could make a good deed conveying a clear title thereto, and as to the fact that Messer’s authority to act as her agent before the contract of salé to appellant was entered into between Messer and appellant was revoked. Not only wias Pace’s mortgage of record, which was constructive notice to appellant that she could not convey a good title to the -property with that mortgage covering it, but they both had actual knowledge of the existence of such mortgage, as they both claimed that they were assured by both Ponder and appellee, Mrs. .Greene, that Pace would release. Nor do we think that the fact that the release of this mortgage was not made a condition of sale in the contract between Messer and Mrs. Greene, and the fact that the memor-anda made by Ponder on the 20th of April, on which the contract between Mrs. Greene and Josephine R. Gibson was drawn, omitted the condition relative to Pace’s mortgage, are' of sufficient weight to overcome their positive testimony that this was, at all times, one of the conditions of . sale, that is, that Pace would have to release his mortgage before any sale could be made. The contract between Messer and Mrs. Greene contemplated that the price might have to be reduced. It did not undertake to fix any terms upon which Messer might sell. Necessarily any subsequent changes in the contract would have to be submitted to and approved by her, including price, terms and conditions of sale.
The fact that Pace’s mortgage was outstanding, of which all parties were fully cognizant, and would- have to- be released before she could convey a valid title free from such lien, is a strong circumstance corroborative of Mrs. Greene and Ponder and their statements to the effect that it was understood that Pace’s consent to release would have to be obtained. And we'do not think that the failure of Ponder to put that condition in the written memoranda on which the Josephine R. Gibson contract was drawn should be of controlling influence or very persuasive that it was not a condition precedent.
As to the other point, that Messer’s agency was terminated by Mrs. Greene on the 22d day of April, and reaffirmed by Mr. Ponder on the 26th day of April, prior to the contract between Messer and appellant, we think the decided preponderance of the evidence sustains that contention. Mrs. Greene testifies positively that she told Messer, on the 22d of April, to take no further steps in the matter of the sale of this property, and in this she is corroborated by Morris Less. Ponder testifies positively that he saw Messer in his office early in the morning on the 26th day of April, and advised him that Pace would not release to Gibson, that the whole deal had “blown up,” and for him not to take any further action in the matter. In this he is corroborated by George Ponder. Messer alone denies these conversations.
The mere fact that Mrs. Greene had appointed Mes-ser her agent to sell this particular piece of real estate, which contract of agency was in writing, did not preclude her from verbally revoking his authority to sell at any time, even though the contract itself provided that he should have the exclusive authority to sell for three months, and thereafter until revoked in writing. The only interest Messer had in the sale of this real estate was the collection of his commission. The law does not compel one to continue an agency which he desires to terminate, but it does provide a remedy for the agent whose agency has been wrongfully terminated. This court, in the case of Novakovich v. Union Trust Co., 89 Ark. 412-415, 117 S. W. 246, said:
“Appellants contend that the contract sued upon conferred on appellee a naked power to sell, uncoupled with an interest in the property, and that it was revocable at any time they might choose to revoke it, and that, when they revoked it before the sale, the Union Trust Company could not recover the agreed commission. It is true that the power vested in the trust company by the contract was not coupled with any interest, as the commission to be earned was not an interest rendering the power irrevocable. But Mechem on Agency, § 209, says: ‘Where, then, the authority is not coupled’with an interest, the principal has the power to revoke it at his will at any time. Bnt this power to revoke is not to be confounded with the right to revoke. Much uncertainty has crept into the textbooks and decisions from the failure to discriminate clearly between them. Except in those cases where the authority is coupled with an interest, the law compels no man to employ another against his will. As it has been seen, the relation of an agent to his principal is founded in a greater or less degree in trust and confidence. It is essentially a personal relation. If, then, for any reason, the principal determines that he no longer desires or is able to trust and confide in the agent, it is contrary to the policy of the law to undertake to compel him to do so. * * * This, then, is what is meant when it is said that the principal may revoke the authority at any time. But it by no means follows that, though possessing the power, the principal has a right to exercise i.t without liability, regardless of'his contracts in the matter. It is entirely consistent with the existence of the power that the principal may agree that, for a definite period, he will not exercise it, and for the violation of such an agreement the principal is as much liable as for a breach of any other contract. It is in this view, therefore, that the question of the right to revoke the authority arises.”
Whether the fact of the revocation of Messer’s agency was brought home to Gibson or not is unimportant here. Let it be remembered that this agency is a special and limited one, limited to the sale of one particular piece of property, and under a contract which contemplated that the owner or some other person might sell the-property during.the period covered by this contract, and, if exercised, that necessarily'would be a revocation of the ag'ency. The last clause in the contract provides: “If the property.be sold or in any manner disposed of during period above stated, no matter bv whom or in what manner.'or after the above period, * * * I agree to pay a commission of 3 tier cent.” So, while the contract in the first sentence nrovides that Messer shall have the “exclusive agency,” it later provides that the “exclusive agency” stall not be exclusive, in so far as the sale of the property is concerned, except as to his commission of 3 per cent. Therefore appellant was bound to take notice of Messer’s authority as set out in the written contract, which provided, in effect, that Mrs. G-reene or others might sell this property during the time stipulated, which would be a revocation of his agency, and the liability for the revocation fixed.
The decree of the chancery court is in all things correct, and it is accordingly affirmed. | [
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Knox, J.
Dr. B. F. George, a life-long citizen of Ashley county, but who on account of his health had been forced to spend the greater part of the last years of his life in Tom Green county, Texas, died in San Angelo, Texas, October 15,1933.
Dr. George had never married and the next of kin surviving him were two brothers, Joe George and G. Percy George; one sister, Mrs. Susye George Corson, and one nephew and two neices, children of. his deceased brother, Norwood George, the nephew being named G. P. George, and the neices Joan George (now Welsh), and Dora George Hiatt.
On November 1, 1933, letters of administration on the estate of Dr. George were issued by the probate court of Ashley county to Leslie J. Serrett, who was then cashier of Farmers Bank & Trust Co. Sureties on Serrett’s bond were Frank Pugh, vice president of the bank, and G. Percy George, brother of deceased, who was president of and principal stockholder in the bank.
On December 27, 1934, Serrett filed his first account current, in which he charges himself with three items as follows: Doss note, $780; 328 shares Farmers Bank & Trust Co. stock, par value of $8,200; cash from insurance, $4,107.43 — total, $13,087.43, and the administrator takes credit for money expended in.the aggregate sum of $4,-098.38, leaving in Ins possession cash $9.03, the Doss note (which he reports is in process of foreclosure), and the bank stock (which he reports is intact).
In conformity with statutory requirements proper court orders were made and complied with respecting filing, continuance and publication of notice of the filing of such account.
No further account current, final account, petition for discharge, report or pleading of any character appears to have been filed by the administrator, and there is of record no further order of court, of any character whatever, respecting this estate.
Claims against the estate, approximating some nine or ten thousand dollars, appear to have been filed with the clerk. Some of these, however, do not appear to have been presented to the administrator for allowance and classification.
Ancillary administration was effected in Texas, where at the time of his death Dr. George had on deposit in the San Angelo National Bank $723.98. Two hundred fifty dollars of the Texas bank deposits was used to pay Texas claims and cost of the ancillary administration, and the balance was paid directly to Farmers Bank & Trust Company of Hamburg, Arkansas, to be applied on its note claim, which had been filed in the Arkansas administration, and thereafter the ancillary administration in Texas was closed.
All parties to this litigation appear to concede that while Serrett held the title of administrator, in truth and fact, because of his kinship to the heirs, and his connection with the bank (which was the largest creditor of the estate), the actual management of the estate was left to G. Percy George, a brother of the deceased, who was a prominent attorney, and president and principal stockholder of the bank. The mother of the Norwood George children testified that as agent for her children and with their full knowledge and consent she made arrangements with him to look after their interests. Her testimony concerning this is as follows: “Being their nncle, an attorney, and president of the bank, he assured me he would protect their interest, and I relied upon him, . . . with perfect confidence, ’ ’ I had no reason to doubt either the faithfulness of his services or the correctness of his statements or the statements of the administrator of the estate of B. F. George, because he had even stated to me that, having so much money of his own, he didn’t want his share of any interest in the bank. I was surprised when I received notice that he claimed his share in the bank stock.
-Serrett testified as a witness for appellants that on June 5, 1936, he wrote Mrs. Corson, Joe George, G. P. George and the widow and heirs of Norwood George that “after liquidating the business of the deceased there remained in my hands an unpaid balance of $3,034.20, ” and offering to pay the same equally, that is one-fourth each to Joe George, Susye George Corson, and G. P. George, and the remaining one-fourth to the heirs of Norwood George, on their signing and returning receipts sent with such letters.
The receipt inclosed was in these words: “Received of Leslie J. Serrett, as administrator of the estate of B. F. George, deceased, the sum of $758.55 in full settlement of all our interest in said estate.
“And in consideration of the payment of the above' sum of money we and each of us hereby release and acquit the said Leslie J. Serrett as said administrator of any further liability to us on account of our interest in said estate.”
In a verified pleading filed herein, Serrett details the circumstances surrounding the execution of these receipts as follows: “G. P. George on June S, 1936, advised this respondent that he had made settlement with the heirs of B. F. George, and the balance to be paid by him to them was in the sum of $3,034.20, . . . and he was to have said bank stock transferred to him of said estate, and this would close said estate.
‘ ‘ Said respondent prepared receipts accordingly for each ... in the sum of $758.55, and advised said heirs that this closed the estate upon them signing said receipts.
“Said heirs duly signed said receipts . . . and said estate was duly closed, and on July 13, 19&6, the bank stock of B. F. George was duly transferred on the books of the Farmers Bank & Trust Company to the name of G. P. George, as owner, and remained as such until the death of G. P. George in the year of 1941. Said receipts were sent to the court of Tom Green county, Texas, where settlement of said estate was finally shown in the early part of the year 1937. ’ ’
Norwood George’s children and Joe George brought this action on June 2, 1941, and later Susye George Cor-son, who had been made a defendant in order that all rights might be adjudicated, adopted the complaint as her own, asking to be made a party plaintiff. The action was brought against the administrator, Serrett, his surviving bondsman, Frank Pugh, and the estate of his then deceased bondsman, G. Percy George, by Sam J. "Wilson as executor, and Wilson in his own right as devisee.
Later, by amendment, Farmers Bank & Trust Company, of which G. Percy George had been president and practically sole owner, was made a defendant on the allegation that it had wrongfully received and appropriated large funds of the estate of Dr. B. F. George.
Appellants allege fraudulent mishandling and wrongful appropriation of funds, fraudulent handling and conversion of securities by G. Percy George and the administrator, wrongful and fraudulent receipt and appropriation of funds by representation by the administrator in procuring receipts of plaintiffs, relation of trust and confidence between plaintiffs on the one hand and G. Percy George and the administrator on the other and abuse thereof, absence of complete and adequate remedy at law, and the necessity of avoiding a multiplicity of actions, and invoke the jurisdiction of the chancery court, asking full and complete adjudication of all the rights of all parties.
In the early case of Hankins v. Layne, 48 Ark. 544, 3 S. W. 831, the boundary line dividing the jurisdiction in matters of this character between probate and chancery courts was defined as follows: (Quoting headnotes 1 and 3), “1. Administration: Jurisdiction of chancery. A court of equity cannot lift an estate out of the probate court and proceed to administer it, nor even interfere to correct errors and irregularities where actual fraud is not alleged and proved, unless they are so gross and reckless as to make the inference of fraud necessary for the purposes of justice. Nor can it undertake to correct frauds in unconfirmed settlements. But it can interpose to correct frauds in confirmed settlements, and other frauds and gross mistakes in the course of administration not within, or having passed from, the jurisdiction of the probate court, and also to prevent impending irreparable injury whore the probate court cannot give effectual relief.
“3. Same. Jurisdiction of probate coiort. The probate court has ample power to charge an executor or administrator with any money or property of an estate with which he has fraudulently failed to charge himself, and, if need be, to compel him to file proper inventories and appraisements of its property coming to his hands as such, at any time before Ms final settlement and discharge.”
The division of jurisdiction has 'been observed and adhered to throughout the years. Kilgo v. Garvin, 201 Ark. 403, 144 S. W. 2d 1067; Beckett v. Whittington, 92 Ark. 230, 122 S. W. 633; Watson v. Henderson, 98 Ark. 63, 135 S. W. 461; Wallace v. Swepston, 74 Ark. 520, 88 S. W. 398, 109 Am. St. Rep. 94; Dyer v. Jacoway, 50 Ark. 217, 6 S. W. 902.
It is admitted that there has been no formal order of the Ashley probate court closing the estate, or even confirming the first and only account current filed therein. Although appellants in their brief say: “The administration has never been closed, but is still pending,” they nevertheless insist here that equity has jurisdiction.
Appellees say, however, that the “estate was settled and closed in June, 1936,” not by a formal order, but by means of a private agreement between the parties, in the nature of a “family settlement,” and they do not question jurisdiction.
At 34 C. J. S., Executors and Administrators, § 836, p. 958, it is said: “Where there are no creditors or none whose debts are not paid, legatees, distributees, and other persons entitled to the estate may enter into agreements among themselves, or with the personal representative, as to the settlement of the estate, . . . Such agreements are not against public policy. Indeed, the settlement of decedent’s estates by famity agreements is greatly favored by the courts. . . .
“A private accounting and settlement of decedent’s estate is as effectual for all purposes as a judicial decree, unless it is impeached for fraud or other inequitable conduct, and relieves the representative from the duty of ■ rendering a judicial ■ accounting, unless such a result would contravene some statutory provision. However, it can be set aside on the ground of fraud or mistake, or on other equitable grounds. Moreover, the court will scrutinize the agreement with care where the parties do not have equal knowledge, or where one of the parties has just attained his majority. The validity of a written agreement set up by a personal representative as a release from his duty to account and settle may be inquired into, and it will be of no avail if obtained by misrepresentation or fraud, or entered into under a mistake of ■fact. A receipt, although reciting a settlement in full, may be open to explanation and is not necessarily conclusive on legatees or distributees in a suit brought by them to compel an accounting.”
The sole evidence tending to establish the family settlement is the releases or receipts executed by the parties in June, 1936, when they accepted from the ad ministrator chocks for sums supposed to represent their respective distributive shares in the estate. If any agreement was entered into, it was made between appellants and G. P. George, and not between appellants and the administrator.
Whether the transaction assumed the dignity of a family settlement is a matter of no great importance. It is admitted that all of the heirs did execute and deliver to the administrator these receipts or releases, by which they, and each of them, accepted the sums so paid “in full settlement of all our interest in said estate,” and in consideration thereof did “release and acquit the administrator of any further liability to us on account of our interest in said estate. ’ ’
One who seeks to compel an executor or administrator to account must show that he is interested in the estate, as a creditor, distributee, legatee, or otherwise. 34 C. J. S., § 830, p. 945; 21 Am. Jur. 664.
If the instruments executed by appellants were effectual to assign or release their rights in the estate, then, thereafter, they have not had, and do not now have such an interest in .the estate as would entitle them to bring or maintain an action or suit of any kind in the probate court, chancery court, or any other court, seeking to compel the administrator to account. These instruments purport to fully release the administrator, and in the absence of fraud in the procurement thereof would be effectual to denude the persons executing the same of all interest in this estate.
In the case at bar appellants allege that, these releases were procured by fraud, and hence are of no effect. It becomes necessary to determine what court has .iurisdiction to hear and determine the issue of fraud.
At 34 C. J. S., § 830, p. 947, it is said: “One ivho has assigned or released his interest in the estate has been held to have the right to demand an accounting where he denies the validity of the assignment or release and the probate court cannot try that question; but there is authority for the view that the probate court may deter mine the validity of the assignment, and if it is held valid will deny relief to the assignor. Moreover,, it has been held that where an heir brings suit against the personal representative for an accounting and to set aside releases of his interest in the estate to such representative, an accounting, which would involve an extensive and expensive investigation, should not be granted until the'Validity of the releases has been fully determined.”
In Bush v. Prescott & N. W. Railway Co., 76 Ark. 497, 89 S. W. 86, Judge McCtjl/doch, speaking for the court, said: “It may be said that the plaintiffs had a remedy' at law, and might, in avoidance of the assignment and compromise, show fraud in the procurement, upon a motion in Nevada Circuit Court to reinstate the cause, or in a new action against the railway company to recover damages. St. Louis, I. M. & S. Ry. Co. v. Brown, 73 Ark. 42, 83 S. W. 332, 3 Ann. Cas. 573. But this remedy does not oust the concurrent jurisdiction of courts of equity to grant relief against fraud by cancelling a written release or assignment obtained by such means. 1 Pom. Eq. Jur., (3 Ed.) § 188; George v. Tate, 102 U. S. 564, 26 L. Ed. 232; Atlantic Delaine Co. v. James, 94 U. S. 207, 24 L. Ed. 112.”
Assuming, without deciding, therefore, that appellants had a remedy in the probate court to avoid the releases for fraud, they, nevertheless, were entitled to invoke the jurisdiction of the chancery court in a direct proceeding to cancel such instruments for fraud. Such was an essential part of all, and a prerequisite to any other, relief prayed, and the chancery court did in fact have jurisdiction to grant the relief prayed to that extent at least. Because of conclusions hereinafter expressed it becomes unnecessary for us to decide whether the chancery court, if having canceled the releases for fraud, could have disposed of the entire controversy or left appellants to seek further remedy in the probate court.
Before trial of this cause both Mrs. Corson and Joe George directed that the cause be dismissed as to them; leaving only the IsTorwood George children as actual parties plaintiff.
The allegations of fraud are directed against G. Percy George, deceased, and not against Serrett. Appellants in their brief say: “We would like the court to know that we know the administrator to he an honest man. But he may possibly have been too loyal. For we have been puzzled over the concealments mentionéd. And when we followed the admitted assets, three-fourths of which admittedly belonged to appellants, we always found the hand of G. Percy George and that of his alter ego, Farmers Bank & Trust Company, holding same.”
Five years, lacking only a few days, intervened between the date appellants executed the receipt and release and the date of institution of this suit. In the meantime, to-wit — on January 16, 1941, G. Percy George died. During the four years and six months which intervened between the execution of the releases and the death of G. Percy George, appellants took no action to set aside the release or reopen the estate.
Mrs. Oyster, the mother and agent of the Norwood George children, testified that during his lifetime the interests of her children were intrusted to G. Percy George, with perfect confidence, and that neither they nor she had any reason to doubt either the faithfulness of his services or the correctness of his statement. Although she was fully aware of the execution of the release, she testified that shortly after the death of G. Percy George she, acting for and with the consent of her children, secured the services of another attorney “to investigate and see if they were not entitled to an interest in the estate of Dr. George. ’ ’ This suit resulted from that investigation. No reason is given for the sudden change from “perfect confidence” to suspicion, requiring an investigation. Certain it is that no fact was developed by this belated investigation, and offered here in support of the allegation of fraud, which could not have been as readily developed by a similar investigation made at any time between the date of the release and the date of the death of G. Percy George.
Jurisdiction of a court of equity is here invoked to relieve against fraud alleged to have been committed by a man four and one-half years before bis death. During all that time appellants remained silent, although every fact which is now offered in evidence was known, or could have been easily ascertained long prior to such death. It appears that G. Percy George was the only person connected with appellees who was familiar with the entire matter. The loss of testimony is a material circumstance in enforcing the equitable doctrine of laches. Davis v. Harrell, 101 Ark. 230, 142 S. W. 156; Segers v. Ayers, 95 Ark. 178, 128 S. W. 1045; Reece v. Bruce, 136 Ark. 378, 206 S. W. 658; Walker v. Norton, 199 Ark. 593, 136 S. W. 2d 315.
By reason of appellants’ unreasonable and unexplained delay in bringing this suit, appellees have been deprived of the testimony of G. Percy George, who, it appears, was the only person who was fully cognizant of the facts. Because of such laches the chancellor properly dismissed appellants’ complaint for want of equity —the decree is, therefore, affirmed. | [
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Griffin Smith, Chief Justice.
Appeal is from the Court’s action in granting Erna Alma White’s prayer of March 4, 1942, that title to certain lots in Walnut Ridge he confirmed in her. C. W. Webb, the appellant, intervened and cross-complained, claiming that as grantee under a deed executed by C. E. Elldns his interest was paramount.
The controversy involves the homestead occupied by C. W. and Bessie R. White for nearly forty years, the latter having acquired title in 1903. Their son, Teddy M. White, became a resident of Oklahoma, having moved to Bartlesville. The parents went to Bartlesville in 1932 and spent approximately two and a half years, returning to Walnut Ridge in 1935.. Their home was occupied by tenant who attorned to them.
Shortly before her death .in 193-5, Bessie R. White deeded the property to Teddy, and he (July 13,1938) conveyed to appellee. ■
Betterments' were assessable in Water and Sewer District No. 2, and in Street Improvement District No. 2. Each district was in default. R. B. Warner was receiver. For the Water and -Sewer District, Warner was appointed by the Federal Court at Jonesboro January 16, 1933. His connection with the street district is unimportant except for the purpose of identifying transactions had by Warner with appellee’s husband, who was her agent.
It is stipulated that the water-sewer district filed suit in 1932 asking foreclosure of betterment assessments. Chancery. decree was in May, 1933.’ Sale was had two years later, with confirmation -September 17, 1935, and approval of deed. The District was purchaser. Writ of assistance, although authorized, did not issue. Appellee and her predecessors in title have been in continuous possession.
While appellant’s abstract, of testimony shows “. .' .. that the taxes have been paid by appellee and those under whom she claims,” the stipulation is that “. . . state, county, municipal, and general taxes for 1935, 1936, and 1937 [were paid by Teddy M. White] and Erna A. White has paid [such taxes] for 1938, 1940, 1941, and the first quarter state and county taxes for 1942 [were so paid”]. (It will be observed-that 1939 is omitted).
Undisputed evidence is that Teddy M. White, “after his mother’s death,” read a Walnut Ridge Times-Dispatch advertisement showing delinquencies in respect of the street district. He thereupon (Nov. 4, 1936) wrote Warner as collector, enclosing check for $31. In the letter he mentioned that “water and sewer taxes” were in arrears for about three years, amounting to $85 or $90. He asked if it would be possible “to make payment on this [obligation] as I can afford from month to month. ’ ’ The letter concluded with a statement that the writer would appreciate any help or suggestions.
Warner replied that “delinquencies” were for 1929, 1930, and 1931, amounting to $87.35. An overpayment of $3.85 on street improvement taxes left a balance of $83.77. There was the comment: ‘‘I hope you will begin to.reduce this as speedily as possible, as the Court has ordered me to take charge of all delinquent properties and collect rents until taxes are paid. We will accept regular monthly payments until this is paid out. ’ ’
In December, 1936, White paid $5. Eleven months later he sent $25. The stipulation (filed June 18, 1943) is that the balance was $53.77.
Other than documents and records, the only testimony is Teddy M. White’s deposition, taken on interrogatories. He did not know of the foreclosure until 1940. In May of that year Warner and Jake Less appeared at White’s home in Bartlesville and asked for him. White was at Perry, Oklahoma, where Less went. He (Less) offered to pay $200 for a quitclaim deed, and volunteered the information that there had been a foreclosure.
February 19, 1940, Warner, as receiver, conveyed the property to Elkins, and Elkins (Feb. 2, 1943) quit-claimed to Webb for a recited consideration of one dollar. The receiver’s deed to Elkins recited payment of $80, “. . . cancelling all. delinquencies to and including the assessments payable in 1931. ’ ’
In an order of May 3, 1939, the District Court at Jonesboro authorized Warner “. . . to accept delinquent taxes and make sales, [of the water-sewer district property] giving deeds therefor, at a discount, or for less than the taxes past-due thereon, the price to be agreed upon by the Receiver and Board of Commissioners.”
It is apparent that Warner, in his letter to White, did not inform the latter that the District had title. He mentioned delinquencies for three specified years, and without consulting White took $3.85 from the $31 payment intended for the street district and applied it to the water-sewer obligation. White’s subsequent actions amounted to ratification.
The Receiver was under no legal obligation to notify White that foreclosure had been effectuated; but, under the comprehensive authority conferred by the Federal Court, the receiver, with concurrence of the commissioners, had discretion to treat the Chancery Court’s decree as having vested title, (which of course it did) or to waive the absolute rights thus fixed and treat with former owners on-'the basis of delinquent installments as a consideration for repurchase. White was told that water-sewer taxes “were in arrears for about three years.” Payment of “this obligation” was suggested on a month to month basis. The suggestion amounted to consent that the matter be handled in that way. White again defaulted, if it be assumed that in paying $5 in December, 1936 (following Warner’s letter of November 4) an inference attached that an equal amount would be paid each month. Payment of $25 in November, 1937, could hardly be said to be a compliance with the reasonable inference that “regular” payments would be expected, as expressed in Warner’s letter.
But even so, Warner liad, no right to take $3.85 from the $31 check intended for a different purpose and either apply it to White’s delinquent taxes, or call it a down payment on purchase price. In so doing, Warner in-effect told White that he owed a tax obligation on his own property, although as a matter of fact and as a matter of law, the District-was proprietor.
Warner had power, under the Federal Court decree, to treat the indebtedness as an obligation which, when discharged, would cause the property to revert to White. In the absence of proof to the -contrary, it will be presumed that in dealing with White, Warner had the Commissioners ’ approval. If payments made by White should be treated as purchase price money, he had an equity that could not be arbitrarily disregarded. It was prior to the rights acquired by Elkins. If the remittances are to be treated as partial payments on taxes upon the assumption (an assumption we do not assert) that the District’s rights acquired by foreclosure were waived, White would liave the right to make final settlement.
Because of White’s procrastination, Elkins was led to believe that the District had a right to sell at the time and in the manner it did, and he should not suffer loss of the-principal payment of $80. Not being a party to this suit, relief cannot be given. His equity passed to Webb. But Webb did not seek reimbursement of this particular item, or pray for general equitable relief. His demand, in the event White prevailed on the question of title, was that he recover $74.60, “. . .- the amount laid out and expended herein in payment of taxes, with interest. ’ ’ The decree is that Webb “. . . is not entitled to return of the consideration paid to the District of any taxes he might have paid, since none was asked or shown paid by him, and [there is] no evidence that he has paid such.”
The District is in the position of having sold to Elkins for $80 when White’s balance (without reference to interest) was $53.77. Appellee will be required to pay this amount into Chancery -Court for determination by that tribunal regarding Webb’s rights to it after testimony has been heard.
We do not think title in appellee by adverse possession can be sustained. The arrangement by which White kept the District from having the writ of possession issued and served was mutual, although in all probability neither party had a very clear understanding of the other’s ultimate intentions.
That part of the decree quieting title in appellee is affirmed, with the modification that a lien is declared against the property for the balance due by White. For the purpose of allowing Webb to assert his rights to this sum, the cause is remanded. | [
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Smith, J.
Suit was brought by appellees to partition a tract of land containing 100 acres, which was owned by Eliza Modine Ashmore Markins at the time of her death, and the controlling question in the case is whether Mo-dine, as she was called by the witnesses, died intestate.
It is undisputed that Modine executed a will, in proper form, for the primary purpose of excluding her husband, from whom she was then estranged, and from whom she was divorced in 1940, from participating in the distribution of her estate. This will devised the lands owned by Modine to her relatives of the whole blood, to the exclusion of plaintiffs, who are of the half blood. The parties are the children and descendants of J. W. 'Harrell, who died about 20 years ago, leaving considerable property. He was twice married, and children were born to each marriage. Appellants are heirs by the second marriage, appellees by the first.
The court found the fact to be that Modine, who departed this life, on or about May 22, 1942, had during her lifetime revoked and annulled this will, that result having been accomplished by burning it in her kitchen stove. The relatives of the whole blood, who were the devisees and beneficiaries under the will, to. the exclusion of the relatives of the half blood, alleged and contend that the will was not destroyed, but that it is concealed by persons whose interests are antagonistic and that Modine did not die intestate.
The will was prepared in 1938 by the late Horace Sloan, one of the state’s ablest and most reputable lawyers, and what was shown to be a carbon copy thereof was found in his files after his death. According to the testimony of one Earl Swink, the will was destroyed and this was done for the purpose of revoking it. Swink.was employed as a-farm laborer by his brother, who was a tenant of Modine. Swink left his plow and went to Mo-dine ’s house to get a drink of water, and while in the kitchen of this home Modine produced a box containing a number of papers and began looking through them. She pulled out an envelope and asked Swink to see what it was, Swink began reading it, but as he did so, Modine jerked it out of his hands and said, “I have been looking for that damn thing a long time, ’ ’ and went to the stove where she burned it.
Swink was subjected to a searching cross-examination, the purpose of which was to show the improbability and falsity of the testimony, but the testimony was credited by the court and this specific finding of fact was made: “The court finds that the defendants (appellants) have failed to establish by the evidence either that any will of Eliza Modine Ashmore Markin was in existence at the date of her death*, or that any will of hers was fraudulently destroyed, or was lost or mislaid either during her lifetime or after her death. The court further finds that the only will, shown by the proof to have been executed by her, was by her revoked and annulled in her lifetime. ’ ’
There is no contention that Modine ever made any will except that prepared by Sloan, her attorney, and the above finding of fact, if supported by the testimony, is conclusive of this appeal. If that will was revoked, Modine died intestate, and upon that finding made by the court, partition of the lands was ordered between heirs of the whole blood and those of the half blood.
It is strongly urged that the testimony of Swink is too improbable to be believed, but the only affirmative contradiction of it is found in the testimony of one Bridges,.who was also at Modine’s house on the day of the alleged destruction of the will, but he was in another room of this house. He testified that Modine did not go into her bedroom and get the box from which Swink says she took the will. Bridges testified that there was a woman present from Jonesboro, with whom he spent the day in company with Modine, but he does not remember the first or last name of this woman. Bridges admitted, however, that he saw that day, for the first time, the box from which Swink says the will was taken and he saw the box that evening after Swink left, and that he did not remember ever having seen it before. There is some significance in this testimony, for the reason that Bridges was shown to have been Modine’s paramour.
The attempt was made to show by Bridges that just a few days prior to the date of the alleged destruction of the will, Modine had asked him to accompany her to Jonesboro on a mission in connection with the will. This witness also testified that Modine referred to the will at a later date and answered affirmatively the question, “Did it seem to you that she was speaking of her will as if it were still in existence?” Upon objection being made that the witness should state what Modine said, the inquiry was pursued no further. We are unable to say the chancellor should have believed the testimony of Bridges rather than that of Swink.
An attempt was made to show that Modine had deposited the will in a safety box, but no witness testified that she had ever deposited it there. When the box was opened, it was found to be empty, but there is no testimony that any person interested in destroying the will had ever had access to this box. There is an entire absence of testimony that any person who would profit by the destruction or concealment of the will ever had that opportunity. On the contrary, the testimony shows that on the day of Modine’s death and soon thereafter, the premises were searched for her papers, and these were collected and carried to the home of Modine’s aunt, where the body was removed.
There was testimony that friction had arisen between Modine and her relatives of the whole blood, one of these being Gtrandison Harrell, an uncle, who had been Mo-dine’s guardian, and who admitted that Modine told him that she was going to make him pay certain losses sustained through a bank failure. There was also a controversy with one of the relatives of the whole blood over some geese which Modine had picked up on the road near her home, and a controversy with another relative of the whole blood arose over the refusal of this relative to allow her access from her home to a state highway, and in retaliation she attempted to obstruct the "road in front of her house, so that this relative could not travel from one of his farms to another. .
There is a circumstance in the case which furnishes some support to the chancellor’s finding that Swink’s testimony was true. Swink told one Thurman that he saw Modine destroy the will, and the report of this conversation came to Mr. Sloan, who had Swink make an affidavit reciting this incident. Swink had not then dis cussed the matter with any person who had seen the will, and his description of that instrument lends strong support to the fact that Swink had read enough of it to know what it was and to identify it. Sloan had in his possession a carbon copy of the original will, which he had written, but he made no attempt to probate the will as having been lost or unintentionally destroyed. The cross-examination of Swink dealt at length with this affidavit, which was not offered in evidence, and it was apparently attempted to show that if Modine did destroy her will she was intoxicated and did not destroy the will with a revocatory intent, but Swink’s testimony did not show this to be true.
A careful consideration of the testimony does not leave us with that assurance we would like to have in passing upon a question of fact, but does leave us with the view that the testimony does not meet the requirements of the law to restore a will which has not been produced for probate.
Section 14563 of Pope’s Digest provides that: “No will of any testator shall be allowed to be proved as a lost or destroyed will, unless the same shall be proved to have been in existence at the time of the death of the testator, or be shown to have been fraudulently destroyed in the lifetime of the testator; nor unless its provisions be clearly and distinctly proved by at least two witnesses, a correct copy or draft being deemed equivalent to one witness. ’ ’
Section 14560 of Pope’s Digest provides that: “Whenever any will shall be lost, or destroyed by accident or design, the court of chancery shall have the same power to take proof of the execution of such will, and to establish the same, as in the case of lost deeds.”
Many cases have held that this power to restore and establish either a lost or a destroyed will or deed will be exercised only upon the clearest, most conclusive and satisfactory proof, and in our opinion the testimony does not measure up to that requirement. Nunn v. Lynch, 73 Ark. 20, 83 S. W. 316; Kenady v. Gilkey, 81 Ark. 147, 98 S. W. 969; Rawlings v. Berry, 128 Ark. 273, 194 S. W. 249; Bradway v. Thompson, 139 Ark. 542, 214 S. W. 27; Rose v. Hunnicutt, 166 Ark. 134, 265 S. W. 651; Erwin v. Kerrin, 169 Ark. 183, 274 S. W. 2; Allnut v. Wood, 176 Ark. 537, 3 S. W. 2d 298; Edwards v. Swilley, 196 Ark. 633, 118 S. W. 2d 584. The decree of the court below must, therefore, be affirmed, and it is so ordered. | [
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Smith, J.
In November, 1927, Lillie Nicbols, wife of appellant, Prank Nichols, joined two others as makers of a note payable to appellee, Arkansas Trust Company, and as security therefor executed a mortgage on several tracts of real property. The debt not having been fully paid when due, suit was brought on the note with a prayer for the foreclosure of the mortgage securing it, and on October 27, 1931, a decree of foreclosure was rendered which ordered a sale of the mortgaged property. Pursuant to this decree, the property was sold July 27, 1933, but for a sum not sufficient to discharge the judgment debt, and on October 18, 1934, an execution issued against Lillie Nichols for this balance, and there was a sale under this execution of the land here in question. The trust company was the purchaser at this sale, and in due course received an execution deed from the sheriff who made the sale.
Based on this deed, suit for possession was filed July 6, 1939, against Mrs. Nichols and Prank, her husband. Proper service of the summons which issued in this case was had upon Mrs. Nichols. As to her husband, the sheriff’s return reads as follows: “I have this 6th day of July, 1939, duly served the within summons by delivering a true copy thereof to Prank Nichols by delivering a true copy thereof to Lillie Nichols, wife of Prank Nichols, she being over the age of 16 years and being at his usual place of abode (Prank Nichols is in the U. S. Penitentiary) and to Lillie Nichols therein commanded. ’ ’
The truth of the recital that Prank Nichols was then an inmate of a federal prison is not questioned, and this being true the service had upon him did not conform to the requirements of the law in such cases, and he was not, therefore, served with summons. Section 1337,-Pope’s Digest; Reeder v. Cargill, 102 Ark. 518, 145 S. W. 225; Puckett v. Needham, 198 Ark. 123, 127 S. W. 2d 800.
Lillie Nichol's filed on July 25, 1939, an answer, in which she denied all the allegations of the complaint, and for further answer averred “That on the 24th day of November, 1934, she was and still is the owner of the real estate here in question, and was in possession of and living on the following described property as her homestead.” On April 19, 1940, an order was entered reciting that Lillie Nichols was then herself confined in a federal prison, and that the hearing of the case was by consent continued and set for May 27,. 1940, on which date judgment was rendered for' the plaintiff trust company for the possession of the property.
This judgment recites due service of process upon both Lillie Nichols and Prank Nichols, which finding evidently was based upon the return of the sheriff hereinabove copied. The judgment contains the recital: ‘‘ On this 27th day of May, 1940, comes the plaintiff by its attorneys, Murphy & Wood; and come the defendants, Lillie Nichols and J. Prank Nichols, by their attorney, Cecil -C. Talley.” This recital imports an appearance by attorney, and one may so appear, although not served with process, and when an appearance is entered it becomes immaterial that process had not been served. The judgment contains the further recital that, “Defendant Lillie Nichols had not established her home on the said lands at the time of the judgment in favor of the plaintiff against her, or prior thereto, and her claim of homestead is overruled and denied.”- It was adjudged that plaintiff have and recover possession of the land, and the clerk was directed to issue a writ of possession.
It thus appears that it was adjudged that Mrs. Nichols did not have the right to claim a homestead exemption. There can be and is no question about her right to make the claim of homestead if she had resided on the property, as she had the title thereto.
Notwithstanding this judgment which ordered the issuance of a writ of possession, the trust company did not obtain possession, and on September 20, 1943, the trust company filed a petition in the circuit court, reciting that the writ of possession ordered by the judgment rendered May 27, 1940, had not been issued and that Lillie Nichols retained possession. It was prayed that the court direct its clerk to issue a writ of possession pursuant to the judgment rendered in May, 1940.
On September 28,1940, appellant appeared specially and moved to quash the return of summons on which the May, 1940, judgment had been rendered, to vacate that judgment and to set aside and cancel the sheriff’s deed based upon the execution sale hereinabove recited. It is asserted that this ivas Frank Nichols’ first appearance in any of the proceedings in this case.
Nichols did not question in this motion that the legal title to the land was in his wife, but he did allege the following facts: “That this defendant has, and had at the time of the pretended service of said summons on him an equitable interest in and to the property described in the complaint and in said writ of possession, and has been in the actual, open, exclusive, adverse, hostile and continued ownership thereof for more' than seven years next before the filing of plaintiff’s complaint herein, and that he is a resident of the state of Arkansas, a married man and he claims as exempt from sale under execution said real property; that the execution and alleged sale was obtained and made under a judgment of the chancery court of Garland county in a suit for debt due upon contract and that this defendant was not a judgment-debtor therein nor a party defendant therein. ’ ’
It thus appears that Frank Nichols is now attempting to assert the right of homestead after his wife had failed to establish that claim, and he asks this relief upon the allegation that he has an equitable interest in the property arising out of his seven years’ occupancy of it as á homestead. His motion was dismissed, and from that order is this appeal.
It is conceded by appellant that to prevail lie'must first set aside the judgment of May, 1940, which recites that he was a party thereto and apparently concludes the right of homestead, and he bases this prayer for relief upon § 8194, Pope’s Digest, which provides that: “All judgments, orders, sentences, and decrees made, rendered or pronounced by any of the courts of the state against any one without notice, actual or constructive, and all proceedings had under such judgments, orders, sentences or decrees, shall be absolutely null and void.”
But if it be conceded that this May, 1940, judgment is void as against Prank Nichols as having been rendered without notice, although it recites his appearance by attorney, there is another statute which must be considered, § 8249, Pope’s Digest, which reads as follows: “A judgment shall not be vacated on motion or complaint until it is adjudged that there is a valid defense to the action in which the judgment is rendered, or, if the plaintiff seeks its vacation, that there is a valid cause of action; and where a judgment is modified, all liens and securities obtained under it shall be preserved to the modified judgment. ’ ’
In a long line of cases beginning with State v. Hill, 50 Ark. 458, 8 S. W. 401, and extending to O’Neal v. Goodrich Rubber Co., 204 Ark. 371, 162 S. W. 2d 52, and Davis v. Bank of Atkins, 205 Ark. 144, 167 S. W. 2d 876, this statute has been construed as imposing the requirement that a prima facie showing of a valid defense be made before the judgment will be vacated, although it is shown that it was rendered without notice. The practice under this statute is defined in the case of Jerome Hardwood Lumber Co. v. Jackson-Vreelancl Land Corp., 160 Ark. 303, 254 S. W. 660.
Appellant says he has had no day in court, and that he was not permitted to show that he had a meritorious and valid defense against the disallowance of his claim of homestead. But it cannot be presumed that lie would have proven more than lie alleged, and when the allegations of his motion to vacate the judgment of May, 3940, are read in connection with the facts disclosed by the record, we are of the opinion that lie does not allege facts entitling him to claim this property as his homestead and therefore exempt from the execution sale under which the trust company apparently acquired title. He does allege an equitable interest, but he also alleges that .this interest is derived from his occupancy of the land. He does not deny that the title to the land was in his wife, and the homestead right was vested in her, if. in anyone. That she did not have this right has been concluded by the judgment against her denying that right, and that judgment, so far as she is concerned, is not here questioned and has become final.
It was said in the case of Rockafellow v. Peay, 40 Ark. 69, that: “An equitable estate was enough (To support the claim of homestead.) Indeed, it is probable that the homestead exemption withdraws from the demands' of creditors whatever interest the claimant has in the property dedicated to that use.” See, also, Robson v. Hough, 56 Ark. 621, 20 S. W. 523; White Sewing Machine Co. v. Wooster, 66 Ark. 382, 50 S. W. 1000, 74 Am. St. Rep. 100; Spalding v. Haley, 101 Ark. 296, 142 S. W. 172; Brooks v. Goodwin, 123 Ark. 607, 186 S. W. 67; Watson v. Poindexter, 176 Ark. 1065, 5 S. W. 2d 299.
The failure of appellant to assert his right of homestead, if it exists, is not defeated by his failure to -claim the homestead right before the sale of the property under the execution, ’ as the statute {% 7382, Pope’s Digest) provides that this claim may be made after or before the sale on execution. This statute also provides that if the husband neglects or refuses to make the claim, his wife may intervene and set it up. Hollis v. State, 59 Ark. 211, 27 S. W. 73, 43 Am. St. Rep. 28. Now, if it be conceded, and we find it unnecessary to decide, that the husband may claim the right of homestead in the lands of his wife sold under an execution against her, when she neglects or refuses to make such claim, the fact remains that Mrs. Nichols did not neglect or refuse to make that claim. She made the claim, and it was disallowed, and that judgment is final as against her. The fact that the husband occupied the land in conjunction with his wife as a homestead would not disentitle her to her homestead right, and it was not denied on that account.
We think no view of the record can be taken which entitles appellant to claim the property as his exempted homestead against the judgment rendered against his wife. The recitals in this judgment of May, 1940, of-appellant’s appearance by his attorney is not impeached, there being no allegation of the lack of-authority of the attorney to appear, nor is there any allegation that fraud liad been practiced in the recital. But, even so, appellant has not alleged facts constituting a prima facie showing of merit, and the judgment must, therefore, be affirmed, and it is so ordered. | [
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McHaney, J.
This is a suit by appellee against appellant to enforce a mechanic’s lien against appellant’s real property in the sum of $701.15, for material and supplies furnished and delivered by appellee to appellant’s contractor in the construction of certain buildings on its gin site. Appellant .admits that all the material listed in appellee’s itemized statement of account was furnished and delivered to its contractor, Raymond Sperr, but.contends that a substantial amount thereof was moved away from said gin site by Sperr and did not go into the construction of the buildings on which lien is claimed. This is the only issue presented by this appeal.
The trial court entered a decree in favor of appellee for $701.15, fixed a lien on appellant’s gin property to secure same and ordered it foreclosed and the property sold to pay same. This appeal followed.
Under our mechanics’ lien statute, § 8865 of Pope’s Digest, as construed by this court, materials furnished for a building must be actually used in it before a lien will be acquired, but where materials purchased for a building are delivered by the matérialman at or near where the building is to be erected or is being erected, and such building is actually completed of materials of the description of those furnished, this fact is prima facie evidence that such materials were used in its construction, and the burden is on the owner to show that they were not so used. Central Lumber Co. v. Braddock Land & Granite Co., 84 Ark. 560, 105 S. W. 583, 13 Ann. Cas. 11; Van Houten Lbr. Co. v. Planters Nat’l Bank, 159 Ark. 535, 252 S. W. 614; Standard Lbr. Co. v. Wilson, 173 Ark. 1024, 296 S. W. 27.
Therefore, appellant had the burden of showing that some of the materials delivered by appellee on the gin site of appellant did not enter into the construction of its buildings. It is conceded that some of the cement so delivered was used by the contractor, Sperr, elsewhere, but this cement was paid for by Sperr and proper credit was shown on the statement of account. It is ajjpellant’s contention that a portion of cement so delivered was used on other jobs referred to as the Dell Gin and the Dell Compress, but tlie check produced in payment to Sperr for the cement used on those jobs was dated 25 days before any cement was delivered on appellant’s gin site by appellee, and could not have been a part of that so delivered.
Whether any of the materials here involved did not enter into the construction of appellant’s improvements was purely a question of fact, with the burden on appellant. The trial court held against appellant and we cannot say its holding is against the preponderance of the evidence. In fact we agree that it failed to meet the burden imposed upon it.
Affirmed. | [
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Griffin Smith, Chief Justice.
Appeal is from a Randolph Circuit Court judgment that Act 73, approved February 19, 1943, invades Amendment No. Fourteen to the Constitution. We agree that it does.
The Act, initially, directs appointment (and later election) of road overseers “. . . in any of the counties . . . having a population between 18,300 and 18,350, or which may hereafter contain a population of not less than 18,300 nor more than 18,350.”
According to the 1940 Federal Census, Randolph County had a population of 18,319 — nineteen more than the minimum, and thirty-one less than the maximum, mentioned in the Act. No other county falls within the so-called ‘ ‘ classification. ’ ’
By mandamus it was sought to compel the County Judge to make appointments pending the election.
Appellant thinks the decision in Murphy v. Cook, 202 Ark. 1069, 155 S. W. 2d 330, is authority for the proposition that population ás a basis — that is, not more nor less than stipulated figures (and this'regardless of a narrow range) — sufficiently lifts an enactment from a local or special classification, with the result that ills sought to be prevented by Amendment Fourteen are not present.
Substance of the Murphy-Cook case is that a law applicable to counties within which there are cities having a population of 5,000 or more is not predicated upon a static condition, nor is it so. arbitrarily circumscribed as to infringe rules of construction previously announced as controlling. See Lemaire v. Henderson, 174 Ark. 936, 298 S. W. 327; McLaughlin v. Ford, 168 Ark. 1108, 273 S. W. 707; Knowlton v. Walton, 189 Ark. 901, 75 S. W. 2d 811.
The general principle was stated by Chief Justice Hart in Simpson v. Matthews, 184 Ark. 213, 40 S. W. 2d 991. The Amendment, said the Chief Justice, was intended to prevent- arbitrary classification “based on no reasonable relation between the subject-matter of the limitation and classification made.” It was then said: “The classification of counties and municipalities is legitimate when population or other basis of classification bears a reasonable relation' to the subject of the legislation, and the judgment of the Legislature in the matter should control unless the classification is ... is made for the purpose of evading the Constitution. If the judgment of the Legislature must control in all cases, the Amendment could serve no purpose, and the people might just as well not have initiated and adopted it.”
A quotation from Ruling Case Law, cited in State ex rel. Atty. Gen. v. Lee, 193 Ark. 270, 99 S. W. 2d 835, asserts that in determining whether a law is public, general, special, or local, the courts will look to its substance and practical operation rather than to its title, form, and phraseology, “because otherwise prohibitions of the fundamental law against special legislation would be nugatory. ’ ’
When we apply this rule to the instant case there can be but one answer: the Act was designed to favor Randolph County. Restrictions have the inevitable and intended result of excluding other counties.
Of course it may be argued that elasticity is found in the provision for reception of counties that may “hereafter” fall within the circumscription. Practical operation, however, is to establish a system of road overseers by a process which excludes seventy-four other counties from the public policy so declared.
If we should reverse the judgment in this case, effect would be to say that the General Assembly, in adopting Act 73 and similar measures, has found a permissible point'of penetration into Amendment No. Fourteen.
Our view is that the so-called “classification” is but an attempt by technicality to evade what the courts have heretofore said the people meant when by amendment to the Constitution they struck at the evil flowing from local and special laws.
Affirmed.
Section 1 of Act 73 is: “The County Court in any of the counties of this State having a population between 18,300 and 19,350, or which may hereafter contain a population of not less than 18,300 nor more than 18,350 shall appoint and employ one road overseer for each township of the county for a term to .expire when his successor is elected at the next regular general election held after the passage of this Act in said counties, unless removed or discharged by the County Court, who shall receive for his services a sum not to exceed $3 per day for the time actually employed in the discharge of his duties as such overseer . . .” Section 2: “At the next regular general election held after the passage of this Act in said counties, road overseers shall he elected by the qualified electors residing in each township of said counties.”
The language is: “This Act is intended to apply' to all the counties of the State which now have cities of a population of 5,000 inhabitants or which may hereafter have cities of a population of 5,000.” | [
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Grieein Smith, Chief Justice.
Jewel Guthrie owned 240 acres in Prairie Township, Madison County, where she resided and farmed. Crumbley, a resident and stock-raiser of the same county, permitted his cattle to run at large and trespass upon Mrs. Guthrie’s strawberry patch, resulting in damages for which $300 was awarded to compensate. Questions for decision on appeal, as expressed by counsel for Crumbley, are shown in the margin.
Mrs. Guthrie planted two and a half acres to strawberries in the spring of 1942. Trespass (recurring) began in March 1943. On two occasions the stock was driven' out. Crumbley was informed of what had occurred, but did not respond to notice. Near- the last of April when seven head of 'Crumbley’s cattle entered the field, Mrs. Guthrie had them enclosed in her pasture, and in writing informed the owner they were being held pending payment of $100 damages and cost of impounding, “. . . under the law of Sec. 335 of the State Laws.” This notice was ignored by Crumbley; whereupon, three appraisers were-appointed by a Justice of the Peace to determine extent of the injury. Their report of April 28 was that “. . . damage done [the] strawberry patch [was] $100 for berries”; $1 per month per head for taking care of the stock; 70 cents for impounding them, and cost of appraisement, $6. This report was given Crumbley, wbo did not act until informed May 8th that the cattle would be publicly sold May 14. He then filed complaint in Circuit Court, denying Mrs. Guthrie’s contention that the cattle were found “damage-feasant” on her land. The proceeding, in effect, was in replevin, accompanied by bond with affidavit for delivery.
Mrs. Guthrie’s answer set out the facts just stated. It was expressly alleged that her farm was within a stock law district; that her acts in impounding were in compliance with Sec. 338 of Pope’s Digest, and that her losses amounted to $300, etc.
In an amended complaint Crumbley asked that sale of the cattle be enjoined, and that the cause be transferred to Chancery. No issue is tendered in respect of the order of transfer.
(a) It is first contended the Court was in error .when it tried the cause on its merit and awarded damages. If it be said that this argument is sound if the only issue had been the right to possession, answer is that replevin is an exclusive legal remedy. The writ might have been awarded Crumbley by Circuit Court had he been content to leave to that tribunal a determination of his rights. But he elected to invoke the aid of Chancery, where, if jurisdiction attached for any purpose, it would be retained for the purpose of decreeing full relief and to avoid a multiplicity of suits. Appellant does not question the Court’s power to act, nor assert the principle that jurisdiction of subject-matter cannot be conferred by consent. He merely appeals from action of a tribunal wherein affirmative aid was sought. It will be presumed that some asserted right not discussed in the appeal gave jurisdiction.
(b) In the decree the Chancellor said: “Prairie Township ... is part of a stock law district wherein it is unlawful for stock to run at large.” There was no proof to support this finding. On rehearing in Skiles v. State, 150 Ark. 300, 234 S. W. 721, there was answer to the appellant’s contention that no proof had been intro duced showing that a stock law enacted by the Legislature had been put into operation by vote of the people, as prescribed by that statute. The Court, speaking through Chief Justice McCulloch, concluded that adoption of the terms of a statute by election ££. . . is a matter of which the Court should take notice judicially. It is a law in operation in a locality which was within the jurisdiction of the Court, and the Court should take cognizance of it without the necessity of it being brought to the attention of the court by proof.” We think the defendant below had a right to rely upon this opinion and to rest the matter on allegation, in the absence of proof that the law was not adopted.
(c) The most difficult question is whether the amount awarded necessarily, or by fair inferences to be drawn from a preponderance of the evidence, included speculative elements. Mrs. Guthrie testified that she harvested twenty-nine crates from remnants of plants that would have produced from 200 to 250 crates. . Invasion by Crumbley’s cattle occurred before maturity of the fruit; but there is proof that sufficient progress had been made to promise a production much greater than that realized had the trespass not occurred. The three appraisers testified that they were able, from appearance of the plants, to fairly accurately estimate what the loss had been. They thought Mrs. Guthrie had been damaged 100 crates, with definite loss of a profit of one dollar per crate.
The cause was tried long after marketing season. It was shown that when the crop matured prices had advanced to a point where a profit of three dollars per crate could have been had. Mrs. Guthrie testified that she realized that sum on the twenty-nine crates actually gathered. It cannot be said that the Court’s finding on this issue was against the weight of evidence; and, in the light of Brown v. Arkebauer, 182 Ark. 354, 31 S. W. 2d 530, the loss was not speculative. Here, as in the BrownArkebauer case, the crop had developed to a stage permitting the witnesses to estimate, with a fair degree of certainty, that the actual berries having a potential value were destroyed.
(d) There was proof that stock other than that owned by Crumbley had been in the berry patch. Contention is that the Court disregarded damage caused by this intrusion. Since the appraisers ’ report, in point of time, followed the third visitation made by Crumbley’s cattle, it must be assumed that the injury computed was caused by appellant’s cattle. In any event it is not shown that the Court did not consider the evidence in that behalf offered by Crumbley.
(e) Final objection is that the judgment is excessive. This appears to be based upon Mrs. Guthrie’s threefold increase in the amount demanded in her final answer, compared to the sum claimed when notice was sent Crumbley. If, as witnesses testified, prices increased between May and the marketing period, and this increase was sufficient to show that net profits would have been three dollars per crate instead of one dollar as originally estimated, it was proper to give effect to the fact of that increase, and to consider it in connection with other factors causing loss.
Affirmed.
(a) Where the complaint alleged unlawful detention of the cattle and the prayer was for possession, . . . and in the alternative for an order restraining sale; and [where by] answer appellee claimed lawful right to possession under the provisions of a stock law and prayed for a return of the cattle, did the Court err in disregarding the issues tendered by the pleadings, and [in] awarding judgment for damages? (b) Where the answer alleged that the land invaded by appellant’s cattle is in a stock law district, will the Court take judicial knowledge that a stock law district has been created and a stock law put in force? (c) Did the trial court err in holding that appellee could recover speculative damages for the loss of berries which might have been produced? (d) Did the trial court err in refusing to give consideration to the damage done to the strawberry patch by the horses, mules, and cattle belonging to appellee and her son-in-law? (e) Is the judgment awarded appellee excessive and unsupported by the evidence? | [
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McFaddin, J.
This appeal involves a boundary line ■ dispute. Appellants (plaintiffs below) own tbe northwest quarter of tbe northwest quarter of section 19. Appellee (defendant below) owns tbe southwest quarter of tbe southwest quarter of section 18. These are adjoining 40-acre tracts, with appellee’s land lying to tbe north. Appellants filed suit in ejectment, claiming that appellee bad fenced and appropriated 5.54 acres of appellants’ land south of tbe true boundary (tbe section line). Appellee claimed that tbe land in controversy was north of tbe section line. Tbe case was tried to a jury, and tbe issue was tbe location of tbe section line. From an adverse verdict and judgment, there is this appeal presenting tbe questions herein discussed.
I. Admissibility of the Private Survey by Balts and Ponder. Appellants bad tbe testimony of tbe county surveyor and two others to support their contention about tbe location of tbe section line. Appellee offered a private survey made by tbe witnesses, Baltz and Ponder, without any notice to appellants. Tbe trial court admitted tbe Baltz-Ponder survey, and appellants claim that this was error, citing § 2418 of Pope’s Digest (which was also § 1182 of Mansfield’s Digest) reading:
“Surveys as evidence. No survey made by any person except tbe county surveyor or bis deputy shall be considered as legal evidence in any court of law or equity, unless such surveys are made under authority of tbe United States, or by tbe mutual consent of tbe parties.”
This court has ruled adversely to the appellants’ contention. In the case of Smith v. Leach, 44 Ark. 287, it was held that a county surveyor’s record of the survey made by him is only prima facie evidence of the correctness of the survey, and parol evidence of other surveys is admissible. To the same effect, see Jeffries v. Hargis, 50 Ark. 65, 6 S. W. 328; Russell v. State, 97 Ark. 92, 133 S. W. 188; Buffalo Zinc & Copper Co. v. McCarty, 125 Ark. 582, 189 S. W. 355; Sherrin v. Coffman, 143 Ark. 8, 219 S. W. 348. Since the private survey made by Baltz and Ponder was admissible, then the map made by Ponder, showing that survey, was likewise admissible, as it was identified by the witness who made it. We, therefore, hold that the trial court was correct in admitting the Baltz-Ponder survey and map.
II. Talcing the Ponder Map into the Jury Room. Appellants next complain that there was error in allowing the map to be taken into the jury room for deliberation. The answer to this contention is that the bill of exceptions fails to show either (1) that the map was taken into the jury room, or (2) that appellants made any objection to such procedure at the time the jury retired. In the absence of any recital about this in the bill of exceptions, we consider this point as not properly presented on appeal.
III. Assignments Concerning the Evidence. There are two of these assignments:
(a) In the course of the testimony the witness, Baltz, in detailing how he ran his survey, told of beginning at the admitted corner and running west; and the witness said:
“I came out a few links north of the corner set there supposedly by John L. Frye.”
It is claimed that the quoted language was inadmissible as hearsay under the rule of Mason v. Mason, 167 Ark. 304, 267 S. W. 772. Only a general objection was offered by appellants to the full recitals by Baltz, of which the quotation is merely a part. We think the general objection was insufficient. But, even so, a full read ing of the entire testimony of Baltz shows that he was merely detailing the way he made his survey, and was not attempting to show by hearsay that a former survey had been made by John L. Frye. The evidence is not reasonably susceptible of the construction now urged by the appellants.
(b) In the course of the trial, appellee, Jackson, testified about a road leading to Walnut Ridge, and also about the line between Jackson and Sloan (another landowner to the west). This testimony was offered by appellant to show that the Baltz-Ponder line coincided with fence lines and roads. We cannot see how it was erroneous to admit such evidence under the limitations stated by the trial court. The issue submitted to the jury was which survey line was correct: that is, the Baltz-Ponder line relied on by appellee or the Scarlett line relied on by appellant. The jury verdict settled the disputed question in favor of the Baltz-Ponder line; and we find no error regarding that line.
IY. Verdict Contrary to the Evidence. Appellant contends that the verdict, in part at least, is contrary to the evidence to this extent: the Surveyor Baltz (appellee’s witness) said that appellee had under fence a triangular strip which was south of the true line as fixed by Baltz. He said:
“. . . and going over my line, going east, my line cut off something like eight or ten rows of cotton. I would say ten rows would catch it. As you go west it landed right at the fence. ... Q. In other words, then, that land that Mr. Jackson has in cotton has cut a little off of Mr. Reeves’ land, is that right? A. Yes, it is a little bit wider here, and it runs to a point. ’ ’
And appellee’s witness, Ponder, said of appellee’s fence:
“. . . the end of that little fence dropped down about ten or fifteen cotton rows, I believe, south of that line, ’ ’
And appellee’s witness, Statton, said:
“. . . The strip is a little wider on the east end of the field . . . there are about twelve or fifteen rows at the . . . east end . . . and where it (the line) came out on this side, it came out about the fence. ’ ’
From this evidence we understand that, after giving full force and effect to the Baltz-Ponder survey— as the jury evidently did — there is still a triangular strip, twelve cotton rows wide north and south at the east end, and running westerly ten chains and ninety-five links to a point, which triangular strip was clearly shown by appellee’s own witnesses to be south of the Baltz-Ponder line, and therefore a part of the land owned by appellants.
This seems to have been overlooked by appellee, but still the fact remains that under the testimony of appellee’s own witnesses, there was a small triangular strip of land south of the line claimed by appellee (and found correct by the jury), which tract belongs to appellants, but is within appellee’s enclosure. This tract cannot be ignored under the doctrine of de minimis non curat lex (the law takes no notice of trifles), because the doctrine of. de minimis does not apply to the invasion of the property of another. In 26 R. C. L. 762, it is stated:
“The maxim de minimis non curat lex is never applied to the positive and wrongful invasion of another’s
property. The right to maintain an action for the value of property, however small, of which the owner is wrongfully deprived, is' never denied. A trespass upon lands is actionable, although the damage to the owner is inappreciable.” See, also, annotation of “de minimis” in 44 A. L. R. 168.
So we must hold that appellants are entitled to recover this small triangular strip of- land south of the Baltz-Ponder line and within appellee’s inclosure; and to that extent, the judgment of .the lower court is reversed. This reversal, however, does not necessitate a new trial on the whole case, bnt only for the lower court to ascertain and describe the triangular strip, and to award same to appellants, together with the rent thereof. In all other respects, we affirm the judgment of the circuit court involved in this appeal. Appellants will recover the costs of this court. | [
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McFaddin, J.
This appeal presents for determination (1) whether a city of the first class has authority to require hotels therein to be licensed and regulated by the city, and (2) whether the procedure employed by the city of Texarkana in this case was valid and lawful.
City Ordinance No. B-439, entitled “an ordinance to provide a new method of licensing rooming houses and hotels,” may be summarized by sections, as follows:
“Section 1. That it shall be unlawful for any person to operate a hotel without obtaining and having unrevoked at all times a license under this ordinance.
“Section 2. Each applicant must give notice by publication of the intention to apply for license, and must then file application with the city council and produce at the hearing before the council reputable witnesses as to good moral character.
‘ ‘ Section 3. The license issued shall remain in force until revoked by the council; and this ordinance is in addition to all other ordinances as to occupation taxes, etc.
“Section 4. If any person employed at the hotel should be convicted of certain named offenses, then the city council would forthwith give notice to the licensee to appear and show cause why the license should not be revoked; and the burden would be on the licensee to justify himself.
“Section 5. Any person convicted of operating a hotel without a license under the ordinance should be fined twenty-five dollars for each day of such operation. ’ ’
On March 10, 1942, appellee, Mrs. Claire Brachfield, obtained a license under the said ordinance to operate the Claire Hotel. On January 25, 1944, the city council, by resolution, issued a notice to Mrs. Brachfield to show cause why her license should not be revoked. It was specified in the said resolution and notice that intoxicating liquor had been illegally sold at the hotel; that the premises had been operated as a bawdy house; and that immoral conduct, gambling and drinking had been knowingly permitted on the premises.
Mrs. Brachfield filed, with the city council, her “response,” in which she challenged authority of the city to pass and enforce such an ordinance, claiming (1) that the ordinance was void as beyond the- power of the city, and (2) that she was a citizen of Texarkana, Arkansas, and had never been indicted or convicted of any offense,, and was entitled to due process of law in a court of proper jurisdiction before her hotel could be closed, or. property rights taken from her.
The city council, on February 8, 1944, adopted a resolution finding as a fact that prostitution and gambling and illegal sale of liquor had been permitted at the hotel (but not finding that Mrs. Brachfield had done any of these things); and also finding that one of the employees of the hotel had been convicted of “hustling” for prostitutes on the premises of the hotel, and that such employee had been retained in the employment of the hotel after such conviction. The resolution also declared the Claire Hotel to be a bawdy house, and revoked the license issued under ordinance No. B-439, and ordered the hotel closed, and directed the chief of police to notify Mrs. Brachfield and to take “whatever further steps that may be necessary to close the premises known as the Claire Hotel.”
On February 9, 1944, Mrs. Brachfield filed in the Miller circuit court her petition for writ of certiorari against the city and its mayor and chief of police, to have the said ordinance, resolutions and order declared void. In response to the writ, the city certified the ordinance and council proceedings and order, as herein mentioned; and the city demurred to the petition for certiorari, and claimed the lawful authority to do the acts that had been done. The cause was heard on the pleadings and writings as mentioned, and the circuit court entered an order adjudging the action of the city and its officers to be void, and restraining the closing of the Claire Hotel. From that judgment, the city of Texarkana has appealed. We state and discuss the questions presented.
I. Does a city of the first class have authority to require hotels therein to be licensed and regulated by the city?
Appellee cites Bragg v. Adams, 180 Ark. 582, 21 S. W. 2d 950, as answering the question in the negative. We proceed to examine that case. In Bragg v. Adams the incorporated town of West Memphis sought to regulate a hotel, and this court held that an incorporated town had no such authority. Mr. Justice Butler, in that opinion, pointed out that § 17 of Act No. 1 of 1875 (later § 5454, Kirby’s Digest) gave the power to all municipalities to regulate hotels; but that Act 376 of the General Assembly of 1917 eliminated that power. Mr. Justice Butler also pointed out that by Act No. 210 of 1917, the State Board of Health was given power to regulate the sanitary conditions of hotels. So it was decided in Bragg v. Adams that an incorporated town had no authority to regulate a hotel. But it was there carefully pointed out that cities of the first class possess greater powers than incorporated towns. The opinion, after distinguishing Carpenter v. Little Rock, 101 Ark. 238, 142 S. W. 162, as not applicable to an incorporated town, said:
“As cities of the first class have enlarged powers over incorporated towns, given by § 7684, C. & M. Digest, and as the case of Carpenter v. Little Rock, supra, was controlled by that provision of law, its decision can have no application to the case at bar.”
■So the most that can be said of Bragg v. Adams is, that the power of all municipalities under § 17 of Act No. 1 of 1875, to regulate hotels, has been removed; and the city of Texarkana must find some other legislative enactment to sustain the ordinance here involved. The case does not answer the posed question.
As authority for the power to enact and proceed under its ordinance No. B-439, the city cites three sec tions of Pope’s Digest, being 9543, 9589 and 9944. We examine these:
Section 9543 of Pope’s Digest was § 7494 of C. & M. Digest, and was § 22 of Act No. 1 of 1875; and of that section Mr. Justice Butler said, in Bragg v. Adams:
“Section 22 (§ 7494, C. & M. Digest) provided for enactment of ordinances to carry into effect the powers conferred by the provisions of the act, and did not enlarge the powers conferred by the. special provisions. Tuck v. Town of Waldron, 31 Ark. 462.”
So this § 9543 of Pope’s Digest did not enlarge any power of municipalities as regards hotels, and affords appellant no support.
Section 9589 of Pope’s Digest was § 7529 of O. & M. Digest, and was § 12 of Act No. 1 of 1875; and in Bragg v. Adams, Mr. Justice Butler explained fully why the power to regulate hotels did not come within the purview of this section. So we dismiss that section, as affording the appellant no support.
There is thus only left § 9944 of Pope’s Digest as a claimed source of authority for the city to enact and proceed under its ordinance No. B-439. This § 9944 of Pope’s Digest was § 7748 of C. & M. Digest; and was originally —as regards cities of the first class — the 4th subdivision of § 3 of Act 67 of 1885 (p. 96), which act was entitled “For the better government of Cities of the First Class, and to confer enlarged and additional powers on such Cities,” etc. This act of 1885 clearly enlarged the powers of cities of the first class, for it gave these cities, inter alia, the power “. . . to prevent or regulate the carrying on of any trade, business or vocation of a tendency dangerous to the morals, health or safety . . .” This was a power over all business. When the legislature, by Act No. 376 of 1917, amended § 5454, Kirby’s Digest, so as to remove from other municipal corporations the power to regulate hotels, it left undisturbed this power of cities of the first class under the act of 1885, supra, “to prevent or regulate the carrying on of any trade,
business or vocation of a tendency dangerous to the morals, health or safety ' . . and that power still exists in cities of the first class.
The operation of a hotel is certainly a business or vocation (11 Am. Jur. 1148). If the operation of a hotel has a tendency to become dangerous to the morals, health or safety of a city of the first class, then the city has under the quoted language — a regulatory power. It is not an unlimited power; it extends only to the matter of .morals, health or safety of the city. Under the same language quoted from the Act of 1885, we have approved ordinances of cities: regulating the sale of milk and meat (Carpenter v. Little Rock, 101 Ark. 238, 142 S. W. 162); regulating soda fountains (Kirby v. Paragould, 159 Ark. 29, 251 S. W. 374); and regulating wiener stands (Newport v. Young, 173 Ark. 785, 293 S. W. 711). Certainly a hotel where food is served, towels and linens used, etc., is in the same comparative category as places serving milk, meat, sausages and fountain drinks. A hotel used for illegal purposes, such as gambling, prostitution, etc., is dangerous to the morals of the community. A place where unwholesome food is served is dangerous to the health of the community. The statute covers both morals and health.
Act No. 210 of 1917 empowered the State Board of Health to promulgate sanitary rules for hotels, and have some form of inspection. But that act did not take away from cities of the first class the power over hotels, as allowed by § 9944, Pope’s Digest, except that the rules and inspections made by the State Board of Health, within the scope of the purpose in view when the state act was passed, are superior to any municipal regulation, since the State Board of Health authority is the latest legislative expression.
The Supreme Court of Indiana, in Spitler v. Town of Munice, 214 Ind. 75, 14 N. E. 2d 579, 115 A. L. R. 1395, pointed out that the action of the state legislature in empowering the State Board of Health to regulate (in that case) tourist courts, did not take away from the municipality the right to also establish reasonable regulations for the protection of the health and safety of the citizens of the municipality, so long as the municipal regulations were not contrary to the regulations promulgated by the State Board of Health. We subscribe to the same holding.
In 28 Am. Jur. 558, in discussing the municipal regulation of hotels, it is stated:
“The business of keeping a hotel, lodginghouse, boardinghouse, restaurant, or similar place is one so far affecting the public health, morals, or welfare, that it is competent for the legislature, in the exercise of the police power, to authorize municipal corporations to regulate such businesses. As in other cases, however, the regulation must he reasonable, and not arbitrary. The power to regulate does not carry with it the power to prohibit lawful businesses or amusements. . . . Municipalities may, however, have power to pass such an ordinance under statutory authority to license and regulate all industries, pursuits, professions, and occupations, and the power to regulate the sale of articles of food has been held sufficient to sustain a regulation of the sale of cooked food in restaurants. The existence of state regulations on the subject, or the fact that some other governmental agency, such as the board of health, has been authorized to regulate the subject, does not necessarily preclude the exercise of such power by a municipality. ’ ’
So, we conclude that a city of the first class has, under § 9944, Pope’s Digest, the power to regulate hotels; and the limit of the power being the protection of the morals, health and safety of the city; and the case of Bragg v. Adams is not to the contrary.
II. Was the regulatory procedure employed by the city of Texarkana in this case a valid and lawful procedure?
We conclude that the procedure adopted in this case was in fact substantive rather than merely administrative, and was in excess of the city’s authority. We demonstrate this by considering the cumulative effect of (a) the ordinance, and (b) the action of the council.
(a) The Ordinance.
The first sentence of § 4 of the ordinance B-439 reads:
“Section 4. Whenever any person is convicted for any act of prostitution, ‘pimping,’ immoral conduct, or for gambling, or for selling, storing, or keeping intoxicating liquor upon the premises covered by the license granted hereunder, it shall be the duty of the chief of police to at once summon the licensee to appear before the next regular meeting of the council to show cause why the license should not be ordered canceled and such hotel, rooming house, or lodging-house ordered closed.”
The municipality had the right to provide by ordinance that a hotel could not operate after it had been found by a court of competent jurisdiction that the particular hotel was being operated by that proprietor in a manner dangerous to public morals, health or safety. But the adjudication must have been made by a court of competent jurisdiction. Even in the case of a nuisance, this court in Lonoke v. C., R. I. & P. Ry. Co., 92 Ark. 546, 123 S. W. 395, said:
“If it should be determined that said ordinance was legally passed, that would not necessarily make an actual nuisance the structure and things complained, if in law and in fact they do not come within the legal notion of a nuisance. In the case of Yates v. Milwaukee, 10 Wall. 497, (77 U. S. 497), 19 L. Ed. 984, Mr. Justice Miller says: ‘But the mere declaration by the city council that a certain structure was an encroachment or obstruction did not make it so, nor could such declaration make it a nuisance unless it in fact had that character.’ A municipal corporation cannot declare that a nuisance which upon judicial investigation is found not to be.”
The principle of law above quoted applies here. The question occurs: When does a business, presumptively lawful, become unlawful, and how is the status ascertained? The right to carry on a lawful business is a property right. Local Union v. Stathakis, 135 Ark. 86, 205 S. W. 450, 6 A. L. R. 894. See, also, 11 Am. Jur. 1148. Before Mrs. Brachfield’s property rights could be taken from her, she was entitled to a hearing in a court of competent jurisdiction. The ordinance attempted to take from her the right to operate her hotel by the declaration of the city council proceeding on its own initiative before itself as the hearing body. In 28 Am. Jur. 558, in discussing the power of a municipality to regulate hotels, it is stated:
“As in other cases, however, the regulations must be reasonable and not arbitrary. The power to regulate does not carry with it the power to prohibit lawful businesses and amusements.”
In 35 L. R. A., N. S., 716, there is an annotation on the subject that the power to revoke a license once issued cannot be exercised in an arbitrary manner by a municipality.
(b) The action of the council.
The resolution of the city council of February 8, 1944, went beyond the ordinance No. B-439. The ordinance provided, in § 5, that any person convicted of operating a hotel after the cancellation of the license, should be fined twenty-five dollars for each day of such operation. But the resolution of the city council in the case of Mrs. Brachfield, went further than this. Assuming the authority to revoke, what were the resulting-rights of the city? The resolution declared the license was revoked, and then stated:
“Section 3. That the Claire Hotel be, and is hereby, ordered closed. Section 4. That the Chief of Police of this City be, and he is hereby directed to execute this order ... by taking whatever further steps that may be necessary to close the premises known as the Claire Hotel. ’ ’
It will be observed that in the resolution the council not only revoked the license, but also directed the chief of police to close the hotel. If the resolution had merely canceled the license, then Mrs. Brachfield, by continuing to operate the hotel, would have forced the city to proceed against her for fine or for abatement; and in either event she would have been able to attack the ordinance and resolution in a court of competent jurisdiction.. But the council, in an apparent effort to cut off a judicial hearing, proceeded summarily to close the hotel; and the city thereby deprived Mrs. Brachfield of her right to be heard in a court of competent jurisdiction. This right is a sacred right, for which governments are established and maintained in democracies. Regardless of how deeply the city might have felt aggrieved by the conditions alleged by it to exist in the Claire Hotel, nevertheless the city should have invoked the aid of a court of competent jurisdiction, rather than proceeded summarily.
It appears that the judgment of the circuit court (1) held to be void all’ of the city ordinance attempting to impose regulations on hotels, and also (2) held to be void the city council resolutions and actions closing the hotel.
The circuit court reached the correct result on the whole case, so the judgment is affirmed after modifying it to strike so much of the judgment as holds that the city had no power to regulate hotels, and to strike so much of the judgment as is in conflict with this opinion. Affirmed. | [
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McHaney, J.
This is a controversy between appellants, as executors of the estate of the late Harvey C. Couch, and appellee, Commissioner of Revenues for the state of Arkansas, as to the correct amount of the estate tax due the state under the provisions of the “Estate Tax Law,” same being Act 136 of 1941. Mr. Couch died subsequent to the effective date of said act. Appellants contend that they have paid to appellee all the estate tax due to the state, which appellee admits, if appellants’ construction of said act is correct. On the other hand appellee contends that there is still due and unpaid on account of said estate a balance in- the sum of $2,559.80, which appellants admit is correct, if appellee’s construction of said act is correct.
This action was brought by appellants to enjoin appellee from enforcing said additional tax. Trial resulted in a decree dismissing appellants’ complaint for want of equity and they have appealed.
The principal controversy arises under the provisions of § 3 of said act, but subsections (h) and (i) of § 2, the definatory section, have some bearing on the question and are as follows: “(h) The term ‘gross estate’ means the gross estate as determined under the provisions of the applicable federal revenue act; (i) The term ‘net estate’ means the net estate as determined under the provisions of the applicable federal revenue- act, except where otherwise defined.”
Section 3 provides: “A tax is hereby imposed as follows upon the transfer of the net estate of every person dying after the effective date of this Act who at the time of death Avas a resident of this state; the net estate shall be the value of the estate at the date of death after deducting from the gross estate funeral expenses, trustee’s fees, attorney’s fees, administration- expenses, claims against the estate, unpaid mortgages, or any in debtedness in respect to property, tbe value of which is included in the gross estate, to the extent that such expenses, claims, mortgages, or indebtedness were incurred or contracted bona fide and for an adequate and full consideration in money and money’s worth; but net estates which after the deductions allowed hereunder do not exceed ten thousand dollars, shall not be taxable. Four-fifths of one per centum of the amount of the net estate in excess of ten thousand dollars but not in excess of one hundred thousand dollars, and on the amount of the net estate which exceeds one hundred thousand dollars, a tax on the amount which shall be a sum equal to the amount by which the credit allowable under the applicable federal revenue act for estate, inheritance, legacy and succession taxes actually paid to the several states shall exceed the aggregate amount of all constitutionally valid estate, inheritance, legacy and succession taxes actually paid to the several states of the United States (other than the state of Arkansas) in respect to any property owned by such decedent, or subject to such taxes as a part of or in connection with his estate. ’ ’
It will be observed that this section provides that “the net estate shall be the value of the estate at the date of death after deducting from the gross estate” the various items set out in said section. If the net estate as defined is of the value of $10,000 or less, no tax shall be collected. If the net estate as defined-is in excess of $10,000, a tax of four-fifths of one per centum is levied on such excess up to and including $100,000, or 4/5 of 1 % of $90,000 which is $720. There is no dispute between the parties up to this point. Mr. Couch’s net estate amounted to more than $100,000, and their dispute arises over- the amount of the tax due on the amount of the net estate in excess of $100,000. Under the applicable federal revenue act the net value of said estate was somewhat less than the net value fixed by the state, because of a decline in value of an asset of the estate after decedent’s death, and within one year therefrom, and the election of the executors to value the gross estate “as of the date one year after decedent’s death,” as given them under the provisions of § 811 (j), Title 26, U.S.O.A., p. 20, instead of the value at date of death.
Appellants contend that the amount of estate tax due the state of Arkansas is 4/5 of 1% of $100,000 minus $10,000, which is 4/5 of 1% of $90,000, or $720, plus the federal credit as computed by the applicable federal revenue act, which amount has all been paid. Appellee contends that the tax due Arkansas on the amount of the net estate in excess of $100,000 is.equal to 80% of an amount computed by applying the federal rates to the valuation of the net estate under said Act 136, that is, as of the date of death of Mr. Couch.
It will be observed in reading' § 3 of said act, above quoted, that it fixes no rates of taxation on values in excess of $100,000. The last clause in said section, beginning with the words “and on the amount of the net estate which exceeds one hundred thousand dollars” is somewhat involved, but when analyzed is quite simple. Under the applicable federal revenue law, § 813 (b) U.S.C.A., Title 26, p. 150, the amount, not exceeding 80% of the basic federal estate tax, actually paid to the various states, territories or the District of Columbia for death taxes, is allowed as a credit against said basic estate tax. In this case no death tax of any other state is involved. Arkansas is entitled to all the federal credit, which is 80% of'the basic federal estate tax. The basic federal estate tax on this estate is obtained by applying the federal rates to the net. value of the estate, as determined by the Commissioner of Internal Revenue, as of one year after the date of decedent’s death. Arkansas is not concerned with the amount of the net value of the estate in excess of $100,000, because it levies no rate of taxation on such excess, but levies only a tax thereon equal to the amount of the federal credit — no more, no less. The language used in the concluding sentence in § 3 can mean nothing else. Stripped of unnecessary verbiage, or deleting words tending to confound its meaning, it reads: ‘ ‘ and on the amount of the net estate which exceeds one hundred thousand dollars, a tax — which shall be a sum equal to tire amount by which the credit allow able under the applicable federal revenue act for estate —taxes actually paid to the several states shall exceed the aggregate amount of all — es‘tate taxes actually paid to the several states — (other than — Arkansas)— There being no estate taxes to other states, the tax due to Arkansas is the amount of the “credit allowable.” If there were death taxes due and payable to other states, the amount of the Arkansas tax would be the difference between the “credit allowable” and the amount so paid to other states. Stated in the language of Commerce Clearing House, State Tax Guide Service, § 32-651, relative to Act 136 of 1941, “If the net estate exceeds $100,000, the tax on the excess is 80% of the basic federal estate tax less death taxes paid other states.”
In this opinion we have assumed the constitutionality of this provision of said act, and we have also given due consideration to departmental construction and practice from the passage of said act to the pre'sent time, which is that appellee, in determining the amount of the tax due this state on net estates in excess of $100,000, applies the federal rates to the amount of the net estate determined as of the date of death and fakes 80% of that ainount as the ‘ ‘ credit allowable. ’ ’ -But the act does not contain any such provision. It simply levies a tax on such excess which, in this case, is the “credit allowable.” Appellee is demanding and attempting to collect a sum in excess of the ‘ ‘ credit allowable, ’ ’ which he may not do under the plain provisions of said act, but even if there were any doubt about the proper construction of the act, it would be the duty of the courts to resolve such doubt in favor of the taxpayer.
The trial court, therefore, erred in dismissing the complaint; and the decree is reversed and the cause remanded with directions to grant the injunction as prayed. | [
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