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Holt, J.
The city of Harrison, Arkansas, along with appellees, Tennie E. Moss, Fon Wagner, and Lanra Lynn, who intervened as interested property owners, filed Injunction proceedings in the Boone chancery court to prevent appellants, Joe W. Kirby and O. B. McCoy, from closing- an alley-way approximately twenty-five feet wide and 150 feet in length, running west from North Vine street on the east to an intersection with a north and south alley on the west.
Appellee interveners, together with appellants, own all the lots adjacent to said alley-way on the south except one twenty-five foot lot on the west end of said alley.
This suit was begun when appellants attempted to block the space at the rear of their building, 20 x 50 feet, by the erection of a building thereon. Appellees alleged in their petition for injunctive relief that the city of Harrison, interveners, and the public in general, had acquired an easement by prescription over this property.
Appellants denied every material allegation in appellees’ petition and intervention and (quoting from appellants’ brief): “They state that the owners of the respective lots or subdivisions have claimed to own the same the full length, paid taxes on the same and fully recognized the rights of the other owners to their respective lots, and that this vacant space has been used by common agreement or acquiescence,” and was permissive only.
Appellants also filed a motion to have their grantors made parties to the suit, insisting that they were necessary parties because of their warranty in their deed of conveyance to appellants. This motion was overruled by the court.
Upon a trial the court found that the public and adjacent owners to appellants’ property had acquired an easement over appellants’ property in question, and entered an order restraining appellants from closing the alley. This appeal followed.
On the record before us it appears that lots nine and eleven, block four, of the original town of Harrison, face North Vine street. These lots have been divided into six subdivisions, each being twenty-five feet wide and. 120 feet long, and the buildings on these subdivisions face Rush Avenue, which is a street forming the north side of the public square. Appellants own subdivisions one and two of lots nine and eleven in block four. Appellants ’ brick building, which is 100 feet long and fifty feet wide, covers these two subdivisions except the space 20 x 50 feet in the rear, which is the property involved here.
This alley-way, which is now open at both ends, as has been indicated, is approximately 150 feet in length and for the first fifty feet beginning with its east end is twenty feet wide.
Much testimony was taken, twenty-seven witnesses testifying in the case, twenty on behalf of appellees and seven on behalf of appellants. The testimony of appellees is to the effect that the property in question has been used by the public generally and adjoining property owners for more than thirty years, for egress and ingress, for serving these buildings from the rear, and for loading and unloading. It is undisputed that there are water mains and sewer pipes within this vacant space.
As illustrative of appellees’ testimony, witness John Ed Watkins testified that he is eighty-six years of age, and has lived in and around Harrison during the fullness of that term. He would not attempt to say how long that alley has been used as a passageway, but he has driven teams through there as far back as thirty-five years ago. The alley is substantially in the same condition now as it was as long ago as he could remember. He drove through there when thoroughfares were crowded, and on cross-examination: “You don’t know whether that use was against the wishes of the property owners or not? A. No, I don’t have any way of knowing that. I never heard any complaint about it.”
W. H. Watkins, eighty-four years of age, testified (quoting from appellants’ brief): “The people who own the buildings in front have people drive back in the alley and throw off their wood and stuff like that. That alley has been, there thirty years anyway.”
Joe Kirby, one of the appellants, testified that he used this alley space for making deliveries while employed by a grocery company and that it has been open as long as he can remember.
The evidence, as a whole, is practically undisputed as to the long continued use for a period of more than seven years of the property in question. The contention of appellants is, however, (quoting* from their brief): “Admitting the general use of this vacant space the appellants insist that such use was permissive as distinguished from adverse or hostile, ’ ’ and that the trial court erred in holding that the public and appellees had a prescriptive right to the use of this vacant space.
After a review of the record before us, we are of the opinion that the great preponderance of the testimony supports the court’s finding. There are many decisions of this court upholding decrees granting injunctive relief under facts similar, in effect, to those presented here.
In the case of McGill v. Miller, 172 Ark. 390, 288 S. W. 932, the property owners in a block so built their fences, walls and buildings as to leave a ten-foot alley which had been used by the property owners for nineteen years. The appellant sought to block the alley by extending his building to his property line, contending that the use of the alley across his land had been merely permissive. In holding that an easement had been acquired by limitation this court said: “The case must turn entirely upon the proof concerning unrestricted use of the alley for a sufficient length of time to give the other owners the right to use the alley as an easement. . . . The testimony of both Todd and Miller shows that the way had been kept open and used for about nineteen years prior to the commencement of this suit. The line of the alley was marked by the fences and a barn along* the south side, which constituted an invitation to the public to use it as an alley. It is true that the use originated as a permissive right and not upon any consideration, but the length of time which it was used without objection is sufficient to show that use was made of the alley by the owners of the adjoining property as a matter of right and not as a matter of permission. In other words, the length of time and the circumstances under which the alley was opened were sufficient to establish an adverse use so as to ripen into title by limitation.”
Similarly, in Bond v. Stanton, 182 Ark. 289, 31 S. W. 2d 409, the circumstances under which the alley was opened were that the owners, in building, left ten feet at the rear of their property for an alley which was used for more than seven years and subsequently paved. The appellant sought to extend his building into the alley. In holding that an easement had been created by prescription, the court said:
“The doctrine that the owner of one lot may acquire an easement over the lot of another by the open, notorious, and adverse use thereof under a claim of right for a period of seven years is well settled in this state. Such adverse user is sufficient to vest the claimant with an easement therein. Clay v. Penzel, 79 Ark. 5, 94 S. W. 705; Scott v. Dishough, 83 Ark. 369, 103 S. W. 1153; Medlock v. Owen, 105 Ark. 460, 151 S. W. 925; and McGill v. Miller, 172 Ark. 390, 288 S. W. 932. . . .
“The fact that, when the buildings were erected, ten feet were reserved in the rear of them for use as a passageway for wagons in delivering and receiving goods from the respective premises indicates that it was intended for permanent use as a passageway for the owners and tenants of the various buildings, and that this was continued for the period of more than seven years at a time when the various lots were owned by different persons. Thus, under the principles of law above decided and referred to, an easement in favor of the various owners of the lots was acquired before the defendant purchased them. ’ ’
And in the very recent case of Robb & Rowley Theaters v. Arnold, 200 Ark. 110, 138 S. W. 2d 773, this court said: “It does not appear definitely just when the public began to use the alley or driveway, but it does reflect that the alley or driveway was being used by the public forty to fifty years before appellants attempted to close the alley or driveway. . . . It is immaterial how and under what circumstances the unrestricted use of a way by the public began. If the use is continuous and unrestricted for the period of limitations, the right becomes permanent and irrevocable. . . .” See, also, City of Dumas v. Edington, 201 Ark. 1021, 147 S. W. 2d 997.
We are also of the view that the trial court did not err in overruling appellants’ motion to have their grantors made parties to the suit. While appellants’ grantors were proper parties, they were not necessary parties.
The record reflects that appellants acquired deed to their property, which included the twenty-foot space in the rear in issue here, in 1940, long after the prescriptive rights of appellees had accrued and that they acquired this property with notice of all rights of appellees.
We quote further from the Eobb & Eowley Theaters case, stopra, as follows: “An easement once acquired by the public could not be deprived of its easement by a deed from one or two citizens constituting a part of the public. . . . When appellant bought the land by an ordinary inspection or inquiry, he could have found out, not only that the use of the alley had been acquired by the public, but he would have found in the alley manholes and sewers under the ground. . . .”
On the whole case, finding no error, the decree is affirmed. | [
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Brieein Smith, C. J.
The case is similar to First National Bank at Paris v. McKeen, 197 Ark. 1060, 127 S. W. 2d 142. In the instant litigation appellee received from her customers two checks issued by 'Blue Ribbon Coal Company, drawn on appellant bank, amounting to $123.06. They were acquired by appellee in due course of business February 29,1936, and were part of a $422.09 deposit made Monday, March 2.
Late in the afternoon of March 2 appellant received information that certain out-of-state checks deposited with it by Blue Ribbon Coal Company had been dishonored. The items comprising the deposit (referred to in the McKeen Case) were re-charged to the coal company’s account leaving an overdraft, although a credit balance of $2,475.80 appeared on the bank’s ledger.
Appellee’s bookkeeper testified to having made the deposit before noon. Nothing was said about conditional acceptance. The two checks in question were charged to appellee’s account the day received and were returned to her the following afternoon.
When asked whether checks deposited on former occasions had been charged back and their return accepted, appellee’s bookkeeper said such checks would be taken to the bank “. . . just as I took these checks —list them and make a deposit. Later the check [if] found not to be good [would be] returned to us.” Bank officials testified to the same practice.
On the statement furnished appellee monthly there was printed: “All items are credited subject to final payment.”
The bank teller did not examine any of the thirteen checks comprising the deposit except 'as to indorsements, but on the contrary received the deposit ticket as prepared by appellee, and the checks, and entered the credit.
On the deposit, slip was a printed condition permitting the bank to recharge any item drawn on it not good at the close of business on day of deposit.
The court found that the charge-back occurred March 3. There is no testimony to support this finding, although it is conceded that the checks were not returned until the day after deposit.
In the McKeen Case the depositor testified that in his dealings with the bank “They checked [the list], and if there was- [a check] not good they would hand it back to me.” On cross-examination this testimony was materially weakened by admissions of a different custom.
There is this statement in the McKeen Case: “By [the testimony of McKeen] it is sought to raise a legal presumption that the bank conditionally accepted Blue Ribbon checks. If such custom prevailed, it is immaterial whether items comprising the charge-back were cashed on Saturday, or were included in the Monday deposit. If, on the other hand, the right to charge arises solely on account of reservations expressed on the deposit ticket, such right must have been exercised not later than the close of business of the day of conditional acceptance.”
The first headnote to the McKeen Case summarizes the opinion in this way: “Where a check is deposited in the bank on which it is drawn, the bank has the right, as against such depositor, to accept or reject it or to conditionally receive it, but if it is unqualifiedly accepted, and placed to the credit of the depositor, it cannot thereafter, in the absence of fraud or collusion, be repudiated. ’ ’
The question here is, Was there a repudiation of a completed transaction?
It must be remembered that the bank reserved the right, by its contract of deposit, to recharge bad checks during the day of receipt. That is what was done. Also, we are of the opinion that a custom of conditionally accepting appellee’s deposits was show. In these respects the case differs from First National BanJc v. McKeen, supra.
The judgment is reversed, and the cause is dismissed.
Appellee owns and operates the Economy Store at Paris.
The deposit consisted of thirteen checks. The deposit slip was made out by appellee’s bookkeeper.
In response to a question by the court, appellee’s bookkeeper testified it was the bank’s policy, when a check was in doubt, to look up the amount in the account of the drawer.
The same notation appears on a “pass book” sometimes used by appellee.
It was McKeen’s contention that the checks were cashed Saturday, February 29, with others, and that he received $898 in cash. On this point .the opinion states the evidence is not clear — that is, whether the checks were cashed on Saturday, or were, part of a deposit made on Monday. | [
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M cHaney, J.
On January 25, 1938, a collision occurred at the intersection of Division street and Chickasawba avenue, in the city of Blytheville, between a truck, owned by appellant and being operated in his business by his employee, and a car belonging to and being driven by appellee, resulting in personal injuries to appellee and damage to his car. He brought this action to recover damages therefor. Issue was joined on the allegations of the complaint and a trial resulted in a verdict and judgment for appellee in the sum of $7,735 with interest at 6 per cent, from January 29, 1941.
On this appeal only one assignment of error is relied on by appellant for a reversal of the judgment against him. He says the court erred in giving instruction No. 6, which was appellee’s requested instruction No. 3, and is as follows: “You are instructed that in the exercise of ordinary care when the driver of a motor vehicle sees danger ahead or it is reasonably apparent if he is keeping a proper lookout, or if he is warned of approaching imminent danger, then the duty is imposed upon him and the reasonable control of the car requires that he immediately bring his automobile under such control as to be able to check the speed or stop it absolutely, if necessary, in the threatened emergency. Therefore, if you find from the evidence in this case that the driver of defendant’s truck at the time of the alleged injury was aware of or had been advised of impending danger and negligently failed to bring his truck under such control as to be able to check its speed or stop it absolutely, if necessary, after such danger came within his line of vision, then, in that event, he would be guilty of negligence, and if such negligence, if any, proximately caused the injury, if any, to the plaintiff, then your verdict in this case will be for the plaintiff, unless you find for the defendant under other instructions given you.”
Criticism of this instruction is particularly directed to the language, “When the driver of a motor vehicle sees danger ahead, or- it is reasonably apparent if he is keeping a proper lookout, or if he is warned of approaching imminent danger, ’ ’.then it is his duty to bring his vehicle under control and to stop it if necessary to avoid the danger. We see no objection to this language when applied to the undisputed facts in this ease or to the facts which the jury found by its verdict to be true, even though disputed. As stated above, appellee was traveling north on Division street and appellant’s truck was being driven west on Chickasawba. There is some dispute as to the rate of speed each was traveling, but the driver of the truck admitted he was driving at from 25 to 30 miles per hour, and, although he saw a big traffic sign on Chickasawba with the word “Slow” on it some 150 feet east of the intersection, he paid no attention to it and continued west without slackening his speed until he was in about two feet of appellee’s car, when he slammed on his brakes. He also testified that, when he was some distance east of the intersection, he looked to the south-on Division street and saw appellee’s car when it was about a block away going north toward the intersection; that he then looked to the north on Division to see if a car was approaching from that direction and that be continued to look to the north and did not again look south to see where appellee’s car was and only saw it when it was right in front of him, only two feet away. The collision occurred in the northwest quarter of the intersection, at the time when appellee’s car was almost out of the intersection, his car being struck by appellant’s truck on its right rear, above the wheel. These facts justify the instruction complained of. Appellant’s driver knew appellee’s car was approaching the intersection. He saw him when he was some distance south thereof. He saw the “Slow” traffic sign and deliberately disobeyed it. He looked to the north and continued on his way until he struck appellee’s car, making no effort to avoid the collision, until it was too late, although he knew danger was approaching from the south.
The instruction complained of seems to have been taken almost literally from Lockhart v. Ross, 191 Ark. 743, 87 S. W. 2d 73, where an instruction was approved, embodying the following language: “And it is the duty of such a driver to keep his automobile under such control as to be able to check the speed or to «stop if necessary to avoid injury to others when danger is. apparent.” 'In holding that the language above quoted did not offend against the rule announced in Coca-Cola Bottling Co. v. Doud, 189 Ark. 980, 76 S. W. 2d 87, the late Judge Butler, speaking for the court said: “We do not think so, because, in the exercise of ordinary care, when the driver sees danger ahead, or it is reasonably apparent if he is keeping a proper lookout, then the duty is imposed upon him, and the reasonable control of the car requires, that it be operated so it can be stopped in the threatened emergency. ’ ’
But appellant says there was no allegation of failure to keep a proper lookout and that there was no evidence of such failure. We think the admission of the driver of this truck that he saw appellee coming, and then looked north, never again looking back south to see what appellee was doing, is sufficient to establish a failure to keep a proper lookout, and that the trial court was justified in treating the complaint as amended to conform to this testimony. The driver testified in this connection as follows: “I could have stopped if I thought he didn’t have sense enough to stop, and let me go on like I was supposed to. I won’t say the right-of-way. He was going on a gravel street and I was going to the wholesale house.” We are not sure just what the witness meant by that statement, but it seems to say that appellee should have had sense enough to stop and let his truck go by whether he had the right-of-way or not. But that is not the law even though some truck and bus drivers seem to think so, and it would have been better for appellee had he done so. It is quite apparent that appellee reached the intersection first, in which case he had the right-of-way, and it was the duty of appellant’s driver to yield the right-of-way to him, and the court so instructed the jury, in general language.
We think it would serve no useful purpose to pursue appellant’s objections to said instruction further. We find no error, and the judgment is accordingly affirmed. | [
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Smith, J.
Appellant, who is a resident taxpayer of the Corning School District No. 8 of Clay county, seeks, by this suit, to restrain the district from issuing $78,000 in bonds, of which $34,500 will be new bonds issued under .act 369 of the Acts of 1941. The remainder are bonds to refund outstanding bonds.
The total assessed valuatipn of all taxable property in the district, which has an outstanding valid bonded indebtedness of $43,500, bearing 4% per cent, interest, which it proposes to refund with bonds bearing interest at the rate of 4 per cent., is $780,045.
On February 17, 1941, the district suffered a total loss of its school building by fire, which it proposes to rebuild. The proceeds of the fire insurance policies carried on the building are inadequate for this purpose, but the district has assurance from federal agencies of enough help to replace the building, if it can issue the proposed bonds under the provisions of act 369. The proposition was submitted to the electors and approved by an almost unanimous vote. The ballots used at the. election explained the proposition.
Act 369, omitting the emergency clause, reads as follows: “Section 1. Any school district which suffered the partial or total loss of its school building by fire during the years of 1939, 1940, or 1941 is hereby authorized to issue bonds in an amount not to exceed ten per cent. (10%) of its assessed valuation for the purpose of replacing or repairing such building. ’ ’
It is insisted that this act was repealed impliedly by act 393 passed at the same *L941 session of the General Assembly. If such is the effect of act 393, that result is by implication, as the highest numbered act contains no such recital.
In considering this question, it must be remembered that the rule of construction has long been that repeals by implication are not favored, and that the presump tion is against repeal of statutes by implication. Gilliland Oil Co. v. State, ex rel. Attorney General, 171 Ark. 415, 285 S. W. 16.
Act 369 was approved March 26, 1941, and act 393 was approved March 27,1941, but the legislative journals disclose that act 393 was passed by the General Assembly on March 12, and delivered to the Governor on that day, while act 369 was passed March 11th, and delivered to the Governor on March 17, or five days later than the bill which became act 393. It appears highly improbable that the General Assembly was attempting to pass — and then repeal — act 393 in this manner.
But if it be said that the presumption against the repeal of an act by implication is not conclusive, it may be answered that reliance does not have to be placed on this presumption. We find no conflict between the acts. It is apparent that they relate to different situations.' Act 393 is one relating to the general subject of refunding, and is applicable to all school districts at all times, whereas act 369 is an emergency act, applying only to those school districts which have suffered a partial or total loss of their school buildings by fire, and this only to fires occurring during the years 1939, 1940 and 1941. By its terms and its oavii limitations, act 369 will be inapplicable to fire losses occurring after 1941. It is a special grant of authority to every school district in the state for a limited time Avhich has suffered this loss.
On the other hand, act 393 is a restatement, by way of amendment, of § 11493 of Pope’s Digest of the general and continuing powers of all school districts. It is stated, and is, no doubt, true, that the reason for the time limitation contained in act 369, is that it Avas unknoAvn how long federal aid would be available in such emergencies, and it was intended to make it possible for school districts which had sustained. the misfortune of losing their school buildings by fire to take advantage of this aid. At any rate, the acts relate to different conditions and circumstances, and we find no such conflict in their provisions that it must be said that one repealed the other.
It is insisted that act 369 is invalid because it contains no provision pursuant to Avhich the poAver conferred may be exercised. To this objection it is answered that the act does not purport to re-enact the statutes relating to .bond issues by school districts, but only enlarges the purposes for which bonds may be issued, and must be read in connection with other statutes in force relating to that subject. The case of Wilkin v. Special School District of Hazen, 181 Ark. 1029, 29 S. W. 2d 267, appears to be conclusive of this question. See, also, to the same effect, the very recent case of Lakeside Special School District of Chicot County v. Gaines, ante p. 779, 153 S. W. 2d 149.
We do not construe act 369 as imposing a maximum limitation of 10 per cent, of the assessed value of the property within a school district for all purposes. Rather, it confers the power, for a limited time only, of issuing bonds to the extent of 10 per cent, of the assessed value for a specific purpose. But, if this were not true, and the maximum limitation for all purposes was 10 per cent, of the assessed valuation, this construction would not invalidate the bond issue here questioned, for the reason that the total bond issue voted by the electors for all purposes does not exceed 10 per cent, of the assessed valuation.
Certain other questions are raised which have been decided adversely to appellant’s contentions in the recent cases of Wall v. Eudora Special School District of Chicot County, ante p. 904, 154 S. W. 2d 12, and Lakeside Special School District of Chicot County v. Gaines, supra.
It follows, from what we have said, that appellant’s complaint was properly dismissed as being without equity, and it is accordingly affirmed. | [
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Holt, J.
Appellee, Mrs. Coy Harvey, owns the north one-half of the northeast quarter, township 8 south, range 6 west, in Lincoln county, Arkansas (80 acres). Appellant, W. H. Harrison, owns the 80-acre tract adjoining* appellee on the south. Appellants, Mr. and Mrs. "Whitener, are tenants of Harrison. Appellant, Ben Maddox, owns the land adjoining the Harrison land on the west and extending south below the south line of the Harrison tract. Paved highway No. 65 runs across the southwest part of the Maddox land. Choctaw Bayou partly encircles appellants’ and appellee’s land, together with other adjacent land, on the west, north and east.
More than a quarter of a century ago a graded road was constructed from highway No. 65 at a point on this highway about one-half mile south of the Harvey land, in a northeasterly direction over the Maddox land, thence north along the west boundary of the Harrison land, thence northeast across the Harvey tract, into Choctaw Bayou.
About 1932, appellee constructed a drainage ditch across this graded road and along the south boundary of her property on into Choctaw Bayou. At the same time she placed a bridge over this ditch in order not to obstruct the road.
Sometime after 1939, appellants constructed another drainage ditch east and west about twelve feet south of, and parallel with, this ditch and the line between the Harvey and the Harrison property, into the bayou. This ditch extended across the graded road here in ques tion and obstructed its use. Appellee, Mrs. Harvey, sought permission of appellants to bridge this ditch to keep the road open. Appellants refused to permit her to construct the bridge, and by the erection of a fence and otherwise, obstructed the use of the road.
March 9, 1940, appellee filed suit against appellants in which she alleged that she and the public generally had acquired the right to the use of the graded road by prescription and open and adverse usage for a period of more than seven years and sought injunctive relief against appellants. A temporary injunction was granted and during its pendency she bridged this ditch.
Appellants answered denying appellee’s allegations and alleged that any right of appellee and the public to the use of the road in question was permissive only.
Upon a trial the trial court found the issues in favor of appellee and permanently enjoined appellants from in any manner obstructing the use of the road to appellee and the public. From this decree appellants have appealed.
The question for review here is one of fact: Did appellee and the public acquire a right to the use of the road in question as a public road, by prescription or by seven years adverse possession?
We think it would serve no useful purpose to make a detailed statement of the facts as set forth in this record. Under the settled rule of this court, a chancellor’s finding’s of fact will not be disturbed here on appeal, unless against a preponderance of the evidence. A careful consideration and analysis of all the testimony leads us to the conclusion that the decree of the trial court is not against a preponderance thereof:
It is undisputed that this road had been in use for more than 20 years. It had been graded by the county and school buses use it. The highway authorities had constructed a culvert or ramp connecting the road with highway No. 65. It serves some 15 or 20 families inclosed within the bend of Choctaw Bayou. The great weight of the evidence shows that since the no fence law of about 1923 (act 233 of 1923 as amended by act 144 of 1925), no gates, fences or other obstructions have obstructed this road, and the public has used it since that time openly and without interruption until the beginning of this litigation.
The law applicable to a case such as we have here is stated in Medlock v. Owen, 105 Ark. 460, 151 S. W. 995. There this court held (quoting headnote No. 1): “In order that one may acquire a private right-of-way across another’s land, the use must be under a claim of right and not permissive, and must be used openly, continuously and adversely for seven years.” And in the opinion it is said: “"Whether these plaintiffs used this strip as a private passway or as -a public alley is not very material, so far as this case is concerned, for a private way over the land of another may be acquired by adverse use in the same time that the public may acquire the right to a public highway by adverse user. In either case the use must be under a claim of right, and not permission. The way in either case must be used openly, continuously and adversely under a claim of right for the full period of the statute of limitations, which in this state is seven years.”
And in Patton v. State, 50 Ark. 53, 6 S. W. 227, this court said: “In Howard v. State, 47 Ark. 431, 2 S. W. 331, it was held by this court that ‘a road becomes established as a public highway by prescription, when the public, with the knowledge of the owner of the soil, has claimed and continuously exercised the right of using it for a public highway for the period of seven years, unless it was so used by leave, favor or mistake.’ The right to a public highway acquired in this manner is based upon adverse possession for the full statutory period of limitation, as the title to land is acquired by individuals by such possession. In this way a street has been held to have been evidenced. The right to a public highway acquired in this manner is as full and complete as it would be had it been acquired by actual dedication by the owner. It is not sufficient to overturn this doctrine to say that it would be a great hardship upon the people to impose upon them the maintenance and repair of highway acquired in such manner. There can be no stronger evidence of the public necessity and convenience of such roads than the voluntary and persistent 'use of them by the public for a long period of time.
Finding no error the decree is affirmed. | [
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Mehaeet, J.
The appellant was convicted of the crime of voluntary manslaughter and sentenced to seven years in the penitentiary, and prosecutes this appeal to reverse said judgment.
The appellant urges, first, that the court erred in failing to direct a verdict for appellant; second, that the evidence is insufficient to sustain the conviction.
If the evidence was sufficient to sustain the verdict there was, of course, no error in refusing to-direct a verdict. Graham and Seaman v. State, 197 Ark. 50, 121 S. W. 2d 892.
J. W. Dillon testified that he kneiv Taylor and the appellant; that he came in from Piggott and started out the back way from the little brown cabin in the back; saw' Allen Taylor and Glen -Jackson in the little brown house, but does not think he saw appellant in there; there were several men going in and out; first saw Casteel, the appellant, in the dance hall and saw Taylor outside; Taylor asked him if he had a drink and witness told him he did, and they split a half pint; Jim Kerley took the first drink; does not know which came to the dance hall first, Kerley or Casteel, they came about the same time; the moon was shining; when Casteel came up he asked: “Is that Henry Dillon?”; witness told him that it was Jim Kerley, appellant’s friend; they then shook hands; Allen handed Kerley the bottle of whiskey; Kerley took a' drink and started to hand it back to Allen; Allen turned and walked awhy and Casteel ran after him and spilled the whiskey; at that time Allen was not mad, but he and appellant “wooled” each other around a little bit, and finally appellant backed off and pulled out a knife; Taylor said: “Doir’t get that knife out” and backed off; Taylor picked up a club, threw it down and picked up a larger one, and hit appellant with the club; he threw it down and ran around the house; appellant ran after him toward the river; witness did not follow them; he did not see Taylor again that night, but saw appellant at the dance hall; saw the knife in appellant’s hand before he left, and when he backed off, he had the knife half opened. A knife was introduced in evidence, and witness said it was like the knife appellant had; saw the knife in his hand at the same time that Taylor was breaking the club. When asked if he had ever been convicted of a felony, witness answered that he had been convicted of being drunk, but had never served in the penitentiary. The handle of the knife looked white in the moonlight; witness was at the dance hall until it closed around four o ’clock; the difficulty between Taylor and Casteel occurred between ten-thirty and eleven-thirty ; witness was drinking, but Taylor did not act like he had been drinking. Here, a map was introduced in evidence showing the dance hall and other buildings. When asked what was Casteel’s condition, he answered that he was pretty drunk, but that Taylor was sober; Taylor weighed around 150 or 160 pounds, and was about 27 or 28 years old; was healthy and strong; there was no light outside where Kerley, Taylor, Casteel and witness were, and he did not see anyone else out there; there were three or four trees between the dance hall and the river, but there were lots of trees on the east side of the dance hall; witness and the other three men were standing between the hog lot and the north end of the cabin; they were north of the cabin, halfway between the hog lot and its north end; after Taylor dropped the stick he went between the river side of the house and the gate; the first blood was found at the gate.
J. C. Kerley testified in substance tha.t he was out at the dance hall the night Allen Taylor was killed; got there about 8:30 or 9 o’clock; saw Dillon, Casteel and Taylor that night; witness was out at the dance hall in the little room; heard some men talking outside and went out; Dillon, Casteel and Taylor were standing out there; witness took one drink and handed the bottle back to Taylor; Casteel made a grab for the whiskey and Taylor knocked it out of witness ’ hand; Casteel grabbed Taylor and pushed him back; Casteel backed up five or six steps and stated that he could whip all of them; Taylor broke off a stick and then picked up another one a little larger and hit Casteel in the head; then Taylor said: “Look out, he’s got a knife” and started to run; Casteel ran after him around the house and out the lot gate; they were cursing each other; did not see Taylor any more that night; Taylor got over the gate with Casteel after him; Casteel was back in the cabin later, mumbling to himself, between ten and eleven o’clock; witness stayed until after one o’clock and the dance hall was still open; he was out the next morning, and Taylor’s body was found; Casteel was drunk that night and Taylor had been drinking. Witness then pointed out on the map the public road, the river, the dance hall, the outhouse, the fence and the cabin; Taylor’s body was found five or six steps off the path; he had on overalls and there was blood on his jumper and his overalls; Taylor hit Casteel with great force.
Dr. Lattimore testified about examining the body of Taylor and finding a knife wound which caused the death of Taylor. This witness then testified at length about the wound, and how long it would take one to die after the wound was inflicted, and how far he could run after being stabbed. It is unnecessary to set out this testimony, since there is no dispute about the 'knife wound having killed him.
Grlen Jackson testified that he was out at Black River the night Taylor was killed, and that he got out there after dark, about 7:30 o ’clock and left the next morning about 4 or 5 o’clock. He testified to substantially the same facts as tbe other witnesses. He also testified about the card game, but he did not see the knife.
Bed Buff testified that he was deputy sheriff of that district of Clay county, and went out to the place where Taylor was killed on Sunday morning after he was killed on Saturday night; the body was on the ground. This witness testified about the clubs, and they were introduced in evidence. He also testified about the blood and where he found it, and that he found three dimes with blood on them about eight or nine o’clock in the morning, and the blood was still fresh.
Don James, witness for appellant, testified that he was at the dance hall the night Taylor was killed and that Casteel was drunk that night; saw Taylor going toward Casteel with the club and looked at Casteel and started out; Taylor hit Casteel with the stick; he said that Dillon and Kerley were not out there at the time; it was light enough to have seen them; he testified that it was pretty cloudy; that he was standing on the doorstep and that Edgar Bland was with him; that when Taylor hollered and ran, appellant did not overtake him; witness is 19 years old; testified that he had no education; has been going out to these camps for a year or two; was not out there the Saturday night before the killing; when Taylor picked up the club, Casteel fell into him; this happened around 11 or 12 o’clock; Taylor was gambling; witness heard the fighting outside and went out, but did not see Kerley; saw Taylor with a board in his hand; Taylor ran out of the gate.
Edgar Bland testified to substantially the same facts as last witness; he was eighteen years old.
Ira Shepherd testified that he operated the beer tavern; saw Casteel there and he was too drunk for witness to sell him beer; when asked if he did not have a row with Taylor, witness said Taylor pulled a knife on him; that Taylor had had a couple of fights in his place.
Johnnie Fields testified that he lived at Corning; knew Casteel and saw him the night Taylor was killed; Casteel was drunk.
Mr. Eason testified that Casteel lived with him and that when Casteel got home that night witness was in bed; he asked Casteel what time it was- and Casteel struck a match and said it was five after ten; witness testified that he got up and looked at the clock and it was five after ten; he also testified that Casteel was drunk.
It appears from the evidence that both Taylor and the appellant were at the dance hall; that they engaged in a fight; Taylor hit appellant with a club of some kind, and appellant drew his knife, Taylor ran and appellant ran after him; Taylor’s body was found next morning near the pathway where the two men had run. There is no evidence that there was any trouble between Taylor and anyone except appellant. The evidence conclusively shows .that Taylor and appellant had trouble, and when Taylor saw that appellant had a knife he ran, and Casteel ran after him. .Taylor was not seen any more that night by anyone, so far as the record shows, but a short time after they had run from the dance hall, appellant returned. The evidence shows that the fight occurred between ten and twelve o’clock.
The map introduced shows -every place testified about by the witnesses. It shows the gate through which Taylor and appellant ran, and the pathway down which they ran. The evidence also shows that they were heard cursing each other after they had run out. So far as the record shows no one else went out that way. The fact that Casteel had a knife and was pursuing Taylor; that Taylor’s body was found by the pathway with the knife wound which caused his death; that Taylor did not return to the dance hall and Casteel did, are all circumstances tending to show that Casteel killed Taylor. It is true no one saw them at the time the wound was inflicted, and that part of the evidence, of course, is circumstantial.
This court said in a recent case: “The defendant was convicted on circumstantial evidence, but there is no difference in the effect between circumstantial evidence and direct evidence. In either case, it is a question for the jury to determine, and, if the jury believes from the circumstances introduced in evidence, beyond a reasonable doubt, that the defendant is guilty, it is the duty of the jury to find him guilty just as it would be if the evidence was direct. There is no greater degree of certainty in proof required where the evidence is circumstantial than where it is direct, for in either case the jury must be convinced of the guilt of the defendant beyond a reasonable doubt. They are bound by their oaths to render a verdict upon all the evidence, and the law makes no distinction between direct evidence of a fact and evidence of circumstances from which the existence of the fact may be inferred.” Scott v. State, 180 Ark. 408, 21 S. W. 2d 186; Nichols’ Applied Evidencé, vol. 2, § 4, p. 1065; Underhill’s Criminal Evidence, pages 14 and 16.
This rule of evidence was approved in the case of Spear v. State, 184 Ark. 1047, 44 S. W. 2d 663, and in numerous other cases some of which are Caradine v. State, 189 Ark. 771, 75 S. W. 2d 671; Pekin Wood Products Co. v. Mason, 185 Ark. 166, 46 S. W. 2d 798.
The jury had the witnesses before them, heard them testify, had the map that was introduced in evidence, and all the facts and circumstances in evidence, and the jury is the sole and exclusive judge of the credibility of the witnesses and the weight to be given to their testimony.
“The jury are the judges of the credibility of the witnesses and the weight to be given to their testimony. Therefore, in determining whether the evidence is sufficient to support the verdict, this court must consider the evidence in the light most favorable to the state, and, when this is done, it cannot be said that the evidence did not warrant the jury in returning the verdict of guilty.” O’Neal v. State, 179 Ark. 1153, 15 S. W. 2d 976; Bowlin v. State, 175 Ark. 1047, 1 S. W. 2d 546; Yeager v. State, 176 Ark. 725, 3 S. W. 2d 977.
There is no objection to the instructions of the court; in fact, the appellant states in his brief that the court correctly instructed the jury.
There was substantial evidence to support the verdict, and the judgment is affirmed. | [
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McHaney, J.
By warranty deed dated June 24,1922, appellant and his wife conveyed to School District Ño. 23, Jackson county, Arkansas, one acre of land in a square in the southwest corner of the S. W., S. W., section 3, 14 north, 1 west. Said deed contained this clause: “said property to .be used for school purposes only, and should the said District No. 23 of Jackson county, Arkansas, at any time abandon said property, the title thereto shall revert back to Hugh B. McCullough or his legal heirs. ’ ’
Thereafter, School District No. 23 was consolidated, by proper order of the county court of Jackson county, with appellee district, and the latter became the owner of all the former’s property and liable for all its debts. Prior to January 1, 1941, appellee began tearing down the school building located on the acre of land above described, and, on said date, appellant brought this action to enjoin appellee from so doing, and a temporary order was granted. Appellee defended on the ground that it had not abandoned said property for school purposes but that it was about to “tear down said building and build a school building for said defendant district out of the material therein.”
Trial resulted in a decree for appellee and this appeal followed.
The undisputed testimony of the directors of appellee district and of its superintendent of schools was that said property had not been abandoned for school purposes, but, on the contrary, they were still using it for said purposes; that it was their purpose to build a waiting station for pupils who came there to meet the school bus to be taken to school, at Swifton; that said station was a necessity for that purpose; that this place was the “turn around” for the bus; that pupils came there from all directions to catch the bus and the old building (the one being torn down) had been used for this purpose since the consolidation. A resolution of the board of appellee was adopted to tear down the old school house, salvage the material, use a part to build a gymnasium and a part to erect a waiting station for the comfort of the children who rode the bus therefrom to the school of appellee.
This evidence clearly shows that said property had not been abandoned for school purposes. Now, the conveyance provided the conditions on which the property would revert to the grantor. It could “be used for school purposes only,” and if the district should abandon same at any time, it would revert. If appellant intended to provide in his deed that the property should revert in the event no school was conducted there, or if it should be abandoned as a school, he chose inept language to express his purpose. We think the trial court correctly held that the use to which appellee proposes to put the property is not in violation of the limitations in said deed and that appellee has not abandoned it for school purposes although it has done so as a school.
Appellant cites and relies on Pettit v. Stuttgart Normal Institute, 67 Ark. 430, 55 S. W. 485; St. L. S. W. Ry. Co. v. Curtis, 113 Ark. 92, 167 S. W. 489; and Johnson v. Lane, 199 Ark. 740, 135 S. W. 2d 853. In, each case, as in this, the deed conveyed a qualified or determinable fee in the land in controversy. For instance, in the Curtis case, supra, the language was: “This deed is made for the purpose of erecting* and maintaining a section house on the above described land by the grantee herein, and when it shall cease to be used as such, the title of the land shall revert to and vest in H. S. Curtis. ” It was there held that the land reverted to the grantor, Curtis, when the property was abandoned as a section house, and correctly so. We think neither of the cited cases is in point here, because there the conditions of- the deeds had been violated. Here there has been no violation of the conditions. The property is still used for school purposes and has not been abandoned.
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Mehaffy, J.
Milton Caven filed suit in the Phillips circuit court against the Arkansas Utilities Company alleging that on July 27,1939, and for a number of years prior thereto, he was employed by the defendant at its power plant in the city of Helena in its engine and boiler room; his duties were the operation of the machines and engines used in said plant for the generation of electrical power and his salary was $135 a month; that on the morning of July 27th about 11 o’clock, while he was engaged in performing his duties during a thunderstorm, lightning struck the said plant and the distributive system, and said bolt of lightning entered the plant, produced a violent explosion near the switchboard where plaintiff was working in the course of his employment; plaintiff was thereby hurled a distance of 15 or 20 feet and- lost consciousness. He then describes his injuries and the extent thereof, and alleges that the power plant is a place which is attractive to lightning and subject to being.struck, as defendant knew or should have known. He- alleges that the defendant was negligent in not providing him with a safe place in which to work, and that the use of ordinary and reasonable care to select safety devices would prevent lightning from entering the plant and injuring- employees; that defendant was negligent in that it failed to install and maintain a ground on the switchboard in its plant, and the several instruments on said board; that the iron framework which supports the switchboard was not grounded; that the framework supporting the bus bar from which electrical power is distributed, was not grounded; that the speed control and voltage control at the engine where plaintiff was working was not grounded. He further alleges that at several places the wire was not grounded and had no lightning arresters, and that, as a result of said negligence, plaintiff was injured. He alleged that he had been damaged in the sum of $40,000.
The defendant filed answer denying each and every allegation in the complaint except as to corporate entity, and alleged that if plaintiff was injured, he assumed the risk and that his knowledge was equal to the knowledge of the defendant, and further alleged that the injury was caused by an inevitable accident, and alleges that it was due to an act of God or to conditions of the elements, over which defendant had no control.
The plaintiff filed a motion in the circuit court stating that his action was founded upon the negligence of defendant in failing to furnish plaintiff a safe place in which to work and to take proper precaution against injury to plaintiff while in its employ in the several respects alleged in his complaint; that the proof of the allegations of negligence depends upon the establishment of the inadequacy of defendant’s protective equipment contained in and about its power plant; that the question in litigation necessarily involves testimony as to what protective equipment and devices are necessary in the power plant, and as to whether the machinery and devices installed in the various places mentioned in the complaint were adequate to protect plaintiff. The material issue will be whether defendant was negligent in the installation of the equipment for the protection of the employee from lightning, and to take other safeguards and precautions; that these are technical questions calling for specialized knowledge, and it will be necessary for the determination of these issues that experts’ testimony be adduced, and in order to prepare themselves to testify as to the equipment and appliances, and as to their adequacy and fitness, it will be -necessary for experts, or some of them, to enter upon defendant’s grounds and view and inspect the same; that the plaintiff is not qualified on the subject of what equipment and safety appliances are proper, and is unable to furnish his counsel and witnesses the information necessary to present the full and complete facts to the trial of this case. He has applied to the defendant and its counsel for permission to enter the plant and grounds with persons qualified as experts, and photographers, with the purpose of obtaining facts and information necessary to the presentation of the real facts to the court and jury at the trial of this cause, and such permission was refused; that the information sought is material and the facts are in the defendant’s exclusive possession. He, therefore, aslced the court to order defendant to permit the inspection to be made as requested by him.
Gr. D. Walker, one of plaintiff’s attorneys, made an affidavit that the statements contained in the complaint were true.
The defendant filed a response to the motion alleging that the court was without jurisdiction, and it would be an abuse of discretionary power to grant the request of plaintiff; denies that it had sought to conceal any facts and denies the allegations of the motion. The response was verified, and thereafter the deposition of the plaintiff was taken, for the purpose of perpetuating Ms testimony.
Several other witnesses testified as to the condition of the plant and the necessity for the inspection. The defendant then filed a supplemental response, which was verified.
The court thereupon, on March 22, 1941, after considering the motion and responses and the affidavits and depositions, granted the motion, and made the following order: “On this 22nd day of March, 1941, this court being legally in session pursuant to § 2848 of Pope’s Digest of the Statutes of Arkansas, the court announced its ruling upon the motion of the plaintiff, Milton Caven, for permission to inspect the premises of the defendant, said motion having been argned and submitted to the court at a regular day of the court held March 1, 1941, and by agreement of parties taken under advisement for decision to be announced on this date. The court having considered the said motion, defendant’s response to same and supplemental response, the affidavit of Gr. D. Walker, the depositions of C. H. Ward and Milton Caven and the stipulation of counsel as to the testimony of Milton Caven, finds that said motion should be granted.”
The court further ordered that the plaintiff, together with his attorneys and a photographer and one expert wdtness, shall have access to defendant’s plant and premises for the purpose and in accordance with the terms expressed in the order. They shall have the right to examine those parts of said plant and premises which are alleged in the complaint to be defective and unsafe, and shall be permitted to take photographs and make such measurements of those parts of the premises referred to in the complaint as may be necessary to present the facts with regard to same to the court and jury in the trial of this cause, and that the expert witness shall be permitted to make such observations of those parts of the plant which are alleged in the complaint to be unsafe or improperly constructed or safeguarded, as will permit him to obtain the information necessary to testify as an expert. The order contained a provision to the effect that it does not permit the plaintiff or any other person authorized to accompany him to interfere in any manner with the operation of the plant, and shall give the defendant, through its attorneys, two days’ notice of his intention to make the inspection, and the defendant shall have- the opportunity to have its plant engineer or others present, and one of its attorneys during the examination.
The defendant at the time, objected and excepted to said order, and filed its petition in this court for a writ of prohibition, to which a response was filed.
The petitioner argues that the circuit court has no power or is acting in excess of its jurisdiction in issuing the order.
The plaintiff’s petition in the lower court was not a hill of discovery, but a petition to be permitted to inspect the parts of the machinery that he alleged in his complaint were defective or negligently installed. The law applicable is stated in 17 Am. Tur., 17, as follows: “In negligence actions the courts have in a number of instances exercised the power of ordering the defendant to permit an inspection of the appliance alleg’ed to have caused injury to the plaintiff or his decedent or of the premises upon which the injury occurred. The courts are rather liberal in granting such orders where the injury is to an employee of the defendant. Thus, it has been held that a court of general jurisdiction has inherent authority to require an employer to admit his injured employee to his premises with experts and photographers to take measurements and photographs for the purpose of preparing for trial an action for personal injuries, notwithstanding the constitutional provision securing persons from unreasonable searches and seizures”
The circuit court is a court of original and general jurisdiction, and has the inherent power to order an examination or inspection of the machinery or an examination of the plaintiff in a personal injury suit, and there is no difference in the power of the court to permit an inspection of machinery or an examination of the plaintiff in a personal injury action.
The Supreme Court of Missouri said: “No one at this late day questions the power of the circuit court to order the injuries of a plaintiff complained of, in a damage suit, to be examined by physicians so that they may testify to the character and extent of those injuries, and for stronger reasons the power of the court to make and enforce an order of the character here complained of should go unchallenged, because one’s person and his personal rights have under all laws, human and divine, been held more sacred, in higher esteem, better shielded and protected than mere property and property rights; so, if the defendant in this case is entitled to have the plaintiff’s injuries examined by experts, as previously stated, then a fortiori the plaintiff should he entitled to have experts examine the premises and machinery mentioned in this case.” State v. Anderson, 270 Mo. 533, 194 S. W. 268, L. R. A. 1917E, 833.
The Supreme Court of Minnesota said: “To allow the plaintiff in such cases, if he sees fit to display his injuries to the jury, to call in as many friendly physicians as he pleases, and have them examine his person, and then produce them as expert witnesses on the trial, but at the same time deny to the defendant the right in any case to have a physical examination of plaintiff’s person, and leave him wholly at the mercy of such witnesses as the plaintiff sees fit to call, constitutes a denial of justice too gross, in our judgment, to be tolerated for one moment.” Wanek v. City of Winona, 78 Minn. 98, 80 N. W. 851, 46 L. R. A. 448, 79 Am. St. Rep. 354; Johnson v. So. Pac. Co., 150 Cal. 535, 80 P. 348, 11 Ann. Cas. 841.
There is no question of the court’s power to order the inspection, and we think in this case he did not exceed his jurisdiction.
This court said, in the case of Weaver v. Leatherman, 66 Ark. 211, 49 S. W. 977: “The writ of prohibition is not a writ of right, but of discretion in the supervisory court, and, ‘like all other extraordinary remedies, prohibition is granted only in cases where the usual and ordinary forms of remedy are insufficient to afford redress. And it is a principle of universal application, and one which lies at the very foundation of the law of prohibition, that jurisdiction is strictly confined to eases where no other remedy exists, and it is always a sufficient reason for withholding the writ that the party aggrieved has another and complete remedy at law. The doctrine holds good, even though the order of the court which is sought to be stayed or prevented is erroneous’.”
We think the principle announced by the Minnesota Supreme Court in the case above quoted is correct and is applicable here. To allow the defendant in such cases, if he sees fit, to have his machinery examined by friendly experts, and then call as many of these as it pleases as expert witnesses on the trial, bnt at the same time to deny the plaintiff the right to have an examination of the machinery, as asked for in this application, and leave the plaintiff wholly at the mercy of such witnesses as the defendant sees fit to call, we think constitutes a denial of justice and will not be tolerated.
Since the writ of prohibition is a writ of discretion and not a writ of right, it will be denied.
It is so ordered. | [
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Humphreys, J.
This suit was brought in the chancery court of Garland county, Arkansas, by appellant, a citizen of said county, an owner of real property in Street Improvement District No. 2 in said county and state, in behalf of himself and all others similarly situated, to enjoin the district and the duly appointed commissioners thereof from issuing* any bonds against the district and recording any pledge of assessment of benefits against the property in said district with which to pay the bonds, alleging act 41 of the Acts of the General Assembly of 1941, under which said district was organized, was and is void for two reasons:
First, by its terms it does not apply uniformly to all the counties in the state and is, therefore, a special or local act, in conflict with amendment No. 14 of the Constitution of Arkansas of 1874 forbidding the passage of special or local acts and;
Second, even if not a special or local act inhibited by the Constitution the act is void because it is vague, contradictory in its terms and ambiguous.
A demurrer was filed to the complaint which was sustained and the cause dismissed by the court over appellants’ objection and exception, from which is this appeal.
(1) Appellants’ first contention is that act 41 of the Acts of 1941 is local and void because it applies to cities only that have a population of 5,000 or more when it is judicially known that many of the counties in the state do not have in their boundaries a city having a population of 5,000 or more. The act does not limit the area in which improvement districts may be formed to counties having at the time of its passage cities therein with a population of 5,000 or more. The act itself is prospective and has application to all counties in the state whenever a city or cities therein are, according to the last federal census, shown to have a population of 5,000 or more.
It is provided in the latter part of § 24 of said act that: “Said population shall be determined by the population given by the most recent federal census taken prior to the filing of any petition for the formation of any improvement district under this act. 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 5,000 population.”
The quoted part of § 24 above shows that the act is prospective in operation and that the classification made is reasonable and not arbitrary.
This court ruled in the case of Lemaire v. Henderson, 174 Ark. 936, 298 S. W. 327, that (quoting syllabus 1): “Acts 1927, p. 531, providing for the establishment of consolidated county school districts in counties having a population exceeding 75,000 persons, held not contrary to Constitution, article 14, providing that the Legislature shall provide for the maintenance' and support of common schools, as the Legislature has authority to make a legitimate classification of schools.”
And also ruled in syllabus 6 to the opinion: “Acts 1927, p. 531, providing for the establishment of consolidated county school districts in counties having a population of 75,000 or over, according to the last federal census preceding the election ‘herein provided for,’ is not invalid as in violation of the constitutional amendment forbidding the passage of special or local laws, though its application is confined to one county only, since it may hereafter apply to counties having the requisite population. ’ ’
The case of McLaughlin v. Ford, 168 Ark. 1108, 273 S. W. 707, is directly in point and distinguishes between what is a general act and what is a special act. We quote syllabus 6 from said opinion which is peculiarly applicable to the instant case, as follows: “Although Acts 1913, p. 48, and the act of the Special Session of 1923, amendatory thereof, providing for a commission form of government for cities of the first class, applied to those cities only which might have a population of 25,000 or more, according to the last census, such acts were not special, but were applicable to all cities which in the future might have the requisite population. ’ ’
In the case of Knowlton v. Walton, 189 Ark. 901, 75 S. W. 2d 811, this court ruled that act 311 of the Acts of 1931 providing for a commission form of government in cities of 50,000 or more inhabitants was not contrary to amendment No. 14, taking occasion to say: “If the classification is reasonable and prospective, the law is general, but, if unreasonable and arbitrary the law is special or local.”
Many cases are cited therein in support of the rule above announced.
In support of the classification made in said act 41 of the Acts of 1941, and that same is not arbitrary but is entirely reasonable we refer to the case of Hogue v. The Housing Authority of North Little Rock, 201 Ark. 263, 144 S. W. 2d 49, where this court upheld the Housing Authorities Act, act No. 298 of the Acts of 1937 (Pope’s Digest, §§ 10059-10088). What this court said in the opinion in that case on pages 270 and 271 thereof is particularly applicable to the instant case in showing that the classification is reasonable.
Act 41 of* the Acts of 1941 is fashioned after and is almost an exact copy of act 126 of the Acts of 1923 in all important particulars and that act was held constitutional in the cases of Reed v. Paving District No. 2, 171 Ark. 710, 286 S. W. 829, and Morehart v. Mabelvale Road Imp. Dist. No. 29, 178 Ark. 219, 10 S. W. 2d 856. A reading of those two cases convinces us that act 41 of the Acts of 1941 is a general and not a local act.
(2) It is also contended that the act in question is vague, contradictory and ambiguous and for those reasons is void. Our special attention is directed to a part of § 1 of act 41, which reads as follows: ‘‘Upon the petition of a majority in value and of area of the owners of real property in any territory adjacent to a city having a population of more than five thousand inhabitants, as shown by the last federal census, it shall be the duty of the county court to lay off into an improvement district the territory described in the petition, . . .”
And to the last sentence of paragraph 24 of said act which reads as follows: ‘ ‘ This act is intended to apply to all counties of the state which now have cities of a population of five thousand inhabitants or which may hereafter have cities of five thousand population. ’ ’
Appellant argues that under the language used in the above parts of the act quoted there is an unreconcilable contradiction in that under § 1 of said act the act would be applicable to any county containing a city with a population of more than 5,000 while under the last sentence of paragraph 24 of said act, it is stated that this act is intended to apply to all counties of the state which now contain cities of a population of 5,000 inhabitants or which may hereafter contain cities of 5,000 population. We think that when the act is read altogether it is clear that the Legislature did not intend by the last sentence of § 24 to limit its application to counties which have cities of a population of only 5,000, but that the intent was for the act to apply to cities of a population of 5,000 or more.
Our attention is also specifically directed to § 24 of act 41 as follows: “All land within twenty-five miles of the city having a population of forty thousand or more, all lands within twenty miles of a city having a population of thirty thousand or over and less than fifty thousand, all lands within fifteen miles of a city having a population of ten thousand or over and less than thirty thousand and all lands within five miles of a city having a population of five thousand or over and less than ten thousand shall he deemed to be adjacent to said city, and may be included in such districts.”
It is argued that the section within itself is so vague, ambiguous, and contradictory as to render the act Void and of no effect.
The argument is made that it is first stated that all lands within 25 miles of a city having a population of 40.000 or more shall be deemed to be adjacent to said city while the second phrase states that all lands within only 20 miles of a city having a population of 40,000 or more and less than 50,000 shall be deemed to be adjacent to said city, and may be included in such districts. It is quite apparent that 40,000 used in the second line of § 24 of act 41 is a typographical error, and that the use of 50.000 instead of 40,000 was intended.
In Robinson v. DeValls Bluff, 197 Ark. 391, 122 S. W. 2d 552, “inseparable” was held to be a typographical error for “separable.” It was recently held that the word “corporation” as used in § 2-b of act 129 of 1941 was held to be a clerical misprision for the word “proportion.” Harclin, Commissioner v. Ft. Smith Couch & Bedding Co., ante p. 814: If the figure 50,000 is inserted in line 2 instead of 40,000 there would be no contradiction, vagueness or ambiguity in the section referred to. We, therefore, conclude that the legislative intent was to use 50,000 instead of 40,000. The rule is that the legislative intent should prevail even if it differs from the literal import of some of the terms of the act. Watson v. Harper, 188 Ark. 996, 68 S. W. 2d 1019.
Lastly appellant questions the validity of § 18 of act 41 of the -Acts of 1941 which section is as follows: “The districts shall not cease to exist upon the completion of the improvement, hut shall continue to exist for the purpose of preserving it and keeping it in repair. To this end the commissioners may from time to time make such additional levies based upon the assessment of benefits as may be necessary for that purpose, but the amount of the total levies shall not exceed the assessed benefits and interest thereon. ’ ’
It has been decided by this court in a number of cases that the Legislature has full power under the Constitution to confer authority upon the commissioners of improvement districts to provide that such districts shall not cease to exist upon the completion of the improvement, but may continue for the purpose of preserving and keeping the district in repair, and that the commissioners are authorized to make additional levies based upon the assessment of benefits necessary for that purpose. Cases so deciding are Nall v. Kelly, 120 Ark. 277, 179 S. W. 486; Road Improvement District v. Hall, 140 Ark. 241, 215 S. W. 262; Dickinson v. Reader, 143 Ark. 228, 220 S. W. 32.
No error appearing, the decree of the chancellor is in all things affirmed. | [
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Mehaffy, J.
The appellant was convicted in Little River circuit court of murder in the first degree, the jury returning the following verdict: “We, the jury, find the defendant guilty of murder in the first degree as charged in the information.” Motion for new trial was filed and overruled, and the case is here on appeal.
Willard Locke testified in substance that he was sheriff of Little River county and had been deputy sheriff for over twelve years; he investigated the case against the appellant and found that both Nathan and Eugene Frierson were killed on Little River. This witness described the house and the roads and highways; the road runs through a graveyard about two and a half miles north and west of the house where the killing* occurred, about a quarter of a mile from the road to the house where Luther Richards lives; the road ends at the farm where the killing occurred; the road runs to a gate and it is over 250 yards from the gate to the house. This witness testified that appellant told him that he went through the fence down to the lot and heard a negro in the lot feeding stock; that appellant went out to the lot, sat behind a tree until the man went back to the house; this was one of the men who was killed; after this man had fed the stock, appellant slipped through the fence in the yard and walked up to the window; that the curtain was torn and he could see this man behind the stove in the corner; could see the top of his head behind the curtain and he stuck his gun through the window and shot at his arm, which was all he could see; he first killed Eugene Frierson, killed him outright; the other one died the following day. Witness found shots in the walls of the house; it would not have been possible for the shots in those three places to have come from the same shell; there was a window and three doors in the west front room. Appellant told witness where the horse was tied.
This witness was corroborated by Arthur Sellman, a deputy sheriff, and by Willie Richards, who swore that the negro who was killed had on a coat and was on the floor. The coat was then offered in evidence.
A number of other witnesses testified, but the fact that appellant shot and killed two men, Nathan and Eugene Frierson, is undisputed. Nathan Frierson and appellant had, according to appellant’s testimony, been having trouble for the past two or three years. Appellant testified that Nathan Frierson had been paying atten tions to appellant’s wife; he had talked with him and tried to get him to quit and leave her alone, but Nathan Frierson said that if appellant’s wife did not come with him he was going to kill her and if appellant interfered he was going to kill him. Appellant claims to have gotten the shells for the purpose of rabbit hunting; but he did not go hunting and the evidence is in conflict as to why he did not. He says he did not know who lived in the house where he killed the negro; he was simply looking for his wife and not thinking about trouble at all; when he looked in at the window he saw Nathan Frierson with his arm around his wife, and he immediately shot; the other persons in the room ran into the kitchen and Nathan Frierson who was shot first by appellant was killed immediately; appellant then shot and killed Eugene Frier-son. Appellant testified that when he saw Nathan Frier-son through the window sitting on a bench with his hands around appellant’s wife, it made him so mad he shot him; he shot him because he had told him to let his wife alone, and after appellant had left home Nathan came and got her; he said he just pulled his gun and shot and all of them started running to the kitchen; he stood there watching Nathan to see if he was going to get a gun; he did not know he had killed him.
It is contended by appellant that he was justified in the killing, or if not justified, that the evidence is insufficient to sustain a conviction of murder in the first degree. The appellant was not tried for killing Nathan Frierson with whom he had trouble about his wife, but for killing Eugene Frierson, whom he shot in the back. It is his contention that he thought Eugene was going to get a gun, but this evidence is in conflict with that of appellee, and the jury had a right to disbelieve the evidence of appellant on this point. The evidence was ample to support the finding of the jury.
“Under the settled rule of practice the jury is the judge of the credibility of the witnesses and the weight to be given to their testimony, and it is also a well-settled rule that the evidence admitted at the trial will, on appeal, be viewed in the light most favorable to the appellee, and if there is any substantial evidence to support the verdict of the jury, it will be sustained.” West v. State, 196 Ark. 763, 120 S. W. 2d 26; Daniels v. State, 182 Ark. 564, 32 S. W. 2d 169; Walls & Mitchell v. State, 194 Ark. 578, 109 S. W. 2d 143; Humphreys v. Kendall, 195 Ark. 45, 111 S. W. 2d 492.
Appellant contends that the court erred in refusing to give his requested instructions Nos. 6 and 8, which read as follows:
Instruction No. 6: “You are instructed that if you should find from the evidence in this case that the killing by Jimmie Herron of Eugene Frierson was voluntary upon a sudden heat of passion caused by provocation apparently sufficient to make the passion irresistible, and also without fault and carelessness, shot Eugene Frier-son, honestly fearing for his own safety or life, he would be justifiable and should be acquitted.”
Instruction No. 8: “The evidence discloses that the defendant killed Nathan Frierson before he shot Eugene Frierson and that the killing of Eugene followed the killing of Nathan so soon thereafter that you may take into consideration the circumstances and the state of defendant’s mind at the time of the killing of Nathan in determining his state of mind at the time of shooting Eugene. If you should find from the evidence in this case that Nathan Frierson had, for some time previous to the killing, been giving attention to the wife of Jimmie Herron and endeavoring to persuade her to leave him and that this was known to said Herron, and should further find that Frierson had threatened to do violence to Herron, or in some way get him out of the way, so he could get his wife, and that these threats had been communicated to, or were known by, Jimmy Herron, then these facts may be taken into consideration in determining the state of mind of the defendant at the time of the shooting of Nathan and Eugene and the grade of the offense, if any, the said defendant may have committed.
“You are therefore instructed, if the defendant, Jimmie Herron, while away from home and looking for his wife, went to the house of the deceased, Eugene Frier-son, among other places, for the purpose of taking his wife home if there and, if you should find from the evi dence, when Herron reached said house and saw her through the window with the said Nathan Frierson’s arm around his wife, he suddenly flew into a high state of anger or passion, dethroning his reason because the said Frierson had taken his wife away from him, or was moved by a sudden fear, of his own safety, if such is true, and, if you should find that the said Herron in this state of mind, shot and killed the said Nathan Frierson, and that he was still under this state of mind and fearing Eugene would kill him or do him great bodily harm and shot Eugene to protect himself, he would not be guilty of murder either in the first or second degree as charged in the indictment. In such events, you may consider these facts and all other circumstances connected with the killing, in determining whether he was guilty of manslaughter or whether he is guilty of any offense.”
Instruction No. 6 had the following notation on it, made by the court: “Refused. Offered after all other instructions given and not legible.” As to the court’s refusal to give this instruction, see Booe v. State, 188 Ark. 774, 67 S. W. 2d 1019. Moreover, instructions 6 and 8 were fully covered by the general instructions given by the court, and it was not error for the court to refuse to give these instructions.
We have carefully examined all the instructions requested, given, and refused, and have reached the conclusion that the court did not err in its instructions to the jury or in its failure to give instructions.
We find no error, and the .judgment is affirmed. | [
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Holt, J.
October 28, 1939, appellees filed suit against Kate 0. Beloate to remove a cloud on their title, and to quiet their title, to a lot in Corning, Arkansas.
They alleged in their complaint that they owned and were in possession of the lot in question and that they had obtained title through warranty deed from James R. Rhyne, who owned the property by virtue of a warranty deed from S. R. Beloate.
They further alleged title by virtue of a deed from the state of Arkansas following a deed to it growing out of a tax sale for the year 1934 and confirmation of the state title under act 119 of the Acts of 1935.
They further alleged that appellant, Kate'O. Beloate, claimed some interest in the property by virtue of an unrecorded deed from S. it. Beloate.
Appellant demurred to this complaint on the grounds that the chancery court was without jurisdiction, that the deed from S. R. Beloate to James R. Rhyne showed on its face that it was a mortgage and was barred by the five-year statute of limitation. The court overruled this demurrer, whereupon appellant filed answer and cross-complaint, alleging in substance the grounds set out in her demurrer and in addition alleged title by adverse possession and invalidity of appellees’ tax deed from the state.
Appellees filed reply, denying all the material allegations of the answer and cross-complaint.
Upon a hearing the court found the issues in favor of appellees, ordered appellant’s deed canceled as a cloud upon their title and quieted title to the property in appellees. Appellant has appealed.
The record reflects that on July 1,1929, S. R. Beloate (single), the then owner of the property in question, conveyed it by warranty deed, for a consideration of $350, to James R. Rhyne. This deed from Beloate to Rhyne is in the usual form of a warranty deed except that it contains this additional provision: “It is agreed, however, that should the said S. R. Beloate repay to the said J. R. Rhyne, within one year from this date, the aforementioned sum of $350 with interest at the rate of ten per cent, from date, then this instrument shall be indorsed as void and returned, otherwise in full force and effect.”
February 9, 1938, Rhyne and wife conveyed the property by quitclaim deed to appellees. February 12, 1938, the commissioner of state lands conveyed this property to appellees. October 3,1938, title to this property was confirmed in the state under the provisions of act 119 of the Acts of 1935.
The record further reflects that September 8, 1926, S. R. Beloate conveyed the property in question to appel lant, Kate 0. Beloate, by warranty deed, with a reservation of. a life estate. This deed to appellant, however, was not recorded until August 25,1938, and appellees had no notice of its execution until after their deeds from Rhyne and the state.
The first contention urged by appellant here is that the chancery court was without jurisdiction. On this point, without attempting to abstract the testimony, we are clearly of the view that the preponderance thereof supports appellees’ allegation in their complaint that they were in possession when this suit was instituted.
Appellees sought in their complaint to remove a cloud on their title and to quiet title in themselves. These were purely of equitable cognizanoe. In Sanders v. Flenniken, 180 Ark. 303, 21 S. W. 2d 847, this court held (quoting headnote No. 1): “A suit to cancel certain conveyances as clouds upon plaintiffs’ title is purely of equitable cognizanoe, though plaintiffs ask that title to the land be declared in themselves, and that they have possession under claim of title.”
In further support of the chancery court’s jurisdiction, it appears that not only the demurrer and answer of appellant set up the equitable defense that the deed from S. R. Beloate to James R. Rhyne was intended as a mortgage, but appellant alleges in her cross-complaint that this alleged deed from Beloate to Rhyne was a mortgage and barred by the five-year statute of limitation. Section 8933, Pope’s Digest.
The determination of whether this was a deed or a mortgage was for a court of equity. In Commercial National Bank, Trustee v. Cole Building Co., 200 Ark. 212, 138 S. W. 2d 794, this court said (quoting from Gibbs v. Bates, 150 Ark. 344, 234 S. W. 175): “. . . of course, when the defendant files a cross-bill founded on matters clearly cognizable in equity, this supplies any defect in jurisdiction and places the court in possession of the whole case and imposes upon it the duty .of granting relief to the party entitled to it.”
Appellees did not ask for possession of the property for the reason that they were already in possession, the purpose of their suit being, as indicated, to remove the cloud upon their title and to quiet title in themselves. The chancery court properly assumed jurisdiction.
We are further of the view that the deed from S. R. Beloate to James R. Rhyne of July 1, 1929, supra, is in fact a warranty deed and not a mortgage and, therefore, conveyed all of Beloate’s title and interest in and to the lot in question to Rhyne.
In determining whether an instrument is a deed or a mortgage the test is: Did a debt exist at the time the instrument was executed, and was the instrument of conveyance intended by the parties to secure the debt. It requires clear and decisive testimony to prove that a deed absolute in form was intended as a mortgage. See headnote No. 1 in Hays v. Emerson, 75 Ark. 551, 87 S. W. 1027. In the Hays case, this court said: “The conveyance must be judged according to the real intent of the parties. If there is a debt subsisting between the parties, and it is the intention to continue the debt, it is a mortgage; but if the conveyance extinguishes the debt, and the parties intend that result, a contract for a resale at the same price does not destroy the character of the deed as an absolute conveyance. Porter v. Clements, 3 Ark. 364; Johnson v. Clark, 5 Ark. 321; Stryker v. Hershy, 38 Ark. 264.”
In the Johnson-Clark case, supra, the instrument involved was in the form of a warranty deed, but contained the following provision: “. . . if I, Benjamin Clark, my heirs, executors, or administrators, shall well and truly, within twelve months from the date hereof, pay to the said Edward Johnson, Jr., his heirs, executors, or ' administrators, the aforesaid sum of $2,950, then the above deed of bargain and sale, to be void in law, else to be and remain in full force and virtue.” This court in holding that the instrument was a deed and not a mortgage, among other things, said:
“The instrument in question partakes somewhat of the form, although it is far from being technically a mortgage. A mortgage is in form like any absolute deed of conveyance, except that in reciting the consid eration it alludes to the debt, which should generally be set out at length in the condition; and the sale is defeasible upon the payment of the debt therein named. . . .
“The condition, it is true, gives to Clark, or his legal representatives, the privilege of repaying the purchase money within twelve months, ‘then the above deed of bargain and sale to be void in law, «else to be and remain in full force and virtue. ’ Now, a mortgagee usually recites that upon the payment of the note, bond, or bill, then the same as well as the mortgage to be void. If the parties were really executing a mortgage, they ought to have explained themselves in terms no less strong than that set forth ...
“In the case at bar, Clark executes the conveyance which he calls a bargain and sale, and he accompanies the same by a delivery, reserving to himself the right to repay the purchase money within twelve months. But he executes no covenant by which he acknowledges an indebtedness nor can it be gathered from the instrument that there is any certain obligation on his part to do so. By repaying the money he has a right to demand possession of the negroes, but should he fail to do so where was the remedy to Johnson? Had he any contract which he could enforce in personam or in rem? We are of the opinion that he had not. In the case of Conway v. Alexander, above cited, we have seen that if adults choose to make these conditional sales to become absolute on a certain contingency, courts of chancery will not become their guardians, nor will they do more than inquire what were their intentions. . . .” See, also, L. R. A. 1916B, p. 216.
The evidence here is not of that clear and convincing nature required to establish appellant’s contention that the instrument in question was intended to be a mortgage. • -
We are also of the view that the trial court correctly held that appellees’ tax title from the state to be valid and superior to appellant’s claim of title. It appears from the record that the state obtained title by sale to it for delinquent taxes for the year 1934. Title was confirmed in the state October 3, 1938, under the provisions of act 119 of the Acts of 1935. The commissioner of state lands deeded this property to appellees February 12, 1938, and this deed conveyed to appellees whatever title the state possessed by reason of the tax sale and subsequent confirmation. More than one year had elapsed from the date of the above decree until the filing of the present suit, and the decree is not now subject to collateral attack.
This court has uniformly held that a confirmation decree under act 119, supra, cures all defects in the tax sale where there is not lacking the power to sell. Fuller v. Wilkinson, 198 Ark. 102, 128 S. W. 2d 251.
The only. serious attack attempted to be made by appellant upon the state’s tax title is her claim that one of the appellees at the time of the tax forfeiture was collector for the improvement districts in which the forfeiture occurred and that as such collector he could not allow the property belonging to the district to sell for taxes and buy it in himself. We think the great preponderance of the testimony, however, is against this contention.
Finding no error, the decree is affirmed. | [
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Mehaeey, J.
The appellant was charged in the circuit court of Craighead county with the crime of murder in the first degree, alleged to have been committed by his having killed J. M. Danley by shooting him and striking him with a shotgun. The jury returned the following verdict: “We, the jury, find the defendant guilty of voluntary manslaughter as'charged in the information and fix his punishment at imprisonment in the state penitentiary for a period of two years.”
Appellant was thereupon sentenced to two years in the penitentiary. Motion for new trial was filed and overruled, and the case is here on appeal.
There is no bill of exceptions filed in this case, in the absence of which this court can only consider error appearing on the face of the record; and when there is no bill of exceptions, the presumption is that the evidence adduced at the trial sustained the finding and judgment of the court.
Appellant in his motion for new trial states that the judgment is contrary to law and contrary to evidence, and that the court committed error in refusing to give certain instructions. He also alleges in his motion that the court erroneously admitted certain evidence, and he objects to the remarks of the prosecuting attorney.
In order to be considered by this court, all of these errors would have to be brought forward in a bill of exceptions. McGonagill v. State, 191 Ark. 283, 85 S. W. 2d 1014; Martin v. State, 201 Ark. 1185, 143 S. W. 2d 840; Brooks v. State, 137 Ark. 52, 207 S. W. 209; Williamson v. Mitchell Auto Co., 182 Ark. 296, 31 S. W. 2d 413; Stanton v. Arkansas Democrat Co., 194 Ark. 135, 106 S. W. 2d 584; Supreme Liberty Life Ins. Co. v. Parker, 185 Ark. 1190, 47 S. W. 2d 796.
Since there is no bill of exceptions and no error on the face of the record, the judgment is affirmed. | [
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McHaney, J.
Miss Nora Hendry died testate in Independence county on March 29, 1940. Two wills purporting to have been executed by her were presented for probate, one dated and properly attested by two witnesses on December 29, 1939, and the other on February 15, 1940, 'but the two witnesses to the latter did not sign as such at the same time or in the presence of each other. The trial court found that the will, dated December 29, 1939, hereinafter referred to as will No. 1, was her last will and testament and admitted same to probate. As to the will of February 15, 1940, hereinafter referred to as will No. 2, the court found that it was not properly executed and attested and refused to admit it to probate. Hence, this appeal.
The testatrix left an estate of about $9,000. In will No. 1 she gave $500 to each of her brothers and sisters, appellant being a brother, $500 to appellee, J. B. Wilson, who was named executor, and all the remainder of her estate she gave to her nephew, F. T. Hendry, son of appellant, A. F. Hendry. The father and son are sometimes referred to as “old” Frank and “little” Frank respectively. In will No. 2, she gave $500 to each of her brothers and sisters, other than appellant, $500 to F. T. or “little” Frank Hendry and all the remainder of her estate she gave appellant or “old” Frank Hendry.
Appellant concedes that will No. 1 was properly executed and attested, but insists that it was annulled and revoked by will No. 2. If the latter were properly executed and attested, he would be right about it, and the case would have to be reversed. Briefly stated, the facts with reference to the making, executing and attesting of will No. 1 are that F. T. or “Little” Frank Hendry was visiting his aunt in Cushman, Arkansas, in December, 1939, when she asked him about making’ her will and wanted him to find out how many witnesses were required to attest a will. He saw Mr. Casey in Batesville, who told him two were required, which fact he reported to his aunt. In her own handwriting she wrote down the data as to how she wished her will to be prepared and asked him to take it to Mr. Casey to draw her will, which he did. The will was prepared by Mr. Casey in duplicate, according to her written instructions, and was taken by her nephew and delivered to her. After waiting two or three days, she wrote and sent by little Frank two sealed notes, one to Remmel Baxter and another to N. K. Sims, requesting them to come to her home on the night of December 29, 1939. And by her further direction she caused “Little” Frank to keep “old” Frank up town that night while she and her witnesses executed the will. These parties complied with her request and-both copies of the will were properly signed and attested by them as required by law. One copy she gave to “Little” Frank and one copy she kept among her papers.
Regarding will No. 2, appellant testified that his sister became dissatisfied about her former will and wanted to make another; that she wrote a letter and asked him to have some new papers fixed up, which he did; that he brought Mr. Gray his sister’s instructions as to her new will and he prepared the will which witness took .back to her and she signed it the same day, February 15, 1940. This will was written in duplicate and both copies signed by the testatrix. It was witnessed by J. W. Page who went to the house at the request of appellant on the same day, and appellant says she destroyed her copy of will No. 1 at that time. One copy of this will bore the signature of E. D. Chavers as a witness, and it is conceded that Chavers was a total stranger to appellant, the testatrix, and to Page, the other witness, and that it was not signed by him, Chavers, in Page’s presence. Appellant and Chavers explain the presence of his signature on the will as follows: Several days after February 15, Chavers went to the home of the testatrix to see her about buying some timber on her land. She told him she couldn’t sell it as she had willed it to appellant and he (appellant) showed him (Chavers) the will. He told her she had only one witness and she asked him to sign as a witness, which he did. Chavers had never seen the testatrix before, nor she him, neither did he, Page and appellant know each other, nor had either Page or appellant ever heard of Chavers or know where he lived. He put no address on the will by which he could be reached.
Under this state of facts we think the court properly rejected will No. 2 as not having been properly attested. Section 14512 of Pope’s Digest provides the mode of execution of wills. It must be subscribed by the testator at the end of the will, or by some one for him, at his request. It must be signed in the presence of each of the subscribing witnesses, or shall be acknowledged by him to have been so made to each of them. He must, at the time of signing or acknowledging, declare the instrument to be his. will and testament. “Fourth. There shall be at least two attesting witnesses, each of whom shall sign his name as a witness, at the end of the will, at the request of the testator.”
Conceding that Page witnessed will No. 2 properly, the court was justified in finding that Chavers did not. "While it was not essential that Page and Chavers should sign as witnesses in the presence of each other, Payne v. Payne, 54 Ark. 415, 16 S. W. 1, it was essential that the testatrix acknowledge to Chavers that she had signed same as her will and testament, and he must have signed as a witness at her request. He and appellant so testified, but the court did not believe them and properly so, under the circumstances. Some of these circumstances are as follows: Chavers was a total stranger to all these parties, including the testatrix — he just happened to drop in to buy some timber; the testatrix knew two witnesses were required, as she had, only a month and a half before, executed her will with two old neighbors and friends as witnesses; after being cited to produce the will, appellant attempted to file the original copy of will No. 2 with only Page’s name as a witness; this was rejected by the clerk; later notice was served on Page to deliver the copy which had been left with him by appellant which had been signed by both Page and Chavers, and it was filed.
The fact that she executed duplicate copies of will No. 1 and caused them to be properly attested, one of which she gave to the principal beneficiary, tends to show that she thought something might happen to destroy her will. “Little” Frank testified that she told him: “If your dad ever finds out I have made this will, he will tear it up. You will have trouble with him.” Even though it be conceded, as testified by appellant, that she tore up her copy of will No. 1 and told him to burn it, which he did, this would not necessarily be a revocation of the will as she knew there was a duplicate thereof, executed with the same formality. She is supposed to have torn up this will in the presence of Page, but he did not so testify, but only that she tore some paper.
The argument is made that appellant who is her brother had been living with and taking care of his sister for many years, but the proof is that he had been living oft of her and that she took care of him. Appellant was supported by her and he had no income or property. “Little” Frank had lived with his Aunt Nora from a mere child-until he was 18 years of age, when he left to go on his own. He corresponded with her and came to see her two or three times a year. Several witnesses testified to her attachment for him. A sister, Mrs. Wilson, testified that she talked with her sister about her will after February 15, 1940, and her sister told her she had made a will and had disposed of her property in the manner set out in will No. 1.
We conclude that the court properly admitted will No. 1 to probate and properly rejected will No. 2. The court probably thought, as we do, that Chavers’ name was subscribed to the will after the death of the testatrix.
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McHaney, J.
Appellee brought this action against appellant to recover damages for personal injuries allegedly sustained by him and for damage clone to his truck and trailer, as the result of a collision between his truck and a truck belonging to appellant, about three miles north of Cassville, Missouri, at about 12:45 a. m. April 10,1940. The complaint charged negligence on the part of the driver of appellant’s truck in certain particulars, aot necessary to be set out herein, and prayed damages both to himself and his truck. The answer consisted of a general denial and a plea of contributory negligence on the part of the driver of appellee’s truck in bar of the action. Trial resulted in a verdict and judgment against appellant in the sum of $1,000, from which comes this appeal.
As stated by appellant, “only one question presents itself for consideration by this court. That is, was Stanley Williams, the servant, agent and employee of appellee (driver of his truck), guilty of contributory negligence?”
The collision having occurred in the state of Missouri, the rights, duties and liabilities of the parties must be determined by the laws of that state. Both parties concede the correctness of this rule. Appellant also seems to concede that there is substantial evidence to support the finding of the jury, that appellant’s driver was negligent — his insistance being that appellee’s driver was guilty of contributory negligence as a matter of law, and that the trial court should have so declared and instructed a verdict for him.
We cannot agree with this contention. The court submitted to the jury this question in several instructions given at the request of appellant, at least one of which, No. 12, appears to be more favorable to appellant than he was entitled to, as it puts the burden on appellee to prove that the driver of his truck ‘ ‘ was exercising the highest degree of care,” in other words, that he was free from contributory negligence.
In determining whether appellee’s driver was guilty of negligence as a matter of law, the rule frequently announced, but succinctly stated in Ark. Power & Light Co. v. Shryock, 180 Ark. 705, 22 S. W. 2d 380, “is to ascertain from the undisputed facts whether all reasonable minds would reach the conclusion that, under all the circumstances, he acted as an ordinarily prudent person would have done. ’ ’
The facts regarding the collision are that appellant’s truck was being driven north on an asphalt pavement, on a down grade, when he reached a point on the highway where another truck — that of one Moser — -was turned over on its left side on the west shoulder of the road with its front to the north or northwest and its headlights still burning. Moser’s truck had been traveling-south, going up hill on a wet pavement, and, for some reason Ms truck skidded, turned completely around and turned over on its left side, with its left wheels just off the edge of the pavement. Appellant’s driver stopped his truck to offer assistance to Moser, but in so doing parked his truck immediately opposite the upset truck of Moser and with his right wheels off the pavement. Perhaps the preponderance of the evidence shows that the left wheels of appellant’s truck were within six or eight inches of the white stripe down the center of the highway. This was the condition existing when appellee’s' truck and trailer, loaded with about ten tons of chat, traveling south at from 25 to 30 miles per hour, reached the bottom of the hill, or the depression'between two hills, and started up the hill on which appellant’s and Moser’s trucks were. Appellee’s driver and appellee saw the lights from both trucks above and his driver thought both were traveling along the highway, one following the other. Appellant’s driver began “winking” his lights, and, when appellee’s truck was only a short distance away, he turned on his bright lights, which prevented appellee’s driver from seeing the existing condition until it was too late to stop his truck. When he realized the true situation, saw the conditions, he thought he would be unable to drive between the two trucks, so he applied his brakes and his car skidded into the truck of appellant and caused the damage complained of. There was a slow rain falling at the time, the pavement was wet, and there were signs along the road reading “Slippery when wet.”
Under these facts we are unwilling to say that appellee’s driver was guilty of negligence as a matter of law. On the contrary, we think the court properly submitted the questions of negiigence and contributory negligence to the jury. There is no question of a failure of appellee and his driver to keep a lookout, and we think the situation developed by the facts justified the court in submitting the question of appellee’s driver being confronted with an emergency, a situation not of his creation, but one wholly due to appellant’s driver, for if the latter had parked on the shoulder of the road which was sufficiently wide for that purpose, or had parked at a point other than opposite the npset truck, or had dimmed his lights, all of which he was required to do by the laws of Missouri, there would have been no emergency and the accident would not have happened. Appellant argues, however, that because appellee’s driver testified he would have skidded into appellant’s truck had it been parked on the shoulder, shows that he was negligent in driving too fast with a ten-ton load on a wet pavement and in applying his brakes on such a road. But that does not follow as a matter of law, because the jury had a right to conclude that, had appellant’s truck been on the shoulder, entirely off the pavement, as the law of Missouri requires, and had kept his lights dimmed, there would have been no occasion for appellee’s driver to apply his brakes and his truck would not have skidded. There would have thus been no obstruction on the highway. Also the jury might have concluded that the bright lights prevented appellee’s driver from seeing that he could, with careful driving, pass between the two trucks. In Smith v. Producers Gold Storage Co., (Mo. App.) 128 S. W. 2d 299, it was held, to quote a headnote: “It is negligence to allow a motor vehicle to stand on the traveled portion of a highway, and person placing automobile there must show affirmatively that it was necessary- to do so at that time and place. ’ ’
_ The question of the contributory negligence was, therefore, properly left to the jury.
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Mehaeey, J.
This action was instituted by the appellant, Mrs. Leonard Ledbetter, in the Clark chancery court to cancel and set aside a certain deed alleged to have been made to one of the appellees, Mrs. Luther Smith. The suit was originally against Mrs. Luther Smith, Mrs. Tom Horton, and Mrs. Une Matthews.
It was alleged in the complaint filed by appellant that the plaintiff and defendants are the only heirs and next of kin to one Ella Kirby, deceased, who died in Clark county on March 9, 1939. The original defendants were the daughters of said Ella Kirby, and the plaintiff was a granddaughter. Mrs. Ella Kirby had three daughters and one son who died in 1916. It was alleged that at the time of the death of Ella Kirby she was seized and possessed of the land described in the complaint, and that defendants were making a claim to the title of said lands by virtue of a purported deed in the possession of defendants and alleged to have been executed by the said Ella Kirby, purporting* to convey the lands described to Mrs. Luther Smith. It is alleged that the deed is not a true and genuine deed, but that the same is false and fraudulent and a forgery; that said deed casts a cloud on the title of plaintiff, Mrs. Leonard Ledbetter, to a one-fourth interest in said lands. It is further alleged that if the deed is found not to be a forgery that the said Ella Kirby was so physically and mentally weak by long* and continued illness that she was incompetent and incapable of knowing and understanding the legal effect of said deed, and that while she was in that condition she was pressed and overpersuaded by the defendants in whose care she was during her last illness, to execute said deed, she being* unable to resist their appeals and persuasions; that if Ella Kirby signed the deed, said act was not a free and voluntary act on her part, but was the result of a deliberate and wicked conspiracy on the part of defendants to defraud plaintiff out of her interest in said lands by taking advantage of said Ella Kirby while in her weakened and disabled condition, and inducing her to execute same; that since the death of Ella Kirby the defendants have sold and caused to be cut and removed from said land a large portion of the valuable timber standing and growing on said lands, which was done for the purpose of cheating and defrauding the plaintiff; that the plaintiff has no way of knowing the extent of the value of the timber, but the information rests solely with defendants. The prayer was for a cancellation of the deed, and that the defendants be restrained from exhibiting* the same as evidence of their title to said lands, and that the plaintiff be decreed the owner and titleholder to an undivided one-fourth interest; that the defendants be ordered and directed to file a verified, itemized statement, showing the amount of each kind and character of timber cut since the death of said Ella Kirby, and the price received therefor, and that they be ordered to account to plaintiff for one-fourth of the amount.
Thereafter there was an amendment to the complaint filed stating that subsequent to the filing of the suit Mrs. Luther Smith filed for record in the recorder’s office of Clark county the deed referred to in plaintiff’s complaint, and alleged to be a forgery; that said deed is dated June 18, 1930; that said deed purports to have been executed for the land described in plaintiff’s complaint; that there was no valid consideration for said deed.
Answer was filed denying the material allegations of the complaint, and alleging that the deed was a true and genuine conveyance. There was also an answer filed to the amendment to the complaint denying every material allegation in the amendment.
Evidence was introduced and the court made a finding and entered a decree that there was no equity in plaintiff’s complaint, and that the same was dismissed for want of equity. An appeal was prayed and granted to the Supreme Court, and the case is now here on appeal.
Appellants argue that there are four issues of fact presented by the appeal. First, is the deed in controversy a genuine deed of conveyance, or is it a forgery?
The appellee, Mrs. Luther Smith, was called by the appellant as a witness, and testified that she was one of the daughters of Mrs. Ella Kirby; that there are three living children, Mrs. Matthews, Mrs. Horton, and witness ; they had one brother who was killed a good many years ago. Witness testified that her mother at one time owned all the lands involved in this suit, but she thinks there was some of it she did not own; witness was married to Mr. Smith in 1904, and they moved into the house with witness’ mother after the brother was killed in 1916; the brother lived in the house with the mother before his death; he was separated from his wife; witness’ mother said to her: "I picked you out of the three children to come and live with me. You have always attended to my business, attended to the taxes, drawn all the checks from the government,” and everything that was done, witness attended to; witness lived with her mother continually after that until her mother’s death; Mrs. Matthews lived about a half mile from there part of the time; her other sister lived in Little Rock part of the time and in Grurdon; there were 20 or 30 acres in cultivation; there were 40 acres in the home place; it did not all join; witness’ mother gave both of her sisters 40 acres of land which joined; she kept this property and it was assessed in her name until she died; witness attended to” it for her; about two years before she died she had rheumatism in her arm and she did not do anything after that; about two years before she died she got in feeble health; she had an account in the Clark County Bank and got money out of the bank by giving witness checks; she was to give checks and attend to it just like it was hers; whatever rents she collected she deposited in the bank at Grurdon; she came to the courthouse and signed checks for her taxes; she signed a check or two while she was in bed sick; sometimes she would give witness blank cheeks and witness would fill them out afterwards; witness had one with her; witness and her mother kept their papers together in the locker; witness kept the keys part of the time- and her mother part of the time; when her mother was sick witness had to go to town after the doctor and look after other things, and she gave the keys to Mrs. Matthews; her mother paid the taxes because she wished to do so and wished to handle the property as though it was hers until her death; witness told Mrs. Matthews to come up any time she wanted to and Mrs. Matthews and Mrs. Horton knew about this deed and it was understood that the property was all witness’; witness owned everything; witness was present when the deed was made; does not know just who was present, but knows that her mother, her aunt, Mrs. Sallie Slaughter, and Ross Calloway were there; Mrs. Slaughter is dead; her grandfather was named Nash, and her grandfather on her father’s side was named Kirby; witness does remember her mother’s father, but her father’s father was dead when she was born; when witness ’ mother’s father died he had several children; some of them live in El Dorado and different places in the state; witness was present when the deed to her was executed, and carried it home; her mother gave her the deed oil the way home; part of the time the deed was in the locker and witness brought it to Arkadelphia when she came to pay taxes; had all the deeds. When asked why she did not put the deed on record, witness answered that she had about a dozen that she had not recorded, one from her sister, Mrs. Horton, 15 years ago; she had ten or fifteen deeds that did not come from her mother that were not on record; does not know whether she told her sisters about the deed; thought it was generally understood. When asked about the personal property witness said that she stayed there and took care of her mother and attended to her business, and her mother just wanted to give it to her; she looked after the crops and the planting of them and her mother got the money for them because her mother told her that at her death witness would be rewarded for what she was doing; does not know whether her sisters knew about the deed or not; she did not tell Mrs. Matthews that she would “go to hell” before she would give anybody any of the personal property; she did not tell anybody that she would kill anyone who testified against her; Ross Calloway was present when the deed was executed and saw it executed; witness brought the deed to Arkadelphia and showed it to the deputy clerk, Dixie Tolleson, before suit was filed; after she showed the deed to the deputy clerk she might have told her that she would have it recorded later; witness had abstract made to the land for her mother and paid $100 for it herself, out of her pocket; her grandfather Nash made a will to witness, but it amounted to nothing; her grandfather was living with her and died at her home; the will was never probated; it was for such a small amount and some of them got mad about it, and she never did anything about it; the land brought $160; her grandfather had a justice of the peace to come to her house and make the will; her brother was killed in 1916 and witness moved to her mother’s house the next day; her mother wanted her to come and live with her; she lived with her 23 years; she gave the witness the deed in 1930; witness had then lived with her 14 years; she used no force or persuasion of any kind to get her mother to make the deed; she never threatened anybody about the testimony they might give; never tried to get anyone to testify to anything other than the truth; attended to all her mother’s business; there was no secret about her property ; turned the key over to Mrs. Matthews; Mrs. Matthews could have gone into the closet any time she wanted to and looked at the papers; she collected the rent for her mother and deposited it to her mother’s credit; her mother would give her checks to pay the taxes; the government cotton checks were made payable to her mother; witness came to Arkadelphia to the courthouse and signed for them; she signed for the'checks and the money was paid to her mother as being the owner of the land; her mother said to let it go in her possession, and at her death it would be witness’; her mother had about $600 in the bank before she died; and she gave witness checks and told her to get the money and pay all her funeral expenses and all expenses and what was left would be witness’; she checked the money out before her mother’s death; her mother told her to do this; her mother had $14 in her pocket and she gave this to Mrs. Matthews; Mrs. Ledb’etter got the insurance money and did not pay a dime on her father’s funeral expenses; she was an infant at that time; witness has a check in her pocket signed by her mother the year she made the deed; she looked up some of the old checks made the same year, and the original check referred to was here introduced in evidence. She said the signature to the deed was her mother’s; she saw her sign it. The deed was offered in evidence.
Mrs. U. P. Matthews testified in substance that she was one of the daughters of Mrs. Ella Kirby, and at the time Mrs. Kirby died she lived something like a quarter of a mile from her; the first witness knew of Mrs. Kirby’s being unable to do anything much was in August before she died in March; during that time she was not very stout; she was confined to her bed about two weeks before she died March 9th; when she first went to bed witness stayed with her until she died; never left her; witness’ sister, Mrs. Smith, was around there, but she liad to come to town a lot; the doctor wanted to hear from her mother and she had to have a little medicine; Mrs. Smith had an automobile and drives a good deal, but from the time Mrs. Kirby took sick until she died witness and a nurse were with her; never saw any difference in her mother’s feelings toward her children; she was just as devoted to her other sister and witness as she was to Mrs. Smith; witness’ father died when she and her husband were married, and her father gave them all a 40-acre tract and said he wanted them to settle around him, and they did; she never heard of the deed until after her mother’s death; really does not know when she found out about the deed; witness’ mother had some money in the bank at Grurdon, and Mrs. Smith told her she checked it out; does not know that she told her why; and does not know whether she got the money before or after her mother’s death; the amount of $600 was checked out and the account closed; prior to August her rpother was well so far as she knew; she could outwalk witness ; she did not need anyone to wait on her that witness knows of; she looked after her stock and kept feed in the barn; had a pretty good bunch of cattle and hogs ; she had a check in her possession with her mother’s signature; thinks she saw her sign it in 1937. The check was introduced as Exhibit 3. After her mother’s death Mrs. Smith came up to witness’ and got the keys and told witness they would divide everything; did not know of Mrs. Smith having any papers in the closet; she got the keys after her mother’s death; kept them about two weeks, and gave them back to Mrs. Smith; never did go to the closet or look through any of her mother’s papers; nothing was said about dividing the personal property, and Mrs. Smith said she intended to hold it; she told Mrs. Horton and Mrs. Horton said she intended to have her part of it; witness told Mrs. Smith that she could have her part, that she would not have a rucus in the family; she was asked if Mrs. Smith did not tell her that she would “go to hell” with anybody before she would give them any of that personal property, or words to that effect, and she answered “Yes.” Her mother never said anything to her about giving this land to her sister; she wanted it equally divided except the home-place; she wanted Mag and Luther to have that; her mother did not want any squabble over her property, but wanted it equally divided; it was understood when Mrs. Smith went to live with her mother that she was to have the homeplaee; witness’ mother, about two weeks before she became sick, spent the night with witness; she said she did not want any squabble over her property; wanted it divided equally; Mrs. Smith did look after her mother, but her mother looked after the farm herself; her general health was good; after witness ’ father died the mother asked witness to come and live with her and one of her other sisters talked about going there, but after that Mrs. Smith went .there; witness never supposed that any deed had been made; knew nothing about it; Mrs. Smith talked to her about dividing the property, but after the deed showed up witness did not ask her any more about it; she feels that she has as much right to hold the property as Mrs. Smith; she is not having anything to do with Mrs. Ledbetter having* any part of the property; witness was defendant because she was one of the sisters; she did not authorize anyone to answer for her; attorney told her it was a joint answer, and she said she did not authorize anybody to file the answer; she is not making any fight against Mrs. Ledbetter; does not know anything about it; attorney for plaintiff then asked witness if she wanted to remain as a defendant or wanted to be made a plaintiff so everyone could get her part of the property; she answered that she thought everyone should get her part, but she wanted the court to know that she was not fighting anyone; does not know of her mother ever keeping anything hid from her. Attorney for defendant asked on cross-examination if witness, Mrs. Horton, and Mrs. Smith did not come to his office when suit was filed and she said she did not; thereupon, the attorney for the defendant asked that the record show that the answer was stricken as to Mrs. Matthews. The attorney for plaintiff then asked witness if she was willing to join as a party plaintiff; she said it did not matter to her. Asked if she would know her mother’s handwriting* if she saw it, she said she thought she would. She was handed the deed and asked if she recognized that as her mother’s handwriting; she said she did not know, but it looked a lot like her writing.
U. P. Matthews, husband of Mrs. Matthews, testified in substance that he heard Mrs. Kirby talk about the division of her property twice; she said she had a will and did not want any rucus over her property; she. said that Mrs. Smith and her husband were to get the homeplace and she wanted the other property divided equally; that is practically the statement that she made; witness considered Mrs. Kirby a mig’hty healthy old lady for her age; she was active around the place; two years before her death you could see that she was going down; she was 77 years old and until shortly before she died she was pretty active and able to look after herself; she seemed to be as devoted to one of her children as the others; Mrs. Kirby sold timber to John Gaston; witness measured the land for Mrs. Kirby; thinks Mrs. Kirby paid Mr. Scott for clearing the land; does not know whether Mrs. Smith paid it or not; Mrs. Smith has not sold any timber since Mrs. Kirby’s death.
Mrs. Lyde Matthews was recalled; does not remember exactly when Mrs. Smith told her she had the deed ; the signature on the deed looks something like Mrs. Kirby’s signature.
Henry Fourcht testified in substance that he knew Mrs. Kirby in her lifetime, and she requested witness to help measure some land, which she claimed was hers; never heard Mrs. Kirby talk about her purpose in dividing her land; visited the home of Mrs. Smith and Mrs. Kirby every once in a while; knows they lived in the same house; until the year before Mrs. Kirby died she was pretty active for her age; witness’ transactions with reference to anything about the land was always with Mrs. Kirby.
Mr. Flave Carpenter testified in substance that he had lived in Arkadelphia all his life and was connected with the federal government in the tick eradication government work in Clark county; was acquainted with Mrs. Kirby for 20 years; witness was at Mrs. Kirby’s home in 1938 and heard her talk about what division she was going to malee of her property; that she was going to leave her property with Luther and Mag.
U. P. Matthews was recalled and testified in substance that he remembered when Mr. and Mrs. Smith moved into the house with Mrs. Kirby; it was the winter of 1916; his understanding was that Mr. and Mrs. Smith would get dissatisfied and would tell the old lady they were going to leave if they did not get more land so she deeded them 40 acres of land, and she said when they wanted more she told them they could move if they wanted to and she did not deed them any more; does not know the date of this conversation.
Mrs. Susie Horton testified in substance that she attended her mother’s funeral and did not hear Mrs. Smith say at any time that she wanted them to all get together and divide the property; does not remember when she first heard about the deed; her mother never told her anything about it; thinks her sister, Mrs. Smith, attended to practically all of her mother’s business; witness lived in Gurdon; moved there the first of December before her mother died in March; witness said that she would not give $600 for all the property her mother had; Mrs. Kirby told witness she was going to make a will; she said she thought she knew her mother’s signature; that she wrote to witness regularly; this is her signature on the deed and on the checks. Asked if she thought the signatures on the checks were similar to the one on the deed she answered: ‘ ‘ Certainly they are her signatures, that is too, they are al-1 her signatures.” Witness is not an expert on handwriting, but has been in public business several years; does not remember her sister making any threats against folks who would testify against her.
John Gaston testified about buying the timber from Mrs. Kirby and thinks the land was known as the Kirby land; negotiated the deal with Mrs. Kirby; just talked to her; took a timber deed signed by Mrs. Kirby, Mrs. Matthews, Mrs. Smith, and Mrs. Horton; did not want the deed without the signature of all of them; gave Mrs. Kirby $1,100 for the timber; he had no information that Mrs. Kirby owned the land; did not know anything about it.
Dixie Tolleson testified in substance that she is deputy clerk in Clark county; knows Mrs. Magr Smith and she filed in witness’ office the deed in controversy, and it was recorded the same day; witness had seen the deed before it was recorded; she brought it for witness to look at and asked if it was a good deed; always wanted witness to look over her papers; wanted to know if witness could give her a cut on having a bunch of deeds recorded.
Ray Abbott testified in substance that he lives in Gurdon and is the cashier of the Clark County Bank of Gurdon; knew Mrs. Kirby during her lifetime; she carried an account in witness’ bank; witness had with him the original ledger sheet showing her account covering the period of time from 1927 through March, 1939; the account was closed March 3, 1939. Witness then introduced the ledger showing the deposits and checks; he did not bring Mrs. Kirby’s bank signature; he could not find it.
Mr. Charles Lehigh testified in substance that he had lived in El Dorado 18 years; that he was a questioned document expert on handwriting and typewriting; graduated from a college in which handwriting is taught and has had experience in passing on questioned documents about twelve years; has testified in some of the outstanding cases in the country, and names some of the cases; has examined the deed involved here; if he has an instrument at his office or laboratory he examines it under a developer-microscope; if not in his office, he carries his own pocket microscope; has examined the check dated April 17, 1937, for $2.30' and another check dated June 28, 1937, for $50, and has examined the deed involved. It is his opinion that the signature of the checks and the signature of the disputed document were written by two separate hands; he finds the signature of Ella Kirby on the deed, was apparently written about the time of the check for $2.30. It appears that the name of Ella Kirby on the deed was written by a hand that was possibly trying to simulate the original signature; and that is due to the fact there are many breaks and it is written with a shaky hand, as they could not write it with a free hand; witness could not give a definite date when a signature has been written over a period of years, but can tell when a signature has been written in the last two or three years, or whether or not it is ten years old and whether it has been kept in a vault or exposed to daylight; this instrument was originally printed on a sheet of Magnolia Bond; that paper is manufactured by the Hammer-Company of Erie Pennsylvania; this sheet of paper was not released by the Hammermill Paper Products Company for distribution in the south until 1931; it is not a good grade of paper; witness can testify from the facts he had just given that sheet of paper was not printed until 1931; that deed was printed in Arkadelphia; the checks dated April 17, 1930, and June 28, 1937, were not written by the same hand as the signature on the deed; the signatures on the checks are similar, but they do not correspond with the signature on the deed; cannot tell how old the signature of the notary on the deed is, but can say in proof to his own satisfaction that the signature is not ten years old; the signature of the notary on the deed does not appear to have faded in any way, except it is just naturally dry and has turned blue-black; the deed is purported to have been signed by Ella Kirby on June 18th and acknowledged on June 11th; that could be due to a stenographic error. This witness also stated: “I would say that the signature on the deed apparently was written about the same time as this check for $2.30.” The signature on the deed shows on its face to have been executed in 1930; it was apparently the same time as that of the cheek; witness said it appears to have been executed about the same time.
Eoss Calloway testified that he knows Mrs. Mag Smith and her husband, Luther Smith, and was acquainted with Mrs. Kirby in her lifetime; went with them to Arkadelphia and when they reached town he went about his business and when he got ready to go home found them in the Merchants & Planters Bank fixing up some papers; that is, Mr. Thompson was fixing it.for them; witness noticed a warranty deed; Mrs. Kirby was making a warranty deed to Mrs. Smith; witness was there the day the warranty deed was signed; when witness went to the bank the day the deed was made, Mr.' Thompson, Mrs. Smith, Mrs. Kirby, and Aunt Sallie Slaughter were there; she is dead; she was Mrs. Kirby’s sister; he saw Mrs. Kirby sign the deed; does not think he has ever been in court before.
J. W. Thompson testified in substance that he is in the real estate business in Arkadelphia; was cashier of the Merchants & Planters Bank from 1927 to 1931; knew Mrs. Ella Kirby; wrote the deed on the day the acknowledgment was taken; he took the acknowledgment; would not have taken it if Mrs. Kirby had not signed it; that is Mrs. Kirby’s signature.
The burden of proof is upon the party alleging that an instrument is forged. If he alleges forgery, he must prove it by a preponderance of the evidence. In this ease, the only witness that testifies that this is not Mrs. Kirby’s signature on the deed was Mr. Lehigh, who testified that he was a questioned document expert on handwriting and typewriting, and had experience for about 12 years; he mentioned a number of cases in which he had testified. He testified that the signature of Ella Kirby on the deed was not the same as the signature on the checks. He also testified that this particular paper, on which the deed was written, was not released for distribution in the south until 1931, and he says that the deed was printed in Arkadelphia. However, he testifies that the deed was apparently executed in 1930. Mrs. Smith, the appellee, testifies not only that it was her mother’s signature, but that she saw her sign it. Mrs. Horton, sister of Mrs. Smith, testified that it was her mother’s signature. Mrs. Matthews, another sister who was first made defendant, and afterwards changed to plaintiff, testified that it looked very much like her mother’s signature. J. W. Thompson, the notary public who took the acknowledgment, testified that Mrs. Kirby signed the deed; that he would not have taken the acknowledgment if she had not. Eoss Calloway testified that he saw Mrs. Kirby sign the deed.
Appellant cites and quotes from the case of Miles v. Jerry, 158 Ark. 314, 250 S. W. 34, in which it is stated that it is easy to procure an appointment as notary. That opinion was written by the late Chief Justice Hart, and he also said in that opinion: “As we have already seen, the burden of proof was upon them to show the falsity of the certificate, which carried with it the presumption that the officer making it had certified to the truth and was not guilty of forgery. In addition to the prima facie case made by the certificate of acknowledgment, we have the positive testimony of the notary and of another person accompanying him that the wife did acknowledge the lease.”
It is' true in the ease at bar that in addition to the prima fade case made by the certificate of acknowledgment, we have the positive testimony of several witnesses who saw Mrs. Kirby sign the deed, and other witnesses who said that it was her signature on the deed, and there is no attempt to contradict this testimony by anyone except the expert.
In the case of O’Kane v. First National Bank of Paris, 189 Ark. 396, 72 S. W. 2d 537, this court again said: “The notary or other officer before whom an acknowledgment is taken performs a very important duty when he takes and certifies an acknowledgment of a deed or any instrument affecting the title to real estate. For that, reason great weight is given to his official act in certifying to the validity of such instruments. The impeachment of his certificate involves a charge of criminal violation of duty on the part of the certifying officer.” The court, to support this announcement of the law, cites the following cases: Miles v. Jerry, supra; Clifford v. Federal Bank & Trust Co., 179 Ark. 948, 19 S. W. 2d 1026; Anthony v. Pennington, 182 Ark. 1039, 34 S. W. 2d 219; Jolly v. Meek, 185 Ark. 393, 47 S. W. 2d 43.
In the case of Bell v. Castelberry, 96 Ark. 564, 132 S. W. 649, it was stated: “It is a rule well settled by authority and several times announced by this court that where a grantor appeared and made some kind of an acknowledgment before an officer authorized by law to take such acknowledgment the recitals of the certificate of such officer, regular on its face, are, in the absence of fraud or duress, conclusive of the facts therein stated. ’ ’
It is next contended by the appellant that if the deed is not a forgery, its execution was the result of overpersuasion and undue influence on the part of the grantee in the deed. We think the record fails to show any evidence of overpersuasion or undue influence. It is true that one witness testified that he heard Mrs. Kirby say that Mrs. Smith wanted her to deed her more land, and threatened to leave, but that conversation apparently took place seven or eight years after the deed was made. Other evidence shows that there was no undue influence, or overpersuasion. Mrs. Kirby’s son was killed in 1916, and according to the evidence Mrs. Kirby requested Mrs. Smith, appellee, to come and live with her, and she immediately moved there. It was 14 years after she moved that this deed was made. Mrs. Horton, one of the sisters, testified that all the property. her mother had was not worth $600, and no one disputes this.
It is next contended by the appellant that there was no delivery of the deed. All of the evidence shows that the deed was made in 1930, something* like nine years before Mrs. Kirby’s death, and Mrs. Smith testified that her mother gave her the deed on the way home, and that she took it to the collector’s office when she paid taxes. There is no evidence to the contrary.
Appellant says that there was no consideration. The evidence clearly shows that as soon as Mrs. Kirby’s son died in 1916, Mrs. Smith, at the request of her mother, immediately moved to her mother’s house and took care of her from that time until she died in 1939. The deed itself shows that the consideration was $1 and other valuable considerations, and about this there is no dispute in the evidence.
We think the chancellor’s finding that the deed was genuine and that there was no overpersuasion or undue influence, and also his findings on the other two propositions, are supported by a preponderance of the evidence, and the decree is affirmed. | [
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Holt, J.
In 1898, Mr. and Mrs. Castleberry, parents of nine children, lived in Bradley county, Arkansas. Mr. Castleberry died May 21, 1898, and his wife on February 12,1899. At the time these parents died their three oldest children had become oí age, married, and had moved away. Of the six remaining children, E. N. Castleberry was about 24 years of age; B. F. Castleberry, 20; JEt. D. Castleberry, 16; H. F. Castleberry, 10; Nettie Castle-berry, eight; and Nona. Castleberry (now Mrs. Bowman), about six. When Mr. and Mrs. Castleberry died they were living on rented land and owned no property.
E. N. Castleberry was living' away from home with an uncle when his mother died, and the only property that he owned at the time was one horse of the value of $50. With this horse as a down payment, February 2, 1901, he purchased 40 acres of land, and complying with a request of his mother, made shortly before her death, took the five minor children to his home on this 40-acre tract. March 12, 1902, E. N. Castleberry purchased an additional tract of 160 acres for a consideration of $320 and took the deed in his own name, and during this time he homesteaded 160 acres of additional land. January 14, 1905, E. N. Castleberry purchased a 128-acre tract for $1,000. On October 26, 1907, he acquired 78 acres for $234, taking all deeds in his own name.
B. D. Castleberry married and on March 12, 1908, E. N. Castleberry deeded to him the 78 acres of land, supra, the deed reciting a consideration of $200. In 1909, B. F. Castleberry, married and E. N. Castleberry deeded to him 79% acres out of the 128-acre tract, supra, the deed reciting a consideration of $200. These two brothers, after their marriage,' left the home of their brother, E. N. Castleberry, and made their homes on the property which he had deeded to them. In 1912, H. F. Castleberry (one of the appellees here) married and settled on 160 acres of land deeded to him by E. N. Castleberry.
December 30, 1912, E. N. Castleberry married the present Mrs. Dora Sweeney (-one of the appellants here) and to this union one child was born, Arthur Castleberry, the other appellant here. Shortly after his marriage E. N. Castleberry contracted tuberculosis, from which he died December 2,1916. At the time E. N. Castleberry married the only child living at his home was his sister, Nettie (one of the appellees), who was then of full age. Before E. N. Castleberry died, Nettie bad left bis borne and was living with one of her sisters.
Of the various tracts of land acquired in the name of E. N. Castleberry, subsequent to the date his minor brothers and sisters came to live with him, after the death of their mother, E. N. Castleberry and his wife, November 23, 1915, conveyed 40 acres to L. H. Grider and on the same date another 40 acres to M. P. Grider. 'January 5,1914, they conveyed 40 acres to Emma Nelson.
The plaintiffs in this litigation (appellees here) are H. P. Castleberry, Nettie Castleberry and Mrs. N. C. Bowman. The appellants (defendants below) are Arthur Castleberry, Mrs. Dora Sweeney, his mother, and her 'husband, Pete Sweeney.
The 80-acre tract involved here was obtained by E. N. Castleberry by warranty deed dated March 12, 1902, at which time the oldest of the appellees here was about 12 years of age and the other two, ten and eight, respectively. The 50-acre tract involved was acquired by E. N. Castleberry by warranty deed January 14,1905, from T. D. Wardlaw and his wife, who conveyed to him 128% acres for $1,000, out of which tract E. N. Castle-berry on March 12, 1908, conveyed 79% acres to his brother, B. F. Castleberry. The 40-acre tract involved here was conveyed by warranty deed to E. N. Castle-berry by R. D. Castleberry for $350, November 23, 1915, and was one of the two forties E. N. Castleberry had deeded to R. D. Castleberry March 12,1908.
The purpose of the complaint was to establish a resulting trust to an undivided one-fourth interest in the lands involved in favor of each of the appellees . and prayed for partition accordingly. Among other things, the complaint alleges:
“That the plaintiffs, H. F. Castleberry, Nettie Castleberry, and Mrs. Nona Bowman, were brothers and' sisters of E. N. Castleberry, deceased, who died in December, 1917; that all of these plaintiffs, together with R. D. Castleberry and B. F. Castleberry, were in 1901, 1902, 1905 and 1907, orphans and minors and their older brother, E. N. Castleberry, was of legal age and had the full custody and care of these plaintiffs, together with the said R. D. Castleberry and B. F. Castleberry. That plaintiffs and the said R. D. Castleberry and B. F. Castleberry and the said E. N. Castleberry, were farmers and through the management of the said E. N. Castle-berry, and the labor and efforts of these plaintiffs, they jointly accumulated enough money to and did purchase the following described lands: . . .
“That all of said lands were purchased by the said E. N. Castleberry with trust funds, earned by the said plaintiffs, the said E. N. Castleberry, the said R. D. Castleberry, and the said B. F. Castleberry and at the time the funds were so created and said lands purchased with said funds, it was agreed by and between all parties hereto that said lands should be held in trust by the said" E. N. Castleberry for each of said plaintiffs, the said R. D. Castleberry and B. F. Castleberry, and the same is and does now constitute a resulting trust in favor of these plaintiffs for their equal share in said lands. . . .”
The complaint further alleges that E. N. Castle-berry agreed to convey to each of the appellees an equal share in the lands when they became of legal age and that on March 12, 1908, in compliance with said agreement he had conveyed to R. D. Castleberry 78 acres and to B. F. Castleberry, 79% acres; that on November 23, 1915, for a consideration of $500, E. N. Castleberry conveyed 40 acres to Harvey Grider and for a like consideration 40 acres to M. P. Grider, and on January 5, 1914, for $200 conveyed 40 acres to Emma Nelson (all lands being described in the complaint).
It is further alleged that out of the funds received from the sale of the lands to the Griders and Emma Nelson, E. N. Castleberry used $350 to purchase 40 acres of land from R. D. Castleberry; that when E. N. Castle-berry died in December, 1917, he held naked title to the balance of said lands in trust for himself and the three appellees here, said lands all in Bradley county, Arkansas, being described as follows:
“West half of the southeast quárter (W% of SE%) of section 30; the southeast quarter of the southeast quarter (SE% of SE%) of section 30; northeast quarter of the northeast quarter (NE% of NE%) of section 31; and all that part of the southeast quarter of the northeast quarter (SE]4 of NE%) lying west or north of the Warren and Moro Bay Road in section 31, township thirteen (13) south, range ten (10) west.”
Appellants demurred generally and specifically to the complaint. The court overruled the demurrer and appellants (defendants below) answered denying every material allegation in the complaint and pleaded as a defense: the statute of limitations, laches, and the statute of frauds.
Upon a trial the court sustained appellees’ contention that a resulting trust was created and ordered partition of the lands involved, one-fourth to each of the three appellees and one-fourth to appellants, and entered a decree accordingly. Appellants have appealed.
Appellees base their right of recovery on the ground that a preponderance of the testimony establishes a trust, or more specifically, a resulting trust in their favor. Appellants on the other hand, contend that no resulting trust, or trust relationship, ever existed, and that none was established. Appellants further insist that even though a trust did exist, appellees, at the time they filed their suit, were barred by the statute of limitations and laches.
The material facts upon which appellees seek to establish a resulting trust, or a trust relationship, are not in dispute and are (briefly stated): Shortly before Mrs. Castleberry, the mother of these appellees, died in 1899; she called E. N. Castleberry to her bedside. He was at the time 24 years of age and unmarried. The mother, according to the testimony of appellee, H. F. Castleberry, made the following request of E. N. Castle-berry: “. . . She told him that if there wasn’t some one there with us, we would scatter and have no place at all. And she told him to come on home and take care of us children. And he promised that he would and he did.” Shortly after the mother’s death, E. N. Castle-berry, as we have before related, gathered the five minor children on the 40 acres which he had bought, making the initial payment with $50, the value of a horse which he owned. The parents of these children left no prop erty. At the time appellees were taken into the home of E. N. Castleberry, the oldest was ten years of age and the youngest six. None of these minor children had any property at all. E. N. Castleberry sheltered, clothed, and fed them and while they were not in school they worked and assisted E. N. Castleberry with their labor.
If a resulting trust were established it must have been made out at the time that relationship was entered into. Appellees insist that this trust relationship was established at the time these minor children were taken into the home of E. N. Castleberry by an oral agreement made among them. On this point we quote from the testimony of H. F. Castleberry (who was ten years of age when his mother died) : “Q. When did you have this agreement — about all of your living together and later you would divide the lands ? A. It was at the time they bought the first 40 acres of land. We were all living together and decided we would all work and buy the land and then Ed said we would divide the lands. ’ ’
And Mrs. Mollie Hamaker, the oldest sister who lived with E. N. Castleberry and the children until the fall of 1900, testified: “Q. Do you know anything about an agreement between E. N. Castleberry and his younger brothers and sisters at the time they started keeping house together? A. We all lived together as though mother was in the house with us. We were all to work together and to help make a living and then we would share equally in anything that was made.”
And R. D. Castleberry (sixteen years of age at the time of the alleged agreement) testified: ££Q. State in a very few words just what happened after the death of your mother? A. Mother wanted Ed to take care of the smaller children and he told her he would and he told us children if we would work anything we made we would all share alike. ’ ’
There was other testimony to the same effect. We are clearly of the view that no resulting trust has been or could be established on the evidence presented by this record.
The law is well settled that in order to create a resulting trust, the purchase money or some part must be paid by another or secured by another previous to or at the time of the purchase. Here at the time of the alleged agreement, no money was put up or secured by any of the parties here with which to purchase any lands, except Jfi. N. Castleberry who owned a horse of the value of $50. None of the other parties to the alleged agreement had any property whatever. We think that the most that can be said of the relationship here is that the parties agreed to live together, work, make a living, bargain for, and acquire lands, to be paid for out of their joint earnings, which we think falls far short of establishing a resulting trust.
A resulting trust has been defined by this court in Kerby v. Feild, 183 Ark. 714, 38 S. W. 2d 308, as follows: “In order to constitute a resulting trust, the purchase money or a specified part of it must have been paid by another or secured by another at the same time, or previously to the purchase, and must be a part of the transaction. In other words, the trust results from the original transaction at the time it takes place and at no other time, and it is founded upon the actual payment of money and upon' no other ground. Red Bud Realty Co. v. South, 96 Ark. 281, 131 S. W. 340; and Reeves v. Reeves, 165 Ark. 505, 264 S. W. 979. This rule is so well settled in this state that no further citation of authorities to support it or reasons for its adoption need be discussed. ’ ’
And in the recent case of Lisko v. Hicks, 195 Ark. 705, 114 S. W. 2d 9, this court said: “The rule is that a parol agreement that another shall be interested in the purchase of lands, or a parol declaration by a purchaser that he buys for another, without an advance of money by that other, falls within the statute of frauds, and cannot give birth to a resulting trust. Bland v. Talley, 50 Ark. 71, 6 S. W. 234. ”
One of our best reasoned cases on the question before us (and many times cited in subsequent opinions of this court) is that of Bland v. Talley, 50 Ark. 71, 6 S. W. 234, cited in the Lisko-Hicks case, supra. In that case the material facts are similar in effect to those presented here, and the rules of law announced there apply here. There it is said:
‘ ‘ The evidence of a recognition by William H. of his brothers’ interest in his purchase goes only to this extent: that he stated to several persons on different occasions, about the time of the purchase and subsequently, that he bought for them as well as himself and that, if they would stay with him and help him pay out the land, they should have an interest in it. What that interest was to be was not mentioned in any of these conversations. The title to real estate ought not to be affected by such loose declarations and equivocal expressions, where the speaker may have meant one thing and the witness may have understood another.
‘ ‘ The plaintiff swore that the three brothers agreed to buy the place and pay for it out of their joint labor on the farm, and when paid for, to own it share and share alike; that the business was to be transacted in the name of William H., he being the only one of the three who was of age, and that their shares were to be conveyed to the younger brothers when they reached their majority. It is not alleged or shown that Frank and John L. paid any definite aliquot part of the purchase money, but only that the proceeds of their labor contributed to its payment.
“Passing over the inherent improbability that a mature man of sound judgment, engaging in an arduous undertaking, should have associated with himself upon equal terms two boys, who could not be of any possible assistance beyond the manual labor they might perform, the story, if true, amounts only to this: That the three agreed to purchase and one furnished all the money and took the title to himself. Now a parol agreement that another shall be interested in the purchase of lands, or a parol declaration by a purchaser that he buys for another, without an advance of money by that other, falls within the statute of frauds and cannot give birth to a resulting trust.
“If the creation of the trust is not manifested by any writing and no fraud has been practiced in obtaining the title, the trust must arise from the payment of the purchase money and not from any agreement of the parties. . . .
“In Neal v. Neal, 69 Ind. 419, the complaint alleged that certain land had been purchased by the plaintiff’s father, under an agreement with, plaintiff that if the plaintiff would stay with his father and work for him for three years, the plaintiff being then twenty-one years old, the labor performed by the plaintiff should entitle him to one-half of the land; that the plaintiff had performed the labor for the stipulated period; and that the defendant, with the means acquired by their joint labor, had bought the land, taking title to the whole in himself. It was held, on demurrer, that the contract was presumably by parol, no writing being alleged and that, if so, it was void by the.statute of frauds. It was also held that there was no trust.
“Equity will not decree William H. Talley a trustee, because he used the proceeds of his brothers ’ labor, with their consent, in paying for the land, under a promise to give them an interest in the land. This would not put them on any higher vantage ground than if they had lent the money to make the payment under a like promise.”
No express trust was established for the reason that it was not claimed that the agreement was in writing. Pope’s Digest, § 6064.
It is our view, therefore, that no resulting trust, or trust relationship, has been established in favor of appellees and that the chancellor erred in holding otherwise.
We are also of the view that appellees’ alleged claims to the property here in question are barred both by laches and the statute of limitations.
The record reflects that the youngest of the appellees here was 21 years of age in 1916 when E. N. Cástleberry died. During the four years following E. N. Castleberry’s marriage in 1912, up to his death, he sold various tracts of land and bought other land and rendered no accounting whatever to any one, nor were his acts questioned by appellees. At the time of E. N. Castle-berry’s death in 1916 his son, Arthur Castleberry (one of the appellants), was two years of age. Arthur and his mother continued to live on the property for a few years then rented it out, sold timber from some of the land, and operated it without any complaint from these appellees until shortly after 1935 when this litigation was commenced. Thus appellees waited nearly twenty years following E. N. Castleberry’s death to assert claims to this property. We think they are too late.
In Veasey v. Veasey, 110 Ark. 389, 162 S. W. 45, this court said: “But even if such a trust were proved, appellants would be barred from asserting any rights to the property by both laches and the statute of limitations. This suit was instituted the second of January, 1912. The deed challenged was executed October 30, 1869. Appellants certainly knew after they became of age that George E. B. Veasey was deeding the land to the heirs as well as to strangers in blood and otherwise using and controlling the same as his own. They knew that he had thus repudiated the trust, if one ever existed; and after having such knowledge they failed for a period of more than seven years to assert any claim to the lands during all of which time George E. B. Veasey was in the adverse possession of the same and exercising acts of ownership over the same entirely inconsistent with any trust relations and wholly antagonistic to the rights of any other person.”
The contention is made by appellees that although they were entitled to a division of the property in question on the death of E. N. Castleberry in 1916, at which time the youngest was 21 years of age, yet that an agreement was entered into among appellees whereby E. N. Castleberry’s widow (now Mrs. Sweeney) should use, control and enjoy the fruits from the property until her son, Arthur, then two years of age, was educated and that this agreement was known to Mrs. Sweeney and that it tolled the statute of limitations. Mrs. Sweeney denied ever having known of any such agreement. A review of the testimony, however, convinces us that if appellees so agreed among themselves Mrs. Sweeney did not enter into such an agreement and had no knowledge of it. At least the great preponderance of the testimony is to this effect. Certainly it cannot be seriously contended that appellant, Mrs. Dora Sweeney, the then wife of E. N. Castleberry and mother of Arthur Castleberry, could make any agreement that would be binding upon Arthur, her infant child. At most her interest in the property was only that of dower and homestead while Arthur held the fee. See Chandler v. Neighbors, 44 Ark. 479.
For the errors indicated, the decree is reversed and the cause remanded with directions to dismiss appellees’ complaint for want of equity and enter a decree in conformity with this opinion. | [
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■ Smith, J.
On August 30, 1938, the county court of Baxter county, upon the petition of the State Highway Commission, made an order changing the route of highway No. 62 through the town of Cotter, which involved the condemnation of portions of lots belonging to residents of that town. Thirteen of these landowners filed claims for damages with the county court, all of which were disallowed, and from these orders of the county court appeals were prosecuted to the circuit court, where, all cases were consolidated and tried together. During the course of the trial, four of the claimants took non-suits. " Separate verdicts were returned in each of the other nine cases, all in favor of the county, and from the judgment pronounced thereon is this appeal. In the case of Mrs. M. 0. White the verdict was set aside, and this appeal involves the claims of the remaining eight claimants.
Highway No. 62 ran through the town before the institution of the condemnation proceedings, and the property owners insist that they received no new or special benefits from the re-location, reconstruction and blacktopping of the new road. The old road was a gravel road. The new road is wider, and reduced certain curves in the old one.
The case was submitted to the jury under instructions conforming to the law as declared in the recent case of Herndon v. Pulaski County, 196 Ark. 284, 117 S. W. 2d 1051, ancl the cases there cited.
Testimony was offered showing the parts and per cent, of each lot of which portions had been condemned, and a plat was offered in evidence showing the shape of the lots after these portions had been condemned. It was proposed, after some testimony had been taken, that the jury should view the route of the new road, and it was agreed that this should be done. Thereupon, the presiding, judge said: “In view of the fact that the defendant desires a view of the different properties involved in this case, and the plaintiffs do not object, . . . it will be well, from this point on, to introduce your testimony, . . . , on the theory that there will be a view of each separate property involved, by the jury.” This was on the first day of the trial, and on the next day, before the trial was resumed, separate written objections were filed by all the plaintiffs to a view of the property by the jury.
Section 1518, Pope’s Digest, provides that “Whenever, in the opinion of the court, it is proper for the jury to have a view of real property which is the subject of litigation, or of the place in which any material fact occurred, it may order them to be conducted in a body, under the charge of an officer, to the place, which shall be shown to them by some person appointed by the court for that purpose. While the jury are thus absent, no person other than the person so appointed shall speak to them on any subject connected with the trial.”
It was, therefore, within the discretion of the trial judge to permit the view, even though both parties had-not at first consented, and this would be true even though one of the parties had not consented, but had objected. The court, no doubt, was of the opinion that the situation could be better visualized and comprehended by a view' than by testimony based upon maps which were offered in evidence. We conclude, therefore, that the court did not abuse its discretion in this respect. It is not insisted that the jury was subjected to any improper influence, or that the view was not had under the directions of the court in conformity to the section of the statute above copied.
In making up the jury, the court excluded members of the regular panel who stated that they had personal knowledge of the location of the old road and the relocation of the other, and the jury was made up of members of the regular panel who said they had no personal knowledge of the situation. It was not essential that this be done if the excused jurors were unbiased and otherwise qualified. We think this, too, was a matter within the discretion of the trial judge. It was evidently the pur pose of the trial judge to have a jury composed of members without predilections on the subject, and no attempt was made to show that any member of the jury finally selected to try the case entertained any bias for or any prejudice against either side, or lacked any of the qualifications required by law. It has many times been said that the litigant is not entitled to the services of any particular juror, and this has been said in both civil and criminal cases.
The claimants testified and offered other testimony as to the value of their property both prior and subsequent to the condemnation, and they offered testimony as to the nature and extent of their various recoverable elements of damage, all of which were covered in appropriate and correct instructions.
The court gave an elaborate charge, consisting of fourteen separate instructions, which were all the instructions requested except 'Nos. 2 and 6, requested by the plaintiffs. These latter might well have been given except for the fact that they were covered by other instructions which were given.
The court charged the jury as to the recoverable elements of damage, after which the instructions were summarized by an instruction numbered 9, which conforms to § 6962, Pope’s Digest, which provides, in part, that “. . . and any court or jury considering claims for right-of-way damages shall deduct from the value of any land taken for a right-of-way the benefits of said state highway to the remaining lands of the owner,” and to the construction thereof in the Herndon case, supra. See, also, Cate v. Crawford County, 176 Ark. 873, 4 S. W. 2d 516.
Five real estate men testified as to values, damages and benefits, four for the defendant and one for the plaintiffs, the latter being himself a claimant and an interested party. We do not attempt to reconcile the conflicting opinions of these witnesses, as this was a question for the jury.
The weight to be given the testimony of any one of the witnesses who expressed opinions would depend, of course, on the candor, intelligence, experience and knowledge of values on the part of the witness. It was said in the case of Fort Smith & Van Buren Bridge District v. Scott, 103 Ark. 405, 147 S. W. 440, that values will usually be established by the opinions of witnesses who are familiar with the property, this being one of the recognized exceptions to the general rule that witnesses are required to state facts, and not express opinions. It was said also in the case just cited that the question as to who is competent to express an opinion upon the value of land is largely a question within the discretion of the trial court. We find no abuse of that discretion in this case.
Suffice it to say that the testimony on the part of the defendant was to the effect that the enhanced value of the remaining portions of the lots exceeded the damages, and that the enhanced value resulted from the facts that the road had been widened and that the property owners had been freed and relieved from the dust incident to the traffic over the old gravel road.
It is insisted that this is not a special and peculiar benefit enjoyed by the claimants, but is a benefit enjoyed by all others whose property is adjacent to the new road, and that for this reason it was improper to take it into account. A similar contention was made in the Herndon case, supra, but it was there said: “The insistence is that there were no benefits which were local, peculiar and special to plaintiff’s lands, but that such benefits as were derived from the new road were common to and were generally shared by other lands in the vicinity. This was, of course, a question of fact. It was shown, to be true that other owners, no portion of whose lands had been taken for the new road, received the same benefits which plaintiff derived; but this does not prove that plaintiff has not received special benefits to her lands. The fact that other owners have received special benefits without loss of land or other cost to them does not prove that plaintiff has not received special benefits. The other beneficiaries of the change of location of the road are not asking damages. If they were asking and had prayed damages it would then, in that event, be proper to offset their special benefits against their damages.”
Certain other questions are raised in the briefs which we do not think require discussion here.
Upon the whole case, we find no error, and the judgment must be affirmed, and it is so ordered.
Mehaeey, J., dissents. | [
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Griffin Smith, -0. J.
Original actions, authorized by Amendment No. 23 to the state Constitution, were filed by Nabors Shaw, of Poinsett county; L. H. Autry and J. Lee Bearden, of Mississippi county; and Girard P. Shofner, of Pulaski county. Each named the Governor, Secretary of State, and Attorney General, as respondents. It was alleged in the petitions that these officers, who constitute a board of reapportionment, erred in the result certified to the Secretary of State January 21, 1941.
In Cause No. 6357 — Shaw v. Adkins, et als. — it is asserted that Poinsett’s population of 37,670 exceeds that of either White, Benton, St. Francis, Hempstead, Miller. or Lonoke county, each of which was given two representatives, while but one was assigned to Poinsett.
Cause No. 6358 — -Autry, et als., v. Adkins, et als. — alleges that in assigning two representatives each to Benton, Craighead, Crittenden, Garland, Hempstead, Lonoke, Miller, Phillips, St. Francis, Washington, and White counties, and in assigning but three to Mississippi county, the board acted arbitrarily and in disregard of the county’s population of 80,217. James Terry and Harry W. Haines, and twenty-seven other citizens of Mississippi county, intervened in Cause No. 6258. They adopted the Autry-Bearden complaint and made other allegations.
In Cause No. 6376 — -Shofner v. Adkins, et als. — it is alleged that Pulaski county, with a population of 156,085, is entitled to eight representatives instead of seven as assigned by the board.
Royce Weisenberger intervened in all three cases and seeks to show that under any method of reapportionment Hemjostead county is entitled to two representatives, as now assigned.
The board of apportionment assigned to each of the following counties one representative: Arkansas, Ashley, Baxter, Boone, Bradley, Calhoun, Carroll, Chicot, Clark, Clay, Cleburne, Cleveland, Columbia, Conway, Crawford, Cross, Dallas, Desha, Drew, Faulkner, Franklin, Fulton, Grant, Greene, Hot Spring, Howard, Independence, Izard, Jackson, Johnson, LaFayette, Lawrence, Lee, Lincoln, Little River, Logan, Madison, Marion, Monroe, Montgomery, Nevada, Newton, Ouachita, Perry, Pike, Poinsett, Polk, Pope,. Prairie, Randolph, Saline, Sevier, Scott, Searcy, Sharp, Stone, Yan Burén, Woodruff, and Yell.
To each of the following counties two representatives were given: Benton, Craig’head, Crittenden, Garland, Hempstead, Lonoke, Miller, Phillips, St. Francis, Washington, and White.
To each of the following counties three representatives were assigned: Jefferson, Mississippi, Sebastian, and Union.
Pulaski county was given seven representatives.
The board adopted 19,492 as the basis of population for representative.
Amendment No. 23 required the board to make its first apportionment within ninety days from January 1, 1937, “and. . . thereafter, on or before February 1 immediately following each federal census, the board shall reapportion the state for both representatives and senators. . : .”
Section two of the amendment provides that the house of representatives shall consist of 100 members. Each county existing at the time of apportionment shall have at least one representative, “and . . . the remaining numbers shall be equally distributed (as nearly as practicable) among the more populous counties of the state, in accordance with a ratio to be determined by the population of said counties as shown by the federal census next preceding any apportionment hereunder. ”
The board correctly assigned one representative to each county. Of the remaining 25, eleven went to Benton, Craighead, Crittenden, Garland, Hempstead, Lonoke, Miller, Phillips, St. Francis, Washington, and White counties; eight went to Jefferson, Mississippi, Sebastian, and Union counties, and six went to Pulaski, in the proportion heretofore shown.
Was this distribution “in accordance with a ratio to be determined by the population [of the more populous counties] as shown by the federal census”?
If the problem is considered but casually the responding impression is that the “more populous counties” should be grouped in the order of their population, thus permitting familiar mathematical computations to be applied and a definite result ascertained. But-it is not that simple. A somewhat similar provision of the federal Constitution has been productive of arithmetical and algebraic perplexities since Daniel "Webster’s plan of 1832 proved to be unworkable in-practice because it did not always give the right total.
According to Professor Huntington (see footnote No. 4), a mathematical study of the problem made in 1921 showed that there are five methods which are workable, and which avoid what the author referred to as the “paradoxes.” The approved concepts are: (1) Method of major fractions. (2) Method of equal proportions. (3) Method of harmonic mean. (4) Method of smallest divisors. (5) Method of greatest divisors.
In a preliminary discussion of the five methods, Professor Huntington says:
“To meet realistically the actual situation in Congress when an apportionment bill is up for debate, the emphasis is shifted from the process of computation to the test of fairness which the final result should satisfy. The fairness of the final result, not the technical process of achieving this result, is regarded as the important thing. For example, suppose an actual apportionment bill proposes to give Alabama nine seats, Arizona one, Arkansas seven, etc., in a house of any given size (say 435). The fundamental question which Congress has to face is this: Does the distribution proposed in the bill put each state as nearly as may be on a par with every other state, or would the bill be ‘improved’ by transferring a seat from such-and-such a state to' such- and-such another state?
“To answer this question, Congress must decide what goal or aim it has in mind when discussing proposed ‘improvements’ in a given bill. It is generally agreed that Congress, consciously or unconsciously, has had two principal aims in view: ’ First, to equalize the ‘congressional districts’ among the several states; and secondly, to equalize the ‘individual shares’ among the several states. What the modern mathematical theory has done is to establish clearly the relations between these two aims and give the possible methods listed above.
“The mathematical facts are as follows: The method of smallest divisors and the method of greatest divisors fail on both these aims; the method of major fractions fails on the first aim; the method of harmonic mean fails on the second aim; the method of equal proportions achieves both aims.
“In view of these facts, the method of equal proportions was approved by two scientific bodies: The Advisory Committee to the Director of the Census, in 1921; and the National Academy of Sciences, in 1929.”
Apportionment methods referred to by Professor Huntington are discussed in “Congressional Apportionment,” by Laurence F. Schmeckebier. The book was copyrighted in 1941 by The Brookings Institution. At page 12 it is said: “While these methods are all mathematically correct, each one starts with a different premise and the results may be different. . . . Two of the modern methods — major fractions and equal proportions —are recognized by statute. The other three methods— harmonic mean, smallest divisors, and greatest divisors —have been discussed in committees and in the literature, but have never received statutory recognition. ’ ’
The problem is to divide 25 representatives among the more populous counties “in accordance with a ratio to be determined by the population of said counties.” It was recognized by those who framed our Constitution that a mathematically exact division would be impossible because there are no fractional representatives; hence, in the Constitution there is authority for making the apportionment “as nearly as practicable.”
First, the ratio must be ascertained. The total population of 1,949,387 divided by 100 shows this factor to be 19,494, minus. The result is termed the natural ratio. But there has been assigned to each county one representative, and 75 times 19,494 gives 1,462,050. This, taken from total population, leaves 487,337. If we divide the remainder by 25 — a number equal to the unassigned representatives — the result is 19,494, the natural ratio.
According to Schmeckebier, no modern method of apportioning representatives uses any ratio in determining the result. A ratio, he says, is often referred to, but it is obtained after the apportionment is made from a so-called priority list. All modern methods — equal proportions, major fractions, harmonic mean, smallest divisors, and greatest divisors — assign the representatives to each state, in the case of congressional action, and to each county, in the case of state procedure, by means of priority lists, which indicate the apportionment to be made from the definite number' — in Congress, ordinarily 435, and in Arkansas definitely 100. As the federal Constitution provides that one representative shall be assigned to each state, no question of priority would, exist if the house consisted of 48 members. Each state obtains one representative, regardless of its population. Therefore, the priority list begins with the forty-ninth member of the house, and when completed it shows which states would receive additional members for any size house. As applied to reapportionment in Arkansas, the priority list begins with the member which we may designate as 76. In reality, priorities relate only to 25 members. Under our constitutional provision, the division of these 25 representatives is in accordance with a ratio to be determined by the population of such counties, exclusive of the remaining 75; hence, the priority list, must be compiled and the ratios ascertained.
By the method of equal proportions as applied to Arkansas’ representation in 'Congress, seven congressmen would be retained. By the method of major fractions, Michigan, now having 17 congressmen, would gain one, and Arkansas would be the corresponding loser.
A great deal has been written, by those engaged in the task of testing apportionments, regarding absolute and relative differences. The absolute difference between two numbers is obtained by subtracting the smaller from the larger. The relative difference is the percentage by which the larger exceeds the smaller, and is obtained by dividing* the smaller amount into the difference. An illustration given by Schmeekebier is: If a piece of property costing $500 is sold for $600 and another piece of property costing $1,000 is sold for $1,100, the absolute difference in the profit is the same in each case — $100. But the relative difference in one case is 500 divided into 100, or 20 per cent.; in the other ease it is 1,000 divided into 10Ó, or 10 per cent.
The following table shows population of each of the state’s 75 counties according to the 1930 and the 1940 censuses:
Population op Arkansas by Counties
Since priority lists are used in each of the five so-called modern methods of apportionment, it is essential to show the steps by which these lists are prepared. They are obtained by multiplying the population of each county successively by the multipliers applicable to the second representative, the third representative — and so on. It should he pointed out, however, that a different series of multipliers is used for each of the methods.
Major fractions and equal proportions, having been recognized as the two methods generally approved, the three other processes will not be analyzed, although tables showing results under each are included in this opinion.
Major Fractions. — The priority list is obtained by dividing the population of each county successively by the arithmetic mean between succeeding representatives. The priority list obtained by the process shown in the seventh footnote (major fractions) is made use of in this way: Assign the seventy-sixth representative (first disposed of in the additional group of 25) to the county having the highest number in the priority list, the second to the next highest number in the priority list, and so on until the full 25 have -been disposed of. Pulaski county, having the highest number in the priorit}7 list, would receive the first additional representative, and Miller county would be recipient of the twenty-fifth representative. The order of assignment is shown by the figures inclosed within parentheses, following priority numbers. (See table identified as footnote 8.) For instance, Pulaski county, instead of having its seven representatives assigned successively, receives the first, second, fourth, seventh, twelfth, and twenty-second of the 25 to be assigned, and other counties, as shown by the figures inclosed in parentheses in tabulations appear as footnotes 8, 10, 11, 12, and 13, receive additional representatives in the numerical order shown.
Equal Proportions. — The priority list is obtained by dividing the population of each county by the geometric mean of successive numbers of representatives. The priority list obtained by the process shown in the ninth footnote (equal proportions) is made use of in the manner explained as pertaining to major fractions. The priority list and other data for use in the equal proportions method are shown as the tenth footnote.
Other Methods.- — Footnotes 11,12, and 13 are priority lists and other data for harmonic mean method, smallest divisors method, and greatest divisors method. , ,
Proof of product obtained under the two methods discussed in detail — major fractions and equal proportions- — may be shown in the following manner, the result in each case being the same:
Lonoke county has a population of 2.9,802, and has two house members. Theoretically each represents a population of 14,901. Mississippi county has a population of 80,217 and has three members. Each, therefore, represents a population of 26,739. In theory-each Mississippi county member represents 11,838 more constituents than does each of Lonoke’s members, the differential being 79.4 per cent. If one member should be taken from Lonoke county and given to Mississippi county, each of Mississippi’s four members would represent 20,054 persons and Lonoke’s one remaining member would represent 29,802, an absolute difference of 9,748, or 48.6 per cent, against Lonoke. The disparity difference against Mississippi county at present is much larger than the disparity against Lonoke county if the latter is reduced to one-member.
Union county’s population is 50,461. It has three members, each of whom, theoretically, represents a con stituency of 16,820. Poinsett’s population is 37,670. The county has one house member, and this member, in theory, represents 20,850 more in population than do each of Union county’s members, the differential being 124.0 per cent. If one member should be taken from Union and assigned to Poinsett, the two Poinsett members will each represent 18,835 in population. Each of the remaining Union county members will represent a population of 25,231 — an absolute difference of 6,396. The percentage against Union county in its relation to Poinsett would then be 34.0, as compared with a former percentage of 124.0 against Poinsett.
By either of the five methods Lonoke and Union counties each lose a representative, and by either Poinsett gains.
By the method of smallest divisors Pulaski county would lose one member, while by the method of greatest divisors it would g'ain two. According to either of the other three methods, Pulaski’s representation would be unchanged.
By four of the five methods Mississippi county gains a member, while under the smallest divisor method its representation remains static.
By the method of smallest divisors Ouachita and Greene counties would each gain a member, but under either of the other four methods there would be no changes.
By the method of greatest divisors Hempstead and Miller counties would each lose a member, while under either of the other four systems these counties would not be affected.
These results are presented in the following table. It shows assignment of the 25 additional representatives by counties according to the apportionments of 1937 and 1941. Also, there is shown results obtained by the five apportionment methods discussed in this opinion:
Results Obtained by Different Methods
It is not our purpose to assert that all possible methods of computation have been tested, or to say that in certain circumstances relating to population gains or losses a more equitable apportionment could not be made. We have given earnest consideration to discussions by authorities who have been classed as experts. That the methods of major fractions and equal proportions give uniform results when applied to Arkansas is significant. The fact that the National Academy of Sciences has given its indorsement to the method of equal proportions in preference to other systems is highly persuasive. This method, therefore, is adopted by us, with the result that Lonoke and Union counties each lose a representative, and Mississippi and Poinsett each gain a member.
The board of apportionment’s findings in respect of house membership, while remarkably accurate in the main, must be revised to the extent indicated. It is so ordered.
The 1940 census gave Arkansas a population of 1,949,387. This number divided by 100 (representatives from all counties) yields 19,494 minus, instead of 19,492.
See Bailey, Lieutenant Governor, v. Abington, 201 Ark. 1072, 148 S. W. 2d 176, 149 S. W. 2d 573.
Constitutional provisions dealing with the subject are the third clause of § 2 of article 1, and the Fourteenth Amendment. The third clause of § 2, art. 1, is: “Representatives and direct taxes shall be apportioned among the several states which may be included in this union according to their respective numbers, which shall be determined by adding to the whole number of free persons, including those bound to service for a term of years, and excluding Indians not taxed, three-fifths of other persons. . . .” The pertinent part of § 2 of the Fourteenth Amendment, adopted to meet conditions brought about by abolition of slavery, is: “Representatives shall be apportioned among the several states according to their respective numbers, counting the whole number of persons in each state, excluding Indians not taxed.”
[January 8, 1941, President Roosevelt transmitted to congress a message in compliance with the provisions of § 22(a) of the Act approved June 18, 1929, “providing for the fifteenth and subsequent decennial censuses, and for the apportionment of representatives in congress.” In the message it was stated that the director of the census had included all Indians in the tabulation of total population, “since the Supreme Court has held that all Indians are now subject to federal taxation.” (Superintendent v. Commissioner, 295 U. S. 418, 55 S. Ct. 820, 79 L. Ed. 1517.) The secretary of commerce addressed an inquiry to Attorney General Jackson regarding the status of Indians in respect of the census. The attorney general (November 28, 1940) replied that an opinion by him would not be determinative, since neither the congress nor the courts would be bound by it.]
Edward V. Huntington, Department of Mathematics, Harvard University: “A Survey of Methods of Apportionment in Congress.” Seventy-sixth Congress, 3d session. Senate Document No. 304, p. 1.
The permanent apportionment section of the census act of June 18, 1929 (46 Stat. L. 26), provides that the President shall report to congress apportionments of representatives by three methods: (1) By the method used at the last preceding census, (2) by the method of major fractions, and (3) by the method of equal proportions. . . . The method last used before 1930 was that of major fractions. After the census of 1930 the methods of major fractions and equal proportions gave the same result. (The act of 1929 was amended by the Act of Apr. 25, 1940 — 54 Stat. L. 162 — but the act of 1940 made no change in the methods to be reported. It merely changed the date on which the report should be made.)
Schmeekebier, “Congressional Apportionment,” p. 233.
Arithmetic mean, in mathematics, denotes a quantity having an intermediate value between several others from which it is derived and of which it expresses the mean value. Usually, unless otherwise specified, it is the one simple average formed by adding the quantities together in any order and dividing by their number. For example : All counties have one representative. If any county is entitled to another representative, the assignment of such would be a succeeding representative. In such case the arithmetic mean would be obtained by adding one (the first representative) and two (the second representative) and dividing by their number (two), the result being one and one-half, known in the apportionment process as a divisor. Such divisors increase in arithmetical progression for each additional representative, the next divisors being 2%, 3%, etc. In saying that the priority list .is obtained by dividing the population of each county by the arithmetic mean between succeeding representatives (the divisor), the equivalent is the same as though the population of each county were multiplied by the reciprocal of the divisor for the purpose of obtaining a' multiplier. The process is demonstrated in this way:
The effect of dividing any number by 2% can be duplicated by multiplying that number by the reciprocal of 2%, which is 0.40. The following are multipliers used for succeeding representatives in obtaining the priority list: Second representative, .666,666,67; third representative, .400,000,00; fourth representative, .285,714,29; fifth representative, .222,222,22; sixth representative, .181,818,18; seventh representative, .153,846,15; eighth representative, .133,333,33.
The geometric mean of two numbers is the square root of their product. For example, all counties have one representative. When a county is entitled to additional representation, the assignment would be the next successive number. In such case the geometric mean would be obtained by multiplying one (the first representative) by two (the second representative) and extracting the square root of their product, the result being 1.414,213,6. Such divisors increase in geometric progression for each additional representative, the next being 2.449,-489,7, etc. In saying that the priority list is obtained by dividing the population of each county by the geometric mean of successive numbers of representatives (the divisor), the equivalent is the same as though the population of each county were multiplied by the reciprocal of the divisor for the purpose of obtaining the multiplier. The process is demonstrated in this way: The effect of dividing any number by 1.414,213,6 can be duplicated by multiplying that number by the reciprocal of 1.414,213,6, which is 0.707,106,78. The following are multipliers used for succeeding representatives in obtaining the priority list: Second representative, .707,106,78; third representative, .408,-248,29; fourth representative, .288,675,13; fifth- representative, .223,-606,80; sixth representative, .182,574,19; seventh representative, .154,-303,35; eighth representative, .133,630,62. | [
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Smith, J.
Appellee, as trustee, acquired title to lot 84 and the south 64 feet of lot 85 in that part of the city of Helena known as Old Helena, in 1928, on which he ceased to pay taxes subsequent to those for the year 1933. On November 4,1935, the property was sold to the state for the taxes due thereon for the year 1934, and this sale was confirmed in a proceeding for that purpose brought under the authority of act 119 of the Acts of the 1935 session of the General Assembly. The confirmation decree was rendered November 28, 1938. On December 29, 1939, appellant purchased the lots from the state.
On March 22, 1937, a decree was rendered pursuant to which the lots were sold for the nonpayment of certain improvement district taxes. The lots were sold to the improvement district under this decree, and appellant Faulkner purchased them from the improvement district January 16, 1940.
Suit was filed by appellee, trustee, March 4, 1940, in which he attacked both the deed from the state to appellant and the deed to appellant from the improvement district, and prayed the right to redeem from the sale to the state and the improvement district. Both sales were held void, and the right of .redemption was accorded, from which decree is this appeal.
We are of the opinion that the defects in the sale for the 1934 general taxes were cured by the confirmation decree, and that appellant acquired title to the lots under his deed from the state. Under this view it is unimportant to consider whether appellant may not also have acquired title under the deed from the improvement district, and we shall, therefore, discuss only the decree confirming the sale to the state.
The court found “that on account of the failure of the clerk of Phillips county to extend the taxes levied on said premises as required by law, and on account of the failure of the clerk to attach to the list of lands returned delinquent, his certificate, stating in what newspaper and for what length of time notice of sale of such lands was given, as required by law, the sale of said premises to the state was void for want of power and authority to sell the same.”
For the affirmance of this decree appellee cites and relies upon the cases of Mixon v. Bell, 190 Ark. 903, 82 S. W. 2d 33; Lambert v. Reeves, 194 Ark. 1109, 110 S. W. 2d 503, 112 S. W. 2d 33, and Wright v. Davis, 195 Ark. 292, 111 S. W. 2d 565. The first of these — the case of Mixon v. Bell — held that the confirmation decree did not cure the failure to properly extend the taxes on the tax record; and the other two cases are to the same effect. There had been a confirmation of those tax sales under the authority of act 296 of the Acts of 1929.
For the apparent purpose of strengthening the confirmation act of 1929, and to validate tax sales which a confirmation decree under that act did not effect, the General Assembly passed, at its 1935 session, act 119, another confirmation act, which we have since had several occasions to construe.
In the first of these eases construing- act 119 — that of Fuller v. Wilkinson, 198 Ark. 102, 128 S. W. 2d 251— we said that it was the legislative purpose to cure all defects in tax sales which did not relate to the power to sell, and that the effect of a confirmation decree rendered in accordance with the provisions of act 119 is to cure all tax sales where there was not lacking the power to sell, that is, all sales for taxes which were. due and had not been paid. That holding was reaffirmed in the cases of Angels v. Redmon, 198 Ark. 980, 132 S. W. 2d 170, and Dansby v. Weeks, 199 Ark. 497, 135 S. W. 2d 62.
The case of Berry v. Davidson, 199 Ark. 276, 133 S. W. 2d 442, would be decisive of this case if the others were not. That case reviews the effect of confirmation decrees rendered under act 296, as distinguished from those rendered under act 119, and it would be a work of supererogation to again review the cases there reviewed. The review of the cases on the subject and the distinction between them made in the case of Berry v. Davidson was intended to put the subject at rest and to definitely state the effect of confirmation decrees rendered pursuant to act 119. It was said in this Berry v. Davidson case that “If there are any taxes levied or assessed against the land, however defectively that may have been done and when the taxes shall not have been paid, the state has the power to sell.” And, as has been said, in all the cases arising under act 119 the confirmation cures all errors in the sale where the power to sell exists.
The later case of Commercial National Bank v. Cole Bldg. Co., 200 Ark. 212, 138 S. W. 2d 794, points out the difference in the effect of confirmation decrees rendered pursuant to act 119, as distinguished from decrees rendered under act 296, and so, also, do the cases of Moseley v. Moon, 201 Ark. 164, 144 S. W. 2d 1089, and Redfern v. Dalton, 201 Ark. 164, 144 S. W. 2d 713.
Appellee cites as sustaining the decree from which is this appeal the cases of McWilliams v. Clampitt, 195 Ark. 908, 115 S. W. 2d 280, and Hirsch v. Dabbs, 197 Ark. 756, 126 S. W. 2d 116, which cases, as appellee points out, were decided by this court subsequent to the passage of act 119.
The first of these — the McWilliams case — did not involve the effect of a confirmation decree, the question in that case being whether the curative provisions of act 142 of the Acts of 1935 applied, and it was held that they did not apply, for the reason that the notice of sale had not been published for the time and in the manner required by law, this publication being made, by act 142, a condition upon which its curative provisions should be applied.
In the second ease — that of Hirsch v. Dabbs — the defendant landowner appeared within a year of the date of the confirmation decree there attacked, and made the showing, that the sale was invalid. He did this under the authority of § 9 of act 119, there quoted, which reads, in part, as follows: “The owner of any lands embraced in the decree may, within one year from its rendition, have the same set aside insofar as it relates to the land of the petitioner by filing a verified motion in the chancery court that such person had no knowledge of the pendency of the suit, and setting up a meritorious defense to the complaint upon which the decree was rendered. The chancellor shall hear such defense according’ to the provisions of this act as though it had been presented at the term in which it was originally set for trial.”
But in the instant case appellee did not appear within the year allowed by § 9 of act 119. Had he done so, the relief accorded in the Hirsch case, supra, would have ■been accorded him; but appellee here failed to avail himself of the provisions of § 9 of act 119, above quoted.
The case of Lundell v. Wood, 115 Fed. 2d 697, involved the construction of act 119 of the Acts' of 1935. This is a decision by the Court of Appeals of this circuit, and while it does not control our construction of the act, the opinion in that case manifests a clear apprehension of the effect of the opinion of this court in the case of Berry v. Davidson, supra.
That case, like this, involved a sale for the 1934 taxes in Phillips county, and we have before us the identical record there reviewed, this being the record for the sale of the 1934 taxes in Phillips county, and the decree con firming the sale. It was there held (to quote the headnote) that “A sale of land to the state of Arkansas for taxes, defective because taxes were not fully extended on tax books by clerk of county court as required by statute, was validated by a decree of the chancery court confirming the state’s title entered in a suit brought by the state under statute authorizing the filing of a suit to confirm title in the state whenever any realty has been forfeited to the state for the nonpayment of taxes. Acts Ark. 1935, act 119, §§ 1, 6, 9; Pope’s Dig. Ark., § 13758.’’
The effect of the views here expressed is to hold that appellee has lost his title as a result of the decree confirming the 1934 tax sale; and we do not, therefore, consider the effect of the sale of the same property for the improvement district taxes.
The decree from which is this appeal will, therefore, be reversed, and the cause remanded, with directions to dismiss appellee’s complaint as being without equity. | [
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Humphreys, J.
This suit was brought by appellee against appellant in the circuit court of Crawford county to recover $3,000 in damages for injuries received by him in falling over a board three or four feet high sticking in a hole it had dug in the traveled portion of a street in Alma, Arkansas, to find a leak in its gas line laid underground, without placing any light or signals on or near said board to warn the traveling public of the dangerous condition carelessly and negligently created by it.
Appellant filed an answer denying all the material allegations in the complaint and pleading as an affirmative defense contributory negligence on the part of appellee. The cause w.as submitted to a jury upon the pleadings, instructions of the court and the testimony introduced by the parties, resulting in a verdict and consequent judgment for $500 against appellant, from which is this appeal.
The undisputed evidence reflects that appellant was and is a corporation owning, transporting, selling’ and distributing natural gas in Crawford county, Arkansas, including the town of Alma, and in the course of the operation of one of its pipe lines in Alma at the intersection of highways 64 and 71 and in front of the Homer Wilmon Cafe it dug two holes in the concrete apron in front of said cafe extending* out to the concrete on the street hunting for a leak in the pipe line, and after filling the holes with dirt several inches above the concrete carelessly and negligently stuck boards upright in the filled holes extending three or four feet above the dirt and leaving them several nights without any lights or signals to warn the traveling public of the dangerous condition created by it; that on the night of August 11, 1940, about ten o’clock, appellee who was in the cafe started home and while walking' at an ordinary gait and after taking six or seven steps, he came in contact with the board sticking np three or four feet in one of the holes and fell to the pavement and injured his back.
Appellee testified at length as to where he lived, his age, a trip he had made to Oklahoma where he worked for about a month before he was injured, and his return trip to his home by way of Alma, the time he reached Alma and the Wilmon Cafe on the night of August 11, 1940. It is unnecessary to set out this part of his testimony in detail. His father’s sister had married Homer Wilmon, who operated the cafe, so he ate supper and sat around in the cafe until ten o ’clock, p. m., before starting out to his father’s home some seven or eight miles from Alma, with whom he made his home. Appellee was twenty-two years of age and still resided with his parents.
Appellee testified that about ten o ’clock p. m. Wilmon closed his cafe and they walked out together .and Wilmon turned out the lights; that after the lights were turned out it was partially dark in front of the cafe, although the moon was shining; that after he separated from Wilmon he took six 'or seven steps and walked into a board sticking up in one of the holes and fell to the ground; that his feet hit the pavement as he fell and his back hit a rock or the dirt or whatever was piled up there; that this board was about three feet high; that after he fell Wilmon dragged him into the cafe and laid him down where he remained until Dr. Galloway came and gave him a shot; that the fall caused a quick jerk in his back which felt as if something was torn loose around his belt line; that he could not sit up so he laid there until an ambulance came and took him to a hospital in Fort Smith; that he was suffering great pain and was given another shot and some medicine at the hospital that night, Monday night, but the treatment did not ease him; that Tuesday morning Dr. Krock examined him and pressed around on his stomach and that evening came in and asked whether his bowels had moved and whether his kidneys had acted; that when he was informed that both had he made an X-ray which he said showed negative; that no bones were broken, but that he might have strained his hack; that lie told Mitl to go home, but ,to come back every day or so; that he went home Wednesday and remained in bed for two weeks and was not able to get up; that he suffered with his back and head and took aspirin tablets to get relief; that he went back to the hospital and Dr. Krock examined him again and told him to come back again; that he went back again and again Dr. Krock examined him, but did nothing for him; that he got able later on to walk around and tried to pick cotton, bnt had to quit on account of his back; that a little later he tried to cut wood for Jim Huls, but after sawing two cuts his back gave way and Mr. Huls had to assist Mm in getting back home; that since the fall he had been nervous and unable to work on account of the weakness in his back; that prior to his injury he was strong and able to do any kind of manual labor; that he would have gotten employment from Jim Huls or his uncle over in the bottom at $1.50 a day, but was unable to work; that he still suffers pain and is very nervous.
Homer Wilmon testified to the holes being dug by appellant and the boards being placed therein in an upright position and being left in that condition for several days without lights or other signals to warn the traveling public of the dangerous condition in which they were left, also to dragging appellee into the cafe and calling for the doctor and Mr. Crews, who had charge of appellant’s gas system; that both came,and the doctor g'ave appellee who was suffering great pain a shot and that Mr. Crews called an ambulance and sent appellee to a hospital-at Fort Smith; that Mr. Crews pulled up the boards and threw them in the alley and the next day had the dirt leveled down to the concrete and a few days thereafter covered the holes with concrete.
Appellee’s father, mother, sister, Homer Wilmon, Jim Crews, Charles McClure and T. H. Langston all testified that appellee suffered greatly. Most of them testified that he remained in -bed several weeks and at the time of the trial was still unable to work and in a very nervous condition.
Dr. Krock, who examined him several times, testified that appellee received no objective evidence of in juries to his back; that the X-ray showed negative and that while the X-ray would not reflect a strain or injury to the ligaments in his back the physical examination he gave him did not indicate any injury to the ligaments in appellee’s back; that such a fall as appellee claimed he had would not necessarily result in á nervous condition, but might by a narrow margin result in some injury to the nerves; that he did not give him any sedatives, massages or apply heat because he could not find anything to treat him for.
Appellant first contends for a reversal of the judgment because appellee’s own testimony as to how the injury occurred is not supported by the physical condition upon which the same is based. It is argued that appellee’s testimony as to how he fell is at variance with the accepted laws of physics; that if walking forward into a board his momentum would cause him to fall forward instead of backward. This would depend on whether he was walking slowly or very rapidly. He testified that he had only taken eight steps at the outside and was walking at an ordinary gait when he came in contact with the board. It is not likely that the momentum acquired in such a short distance in walking at an ordinary gait would necessarily cause him to fall forward. Generally when one becomes entangled with an obstruction to such an extent that he loses his equilibrium there is no telling’ just which way he will fall. We are not willing to say that the testimony describing the fall was in conflict with physics or the law of gravity. It became a question under all facts and circumstances for determination by the jury.
Next, appellant contends that the judgment should be reversed because appellee sustained no injury whatever. It is true that Dr. Fred Krock testified that he found no outward evidence of any injury and from the X-ray he had taken and from his physical examination of him he discovered no injury to the ligaments in his back. We think there is too much substantial testimony in the record showing that the appellee suffered great pain after his fall'and that he was forced to take to his bed and remain there for several weeks and that he was unable to work, to conclude that appellee was not injured by the fall. We think there is ample evidence to show that he was injured and sufficient to sustain the verdict and judgment. Appellant’s contention is that he was not injured in any manner whatever. No contention is made that the verdict is excessive except on the ground that he sustained no injury of any kind.
The doctor admitted that he was in a nervous condition, but in his opinion such a fall as appellee sustained would not necessarily result in injury to his nerves.
Lastly, appellant contends that the judgment should be reversed because the court erred in giving instruction No. 7, which is as follows: “If you find for the plaintiff you will fix his damages at such a sum as you may find from the evidence will fairly compensate him for the injuries received by him, if any, and in determining this you may take into consideration the mental and physical pain and anguish, if any, suffered by the plaintiff on account of said injuries, if any; his loss of time from his work, if any.”
The correctness of this instruction is challenged because it is said that the evidence does not show that appellee was working or sustained any loss of time from work.
Appellee testified as follows relative to his opportunity to work if he had not been injured: “Q. Did you have any employment that you could have been working at? A. Yes, sir, I could have over there with Jim Huls or down in the bottoms with my uncle. Q. What would that work have paid you? A. A dollar and a half a day. 'Q. What would you have been doing? A. Farming down there and up here cutting wood. Q. Did you go to Jim Huls and try to work one day? A. Yes, sir.”
He further testified that he had received a letter from Jim Huls while in Oklahoma offering him work if he would come back which would have lasted perhaps all winter.
Jim Huls testified as follows: “Q. After he was able to be up and about, did you have any experience with Mm? A. Yes, sir. Q. Tell the jury about that? A. I wanted him to help me cut some wood, that was about five weeks after he was hurt and he said that he would help me and he went down and helped me saw off two blocks and just had to take out. Q. Did he try to help you? A. He tried to, but couldn’t make it. Q. What happened to him? A. I had to help him up to the house, his back gave way on him, and I had to go up the hill and help him up to the house. Q. Did you have to physically help him? A. I had to put his arms around my shoulders and help him up that way. ’ ’
In view of this testimony we do not think that instruction No. 7 was abstract on account of submitting to the jury as an element of damages any loss of time that appellee might have sustained on account of the injury.
No error appearing, the judgment is affirmed. | [
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Humphreys, J.
On January 15, 1934, M. E. Fisher executed a note for borrowed money to appellee, secured same by a mortgage on certain personal property and the indorsement of Thomas Humphreys, the husband of appellant. At the time Thomas Humphreys signed the note as surety he owned the SW% of -the NEb4, section 8, township 9 north, range 4 west, in White county, Arkansas, upon which he and his wife, the appellant herein, did not reside nor claim as their homestead.
On November 5, 1934, after signing the note, he allowed the land to forfeit for the non-payment of taxes of 1933, under the description of “a part of the SW14 of the NE%, section 8, township 9 north, range 8 west, containing 37 acres more or less.” The land was sold for the unpaid taxes to the state and on December 22, 1936, was certified to the state by the county cleric under the description last mentioned.
On July 21, 1937, on application of appellant, the State Land Commissioner erroneously dropped the word “part” from the description as certified to the state by the county clerk and conveyed same to appellant as the SW^ of the NEi/4, section 8, township 9 north, range 4 west, which quitclaim deed from the state was placed of record on May 18, 1938, in the recorder’s office of White county.
The note executed by M. E. Fisher and Thomas Humphreys to appellee was not paid in full, so on October 18, 1939, appellee brought suit against them jointly to recover the balance due thereon and to foreclose the chattel mortgage given by M. E. Fisher in the chancery court of White county. M. E. Fisher and Thomas Humphreys made no defense and judgment was rendered against them jointly and severally for $171.75 and for foreclosure of the chattel mortgage. The chattels were sold under the decree of foreclosure and out of the proceeds from the sale thereof the costs were paid and the remainder credited on the judgment leaving a balance or deficiency judgment for $133.35.
On September 16, 1940, at the request of appellee, an execution on the deficiency judgment was issued and levied upon the SW% of the NE14, section 8, township 9 north, range 4 west, and same was sold on the 26th day of October, 1940, over the protest of appellant, and appellee became the purchaser thereof for the amount of his judgment, interest and costs.
Prior to the confirmation of the sale appellant filed an intervention in the case claiming title to the land by oral gift from, her husband, Thomas Humphreys, and under her tax deed from the state.
The prayer for relief in the intervention is as follows:
“That said execution be quashed; that plaintiff be forever enjoined from exercising or claiming any right, title or interest in said real property, or any part thereof as a result of the sale under said execution; that the title to said real property be forever quieted and confirmed iix intervener as agaixxst said judgment axxd execution and that she have all other axxd proper equitable relief. ’ ’
Appellee filed an answer to the intervention denying that appellant was the owner of the laxxd either under her tax deed or under oral gift from her husband, Thomas Humphreys, and prayed that the sheriff be directed to make him a deed thereto after the confirmation of the sale, and that said deed be confirmed and acknowledged iix opexx court.
The cause was heard by the chancellor upon the pleadixxgs and axx agreed statemexxt of facts covering the whole traxxsaction from the time M. E. Fisher executed the note and chattel mortgage to appellee and the indorsement thereof by Thomas Humphreys and the proceedings had and done from the time appellee brought his foreclosure suit and the forfeiture and certification of the land to the state and the purchase thereof by appellant from the state and the testimony of Thomas Humphreys, Audlie Durham axxd appellee resulting ixx a findixxg that the tax deed from the state to appellant was void axxd that Thomas Humphreys could not legally give the land to appellant, his wife, by an oral gift and thereby defeat the paymexxt of his debts and dismissing the intervention for want of equity, and confirming the executioxx sale axxd vestixxg the title to the property in appellee, from which is this appeal.
Thomas Humphreys testified that he was owner of the laxxd at the time he indorsed the xxote to appellee for M. E. Fisher axxd that thereafter on account of ill health and lack of finances he suffered the laxxd to go delinquent for 1933 taxes; that oix several occasions after the county clerk deeded it to the state in December, 1936, he told his wife, the ixxtervener, that he could not buy it back from the state; that if she would buy same he would give her whatever interest he had in it; that she borrowed the money from a married daughter and bought it from the state and that since that time she has had possession of and rented it and paid the taxes thereon, but that he assisted in looking after the place as best he could and when he was able to do so.
Audlie Durham testified appellant told him that her husband was not able to redeem the land and that he would give her whatever interest he had left in it; that he drove her to Little Rock when she bought the land from the state; that he rented it from her and sowed it in hay and paid the rent to her by hauling the rent hay to their home.
C. H.-McKnight testified that he had no notice that Thomas Humphreys had given the land to his wife, appellant, and that he was afraid the chattels mortgaged to him by M. E. Fisher would not sell for enough to pay the debt so he required Fisher to get the indorsement of Thomas Humphreys at the time he loaned Fisher the money. He also testified to all that had been done from the date he took the note down to and including his purchase of the real estate under his execution issued on the deficiency judgment.
It is undisputed that at the time Thomas Humphreys suffered the land to forfeit for the non-payment of taxes, he was insolvent and was jointly and severally liable to appellee on his indorsement of the note which he and M. E. Fisher had executed to appellee. It is also undisputed that the forfeiture to the state was void on account of the indefinite and insufficient description under which it had been assessed, sold and certified to the state.
The rule is well established that an insolvent debtor will not be permitted to let his land forfeit for taxes and then permit his wife to buy same in her name with her money and that all such transactions will be treated, so far as creditors are concerned, as a redemption by him.
We think the facts in this case bring it well within the rules announced in the case of Herrin v. Henry, 75 Ark. 273, 87 S. W. 430. This court said in that case that, where a duty rested upon a husband to pay taxes upon property, the purchase by his wife at the tax sale should be treated as his purchase and regarded as a redemption for the benefit of his creditors.
The rule is well established to the effect that in equity conveyances made to members of the household or .near relatives of an embarrassed debtor are looked upon with suspicion and scrutinized with ca,re and when such conveyances are voluntary, they are prima facie fraudulent and when the embarrassment of the debtor proceeds to financial wreck, such conveyances are presumed conclusively to be fraudulent as to existing creditors. There is no doubt in this case that Thomas Humphreys was an existing debtor of appellee at the time he suffered the real estate in question to forfeit for taxes and was at the time insolvent and under these circumstances be was not in a position to make a voluntary oral gift of the land to his wife as against his existing creditor or creditors. The purchase of the land by the wife from the land commissioner, even though the description had been good, amounted to a redemption of the land for the benefit of her husband and her husband’s creditors. The two points decided in this opinion are the pivotal questions in the case and we think that the case is ruled by Herrin v. Henry, supra.
We might add, however, that the execution sale was and is subject to the dower interest of appellant in the land.
No error appearing, the decree is affirmed, with the right to appellant, however, to redeem within 30 days-from the date this opinion becomes final. | [
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Smith, J.
The council of the city of Dumas passed Ordinance No. 120, having a preamble reading as follows: The city of Dumas owns a waterworks system, and the public interest and necessity require that extensions and improvements be made to such system. The city council has caused to be made plans and specifications for such extensions and improvements, an estimate of the construction cost, an estimate of the reasonable rates necessary to be charged for services by said system, and an estimate of the revenues of such system, all of which have been -filed with the city clerk. The council has caused an estimate to be made of the value of the -existing plant and the value of the proposed improvements and exten sions, which have been filed with the city clerk. The council has examined and approved these plans and estimates, and finds it to the best interest of the city that the improvements and extensions be made. The city is without funds to execute these plans, but the funds may be had from the proceeds of bonds to be issued under the authority of act 131 of the Acts of 1933, as amended by act 96 of the Acts of the regular 1935 session of the General Assembly.
It was thereafter enacted that the cost of said improvements and extensions was found to be $9,000, and that the city should proceed with the construction of a system in accordance with the plans and specifications approved 'by the council. The construction, custody, operation and maintenance of the entire waterworks system and the collection of the revenues therefrom shall be effected and supervised by the city council, which shall make all contracts necessary and incidental to the execution of these powers. Rates for water to various users are fixed.
The ordinance finds the value of the existing waterworks system to be $36,000, and the value of the extensions and improvements will be $9,000. The council “further finds and declares that such rates as above set out will produce a total^ revenue in such amount that twenty (20%) per cent, of said revenues will be sufficient to provide for the payment of the bonds, both principal and interest, as the same fall due and are payable, to pay the pro rata share of the repair and maintenance expenses, and to create all funds hereinafter described. ” It is then enacted that the rates shall never be reduced below an amount “sufficient to provide for the maintenance of the funds hereinafter described, and if necessary shall be increased in an amount sufficient to provide for the maintenance of said funds.” It is provided that a schedule of rates shall be kept on file in the office of the city clerk and in the office of the waterworks system, open to the inspection of all persons interested. Free service to any one is denied. The city itself and all its agencies are required to pay for service. The revenues so received shall be deemed to be revenues derived from the operation of the system and used and accounted for as other revenues must be.
The revenues must be deposited with the city treasurer, who is required to give a special bond. It is required that the treasurer of the city shall deposit twenty per cent. (20%) of all the revenues of the entire system in a separate fund to be administered as follows:
“(A) An amount sufficient to pay the reasonable and necessary expenses of operation, repair and maintenance of the extensions and improvements herein set out shall be deducted from the monthly revenues as they accrue and shall be used to pay such expenses.”
“(B) All the revenues remaining’ after the payment” required by sub-paragraph (A) “shall constitute twenty per cent. .(20%) of the net revenue of the entire system, and a sufficient amount of such twenty per cent, of the net revenues is hereby set aside and pledged to be paid at monthly intervals, in approximately equal installments into a bond fund to provide for the payment of:” (1) interest; (2) fiscal agency charges; (3) bonds as they mature; (4) margin for safety, “which margin, together with any unused surplus of such margin carried forward from the preceding fiscal year, shall equal ten per centum of all other amounts so required to be paid into the bond fund.” ♦
“(C) If a surplus remains after the requirements of sub-paragraphs (A) and (B) have been met, the council may transfer all or any part of the balance of said twenty per cent. (20%) of the net revenues of the entire system, after reserving an amount deemed to be sufficient for operating, repair and maintenance for an ensuing period of not less than twelve months and for depreciation into the bond fund or into a fund for further extensions, betterments and additions to the system.”
That so long as any of the bonds are outstanding, the system shall be operated upon a fiscal year basis, the first year to begin April 1, 1941.
Bonds designated “The City of Dumas, Arkansas, 5% Water Revenue Bond,” are to be issued in the sum of $9,000. Forms for the bonds and for the interest coupons to be attached are given, and it is provided that ‘ ‘ The bonds, together with interest thereon, shall be payable out of the bond fund as hereinbefore defined, and shall be a valid claim of the holder thereof against the bond fund and shall constitute a statutory mortgage lien against the improvements and extensions herein provided, and the amount of the revenues pledged to said fund, which amount of said revenues is hereby pledged for the equal and ratable payment of the bonds and shall be used for no other purpose than to pay the principal and interest of the bonds as the same become due and payable.”
The manner of sale of bonds is provided, with the restriction that the proceeds shall be used solely for the payment of construction costs, provided that the interest for the first six months on the bonds may be paid from the proceeds of sale.
Various other provisions are found in the ordinance intended to safeguard the bond issue, and, among others is the provision that if default occurs water rates may be increased.
Appellant, a citizen and taxpayer of the city of Dumas, has attacked this ordinance on various grounds, and prayed that the officers of the city charged by the ordinance with the duty of enforcing and performing its provisions be enjoined from proceeding thereunder. The city filed an answer to plaintiff’s complaint, to which answer plaintiff filed a demurrer. The demurrer to the answer was overruled, and the plaintiff electing to stand on his demurrer, the complaint was dismissed as being without equity, and this appeal is from that decree.
"VVe do not recite the allegations of the complaint and the responses contained in the answer, but will summarize them in the discussion of the questions raised by the pleadings.
It appears that the plans approved by the city council and referred to in the ordinance contemplate the extension of the w;ater mains to a tract of land, contain ing thirty-five acres, owned by the city, a distance ■ of one and two-tenths miles beyond the city limits. It appears that the Federal Government proposes to establish on this land a National Youth Administration Residency, which, it is alleged, will be of great benefit to the city of Dumas. Water will be sold to the residency. It further appears from these plans that the city proposes also to extend the sewage system to the residency, and to make connection with the city’s sewage treatment plant, so that, when the plans have been executed the residency will have both water and sewage facilities. It was determined in the ordinance that the cost of furnishing these facilities to the residency will be $9,000, of which $2,000 will be the cost of the sewage extension.
It was ascertained and the fact declared in ordinance 120 that the now existing value of the waterworks system is $36,000, and the value and cost of the proposed extensions is $9,000, making a total value of $45,000, of which the $9,000 additional is twenty per cent. It is proposed to issue $9,000 of revenue bonds to pay the construction cost of these extensions under the authority of act 131 of the Acts of 1933, as amended by act 96 of the Acts of 1935, which appear as 10001, et seq., Pope’s Digest.
This act 131 was held to be constitutional in the ease Snodgrass v. Pocahontas, 189 Ark. 819, 75 S. W. 2d 223, except the provision exempting the revenue bonds from general taxation. It was there held that Amendment No. 13, prohibiting the issue of bonds by municipalities except for the purposes and in the manner there provided did not apply to bonds payable solely from the revenues of the agencies authorized to issue these bonds, commonly called revenue bonds.
Act 132 of the Acts of 1933, appearing as 9977, et seq., Pope’s Digest, authorizes the issuance of revenue bonds to pay for sewage plants, and this legislation has also been held valid. The following cases have upheld the exercise of the powers conferred by these statutes: Snodgrass v. Pocahontas, supra; Jernigan v. Harris, 187 Ark. 705, 62 S. W. 2d 5; Bourland v. Fort Smith, 190 Ark. 289, 78 S. W. 2d 383; McGehee v. Williams, 191 Ark. 643, 87 S. W. 2d 46; Ringgold v. Bailey, 193 Ark. 1, 97 S. W. 2d 80; Terry v. Overman, 194 Ark. 343, 107 S. W. 2d 349; Johnson v. Russell, 198 Ark. 49, 127 S. W. 2d 260; Carpenter v. City of Paragould, 198 Ark. 454, 128 S. W. 2d 980; Sewer Imp. Dist. No. 1 of Sheridan v. Jones, Adm’x, 199 Ark. 534, 134 S. W. 2d 551; North Little Rock Water Co. v. Water Works Commission of Little Rock, 199 Ark. 773, 136 S. W. 2d 194.
It is under the authority of act 131 — and not of act 132 — that the bonds here in question are to be issued.
The city’s waterworks system, and its sewage system, were constructed by separate improvement districts. The complaint alleges, and the answer admits, that the waterworks district has retired its bonds, and now owes no debts, and the plant is being operated by the city. The sewer improvement district also issued bonds, of which $28,000 remain unpaid.
For the reversal of the decree appealed from, appellant cites the case of Town of Jacksonport v. Watson, 33 Ark. 704, in which the town was enjoined from using municipal funds to operate a ferry without the limits of the municipality. It was held in that case that no statute had granted the power to municipalities to thus expend corporate funds. Here, it is not intended that corporate funds shall be expended, except, indeed, the profits above operating expenses and maintenance cost of the waterworks system, which, as was held in the case of Johnson v. Dermott, 189 Ark. 830, 75 S. W. 2d 243, the municipality might use for purposes not related to the plant from which the profits had been derived, in that ease to build a hospital.
We have held that municipal corporations have the authority to extend water mains beyond the corporate limits to obtain an adequate water supply, or may obtain an outlet for sewage beyond the corporate limits. Bourland v. Fort Smith, 190 Ark. 289, 78 S. W. 2d 383; Sewer Imp. Dist. No. 1 of Sheridan v. Jones, Adm’x, 199 Ark. 534, 134 S. W. 2d 551. And if, from a source of supply beyond the corporate limits, a surplus of water is ob tained, this surplus may be sold. McGehee v. Williams, 191 Ark. 643, 87 S. W. 2d 46; North Little Rock Water Co. v. Water Works Commission of Little Rock, 199 Ark. 773, 136 S. W. 2d 194.
In the case of Arkansas Utilities Co. v. City of Paragould, 200 Ark. 1051, 143 S. W. 2d 11, the city proposed to extend its electric light lines to serve a rural community under the authority of § 2108, Pope’s Digest, which reads as follows: “Municipalities now owning or operating-facilities for supplying a public service or commodity to its citizens may, with the approval of the Department (of Public Utilities) granted after hearing, extend its service into the rural territory contiguous to such municipality and put into effect such reasonable rules and rates for such rural service as may be from time to time approved by the Department.”
The city of Paragould had applied to the State Department of Public Utilities for permission to thus extend its light lines, and that permission had been denied, but the city sought to extend its lines without this permission. It was held that this right was dependent upon the statute quoted, and that but for the statute the municipality would have no right to construct and operate the lines outside the city limits, even with the consent of the Department.
After stating- the general powers which municipalities have, and the restrictions upon such powers, we there said: “We know of no other statute, and the diligence of counsel has disclosed no other, giving municipalities the express power to extend their electric facilities to rural communities, outside the city limits, and we can see no reason to imply such powers as an incident to operations within, especially where such rural communities are already being served. We can see many reasons' contra. For instance, if it should be held that such extension rendered the nxunicipal plant a public utility as to its operations outside, it would of necessity assume all the burdens and liabilities of a public utility, such as taxation, continuity of service, liability for tort actions, "and the like. ’ ’
There is, of course, no distinction in principle between furnishing electricity and furnishing water or sewage facilities.
The answer alleged, and the demurrer thereto admits, that before constructing these extensions, the city will obtain the consent both of the State Board of Health and the Department of Utilities. It is, therefore, insisted, upon the authority of the cases cited, that the city has the authority to proceed with the construction of its water mains to the residencj^, and to extend sewage service to the residency by the extension of its sewer lines.
But to so hold would be to go a step further than we have yet gone, and if it were so held there would appear to be no restraint upon municipalities engaging generally in utility services not restricted to their own inhabitants.
Here, it is to be remembered that it is proposed to extend water mains one and two-tenths miles beyond the city limits, not to obtain a water supply for the inhabitants of the city, but to sell water to the residency; nor is this a case where the city is proposing to sell a surplus above its own needs; nor is it a case of the city going beyond its own borders to obtain an outlet for sewage disposal. It is the case of a city going beyond its own limits to furnish water and sewage facilities to another community — the residency — because it was found and declared in the ordinance that the city would profit by doing so. It must also be remembered that this is not a case like that of Johnson v. Dermott, supra, where the waterworks system had been fully paid for, and its net earnings were devoted to another municipal purpose, that of erecting a hospital. Cumnock v. City of Little Rock, 154 Ark. 471, 243 S. W. 57, 25 A. L. R. 608. The extensions here proposed have not yet been made, and so far from their being paid for, bonds are to be sold to provide money to construct them.
The cost of constructing the sewage extension is to be imposed upon the waterworks system, and twenty per cent, of the net revenue of the enlarged system is to be segregated and held for .the payment of the proposed bond issue. This twenty per cent, of the net revenue of the waterworks system may or may not suffice to produce sufficient money to pay the bonds and the interest thereon at maturities, in which event the ordinance provides that the water rates may be sufficiently increased to meet these payments. The Federal Government, in establishing the residency, has assumed no obligation to maintain it, and will only be required to pay for the services so long as it uses them. 'But the obligation to pay the bonds will continue, as will also the lien upon the extensions for which the ordinance provides.
Act 132 of 1933, appearing as §§ 9977, et seq., Pope’s Digest, contemplates that revenue bonds authorized to construct sewers will be paid from the revenues derived from that service. Likewise, act 131 of 1933, appearing as §§ 10001, et seq., Pope’s Digest, contemplates that the revenue bonds authorized to construct waterworks shall be paid from the revenues derived from that system. There is nothing in either act which authorizes any part of the revenues derived from one system to 'be devoted and appropriated to pay the cost of construction or operation of the other.
We are constrained, therefore, to hold that the city proposes to confer and supervise powers not authorized by law, and the decree will, therefore, be reversed, and the cause remanded with directions to sustain the demurrer to the answer. | [
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Grieein Smith, C. J.
B. C. Payne was fatally injured in October, 1937, when Carl Gray’s automobile struck a bridge abutment on Highway No. 71 near Spring-dale, Arkansas. Appellee is a corporation doing a wholesale mercantile business. It employed Gray as a salesman, paying a fixed salary. There were no commissions. The salesman’s “territory” included Bentonville, Rogers, Siloam Springs, Springdale, Johnson, Fayetteville, Fort Smith, and other towns and wayside stores en route to the places mentioned. Gray paid his own expenses. For five years lie had used his own car. Appellee (hereinafter sometimes referred to as the company) did not require Gray to employ any designated means of transportation. Although there is testimony on behalf of the company that Gray might have gone by train, bus, or other conveyance, it is clear that the employer knew how Gray’s trips were made; that at least inferentially the automobile was indispensable to the character of services rendered, that it was an integral 'contributing to the contract of employment, and that without it customer contacts would have been difficult. Hence, Gray was not an independent contractor over whose movements the employer had no control.
Payne was salesman for Whittmore Bros. Shoe Polish Company. Appellant refers to him as a specialty man who called on jobbers and wholesalers to induce them to handle his employer’s products; or, if such products were being handled, it was Payne’s business to stimulate the business. It was customary for Payne to travel with salesmen representing jobbers and wholesalers. Approximately two weeks before Payne was injured he had been in Fayetteville and “arranged” to return. The automobile wreck occurred on Friday. During all of the week Gray and Payne had traveled together.
There is testimony by the company’s manager that Payne took orders for shoe polish and forwarded them to appellee at Fayetteville, where they were filled. "Witness did not know Payne was traveling with Gray. Copies of orders taken by Payne were identified as having been written in books bearing the imprint of Fayetteville Mercantile Company. Payne was “supposed” to have brought his own ear to Fayetteville.
At the conclusion of appellant’s testimony, appellee’s motion for a directed verdict was sustained; hence, this appeal.
The issues, as stated by appellant, are (1) the master’s liability under the doctrine of respondeat superior; (2) whether the guest statute applies, and (3) whether res ipsa loquitur may be relied upon as having estab listed, prima facie, the negligence of appellee’s servant, and through such servant the liability of appellee.
We are cited to Vincennes Steel Corporation v. Gibson, 194 Ark. 58, 106 S. W. 2d 173, and to Ward v. George, 195 Ark. 216, 112 S. W. 2d 30. In the latter case 'Blashfield’s Cyclopedia of Automobile Law and Practice is quoted to the effect that one important element in determining whether a person is a guest within the meaning and limitations of such statutes is the identity of the person or persons advantaged by the carriage. The rule there announced is that if the transportation, in its direct operation, confers a benefit only on the person to whom the ride is given, and no benefits (other than such as are incidental to hospitality, companionship, etc.) accrue to the person extending the invitation, the passenger is a guest; but if the transaction tends to promote mutual interests, or if it is primarily for the attainment of some purpose of the operator of the car, the person to whom the invitation is extended is not a guest within the meaning of statutes enacted for the protection of persons operating automobiles in the circumstances contemplated. Blashfield’s analysis of decisions relating to so-called guest statutes is referred to in Ward v. George, 195 Ark. 216, 112 S. W. 2d 30.
Substance of appellant’s contentions is the advantage thought to have resulted to the company by reason of Payne’s activities. It is conceded there were incidental pecuniary profits from the orders so procured; but, on the other hand, the only testimony clarifying the relationship is that appellant did not know Payne was accompanying Gray; that Gray paid all expenses of the several trips, and regarded Payne as his guest. Appellee’s manager had seen Payne but once — about three weeks before the collision. Payne at that time stated he would return ■ and “work the territory,” and that he would take Gray with him. Gray’s name and telephone number were given Payne by this witness.
In trying the case appellants were at a disadvantage in having to rely upon the testimony of appellee’s mana ger and Gray to establish the relationship. On the other hand, there is no intimation these witnesses withheld any information or “colored” their answers.
In result the evidence is that appellee did not authorize Payne to travel in Gray’s car, since the assumption was that Payne would provide transportation and that Gray would accompany Payne. Gray received no profit from the transaction and merely accommodated Payne when the latter appeared in fulfillment of his commitment to the company that the territory would be canvassed, and that he would take Gray along.
The case is unlike Arkansas Valley Cooperative Rural Electric Company v. Elkins, 200 Ark. 883, 141 S. W. 2d 538. Wilson, appellant’s agent, and at the time in question engaged in the master’s business, invited Elkins to ride, with him in order that certain facts be ascertained from which appellant might designate a right-of-way which was being contributed by Elkins. We held that Elkins was directly assisting Wilson in discharge of the master’s business and that he (Elkins) was not a guest.
Since in the instant case the undisputed testimony is that Payne was expected to furnish his own ear and to take Gray with him, and in view of the fact that the arrangements were changed without appellee’s knowledge, and there having been no direct advantage to Gray in having Payne with him, it must be held that Payne was a guest, as found by the trial court.
Affirmed.
Humphreys and Mehaeey, JJ., dissent.
Act 61, approved February 20, 1935, and act 179, approved March 21, 1935. Pope’s Digest, §§ 1302, 1303, and 1304. | [
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Grirrin Smith, C. J.
Henry Horn, who died intestate in 1928, had deeded small tracts of land to each of three sons. Of the parent’s farm there remained 293.89 acres to be inherited by five children unless, as it is contended, Henry Horn, by oral conveyance coupled with possession, set aside 57 acres to A. C. Horn, 57 acres to D. G. Horn, 58 acres to W. A. Horn, and 46 acres to Gertrude [Horn] Smith. The chancellor found that the conduct of Henry Horn did not constitute • conveyances; that the land was not susceptible of division in kind; and appointed commissioners to partition. A. C. and W. A. Horn and their wives have appealed from the court’s decree rendered in a suit instituted by Gertrude Smith.
A fourth brother, H. M. Horn, resided in Missouri and independently owned a farm. A.- C., D. G., and "W. A., contend that in 1922 their father informed them of his desire to assign certain lands to them, the agreement being that they would pay rent during the lives of their parents. It was considered that H. M.’s interest was worth $1,600 — this on the assumption that the tracts assigned to the three brothers were each worth what the father proposed to give H. M. Henry Horn suffered financial reverses, and, according to the testimony of A. C., D. G., and W. A., directed that they pay the amount it had been determined was equitably due H. M. A. C. and W. A. testified that they settled with H. M. in 1935, each paying him $250. To procure the money they “borrowed on the lands,” first having procured from their mother quitclaim deeds. This is also testified to by II. M., who executed deeds. All of those who say they were put in possession of designated lands claim to have fenced it and to have made other improvements.
Ruth Horn, widow of Henry Horn, died in 1939. Appellee and her children had lived with appellee’s mother for several years, and insists that she helped maintain the home. She testified that her father gave each of the children (H. M. excepted) “a building place for a home.” Appellee was assigned about twelve acres upon which she built. The house was destroyed by fire. No deed was executed. Appellee did not know her father had segregated the larger tracts for her own account and for the benefit of her three brothers.-
In 1930 a state highway was projected through property claimed by appellants and lands of the Henry Horn estate. Suit was brought by J. A. Sutterfield and others. The jury awarded $350 “for H. Horn.” Proceeds were divided among- the heirs.
In 1930 a complaint signed by Pate & Cotton, attorneys for plaintiff, and styled “A. C. Horn, plaintiff, v. H. M. Horn, D. Gr. Horn, W. A. Horn, Gertrude Smith, and Mrs. B. A. Horn” was tiled in Searcy circuit court. It was alleged that in respect of the Henry Horn lands plaintiff and the defendants we're tenants in common. The prayer was for partition. The name “A. C. Horn” is signed to affidavit for warning order. The so-called plaintiff, testifying in the instant case, insisted that he had no information that the suit was to be tiled, and that he ordered it withdrawn.
The” chancellor did not err in holding that Henry Horn failed to effectively convey the four tracts of land, embracing 218 acres. The property was assessed for taxes in Henry Horn’s name, and it is conceded that rents were paid during Henry’s lifetime, and partially during his widow’s lifetime. Appellee, who according to testimony of her brothers was supposed to have received 46 acres, knew nothing about it, although she was permitted to build a home on twelve acres. D. C. Horn testified he had never settled with H. M.; that he knew when H. M. settled with the two other brothers, and:— “I told him I would settle if all the other children would sign the deeds.”
Counsel for appellants complain that the decree “either ignores or sets aside the deeds of H. M. Horn to these appellants and the deeds that they made to each other. ’ ’
The result is productive of confusion regarding the three brothers; but if the court is correct in the finding that the ancestor had not made the conveyances, it follows that rig’hts created by deeds of tenants in common who dealt with each other as though they were owners of assigned interests are not controversies to be adjusted in appellee’s suit to partition. Her concern goes only to the proposition that there be a segregation of the one-fifth interest to which she is entitled. If the brothers who have dealt with each other in arbitrary disregard of the true status, or through misapprehension, find that they have paid for something they cannot receive or deliver because of the paramount rights of their sister, the equities they contend for cannot prevent partition, but must be adjusted amicably or through proper actions brought for that purpose.
Other subjects are covered by the decree, but they do not enter into • the appeal, - and are therefore not enumerated.
Affirmed.
Twelve acres to W. A. Horn, eighteen acres to D. G. Horn, and nine acres „to A. C. Horn.
Gertrude Smith is the widowed daughter of Henry Horn.
Although Henry Horn died in 1929, it is conceded that the judgment in favor of “H. Horn” was to compensate damages to his property. | [
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Greenhaw, J.
On March 12,1936, the appellees filed suit in the chancery court for the Osceola district of Mississippi county against the appellant, alleging that they were the owners in fee simple of that part of the northwest quarter of section 19, township 12 north, range 8 east, tying south of the left-hand chute of Little River, containing 21 acres, more or less, deraigning title thereto as follows: the Chicago Mill & Lumber Company of Illinois obtained title to said land in 1911. It defaulted in the payment of the 1921 assessment due Drainage District No. 17, resulting- in a tax foreclosure sale and conveyance of the land to the drainage district. The com-' pany also permitted the land to be sold to the state for the nonpayment of the 1920 general taxes. On May 8, 1924, the state issued its redemption deed to W. R. Payne; and on May 19, 1924, Drainage District No. 17 executed its quitclaim deed for the land to W. R. Payne. W. R. Payne executed his quitclaim deed to the appellees on January 9,1936.
They further alleged that the land was cleared and in cultivation; that the plaintiffs came into peaceable possession thereof early in the year 1933 and continued therein until February 15, 1936, when the appellant entered upon the land and has continuously trespassed thereon and will continue to do so; that the defendant had no claim to the land and his trespasses would result in irreparable injury; that he was insolvent and relief by damages would be inadequate, and that he should be restrained from such trespassing. The plaintiff prayed for a temporary injunction to be followed by a permanent injunction against such trespasses. On March 16, 1936, the chancellor granted the temporary injunction prayed for.
The appellant filed his answer and cross-complaint, denying the allegations in the complaint, and by way of cross-complaint alleged a number of conveyances by which he attempted to establish title in himself, and alleged that the state tax deed and the drainage district deed to Payne were merely tax redemptions; that he and his predecessors had paid the taxes on the land for more than 20 years and that he was the owner of the land and was entitled to the immediate possession thereof, and aslced that the injunction be dissolved and the court award him possession of the land, together with damages. The appellant filed an amendment to his answer and supplement to his cross-complaint on the 7th day of May, 1938, alleging that since the filing of his original cross-complaint the Paepcke Corporation, formerly named the Chicago Mill & Lumber Company, conveyed the land in controversy to the appellant on February 2, 1938.
Appellant further alleged that the drainage tax foreclosure and the forfeiture of the land to the state for nonpayment of the 1920 taxes were both void, assigning various reasons therefor, and that W. R. Payne personally never purchased the land from the drainage district nor redeemed the land from the state of Arkansas, but that the American Trust Company, which held a mortgage, paid the amounts necessary to obtain these deeds, which were issued in the name of W. R. Payne. The appellant prayed in his supplemental cross-complaint that the complaint of the appellees be dismissed for want of equity, that the injunction be dissolved, that the court declare the tax sales to the drainage district and the state of Ar kansas mill and void, and that said sales be canceled as a clond on the title of the appellant, and that he be awarded a writ of possession of said lands, together with judgment for rents, less taxes and drainage assessments paid by the appellees.
It is undisputed that the Chicago Mill and Lumber Company owned that part of the northwest quarter lying south of the left-hand chute of Little River when it was sold to the state and to Drainage District No. 17. The taxes on this land, together with other land in the northwest quarter, were not paid for the year 1920, and all of said northwest quarter was forfeited and sold to the state of Arkansas. The drainage district assessments for 1921 were not paid, and in a foreclosure proceeding the land in controversy was sold to Drainage District No. 17. The American Trust Company had a mortgage on that part of the northwest quarter which lies north of the left-hand chute of Little River. The mortgage was subject to foreclosure, and the American Trust Company paid for a redemption deed from the state of Arkansas* which was executed in the name of W. R. Payne, covering- not only the land embraced in its mortgage north of the left-hand chute of the river, but the land in controversy south of the left-hand chute of Little River. The American Trust Company paid to Drainage District No. 17 the amount necessary to obtain a deed not only to the land embraced in its mortgage north of the river, but also the land in controversy south of the river, and a quitclaim deed was executed by the drainage district to W. R. Payne, said state deed and drainage district deed both being executed in May, 1924. Thereafter the American Trust Company obtained title through foreclosure proceedings to that part of the northwest quarter lying north of the left-hand chute of Little River, and sold and conveyed it, taking two mortgages from the purchasers, one for $10,000 and one for $7,000. The $10,000 mortgage was sold and assigned to the Chester Savings Bank of Vermont.
The American Trust Company later became insolvent and its affairs were liquidated through the State Banking Department. The purchasers of the land north of the river, being unable to pay the mortgage indebtedness, conveyed their interest in the land north of the river to the State Bank Commissioner, who later, for a small consideration, conveyed the land north of the river to the Chester Savings Bank. In 1931, the Chester Savings Bank rented its said land north of the left-hand chute of Little River to the appellant, C. S. Neal, who moved on this farm and operated it as a tenant until 1934. In 1934, the appellant, C. S. Neal, and the Chester Savings Bank entered into an agreement whereby the Chester Savings Bank agreed to convey its land to the appellant, the written agreement specifically providing that it was to convey all of the land in the northwest quarter north of the left-hand chute of Little River, containing 160 acres, more or less. On May 13,1938, the bank executed its deecl to the appellant, to all of that part of the northwest quarter lying north of the left-hand chute of Little River, containing 160 acres, more or less. During all of this time the appellant had no color of title whatsoever to that part of the northwest quarter lying south of the left-hand chute of Little River, containing approximately 21 acres, being the land in controversy.
After this suit had been pending for practically two years the appellant obtained a quitclaim deed dated February 2, 1938, from the Paepcke Corporation, the successor to the Chicago Mill & Lumber Company. It is apparently upon this deed that the appellant finally based his claim to the land in controversy south of the left-hand chute of Little River, since he never lived upon the land in controversy nor claimed any interest in it until a short time before this suit was filed, and the deed he obtained from the Chester Savings Bank to the land upon which he had been living for a number of years, specifically conveyed only all of that part of the northwest quarter north of the left-hand chute of Little River.
The appellees, on the other hand, obtained a deed from the Missouri State Life Insurance Company in January, 1933, conveying to them its land in the'southwest quarter of section 19, adjacent to the northwest quarter of said section. At the time the appellees purchased the land from the Missouri State Life Insurance Company they thought that the land they were purchasing extended to the left-hand chute of Little River. Appellee, J. G-. Stuckey, testified that the agent for the insurance company told him when the deal was made that the lands belonging to the insurance company extended to the river, and the agent who sold them the land testified that he thought the lands of the insurance company which were being sold to the appellees extended up to the left-hand chute of Little River. It was further in evidence that in 1926 the Missouri State Life Insurance Company rented its lands in the southwest quarter to U. S. Holiman during the year 1926, and that that tenant believed the lands of the insurance company which he had rented extended north to the left-hand chute of the river and he did a. little clearing on that part of the northwest quarter lying south of the left-hand chute of Little River during that year. Holiman did not rent the lands for the year 1927, but again became a tenant of the. insurance company for the year 1928, and continued as a tenant without interruption through the year 1932. From the year 1928 through the year 1932, he continued to clear land on that part of the northwest quarter lying south of the left-hand chute of Little River, believing it to be the property of the insurance company for which he was tenant. At the time Holiman first started to clear land in the northwest quarter south of the left-hand chute of Little River it was all in timber, and he continued to clear some each year, placing it in cultivation. The appellees, after they purchased the lands belonging to the insurance company early in 1933, continued to clear and improve the land in controversy, thinking it was a part of the land, which they had purchased from the insurance company, until all of said land in controversy had been cleared and placed in a state of cultivation. The land, after it was cleared, was valuable land which would produce a hale of cotton to the acre.
Appellant admitted in his testimony that he had a conversation with J. Gr. Stuckey, one of the appellees, in the fall of 1932, when he was discussing the possible purchase of the land north of the river from the Chester Savings Bank. Upon being interrogated as to whether they discussed the land now in controversy, south of the river, he answered: “No, sir, we didn’t discuss this land being over there at that time. We figured the Holiman boys were on this Missouri State Life place at that time.” Therefore, according to appellant’s own testimony, in the fall of 1932, he himself thought, as did the appellees, that the land now in controversy actually belonged to the Missouri State Life Insurance Company. Within a very short time after this conference the appellees purchased the insurance company’s land, actually believing its deed covered all of the land south of the left-hand chute of Little River. Early in 1936, the appellant attempted to exercise control over the land in controversy, and actually did some plowing thereon, and the acts of the appellant in this regard resulted in the srfit being filed against him by the appellees. Prior to filing suit in March, 1936, the appellees obtained a quitclaim deed to the land in controversy from W. R. Payne, in whose name the state redemption deed and the drainage district quitclaim deed were executed in May, 1924.
The evidence further showed that from the time the land in controversy forfeited to the state for nonpayment of taxes in the year 1920 and was foreclosed by the drainage district for nonpayment of 1921 assessments, the Chicago Mill & Lumber Company, the owner thereof at that time, never thereafter paid any taxes on the land in controversy, and as far as the record is concerned never attempted thereafter to exercise any control whatsoever over said land.
There were several witnesses who testified in this case, and numerous exhibits were introduced in evidence. The court found the issues in favor of the appellees, and that.title to said land was vested in them, and canceled the deed from the Paepcke Corporation to the appellant as a cloud on appellees’ title; the temporary restraining order was made permanent and appellant, C. S. Neal, his agents, servants and employees were permanently restrained and enjoined from trespassing upon the land in controversy or in anywise interfering with appellees’ possession thereof. From this decree the appellant has appealed to this court.
We have reached the conclusion that the decree of the chancery court should he affirmed. Under the facts in this case we think the appellant and his grantor, the Paepcke Corporation, successor to the Chicago Mill & Lumber Company, were guilty of laches and by reason thereof will not be permitted to assert ownership in the land in controversy or to interfere with the possession of the appellees. After the land in controversy forfeited to the state for nonpayment of taxes and was sold to the drainage district for the nonpayment of taxes in 1921, the Chicago Mill & Lumber Company and its successor, the Paepcke Corporation, as far as this record is concerned, absolutely abandoned any interest whatsoever in said land, never paid any taxes thereon, was not in possession thereof, and neither directly nor indirectly attempted to exercise any ownership thereof until the Paepcke Corporation executed its quitclaim deed to the appellant on January 2, 1938, practically two years after this suit had been filed by the appellees. Certainly the Chicago Mill & Lumber Company and the Paepcke Corporation, after showing no interest whatsoever in said lands and paying no taxes thereon for a period of 18 years, would be barred by laches from interfering with appellees’ possession and alleged ownership of said lands. The appellant, C. S. Neal, the grantee in the quitclaim deed from the Paepcke Corporation to the land in question, would certainly have no more rights therein than his grantor.
According to the evidence in this case the appellant, Neal, lived just north of the river, was in close proximity to and could see the improvements which were being made on the lands in controversy immediately south of the river from the time he moved on the land north of the river in 1931 until the appellees purchased land south of the river in 1933 and assumed ownership and control of the land in controversy. He continued to live on his land north of the river while the appellees were improving the land in controversy in 1933 and thereafter. Although he saw and knew about the improvements that the appellees were continuing to make in clearing and placing said land in cultivation, he made no protest. This is also true after he purchased the land north of the river in 1934. The proof shows that he remained silent, attempting to exercise no ownership or control over the land in controversy, until a short time before this suit was filed in March, 1936. He and his grantor, the Paepeke Corporation, permitted this land, which was in an uncleared and undeveloped condition, to be cleared and placed in a high state of cultivation thereby rendering the land much more valuable. Under all of these facts and circumstances we think appellant was guilty of laches and he will not be permitted to assert ownership to the land in controversy. The same is true of his grantor, the Paepeke Corporation.
The case of Horn v. Hull, 169 Ark. 463, 275 S. W. 905, was a case in which the doctrine of laches was invoked in a land matter. In that case this court, among other things, said:
“The doctrine of laches which is a species of estoppel rests upon the principle that, if one maintains silence when in conscience he ought to speak, equity will bar him from speaking when in conscience he ought to remain silent. Gibson v. Herriott, 55 Ark. 85, 175 S. W. 589, 29 Am. St. Rep. 17; Jackson v. Becktold Printing & Book Mfg. Co., 86 Ark. 591, 112 S. W. 161, 20 L. R. A., N. S., 454; Davis v. Harrell, 101 Ark. 230, 142 S. W. 156; Brownfield v. Bookout, 147 Ark. 555, 228 S. W. 51; and Stewart Oil Co. v. Bryant, 153 Ark. 432, 243 S. W. 811.
“Under these and many other decisions of this court which might be cited, the general rule of the doctrine of laches is that equity may in the exercise of its own inherent powers refuse relief where it is sought after undue and unexplained delay, and where injustice would be done in the particular case by granting the particular relief asked. Each case must be governed by its own facts; what would be an unreasonable delay in one case might not be in another. We deem it sufficient to say that the delay in this case extended over a period of nearly three years and during a part of this time, oil wells were being drilled in that territory. Appellants could not wait until the drilling of these wells on the lands in question and in that vicinity had caused them to increase greatly in value before they brought this suit. They could not stand by and see other parties in good faith expending large sums of money drilling oil and gas wells and wait until the property was greatly enhanced in value thereby before asserting their rights. This would be contrary to the plainest principles of equity and natural justice.”
'Counsel for appellant contend that laches and estoppel can only be invoked as a defense, and that they do not apply in this case. We cannot agree that laches is not applicable here. The appellant, both in his original cross-complaint and his supplemental cross-complaint, asked for affirmative relief. Therefore, the appellees had the right to invoke the doctrines of laches and estoppel as defenses to appellant’s contention.
The decree of the chancery court is, therefore, affirmed. | [
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Humphreys, J.
Two indictments, No. 3680 and. No. 3681, were returned ag-ainst appellant by the grand jury of St. Francis county, Arkansas, on the 17th day of September, 1935, one of which charged him with an assault with intent to kill Allen Ellis by shooting him in said county and state, and the other an assault with intent to kill Eva Ellis by shooting her.
A motion for a continuance was filed by the appellant, and on the 25th day of September, 1935, the court continued the case until the March term, 1936, for the purpose of taking the depositions of Oscar Nipper of Crow-ell, Missouri, by agreement within sixty days.
On March 22, 1937, Dr. N. C. McCowan was ordered by the court to visit Mrs. Neill and report her physical condition to the court.
Appellant was arrested and gave a bond for his appearance on the 23d day of March, 1937, but on that day failed to appear and a forfeiture was taken upon the bond. •
Later an alias warrant was issued for him, and he was required to give a second bond for his appearance.
On March 18, 1941, the case was set for trial, on March 28, 1941. At that time the regular judge, Hon. E. M. Pipkin, disqualified himself on account of having-drawn the indictments when he was prosecuting attorney and Hon. R. B. McCulloch was elected special judge to try the case. Appellant was arraigned and pleaded not guilty and later introduced testimony tending to establish an alibi.
Appellant then filed a motion to take the deposition of Evelyn Neill who was critically ill with cancer at her home in the town of Sheridan in Grant county, Arkansas, stating that she would never be able to attend the trial in person as a witness. He alleged that at the time the crime was committed he was living- with Mrs. Evelyn Neill who was then residing near the home of Allen Ellis and Eva Ellis, and that if she were present or that if her deposition were taken she would testify that he spent the night of June 17, 1935, in her home and did not absent himself therefrom.
The court denied the motion to take the deposition over appellant’s objection and-exception.
Immediately thereafter and on the same day appellant filed a motion for a continuance which he verified on account of the illness of Evelyn Neill and the absence of her husband who was at her bedside, and that the testimony of both would tend to establish an alibi, and also on account of the absence of Ishman Cunningham and Edward Cunningham whose testimony would be beneficial to appellant. The motion did not contain the substance of what these two witnesses might testify nor the testimony of a third witness who seemed to be out of the state.
The motion for a continuance was signed by the attorneys for appellant, but not verified.
This motion was denied, over the objection and exception of appellant.
A motion was then made to consolidate the cases and they were consolidated without objection on the part of appellant.
The case was then tided, resulting in a verdict of guilty of assault with intent to kill, and as a punishment therefor was adjudged to serve a term of one year in the state penitentiary.
Appellant filed a motion for a new trial which was. overruled, whereupon he prayed and was granted an appeal to this court.
Appellant has failed to abstract and brief the case so the assignments of error to be determined are contained in the motion for a new trial.
- The first assignment of error is that the evidence is insufficient to sustain the conviction. The evidence stated in the most favorable light to the appellee is, in substance, as follows:
Allen Ellis and Eva Ellis testified that on the 17th day of June, 1935, they were residing in Pine Tree neighborhood, in St. Francis county, and' that on that night-after dark someone called to Allen Ellis and when his wife partly opened the door and both were standing near each other someone fired a shotgun at them, many shots hitting both of them in their respective bodies causing them to be taken to a hospital in Memphis for treatment where he remained for about three weeks, and she for about one week; that they did not know who shot them; that it had rained before'they were shot and that it was cloudy and dark outside.
Sam Aldridge testified that he resided in Pine Tree neighborhood and was running a store on June 17, 1935; that he carried in stock shotgun shells, and on the 17th of June, the date on which Mr. and Mrs. Ellis were shot, appellant bought some shells late in the evening; that appellant said he wanted some of the biggest shot we had and I sold him five shells of Super X, size 4, to be used in a 12-gauge shotgun.
Jim Ellis, who was deputized by the sheriff and lived in the Pine Tree neighborhood and assisted the sheriff in making an investigation of the shooting, testi fied that the next morning they went to Allen Ellis ’ home and found gun wads outside and a big brimmed straw hat lying there; that it was a work hat (appellant objected to testimony with reference to the hat on the ground that the hat would be the best evidence. His objections were overruled and he saved his exceptions); that we found tracks where someone had stood there and ran away; that the gun wads were between the tracks and the house; that the ground was soft; that it had rained that night and the tracks were tolerably plain; that they were gum boot tracks; that the tracks went a short distance from the house then in a rainbow circle back to the road; that the tracks went in the back door of appellant’s house; that we had followed the tracks about 150 yards; that we then got in the sheriff’s car and went to Lester Neill’s; that is the place where appellant was living; that we found some gum boots and some wet clothing and two or three different kinds of shells; that appellant was not there; that the boots were near the size of the tracks; that the .shells were Super X, size 4 or 6; that over at appellant’s house they found some Super X shells, three or four Super X and one Kleenbore; that we also-found an automatic 12-gauge shotgun; that we did not find any hat there; that we got in the sheriff’s ear and went east and overtook appellant and two or three others going east; that the sheriff got out and talked to appellant and did not arrest him at that time; that appellant was bareheaded.
Earl Thomas testified that he was living in Pine Tree neighborhood at the time of the shooting and that he heard about the shooting in about an hour after it occurred ; that he saw appellant that afternoon before the shooting about four hours; that he was at Lester Neill’s, Waldo Adams and Wilbur Higgins were there with him; that he heard .appellant say he was going to shoot Allen Ellis but gave no reason for it; that appellant was drunk at the time.
Ray McKee testified that he was living in Pine Tree neighborhood on the date of the shooting and that he was with appellant the afternoon or evening before Allen Ellis and his wife were shot; that he met appellant about three o’clock at the school house and stated that he was going to shoot Allen Ellis; that Allen Ellis had reported him for something about a government loan; that he was drinking at the time.
Hubert Neill stated that he was living in Pine Tree settlement in June, 1935; that witness’ brother married appellant’s sister; that he saw appellant late in the afternoon before the shooting around five or six o ’clock; that he came to the field where he was and said my brother sent him over there to borrow my shotgun which was a 12-gauge Remington automatic; that when he left with the gun he went in the direction of where he lived; that he looked like he had had a drink or two, but was not in any way drunk; that he got his gun back three or four days after that time.
At that juncture, the state rested, and appellant moved the court for an instructed verdict of acquittal on the ground that appellee had not connected him with the shooting. The court refused to so instruct the jury' over the objection and exception of appellant.
Appellant introduced evidence to the effect that at the time of the shooting and during the entire night of June 17, 1935, he was at the home of Mrs. Evelyn Neill who resided about two miles from the Ellises and he testified himself that he had nothing to do with the shooting and explained that he had bought the shells and borrowed the gun to go hunting the next morning, but admitted that he did not go hunting. He also denied that he had made any threats against Allen Ellis and introduced several witnesses to support his alleged alibi. .
It is true that the Ellises testified that they did not know who shot them, but we think the facts' and circumstances detailed by the other witnesses for the state were sufficient to warrant the .jury in finding that appellant shot Allen Ellis and Eva Ellis.
To sum up the other evidence it was shown that the assailant had on rubber boots; that rubber boots were found the next morning in the house where appellant was living; that the boots were about the size of the tracks made at the scene of the commission of the crime which tracks were followed to the back door of the house where appellant lives; that a hat was found at the place of the shooting and that the next morning when the sheriff saw appellant on the highway he was bareheaded; that it rained that night and that the clothing found with the boots was wet; that the character of the shot, shells and gun used in the shooting of the Ellises were found where appellant was living; that appellant purchased the shells late in the evening and borrowed the gun to go hunting the next morning and that he did not go hunting; that threats were made by appellant that he intended to take the life of Allen Ellis. These are all strong circumstances tending to connect appellant with the crime and, as stated above, are sufficient to sustain the verdict of the jury.
The next assignment of error contained in the motion for a new trial is the refusal of the court to allow appellant to take the deposition of Mrs. Evelyn Neill who was in another county. Mrs. Neill was confined to her bed with cancer and unable to attend upon the trial. Her illness had been known to appellant for a long time. The record reflects that a physician had been appointed in 1937 to report her condition to the court. Even at that time she was unable to attend as a witness. The case was set on the 18th day of March, 1941, for trial on the 28th day of March. There is no reason why appellant could not have filed this motion on the 18th day of March and obtained the deposition during the week before the case was set for trial. No diligence in getting her testimony was shown and we cannot find that the trial court abused its discretion in denying the motion.
The next assignment of error contained in the motion for a new trial is the refusal of the court to grant appellant a continuance until the next term of court to get the testimony of Mrs. Evelyn Neill and also the testimony of three witnesses out of the state, two of whom were named, the other not named. The purpose alleged for getting this testimony was to bolster appellant’s alleged alibi.' The testimony, to say the least of it, was cumulative as appellant introduced testimony of other witnesses in support of his alibi whose testimony was to the effect that appellant spent the entire night of June 17, 1935, from late in the afternoon until the next morning in Mrs. Neill’s home and that on that account he could not have been present at the place where-the crime was committed.
Appellant did not set out in his motion what the other three witnesses would testify to if present so there is no way of telling whether their testimony is material and whether their testimony would be beneficial to appellant. Had appellant alleged what he could prove by them, still the motion was fatally defective in that appellant failed to state that the facts to which the witnesses would, if present, testify are true in his belief. This was a necessary requisite. Weaver v. State, 185 Ark. 147, 46 S. W. 2d 37; Lynch v. State, 188 Ark. 831, 67 S. W. 2d 1011.
Our court has ruled that continuances rest in the sound discretion of the trial court, and that its action will not be disturbed on appeal unless same amounts to a denial of justice. Adams v. State, 176 Ark. 916, 5 S. W. 2d 946; Smith v. State, 192 Ark. 967, 96 S. W. 2d 1; Taylor v. State, 193 Ark. 691, 101 S. W. 2d 956.
The court did not abuse its discretion in denying the motion for a continuance.
The next assignment of error contained in the motion for a new trial is that the court erred in consolidating the two cases. The indictments grew out of the same shooting and the injuries suffered by the prosecuting witnesses were received at the same time. The indictments could originally have been included in one indictment under the provisions of subsection 12 of § 3838 of Pope’s Digest. The subsection permits the joinder in one indictment of the homicide of several persons, when committed by the same person at the same time or in furtherance of the same criminal design.
The motion to consolidate the cases was made by the prosecuting attorney and they were consolidated by the court without objection or exception by appellant. No error was committed in consolidating the cases. Boatright v. State, 195 Ark. 611, 113 S. W. 2d 107.
The next error assigned in the motion for a new trial is that the court permitted Allen Ellis and Eva Ellis to testify in the case because they had not sworn that appellant was the person who shot them. The testimony was admitted upon statement of the prosecuting attorney that he would connect this evidence up later with the appellant. We think the facts and circumstances to which the other witnesses testified sufficiently connected appellant with the crime for the jury to find that he was the assailant in shooting the Ellises. It is also pointed out in the motion for a new trial that it was improper for the court to permit witnesses to testify that they found a broad brimmed work hat at the scene of the crime without producing the hat. Just why the state did not introduce the hat does not appear, but the fact that one was found and the next morning appellant was found traveling without a hat was a circumstance for the jury to consider. We do not think it was necessary for the state to introduce the hat or to prove that it was the property of appellant. As we understand the law it has always been considered proper to describe the conditions surrounding the place of a shooting and what the witnesses found there. We do not think it was error for the witnesses to testify that at the scene of the shooting they discovered a broad brimmed work hat.
The next assignment of error contained in the motion for a new trial is the refusal of the court to grant same on alleged newly discovered evidence. The alleged newly discovered evidence was that of Bill Mann, who made the following affidavit and attached same to the motion.
“The affiant, Bill Mann, states that'he is a resident of St. Francis county, Arkansas, and that he was living in the county June 17, 1935, in the section of the county known as Pine Tree; that at that time he was a neighbor of Bernice Collier and Allen Ellis; that he knew both of them well.
“He further states that after Allen Ellis was shot he, Allen Ellis, came to me and offered me $5 if I would testify that I saw Bernice Collier shoot him. Aftér making me this offer, he said'that he did not know who shot him, but that he would pay me if I would swear that Bernice Collier did.
“I further state and swear that I was not available at the time Bernice Collier was tried; but if I had appeared as a witness, my testimony would have helped Bernice Collier, for on the day of the shooting above mentioned Collier and I were in that community drinking and Collier fell in a bar pit about two or three o ’clock of the day of the shooting. I pulled him out and left him. ’ ’
The motion for a new trial does not show that the appellant or his attorneys swore that the newly discovered evidence was not known to them in time to have brought it forward at the trial. Nor did he set out facts to show that he had used reasonable diligence to bring this matter to the attention of the court. It was necessary that this be done before it could be said that the court abused its discretion in overruling the motion. Rynes v. State, 99 Ark. 121, 137 S. W. 800.
No objection was made to any of the instructions given, and they fairly and correctly declared the law relative to assaults with intent to kill and relative to the plea of an alibi.
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McHaney, J.
Appellant brought this action on March 10, 1938, against appellee to recover judgment on his unpaid promissory note for $6,000, dated July 8, 1933, and due October 10, 1933, with interest from date at 10 per cent, per annum. Appellee, although admitting his signature on said note, defended on the grounds: 1, that the note was never a completed instrument in that it was to be signed by another before delivery; 2, that his signature thereto was obtained through fraud and misrepresentation, which was known- to and participated in by appellant; and 3, that it was wholly without consideration moving to him.
Trial to a jury, resulted in a verdict and a judgment for appellee. This appeal followed, and a number of grounds are argued for a reversal of the judgment, some of which will hereinafter be discussed.
1. There was a judgment for appellant by default before the present trial from which is this appeal. On motion of appellee, at the same term, the court s¿t aside the default judgment, and it is now said the court erred in so doing. This was a matter resting in the sound discretion of the trial court, and the record is silent as to what the court based its judgment on. No abuse of discretion is shown.
2. It is said the court erred in giving and refusing to give a number of instructions. These assignments cannot be considered, because appellant has failed to abstract or set out all the instructions given and refused. This court will not explore the record to determine whether error has been committed in this regard.
3. Another, and the principal argument for a reversal of the judgment, relates to the admission of testimony on behalf of appellee that appellant’s president, Mr. Blanks, obtained appellee’s signature on the note by telling him and writing him a letter to the effect that he would not be held liable on the note, and that appellant would look to the collateral alone for the collection of the debt. Such testimony was admitted over appellant’s objections and exceptions, on the grounds that it violates the parole evidence rule, is ultra vires of the corporation, and was beyond the authority of the president without approval of the board of directors. Testimony for appellee was also admitted over objections of an agreement with Mr. Blanks that the note should be signed by both appellee and his brother, Grady W. Jones, before it should be delivered to appellant, which agreement was violated by Blanks by delivery to appellant without the signature of Grady W. Jones. We think appellant misconceives the law as to all these alleged errors. As to the alleged violation of the parole evidence rule, appellee testified very positively that appellant’s president called upon him at his office in Little Bock and secured his signature thereto by. telling him that the bank would not look to him for payment, but to the collateral, consisting of preferred stock in the Jones Motor Company of Hamburg, and by writing him a letter to this effect, which letter was misjolaced and not introduced. These were fraudulent misrepresentations, if made, and the jury by its verdict evidently believed they were. Were they admissible? We have many times held them to be competent where the issue of fraud in the procurement of the instrument is relied on. In St. L., I. M. & S. Ry. Co. v. Hambright, 87 Ark. 614, 113 S. W. 803, it was said: “The rule of evidence forbidding the addition, alteration or contradiction of a written instrument by parol testimony of -antecedent and contemporaneous negotiations does not apply where there is an issue of fraud in the procurement of the writing.” In Delaney v. Jackson, 95 Ark. 131, 128 S. W. 859, it was held, to quote syllabus 4, that, “an intentionally false and misleading representation which induces a written contract to another’s in jury is a tort outsde the contract, and may be proved by parol.” See, also, Joseph v. Baker, 95 Ark. 150, 128 S. W. 864; Brown v. Le May, 101 Ark. 95, 141 S. W. 759. In Ellis v. First Nat’l Bank of Fordyce, 163 Ark. 471, 260 S. W. 714, Judge Hart used this language: “As between the immediate parties, it is always competent for the defendant to show, by parol evidence, either want or failure of consideration as between himself and the plaintiff, or that the indorsement was procured by fraud . . This evidence was competent and the court properly admitted it.
Counsel for appellant cite a number of cases which announce the general parol evidence rule, but they are not in point, as no fraud was involved in them or the instrument was in the hands of an innocent holder in due course. Where, as here, a question of fraud is in issue, parol evidence is admissible as an exception’ to the general rule.
It is also argued that appellant’s suit cannot be defeated by the fraudulent action of its president in taking the note, and, therefore, such evidence is incompetent. The general rule to the contrary is thus stated in 2 C. J., p. 879, § 563: “A contract induced by the fraud or misrepresentation of an agent while acting within the real or apparent scope of Ms authority cannot be enforced by the principal against the party misled, whether the principal was disclosed or not at the time of making of the contract, and even though the principal did not authorize the agent to act fraudulently or to misrepresent, unless the party so wronged has in some way estopped himself from relying on the fraud.”
We think it would serve no useful purpose to pursue appellant’s arguments further. Suffice it to say we have given them careful consideration and find them without merit. An issue of fact was properly submitted to the jury under instructions presumptively correct. There was substantial evidence to support the verdict, and the judgment must be affirmed. | [
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McHaney, J.
Appellee sued appellant, Tucker Duck & Rubber Company, a domestic corporation, and appellant, Lutber Rembler, a foreman in its plant, to recover damages for personal injuries allegedly sustained on March 29,1940, in moving a barrel of paint from the paint house or room which was just south of and adjacent to the room in which he was working, pursuant to the order of Rembler, his foreman. The negligence alleged was that the floor of said paint room “was covered with oil, grease and other substances, which the defendants had carelessly and negligently permitted to accumulate there and to remain,” a fact known to appellants and unknown to appellee, but notwithstanding his knowledge thereof said Rembler carelessly and negligently directed appellee to move or assist in moving said barrel of paint which weighed about 350 pounds; that when he attempted to move the barrel, “he slipped and fell in said oil and grease. and other substances, which with the weight of said barrel of paint and his own exertions in moving same caused him to be seriously and permanently injured,” as particularly set out in the complaint. Damages were prayed in a large sum.
After unsuccessfully attempting to have the service upon them quashed, appellants answered, denying all the material allegations of the complaint, and pleading contributory negligence and assumption of risk of appellee in bar of recovery.
Trial resulted in a verdict and judgment for $2,000 against appellants and they have appealed.
The complaint charges three acts of negligence: (1) permitting oil, grease- and other substance to accumulate on the floor around said barrel of paint; (2) failing to inspect the premises; and (3) foreman Rembler’s ordering appellee to move said barrel of paint when he knew or should have known that it was dangerous and in giving no warning to him of such dangerous condition. • At the conclusion of the evidence for appellee and at the conclusion of all the evidence in requested instructions 1 and 2, appellants moved for directed verdicts in their favor, which the court refused, and this assignment of error is the basis of the first argument made for a reversal and dismissal of the action. We think the court erred in refusing to direct a verdict for appellants.
The facts, stated in the light most favorable to appellee, are substantially as follows: Appellee is 46 years of age, is and has been for more than fifteen years a resident of Fort Smith. He worked for appellant company for fifteen years before he was hurt on March 29, 1940. He worked in various capacities, as a common laborer at different places in the factory, as watchman when a part of his duties were to keep the floor of the paint storage room clean and free from paint, which he did, and he was regularly employed at the time of his accident in framing cots. At the time of the accident he was working in the dip or paint house, making what is called ‘£ 35 chairs. ’ ’ The company makes camp furniture. The room where the paint is stored is just south of the room in which, he was working and is adjacent to it. It is a room 16 x 30 feet and he had worked in said room many times, but not for two months previous to the accident. At about 8:30 a. m., Rembler told appellee to go help Paul Johnson, who operated the machine or gun to spray paint on the chairs, get a barrel of paint. The barrels were setting on end in rows and J ohnson got on top of them and found the one he wanted. He said: “Mr. Johnson pointed out the barrel there and I started to move the barrel and my feet slipped and threw me in a strain and I slipped and fell and the barrel struck me in the side. . . . The right side and hip and it threw my back in a cramp and when I got the barrel of paint straightened back up. . . .” He said it was dark in there at the time although the room had two or three windows and two doors in it, and that the shadow of the barrels made it dark around the barrel to be moved; that oil and paint were on the floor, but darkness in the room was not a ground of negligence alleged, and he could not see it when he went in; that he observed paint on the bottom of his shoe as he slipped and fell; and that he rolled the barrel out with the help of another after he got it straightened out. Rembler and Johnson both testified there was no paint on the floor and Johnson denied that appellee slipped or fell. Two witnesses for appellee say there was paint all over the floor. For the purpose of this opinion we assume there was paint all over the floor and of course around the barrel to be moved, and that it was somewhat dark in the shadow of the barrels, although it is undisputed that there are at least three windows and two doors in the room. Paul Johnson said there were four windows, one on the south side, two on the east and one on the west. Appellee says he undertook to handle a 500-pound barrel of paint alone, without the assistance of Paul J ohnson, when he was told to assist Johnson in moving it. If he undertook, as he says, to handle it alone, he assumed the risk of so doing, as he was instructed to assist Johnson, who says they had to move two other barrels to get the one he wanted and that he and appellee handled them together and that appellee did not slip or fall in moving either barrel, because there was nothing to slip on, but that he complained of straining his back after moving the third barrel. But, as stated above, we assume there was paint all over the floor and that he slipped in it. Even so, it was as open and obvious to him as it was or could have been to either Rembler, Johnson or his two witnesses who say there was paint all over the floor and who say they were able to see it when they were sent in there to move barrels just as appellee did.
The law is well settled that the master is not an insurer of the safety of his servant and that his only duty is to exercise ordinary care to furnish him a reasonably safe place to work and reasonably safe instrumentalities with which to work, and the servant has the right to assume that the master has performed this duty, and, as said in Mosely v. Raines, 183 Ark. 569, 37 S. W. 2d 78, “It is, however, also thoroughly established by the decisions of this court that the master is presumed to have performed this duty, and the servant cannot recover for an injury unless he shows that the master was guilty of negligence and that the negligence of the master caused his injury. The master is liable for the consequences of his negligence, but he is not an insurer of the employee’s safety.” That language was quoted in the recent case of Kroger Gro. & B. Co. v. Kennedy, 199 Ark. 914, 136 S. W. 2d 470.
It is difficult to perceive wherein appellants were negligent under the facts above stated. The mere fact that Rembler told appellee to go to the paint storage room and assist Johnson in getting a barrel of paint could not constitute negligence, assuming there was paint on the floor and that Rembler knew it or should have known it. Nor do we think Rembler was under any duty to appellee to apprise him of that fact or to warn him that there was paint on the floor and that he should be careful not to slip or fall or to let a barrel of paint fall on him. “Something may properly be left to the instinct of self preservation and to the exercise of the ordinary faculties which every man should use when his safety is known to be involved,” as we said in Mo. Pac. R. Co. v. Martin, 186 Ark. 1101, 57 S. W. 2d 1047. In Williams Cooperage Co. v. Kittrell, 107 Ark. 341, 155 S. W. 119, Chief Justice McCulloch quoted from 1 Labatt oil Master & Servant, § 238, as follows: “The master is not required to point out dangers which are readily ascertainable by the servant himself if he makes an ordinarily careful use of such knowledge, experience and judgment as he possesses. The failure to give such instructions, therefore, is not culpable where the servant might, by the exercise of ordinary care and attention, have known of the danger, or, as the rule is also expressed, where he had the means necessary for ascertaining the conditions, and there was no concealed danger which could not be discovered. ’ ’
Now, if the paint was on the floor to the extent alleged in the complaint and as testified to by his witnesses, then it appears certain that appellee should have seen it, as it must have been perfectly open and obvious in a room with four windows, two of which were on the east side, where the light would come from at 8:30 a. m., the time he was injured. Appellee was not a young and inexperienced employee, being 46 years old with 15 years’ experience as an employee, during which time he‘had frequently worked in the paint storage room, knew that paint did get on the floor and'that a part of his duties had been to keep that room clean by sweeping it and scraping the paint from the floor. Therefore, under the rule just quoted from Labatt and approved by this court, appellants were not required to point out to appellee the danger of stepping in wet paint, if it was wet, because it was readily ascertainable by him if he had made an ordinarily careful use of the knowledge, experience and judgment which he possessed. He either knew the conditions, or “he had all the means, necessary for ascertaining the conditions, and there was no concealed danger which could not be discovered.” By walking in the room and attempting to handle the barrel alone, in broad open daylight, without looking' to see if there was any paint on the floor, and without waiting for Johnson to assist him, he assumed the risk of any injury he might sustain. As we said in Temple Cotton Oil Co. v. Brown, 198 Ark. 1076, 132 S. W. 2d 791, “If oil was on the floor, it was perfectly open and obvious. He says himself that he did not look, but if be bad he could have seen it, if it was there, . . .” So here, if appellee had looked he could have seen the paint on the floor, if it was there.
For the error in failing to direct a verdict for appellants, the judgment will be reversed, and, as the cause has been fully developed, it will be dismissed.
Smith & Humphreys, JJ., dissent. | [
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Holt, J.
Appellants, Roy Bangs and W. J. McPike, filed complaint in the Pulaski chancery court in which they alleged that they “own and operate a number of automatic music phonographs and automatic amusement games, all of which are placed in cafes and taverns on commission with the owners thereof. . . .
‘ ‘ That act 201 of the Acts of 1939 provides: ‘ That before said phonograph and amusement games can be operated, each must have a tag attached showing that the annual privilege tax of .$5 has been paid’.”
They further alleged “That the Arkansas Sales Tax Law provides certain exemptions under sub-section ‘B’ of § 14082, Pope’s Digest, which states:
“‘(b) A portion of all retail sales on articles and/or commodities on which a state privilege tax or license is already collected. In this case the tax imposed in this act shall be an amount equal to whatever is the excess above the already imposed privilege tax or license.
“‘Plaintiffs state,that in the purchasing of said phonographs and amusement games they are exempt from paying sales tax to the amount of the privilege tax paid; that is, when $5 privilege tax is paid, they are exempt from the payment of sales tax on $250 of the purchase price of the machine’.”
They further alleged that appellee, revenue commissioner for the State of Arkansas, has, without authority of law, demanded of appellants the 2 per cent, sales tax on the full amount of the purchase price of all phonographs or amusement games sold by them, and prayed that appellee “be enjoined from collecting sales tax on the sale of automatic music phonographs and automatic amusement games to the amount of the privilege tax paid, as provided in act 201 of the Acts of 1939, and for all other equitable and general relief.”
Appellee filed a demurrer alleging that the complaint did not state facts sufficient to constitute a cause of action. Upon a hearing, the trial court sustained the demurrer and upon appellants refusing to plead further, their complaint was dismissed and this appeal followed.
Appellants’ contention is (to quote from their brief) “that under the plain terms of sub-section (b) of § 15 of act 154 of the year 1937, the sale of coin slot machine devices operated under act 201 of the year 1939 is the difference between the privilege tax paid on said ma chines and two per cent. (2%) of the sale price of the machines. ’ ’
Appellee’s position, on the other hand, which the trial court sustained, is that the privilege tax of $5, sought to be deducted, is a tax assessed for the privilege, granted to the owner, to operate the machine in question or for its use, and is not a tax assessed against the machine itself, or the possession by the owner of the machine, such as would make it a tax deductible under the Sales Tax Act, and that had the Legislature intended to permit such a deduction of the tax on phonograph machines and automatic amusement games, it would have said so in the act, and that having failed to do so, it must be assumed that it did not intend to deduct the tax so assessed from the sales tax.
Section 1 of act 201 of the Acts of 1939 reads: ‘ ‘ The purpose of this act is to permit and license the operation of coin operated amusement games and to regulate the same and fix a penalty for the violation of this act; and repeal and amend certain sections of act 137 of the General Assembly of 1933.”
Section 4 of the act imposes a $5 annual privilege tax on each amusement game for which a permit or license to operate such game is to be issued.
Section 6 imposes upon the owners, operators, lessors, or their agents, for the operation of coin operated machines and vending machines, including automatic music vending phonographs, a privilege tax in the sum of $5.
Section 15 of act 154 of the Acts of the General Assembly of 1937, as amended by act 364 of 1939, known as the “Retail Sales Tax Act,” is: “There are hereby specifically exempted from the taxes levied in this act: . . . (b) A portion of all retail sales on articles and/or commodities on which a state privilege tax or license is already collected. In this case the tax imposed in this act shall be an amount equal to whatever is the excess above the already imposed privilege tax or license.
The question we are to determine is whether the tax of $5 assessed against the owner of the machines in question for the privilege of operating these machines is such a privilege or license tax as is referred to in § 15, paragraph (b), of act 154, supra, and, therefore, deductible from the sales tax.
It is our view that it is not such a tax as may be deducted from the sales tax. Such was the effect of our holding in the case of Wiseman v. Madison Cadillac Company, 191 Ark. 1021, 88 S. W. 2d 1007, 103 A. L. R. 1208. There this court had before it for determination whether automobile license fees could be deducted from the sales tax on automobiles under the provisions of § 15, paragraph (b), of the Retail Sales Tax Act, supra. There it was held that the tax assessed as an automobile license fee is a privilege tax, but a tax which the purchaser of the automobile paid for the privilege of using the highways, and was not a tax on the automobile itself or on the privilege of owning or possessing it.
It was there pointed out that items such as cigarettes, cigars, and gasoline, which had previously been held to be deductible, were in a different class since the privilege tax assessed in those cases was not for the privilege of using the articles, but on the privilege of possessing the property without any regard to its use. It is there said: “Moreover, the tax on these articles, cigarettes, cigars, and gasoline, is not a tax for the privilege of using them, but is a tax on the privilege of possessing the property without any regard to how it is used or whether it is used at all.”
The privilege tax sought to be deducted in the instant case on the machines in question is, therefore, not such a privilege tax as is contemplated in § 15, paragraph (b), of the Sales Tax Act, supra. Here, as has been indicated, the tax is paid on the privilege of using and operating the machines in question and is not paid for the purpose of taxing the privilege of possessing or owning- the property.
As was held in the Wiseman-Madison Cadillac Company case, supra, that had the Legislature intended to exempt the articles in question it might easily have specifically done so in the act. This it did not do.
The burden is on appellants to show that they are entitled to the exemption claimed.
In the Wiseman-Madison Cadillac Company case it was said: “If the Legislature had intended to exempt automobile dealers, as claimed by appellee, it could have said so in language about which there could have been no doubt. It did not do this. Appellee, claiming an exemption, the burden is upon it to show that it is entitled to exemption. ...
“ ‘An intention on the part of the Legislature to grant an exemption from the taxing power of the state will never be implied from language which will admit of any other reasonable construction. Such an intention must be expressed in clear and unmistakable terms, or must appear by necessary implication from the language used, for it is a well-settled principle that, when a special privilege or exemption is claimed under a statute, charter, or act of incorporation, it is to be construed strictly against the property owner and in favor of the public. This principle applies with peculiar force to a claim of exemption from taxation. Exemptions are never presumed, the burden is on a claimant to establish clearly his right to exemption, and an alleged grant of exemption will be strictly construed, and cannot be made out by inference or implication, but must be beyond reasonable doubt. . . .’ Vol. 2, 4th ed., Cooley on Taxation, 1403, § 672.”
We think it clear, therefore, that the tax here involved was not deductible from the sales tax collected under the Retail Sales Tax Act, supra.
No error appearing, the decree is affirmed. | [
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Grieein Smith, C. J.
In the democratic primary election of 1940 in Lincoln county, W. A. Trussell, upon the face of returns, received 758 votes for the office of county judge. His opponent, W. A. Fish, received 729. Fish contested, alleging that if illegal ballots cast for Trussell were deducted the result would be reversed.
Rules of the party were pleaded, including the provision that a challenge may be sustained to the vote or ballot of anyone who, within two years preceding any primary, had wilfully refused to support the nominee in a general election, or who by word or action had espoused the cause of any but democratic nominees.
Application of the rule was invoked in respect of transactions relating to the 1938 general election, wherein J. G. Tucker, an independent candidate, sought the office of county judge in opposition to W. A. Fish, the latter having been selected as the democratic nominee. Tucker’s name was placed on the ballot in response to a petition signed by 78 persons, 59 of whom participated in the primary election.
Many other charges of irregularities were made: that republicans and persons holding illegal poll tax receipts voted; that persons rendered infamous through convictions of crimes whose citizenship had not been restored were participants; that gift poll tax receipts were held by those who supported Trussell; that persons who would not be 21 years of age at the succeeding general election were not excluded, and that additional illegalities accounted for the apparent majority received by appellant.
Trial began September 19, 1940, and continued until October 18. The court found that 331 illegal votes had been cast for Trussell and 208 for Fish, and that Fish had been nominated by a majority of 94 votes.
One of appellant’s . contentions is that the court erred in not excluding 390 votes cast for Fish as to which there was no evidence of the electors’ qualifications other than the printed list supplied election officers, upon which the names appeared.
Section 4696, Pope’s Digest, directs the county collector to file with the county clerk a list containing the names of all persons who, within the time prescribed, have paid the poll tax assessed against them. It is then provided: “The correctness of this list shall be authenticated by the affidavit of the collector in person.” This list is transmitted to the county clerk, who in turn delivers a verified copy to the county election commissioners. The list is printed and distributed with the ballots and blank poll books.
The list of voters questioned by appellant was certified by the collector. It was then delivered to the county clerk, who certified a copy to the election commissioners, and the commissioners caused the list to be printed in pamphlet form. It is conceded, however, that the collector did not attach his affidavit to the list, although he testified this was a mere oversight; that he “made” the record and delivered it to the clerk; that his signature was attached for the purpose of evidencing belief in accuracy of the work, and “. . . when I signed . . . it looked to me like that was guaranteeing the list. ’ ’
First. — The trial court held that what the collector did was in substantial compliance with the law. To this view we assent. In support of appellant’s argument it may be said that there is language in some of the opinions which seemingly supports the contention that the list was void. Appellant does not insist that after making proof of the collector’s failure to affix his affidavit no verity attached to the list. His position is that it then devolved upon the party questioning ballots accepted by election officers to show, as a prerequisite to validity of such ballot, that the voter filed with judges of election an original poll tax receipt or a certified copy, or in other respects complied with statutory provisions.
An election judge from each voting precinct testified that the printed list was relied upon in respect of names it contained, and that no other evidence of qualification was required except in a few instances. Of ballots cast for appellee, 390 were examined for the purpose of showing that neither a poll tax receipt nor certified copy was attached, and that separate lists of such voters were not returned by the election officials.
The first case argued by appellant (to sustain his contention that even if, prima facie, verity attached to the returns made by election officials, such verity must necessarily give way to proof that other mandatory requirements of § 4696 of Pope’s Digest were not complied with) is Morrow v. Strait, 186 Ark. 384, 53 S. W. 2d 857. In that case the complaint alleged illegality of votes “Because there was no certified, authenticated, sworn list of qualified electors filed with the county clerk by the collector.”
The opinion quotes from Cain v. McGregor, 182 Ark. 633, 32 S. W. 2d 319, where in respect of § 3740 of Crawford & Moses ’ Digest, it was said: ‘ ‘ The whole proceeding is statutory, and the statute must be substantially followed in all proceedings.” It was further said in the Morrow-Strait case that there is a presumption that the election was conducted according to law. There is the statement that “. . . we have never held . . . that an election was illegal and void where the collector had not filed with the county clerk an authenticated list of the names of persons who had paid their poll tax.” There is reference to Brown v. Nisler, 179 Ark. 178, 15 S. W. 2d 314, where it was said that the provisions of § 3740 of C. & M. Digest “. . . are the positive requirements of the law,” and “The effect of not substantially complying with the law with regard to the preparation and publication of the printed list of voters was to nullify the list and leave the same condition as if no list had been printed at all. ’ ’
The Brown-Nisler case is distinguishable from the instant appeal in that here the collector prepared the list and certified it as authentic, neglecting only the statutory requirement of an affidavit. In the Brown-Nisler controversy the collector did not prepare a list, that function having been performed by the county clerk, who then delivered it to a printer. Hence, no verity could attach to a list that had no legal existence. In the case at bar the collector’s certificate is attached to the poll lists, as is that of the county clerk. These lists went to the election officers who, no doubt, did not know of the law’s requirement that the collector certify and swear to them. The statute does not require that the collector’s affidavit be printed on the list made from the county clerk’s certified copy, and there was nothing to put election officials upon notice that the -list was not completely authenticated.
It is our view that, although it is mandatory before an election has been held that the collector attach his affidavit to the poll tax list, and compliance with the statute may be enforced, yet a failure to make the affidavit discovered after the list has been certified under the collector’s oath of office does not have the effect of putting election officers on notice that in order to have a valid election they must require each person who offers to vote (whose name is on the list certified by the county clerk) to deposit his or her poll tax receipt or a certified copy.
In a contest it may be shown that persons on the list are ineligible to vote, and errors may be so numerous as to overcome the presumption of verity that attaches to the list, (Wilson v. Luck, 201 Ark. 594, 146 S. W. 2d 696) but presumptive verity of the list continues, even without the collector’s affidavit, until something more than failure to make the oath has been shown. Such failure, in the circumstances reflected by the case at bar, is not indicative of fraud.
In most of the cases where effect of the collector’s failure to make the affidavit is discussed (see third footnote) it is said that there must be substantial compliance with the statute, and to this rule we adhere. The question is, What is substantial compliance? and it follows that proof in a particular case regarding intent and effect must first be considered before an answer can be formulated.
There would be a subversion of purpose and a sacrifice of popular will if we should say that in a primary election the unintentional failure of a ministerial officer to perform strictly all functions which are made mandatory with respect to verification of poll tax lists, continues to be imperative after the lists, unaffected by fraud, and substantially correct in all other essentials, have performed the service intended by the legislative authority.
Second. — Appellant' urges that delinquent assessments were invalid because P. W. Eastham was not a qualified elector and his appointment as deputy collector was illegal. Attention is directed to Act 172 of 1929, vol. 2, and'to § 4693 of Pope’s Digest. It is contended that, although Act 82 of 1939, § 2, extends the time for payment of taxes, it does not extend the time for making assessments upon which a poll tax entitling one to vote may be procured; also, that the poll tax books for 1938 did not contain the affidavit required by law, “. . . nor did it contain any affidavit at all made by the assessor to the correctness of the personal poll tax list, as required by § 18 of Act 172 of the Acts of 1929, now Pope’s Digest, § 13679.”
The flaw urged against assessments made by East-ham as deputy is that he did not hold a 1937 poll tax receipt in Lincoln county, and that he made his own assessment for 1938, September 26, 1939. There was no order of the county court approving the deputy’s appointment.
April 10, 1939, O. L. Guffey, assessor, designated Eastham as deputy. The oath of office was taken the same day. Authentication of the appointment and oath were promptly filed with the county clerk. Eastham had been a resident of Union county and had not been in Lincoln county six months at the time he assumed office as a deputy. Section 3 of Art. 19, constitution of Arkansas, prohibits the election or appointment of anyone to office who does not possess the qualifications of an elector. An assessor is a constitutional officer.
No statute has been called to our attention declaring void the work of a deputy assessor who was not at the time his duties were being discharged a qualified elector and whose appointment had not been approved by the county court; nor do we know of any such provision of law. If it should be conceded that Eastham was not an officer de jure, still his acts would he valid under the rule that one appointed by an officer or agency having authority to make the appointment has improperly or ineffectively exercised the power. In such circumstance the appointee is a de facto officer. Matthews v. Bailey, 198 Ark. 830, 131 S. W. 2d 425. Although it was held in the Matthews case that the acts of a state senator appointed by the governor were void, that conclusion was predicated upon the fact that the governor had no.actual or apparent authority to make the appointment. In the instant case the assessor was clothed with appointive power. The fact that he proceeded irregularly, or that he appointed a man who was not eligible, cannot deprive voters of their franchise.
The trial court held that the Act of 1929 not only meant that the assessor had authority to make delinquent poll tax assessments before his records were delivered to the county clerk, but that delinquent assessments might be made by the assessor after such delivery “and before the collector closes his hooks.”
Evidence touching methods used by the assessor and county clerk is to the effect that the delinquent appeared before the assessor and was assessed; that the assessor transmitted lists to the county clerk, and that the clerk personally entered the names on the tax hooks.
In Tucker v. Meroney, 182 Ark. 681, 32 S. W. 2d 631, the contention wás that votes cast at the election were illegal because the poll tax payer had been assessed since the regular assessing time, by the assessor, under the provisions of Act 172 of 1929, insistence being that the voters should have proceeded under § 3738 of Crawford & Moses’ Digest (now § 4693 of Pope’s Digest) by applying to the county clerk to have their names included in the list of voters [certified by the collector] as additions of omitted names. The opinion, written by Chief Justice Hart, held that the appellant could not prevail for two reasons. “If it should be held,” he said, “that [Act 172 of 1929] is inconsistent with and repugnant to § 3738 of the Digest, then § 3738 is repealed by implication and the 203' votes are illegal because the names were added by the compliance of the assessor with the provisions of said Act 172. . . . If it be said that the provisions of Act 172 are not inconsistent with or repugnant to the provisions of § 3738 of the Digest, then both provisions stand and are supplementary to each other. Two methods would be provided for placing the names of the voters, omitted by the assessor in his regular period of time for assessing persons and property on the list to be authenticated by the collector under the provisions of § 3740 of [C. & M.] Digest. 9 9
It will be observed that the opinion does not hold that § 3738 of Crawford & Moses’ Digest was repealed.
In Morrow v. Strait, 186 Ark. 384, 53 S. W. 2d 857, there is comment on § 3740 of Crawford & Moses’ Digest, and reference to Act 152 of 1931, which amended § 3740. It is said that title to the Act indicated an intention by the general assembly to extend the time “. . . not for paying taxes, but for certifying the list of those who had paid.” It was then held that the body of the Act did not conform to the expression of legislative intent. The following is quoted from the opinion:
“The language of the Act of 1931 . . . says so plainly — that we cannot hold otherwise — that the collector’s certificate shall include the names of all persons ‘who have up to and including that date paid the poll tax assessed against them respectively.’ The date referred to is, of course, the third Monday in July, this being the only date to which reference is made.”
There was the further holding that, inasmuch as Act 152 contained no reference to the time within which persons may assess for laxes, “. . . the law in that respect remains unchanged.” There is this sentence in the opinion: “The collector could not therefore issue a poll tax receipt which would qualify one to vote who had not been assessed prior to the Saturday preceding the first Monday in July, as no provision was made for extending the time for assessing, the only provision being for the payment of taxes by persons already assessed.”
There is a declaration in Collins v. Jones, 186 Ark. 442, 54 S. W. 2d 400, that “Tucher v. Meroney, supra, declares the law to be that one may have his name placed on the tax books through an assessment made pursuant to Act 172 [of 1929], or by the clerk, pursuant to § 3738, Crawford & Moses’ Digest, but the implication is very clear in that case that the assessment must be made in one way or the other before the collector has the authority to issue a poll tax receipt, and that, unless authorized, the receipt does not qualify the taxpayer as an elector. ’ ’
In the same opinion it is also said: “Now, while one must assess his personal property and his poll tax, either through the assessor in person or by agent, or through the county clerk in the manner above stated, to be entitled to pay his poll tax, he does not have to pay other taxes. . . .”
In Cain v. CarlLee, 168 Ark. 64, 269 S. W. 57, it was said: “Section 3738, O. & M. Digest, provides how omitted names may be added to the tax books. These names can be added only by the county clerk.” The opinion was written in 1925.
The Morrow-Strait case dealt with a situation where the general assembly (Act 152 of 1931) advanced from the first Monday in July to the third Monday in July the time within which the collector should file with the clerk a list of those who had paid poll taxes. By § 1 of Act 82, approved February 15, 1939, collectors are allowed until October 15 to file the list of poll tax payers, although payment of such taxes is restricted to October 1, midnight.
The most perplexing question for decision is whether delinquent poll tax assessments are to be made by the assessor, the county clerk, or by either; and, if assessable by either, at what time does the clerk’s right to act accrue, and when does it end with respect to either?
The Collins-Jones case (decided November 7, 1932) is the last expression relating to the rights of county clerks and assessors to make delinquent assessments. We adhere to it.
Although we held in the Morrow-Strait case that the Act there considered did not extend the time for making delinquent assessments, the general plan of tax payments has been completely changed since the statutes of 1931 and 1929 were construed. The policy has been one of greater indulgence in so far as time is concerned, and since approval of Act 16, August 25, 1933, property taxes have been dischargeable in installments. It appears, therefore, that this design of liberality carries with it a clear implication that delinquent poll tax assessments are permissible until payment conflicts with collection.
Section 13676 of Pope’s Digest requires the assessor to file with the county clerk, on or before the third Monday in August, “. . . his report of assessment of all personal property and persons.” This section is a part of Act 172 of 1929 and was in force when the Morrow-Strait decision held that the time for making delinquent poll tax assessments before the clerk had not been extended.
Prior to 1939 the last day for payment of a poll tax was June 15. Act 144, approved March 24, 1933, amended § 3740 of Crawford & Moses’ Digest (Pope’s Digest, § 4696) by restricting the time for paying poll taxes from the first Monday in July to June 15. The same provision was included in Act 123, approved March 19, 1935. Act 82 of 1939 made the next change, amending §§ 4696, 4697, and 4699 of Pope’s Digest. Section 2 of Act 82 amended § 4697 of Pope’s Digest by fixing the time for collecting poll taxes as “the period between the third Monday in February and the first day in October. ’ ’ The clerk turns his books over to the collector the third Monday in February.
After Act 82 became effective, those holding a poll tax paid prior to midnight, October 1, under a valid assessment, had the right to vote at any election held prior to October 1 of the following year, if otherwise qualified. But both before and after 1939 poll taxes became delinquent for assessment, as did property, on April 10. In the case of payments made in 1939, assessments were delinquent after April 10, 1938.
As a matter of practice there are but few assessments made between the third Monday in August (when the assessor turns his books over to the clerk) and the third Monday in February. Since the clerk does not receive the assessor’s books until the third Monday in August he does not know (unless informed by the party proposing to assess) whether such person has been included in the assessor’s assessment; hence, there is no reason to assume that the general assembly intended to confer upon clerks the right to make delinquent assessments prior to the third Monday in August.
There is an implication in § 4693 of Pope’s Digest (Act 2, May 31, 1909, § 1, p. 942) that at that time it was not intended that the clerk’s right to make delinquent assessments should accrue until the assessor’s books had been delivered. It says: “At any time after the assessment lists have been delivered to the county clerk for the purpose of enabling him to prepare the tax books for the collector, any person whose name has for any cause been omitted from the said lists may have his name included in said list and placed upon the tax lists in the hands of the collector by application to the said clerk. . . .”
The various Acts and decisions cannot be entirely harmonized. There are obvious omissions from statutes as a result of which the expressed effect of the enact ments cannot be realized without imputing an intent. We cannot read from the Acts liberalizing tax payments in general any aim other than one to permit assessments to be made until the time for paying taxes ends at midnight, October 1. It follows that our holding is that persons assessed as the record in the instant case discloses came within the law’s intent.
Third. — Error is alleged to have resulted from the trial court’s action in permitting ballots cast in the 1938 general election to be examined at the instance of appellee for the purpose of proving how those who signed the Tucker petition voted. Appellant, without objection, had previously produced some of the ballots selected from different voting precincts. There was no charge, nor even the suggestion, that the ballots had not been properly preserved, or that there was want of integrity. Objection was on the ground that ballots cast in 1938 were ‘ ‘ dead ’ ’ in 1940; that they were confidential to the voters who cast them until called for in a timely manner for judicial inspection in consequence of a contest, and that-the voter’s right of privacy had not been waived.
We think the court properly admitted the evidence. It was primary; in fact, it was the best evidence, and although the statute relating to preservation of ballots contemplates that they shall be inviolate, and that they shall be inspected only as the law directs, they wefe not closed to the court in a proceeding wherein the facts they might reveal were indispensable to an adjudication of rights.
Fourth. — Under this subdivision of appellant’s brief there is argument that the ballots cast for Tucker and challenged by appellee were not legal ballots, “. . . since they had been declared void by the Lincoln circuit court and by the Supreme Court in the case of Horn v. Fish; that the persons whose ballots were illegal in the primary election . . .' in 1938 were necessarily void in the general election of 1938. ’ ’ Argument is that such of these ballots as were cast for Tucker in the general election should not be counted and charged against the appellant, “. . . as said ballots of said persons could not have been legally counted in the general election of 1938.”
A sufficient answer to this objection is that there is no testimony 'relating to particular votes illegally cast in the 1938 primary.
Fifth. — There. are miscellaneous assignments, and arguments supporting disputes relating to individual votes and to relatively small groups of votes. These do not determine the result, and therefore are not discussed. The briefs do not contain tabulations showing what the results would have been if all, or only a part, of the miscellaneous votes in controversy had been placed in one or the other column.
Sixth. — Without passing on merits of secondary disputes that cannot affect the final result, we hold, (1) that the trial court had jurisdiction; (2) that it did not err in declining to exclude 390 ballots as to which no further evidence of the voter’s eligibility was shown than the printed poll list; (3) that under party rules which may be enforced those who voted for Tucker in the general election were not entitled to participate in the 1940 democratic primary; (4) that delinquent assessments made by the assessor, and those made by the clerk subsequent to the third Monday in August9 were valid in so far as the right of either officer to make the assessment was an issue; (5) that the assessor’s affidavit to an assessment was not a prerequisite to validity of the vote cast in pursuance of such assessment; (6) that the deputy assessor, Eastham, was a de facto officer, and (7) that it was not improper to examine ballots cast in the 1938 general election.
Judgment affirmed.
This section of Pope’s Digest formerly appeared as § 3740 of Crawford & Moses’ .Digest. The explanation is necessary because reference in former opinions of this court (written prior to publication of Pope’s Digest) are to the Crawford & Moses sections.
Pope’s Digest, § 4745.
See Darmer v. White, 182 Ark. 638, 32 S. W. 2d 625; Tucker v. Moroney, 182 Ark. 681, 32 S. W. 2d 631; McLain v. Fish, 159 Ark. 199, 251 S. W. 686; Craig v. Sims, 160 Ark. 269, 255 S. W. 1; Parrish v. Nelson, 186 Ark. 1118, 57 S. W. 2d 1037; Henderson v. Gladish, 198 Ark. 217, 128 S. W. 257; Taaffe v. Sanderson, 173 Ark. 970, 294 S. W. 74; Wilson v. Luck, 201 Ark. 594, 146 S. W. 2d 696; Horn v. Fish, 198 Ark. 79, 127 S. W. 2d 623.
Constitution, Art. VII, § 46. See White v. McHughes, 97 Ark. 221, 133 S. W. 1026; White v. Reagan, 25 Ark. 622.
There were unimportant exceptions, not affecting the result.
But see Act 37, approved February 13, 1941.
Pope’s Digest, § 4693.
The opinion was handed down October 31, 1932.
We have not overlooked § 20 of Act 123, approved March 19, 1935, which does not abrogate the party rule.
The primary was held August 27, 1940; therefore all assessments were prior to midnight, October 1. | [
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Smith, J.
This is a suit by appellees against appellant to recover damages to compensate injuries which appellees allege they sustained as the result of an automobile collision. Appellant concedes that the evidence before the trial court was sufficient to sustain the verdicts and the judgments thereon in favor of appellees as to liability, but contends the verdicts returned by the jury were excessive, and this appeal questions only the sufficiency of the testimony to sustain the amounts of the verdicts returned.
Appellee, J. M. Rouse, alleged and offered testimony tending to show that his body, legs, arms, and head were injured; that his back and his sacro-iliac joints were bruised, wrenched and sprained; that his left leg near the ankle was fractured and -broken and the muscles thereof torn, wrenched and sprained; that he suffered a severe nervous shock, and that he had sustained permanent injuries. He alleged and testified that he had suffered great physical pain and mental anguish, and was still suffering, and that he had sustained an impairment of his earning capacity, and had lost time from his work, and had incurred obligations for medical, surgical and hospital treatment amounting to $75. There was a verdict and judgment in his favor for $4,000.
The collision which occasioned the injury occurred August 16, 1940. Appellee, J. M. Rouse, testified that he was knocked out of the truck and landed beneath it, and in crawling from under it his right leg was scalded in several places by the boiling water and steam escaping from appellant’s car. He suffered a fracture of both bones of his left leg, the larger bone being split three to four inches above the ankle and down into the- joint. There was a split fracture of the smaller bone, which was chipped off at the lower end. The tendons and cartilage of his ankle were torn loose and bruised and contused. His back and hip were bruised and twisted, causing him much suffering, and he still suffers much pain in his back and hip. He had previously suffered an ailment of his back, but that condition was made much worse by reason of the accident.
Elmer Rouse, Jr., the other appellee, although only 18 years old, is married and has a child. He testified that he sustained bruises on his body, and cuts and lacerations on his hand, and that skin and some flesh were torn out of the palm of his hand, and that he sustained a rupture. There was a verdict and judgment in his favor for $2,000.
Two doctors were called, one for each side, and these witnesses testified with unusual candor and, apparently, without partisanship. Dr. Harris was the witness for appellee; Dr. Mahan for appellant. There is no substantial difference in their testimony; but we must assume that, insofar as there is a conflict, in the testimony of these witnesses, the jury accepted the testimony of Dr. Harris, who stated that he treated J. M. Rouse, by bandaging his left ankle and leg, and that he administered sedatives to relieve the pain, and that he gave sedatives on subsequent occasions for the same purpose. He placed a cast or splint upon the injured leg, which remained there about two weeks, and then another cast was placed upon the leg, which remained until the last week in November, a period of nearly 100 days. During this time appellee, J. M. Rouse, suffered much pain, and was unable to walk without the use of crutches. At the time of the trial, January 28, 1941, the fracture was not completely healed, and Rouse’s ankle was stiff and weak, and his foot turned out. Rouse also suffered much pain in his back and hip. Between the date of the injury and the date of the trial, Mr. Rouse had not been able to do any work of any kind. He was earning* $2.50 per day at the time of his injury, and had the assurance of a job paying a higher wage.
The doctors would not state positively whether the injuries were permanent or not, but both were of opinion that satisfactory progress toward recovery was being made, and that Mr. Rouse would finally be able to use his leg and ankle, but there was no assurance that his ankle would regain its normal strength. Dr. Mahan, called by appellant, testified that Rouse had sustained a fracture of both bones, and that he had a tenderness in his ankle, and a decided limp and that he walked with his foot turned out. Dr. Harris, called by appellee, testified that Mr. Rouse’s ankle was stiff and weak, and that he could not stand on it for any length of time without suffering pain and becoming tired and weak.
As to Elmer Rouse, the testimony was to the effect that there was an enlargement of the inguinal ring to the extent that, by the insertion of the finger, the intestines could be felt. This condition was not characterized as a rupture, but was an abnormal condition which would probably result in a rupture, and especially so if hard labor were performed, and Elmer was advised not to lift heavy objects or to do heavy manual labor, and he was also advised to wear a truss. There was some question whether this condition was caused by the collision and the injury incident to it; but this was one of the questions passed upon by the jury.
We are of opinion that these verdicts were certainly liberal; but we are. unable to say that they are so excessive that they must be reduced in amount. Certainly, the verdicts are not the result of prejudice, for liability for the injury is admitted. Juries have the same right to pass upon the question of the amount to be awarded as compensation for an injury that they have to pass upon the question of liability for the injury; and we may not set aside a verdict in either case where it is supported by substantial testimony. If, however, there is no substantial testimony to sustain a judgment as to amount, it is our duty to reduce it; and if there is no substantial testimony to sustain a finding- as to liability, our duty to dismiss the cause of action is equally certain. Here, liability is admitted, and the infliction of a serious injury upon Mr. Rouse is admitted; and the jury has found— upon evidence which we think sufficient to support the finding — that Elmer has also sustained a serious injury.
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Smith, J.
The question presented on this appeal is the one of fact whether Dan M. Ransom, who died intestate January 13, 1940, had delivered five deeds- to Edwin Ransom, or to Edwin’s wife for him, with the intention of thereby passing the title to the lands described in the deeds.
Edwin Ransom instituted suit against the administrator of the deceased to recover possession of the deeds. The administrator filed an answer and moved the transfer of the case to the chancery court. The administrator then filed another suit-in the chancery court praying the cancellation of the deeds. The case brought in the circuit court was transferred to and consolidated with the ease brought in the chancery court.
Edwin and Dan Ransom were brothers, and Eugene Ransom, the administrator, was Edwin’s son. Eugene testified that before the death of his uncle Dan he assisted in checking the descriptions of the lands described in the deeds in controversy with certain old deeds of his uncle, and that the descriptions in the new deeds corresponded with those in the old ones. He further testified that his uncle Dan owned a safe to which he did not know the combination and he was unable to open it after his uncle’s death, and that he employed a safe expert to open it. The expert drilled into the door of the safe, and finally broke the combination off after working for some time. When the safe was opened the deeds were found therein with other papers belonging to the deceased.
W. E. Radabaugh testified that he was a notary public, and was called in that capacity to prepare five deeds, which Dan Ransom signed and acknowledged before him as a notary public. He recognized the five deeds in question as those which he had prepared. This witness was asked if Dan Ransom stated his purpose in executing the deeds, and the answer was: "He said he wouldn’t make a will because it was too darned easy broke.” The witness further testified: "He (Dan) said if anything happened to him, ‘I want Edwin to have it.’ ”
One of the deeds was dated November 8, 1938, two were dated December 20, 1938, and the remaining two January 5, 1939. One deed recited a consideration of $3,000, and another the same sum. The consideration recited in each of the other three was a thousand dollars, making a total consideration of $9,000 for the five deeds. It is not contended that any part of this money was paid to the grantor.
The testimony in relation to the delivery of the deeds was to the following effect. Dan had a private room at the home of his sister, Mrs. Acklin, with whom he had resided for fourteen years or more. It was Christmas day, 1939, and a number of persons at Edwin’s home. Dan took from a billfold five deeds and delivered them to Edwin’s wife, who placed the deeds on the bed, where they remained until Mrs. Ransom returned them to Dan with the request that he place them in his safe. The most definite testimony was given by J. M. Alexander, who testified that Dan stated, when he delivered the deeds, that he was giving them to his brother Edwin for Christmas. No other witness so testified, and a number of persons testified that Alexander’s, reputation for truth and morality was not good. Others present in the room at the time were Lee James, Elmer Solida, and Clarence Ransom, a son, and Mrs. Ransom, the wife of Edwin. Another person present at the home testified that he saw Dan deliver some papers to Mrs. Ransom, but he did not know what they were.
James testified that when the deeds were delivered he (Dan) said he wanted Mr. Edwin to have his. lands in case anything happened to him. Solida testified that he heard Dan say “If anything happened to him he wanted Mr. Edwin and his boys to have his land.”
There is testimony from which it is fairly inferable that Dan was apprehensive that he would be sued for a large sum for damages; but the deeds did not convey all his lands, nor the major portion thereof, but they did convey about 1,500 acres, some of it in "White county and others in Jackson or Independence county.
Mrs. Louzenia Roberson was a member of the party gathered at Edwin’s home on this Christmas day, and she testified that she did not see any deeds delivered, and heard nothing about the delivery of the deeds, and that Alexander was not present.
We conclude, however, that a preponderance of the testimony shows that the deeds were signed and ac knowledged by Dan and were delivered by him to Mrs. Edwin Ransom; bnt the question in the case is whether they were delivered for the purpose of presently passing the title from Dan to Edwin.
The testimony is voluminous, and we shall not abstract it, but there are two statements made by counsel for Edwin in the course of the trial in the nature of .stipulations which we do copy. Counsel for Edwin said: “If the court please, we will concede that, when Dan Ransom delivered these deeds, we didn’t expect, then or after, to take possession of any of his land unless something happened to Dan Ransom, and that he intended to keep his land and use it as long as he lived and do what he pleased with it, and, whatever was left of it, his brother Edwin was to get- — that is our contention — to let him have use of it, so that will save you having to prove all that.”
Later in the progress of the trial counsel for Edwin said: “If the court please, I will admit on the part of the plaintiff, that, if Dan Ransom had lived, plaintiff would not have interfered with his collection of rents and profits from his farms, as he understood, and only contends, that he was to get the lands conveyed in the deeds in case something should have happened to Dan . and not before.”
It was further stipulated that on June 6, 1939, Dan conveyed to one London a tract of land described in one of the deeds; that on December 12, 1939, he conveyed to one Mrs. Helvering a tract of land included in another one of the five deeds; and that on December 4, 1939, he conveyed to one Osborne a tract of land described in one of the five deeds. These conveyances were all made, however, 'between the date the deeds were acknowledged and the date of their delivery to Mrs. Ransom at the Acklin home.
It does not appear that during the period of time intervening between the date of the delivery of the deeds and Dan’s death, which occurred suddenly and accidentally, that Edwin exercised any act of ownership over any of the lands.
The court found that the deeds had been delivered for the purpose of passing* title, and a decree was rendered in accordance with that finding*, from which is this appeal.
Subsequent to this appeal a bill of review was filed in which it was sought to bring into the record testimony contradictory of certain testimony offered at the first trial. The most important part of this testimony is to the effect that on June 7, 1939, Dan had executed five other deeds to Edwin which were not treated by the parties as having conveyed the title to the lands which they described.
But apart from and without regard to the testimony taken in support of the bill of review, it is our opinion that the testimony does not establish the fact that the five deeds here challenged were delivered for the purpose of passing the title.
It was said in the early case of Miller v. Physick, 24 Ark. 244, that “A deed to be operative must be delivered. The act of signing and sealing gives it no effect without delivery. The delivery is a substantive, specific, and independent act, which may be inferred from words alone, or from acts alone, or from both together, and though there is no particular form in which to make it, still enough must be done to show that the instrument was thereby considered to have passed beyond the legal control of the maker, or his power to revoke it.”
That holding has never been departed from or modified in any manner. On the contrary, it has been reaffirmed in many subsequent cases.
Through the industry of opposing counsel apparently all of our numerous eases on this subject have been cited, but we shall not review them. They apply the principle announced in the Miller v. Physick case, supra, to the facts of the particular cases.
One of the cases cited by appellee and relied upon as being* directly in point is that of Reynolds v. Balding, 183 Ark. 397, 36 S. W. 2d 402, in which case the late Chief Justice Hart said: “It is well settled in this state that, if a deed duly executed and so drawn as to convey a present title is deposited by the grantor with a third person with directions to deliver it to the grantee after the death of the grantor, and the grantor reserves no dominion or control over the deed, the deed is not an attempted testamentary disposition, but is effective as a conveyance of the title as of the date when the deed is deposited. Cribbs v. Walker, 74 Ark. 104, 85 S. W. 244; Fine v. Lasater, 110 Ark. 425, 161 S. W. 1147, Ann. Cas. 1915C, 385, and Brown v. Brown, 134 Ark. 380, 203 S. W. 1009.”
We reaffirm that holding, but there is a very important and controlling distinction between that case and this in that here the grantor did reserve dominion and control over the deeds. In the Reynolds case, supra, the deed had been recorded; here no one of the deeds had been. Not a dollar of the consideration recited in any one of the five deeds had ever been paid, and no act of ownership was ever exercised over any part of any of the lands conveyed. Indeed, it is stipulated that it was not intended that there should be. The stipulation is that Dan “intended to keep his land and use it as long as he lived, and do what he pleased with it, and whatever was left of it his brother Edwin was to get.” In other words, Dan, who had conveyed three tracts of land described in some one of the five deeds, reserved the right to convey any part or all of the remainder, and Edwin was to have at Dan’s death “whatever was left of it.” This could have been done by a will, but not by a deed which was intended to and had passed title. A man may make a will disposing of all his property, and subsequently convey specific portions thereof; but not so when he makes and delivers a deed effective upon delivery. Here, it must be remembered that Dan was in the sole and exclusive possession of the deeds, which had never been recorded, and he had them in a safe to which no other person had access, and of which he only knew the combination. It is said that this possession was for Edwin’s benefit. But for what benefit? The stipulation above copied answers that question, the answer being that it would be a conveyance of the land to Edwin to be effective upon Dan’s death provided Dan did not convey the lands to some other person before he died.
At § 122, p. 506, of the chapter on Deeds, 16 Am. Jur., it is said that “Nor is there a delivery of a deed sufficient to pass title to the grantee where the deed is given to the grantee with the intention that it shall become operative only on the death or survival of the grantor or the grantee, . . .” Annotated cases are cited in the note to this section which collect an innumerable number of cases on the subject. Much truer must this be in a case where, as here, not the grantee, but the grantor, has possession of the deeds, the understanding being, as is here stipulated, that the grantee will, upon the death of the grantor, take title only to such of the lands as the grantor had not conveyed to some other person, or “whatever was left of it.”
In the case of Taylor v. Calaway, 186 Ark. 947, 57 S. W. 2d 410, we said: “The law as to the delivery of a deed is that, in order to constitute a delivery of a deed, it must be the intention of the grantor to pass the title immediately to the land conveyed, and that the grantor shall lose dominion over the deed. Davis v. Davis, 142 Ark. 311, 218 S. W. 827.”
In the case of Maxwell v. Maxwell, 98 Ark. 466, 136 S. W. 172, the headnote reads as follows: “There is no delivery of a deed unless what is said and done by the grantor and grantee manifests their intention that the deed shall at once become operative to pass the title to the land conveyed and that the grantor shall lose dominion over the.deed. Thus where a grantor executed a deed to her son, and left it at her lawyer’s office, telling the grantee that it was there and promising to place it where he could get it if anything happened to her, and he without her knowledge or consent procured it to be recorded, there was no delivery.”
A headnote in the case of Davis v. Davis, 142 Ark. 311, 218 S. W. 827, reads as follows: “To constitute delivery of a deed, there must be an intention to pass title to the land conveyed immediately, and that the grantor shall, lose dominion over the deed.”
We conclude, therefore, that there was no intention to deliver the deeds for the purpose of conveying- the title to the lands which they describe, and the decree will be reversed and the cause remanded with directions to enter a decree conforming to this opinion. | [
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McHaney, J.
Appellants and appellees are all the heirs-at-law of W. 0. Shuffield who died intestate in Howard county on January 20, 1939, — appellants being two daughters, appellee, Argus Shuffield, being an incompetent son, and the other appellees being children and a grandchild of a deceased daughter. Appellees 'brought this action to cancel certain deeds to real property and a certain bill of sale to personalty, executed by W. 0. Shuffield to appellants, on the grounds that said conveyances had never been delivered and were made under condi tions showing conveyances in trust for his use and benefit during his lifetime and for his estate at his death. Prayer was for a cancellation of such conveyances or a holding that they were made in trust for said estate and for partition. The answer was a general denial and a plea of the statute of frauds if appellees claimed an oral agreement of appellants to convey to appellees a share of the property conveyed to them. Trial resulted in a finding and decree for appellees, holding that the deeds and bill of sale were never delivered to appellants in the lifetime of their father, although some of them were placed of record by him; that he purchased certain real property, taking a deed thereto in their names, but that they were never the beneficial owners nor had the possession thereof, and were mere trustees with the naked legal title. Held that appellants and appellees were the owners of said property in effect as tenants in common. Partition was not decreed pending a decision of this case on appeal.
Appellants say there is no evidence to support the court’s finding that the deeds and bill of sale were never delivered by W; 0. Shuffield to appellants. We cannot agree. The undisputed facts are that the first deed was made on June 22, 1929, at the same time the bill of sale was executed, which ostensibly conveyed one lot in block 4, six lots in block 7, one lot in block 8, two lots in block' 10, two in block 13, one in block 14 and one in block 31 of Southwestern Real Estate and Development Addition to Nashville, Arkansas, to appellants, which deed was filed for record by the maker and recorded on July 10, 1929. This deed was not delivered to appellants at that time and, never at all, unless delivered with others and the bill of sale a short time before the grantor’s death. Appellants knew nothing of the making or recording of this deed. The maker thereafter retained possession and control of all this property, paid the taxes thereon, collected the rents and exercised all acts of ownership. A house on lot 10, block 7, was insured in their names and was destroyed 'by fire. The insurance check, payable to them, was indorsed by them and their father collected the money. Appellants say a bundle of deeds, including this one and the bill of sale, was delivered to them late in December, 1938. It must have been early in January, 1939, as the post card, addressed to Janie Morphew, Pick-ens, Oklahoma, where she lived, in which she was asked to come to see'her father, was postmarked in Nashville December 31, 1938, 5 p. m., and was stamped at Pickens, Oklahoma, January 2, 1939. It must have been delivered to her on or after the latter date. But whatever the exact date, they had a conference with their father on his death bed, at which time he attempted to go over his deeds and papers with them, and we think the trial court was justified in finding there was no delivery at that time because the deeds, bill of sale and all papers were left in his possession where they remained until after his death. They were found in a trunk belonging to Mr. Shuffield by a servant in the home. It is undisputed appellants knew nothing of the bill of sale until after the death of their father. There are other facts and circumstances in this record tending to show that this deed was made to appellants to prevent a former wife from getting part of his estate or to prevent creditors from reaching it, although he died solvent. We think these facts and circumstances were sufficient to overcome the presumption of delivery arising from a recording of the deed. This court-has held that “the presumption of delivery arising' from a registration of a deed duly acknowledged and recorded can be overcome only by clear and decisive proof that the grantor did not part with the deed; and the mere fact that the grantor retained the deed in his possession is not sufficient to overcome such presumption.” Graham v. Suddeth, 97 Ark. 283, 133 S. W. 1033. See, also, Holland v. Alexander, 147 Ark. 513, 227 S. W. 778; Reynolds v. Balding, 183 Ark. 397, 36 S. W. 2d 402. The presumption so created is a rebuttable one and is overcome by clear and decisive evidence of a contrary intent, which we think exists here, or, at least, that the trial court was justified in so holding. Therefore, the deeds to appellants executed by their father failed to pass title for lack of delivery. W. 0. Shuffield in his lifetime purchased certain lots and took the title in the name of appellants, and as to this situation we think the court was justified in holding them trustees of a resulting trust. The same facts with reference to such property existed as above recited in relation to his deeds to them. He bought the property with his money, made the trade with reference to them, handled the property as his own, etc. In Stacy v. Stacy, 175 Ark. 763, 300 S. W. 437, Judge Wood quoted with approval Mr. Pomeroy’s definition of a resulting trust, also quoted in Bray v. Timms, 162 Ark. 247, 258 S. W. 338, as follows: “Resulting trusts arise where the legal estate is disposed of or acquired, not fraudulently or in the violation of any fiduciary duty, but the intent, in theory of equity appears or is inferred or assumed from the terms of the disposition, or from the accompanying facts and circumstances, that the beneficial interest is not to go with the legal title. In such case a trust results in favor of the person for whom the equitable interest is thus assumed to have been intended, and whom equity deems to be the real owner.” It was there held that the purchase by the father for the son, under the circumstances of that case, raised the presumption of an advancement, but that the presumption was overcome bj1- the facts adduced in evidence. It is also well settled that the evidence to establish a resulting trust must be clear, satisfactory and convincing,, and we agree with the trial court that as to the property purchased by W. 0. Shuffield wherein he had the deeds made by the grantors to appellants, without their knowledge or consent, and without their ever having exercised any acts of ownership over same thereafter, that they became the holders of the naked legal title only, and were trustees of a resulting trust.
Moreover it appears from a preponderance of the evidence, we think, W. 0. Shuffield intended that his property be divided equally among his children. A brother of the decedent, who was present at the time appellants say their father delivered to them his deeds and the bill of sale, testified that decedent told them he wanted his property'divided among all his children, and that he “never said a word about giving that property to Janie Morphew and Minnie Ellis,” appellants. Decedent told numerous people that, after his death, he wanted Ms property divided among the heirs, that he did not make a will because the lawyers would get a large part of it, and that he had instructed his grantees how to divide it. Appellants, with some corroboration, say their father told them on December 24, 1938, when he conferred with them about his property and delivered ihe deeds and papers to them, that it was theirs. But, as has already been shown, by the post marks on the card to Janie Morphew, asking her to come, it could not have happened on that date, and the deeds and papers were not delivered as they were still in the possession of the decedent at his death, and appellants had to get Mary, the cook, to find them after the funeral.
It appears that the probate court had made an order, without notice, holding that appellants were entitled to all the personal property covered by the bill of sale executed in 1929' by their father, but which was never delivered in his lifetime. The court canceled said order of the probate court and appellants argue that this was error. The probate court’s order was void as it had no jurisdiction to determine the title to property.
The decree is correct, and is accordingly affirmed. | [
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Griffin Smiti-i, C. J.
Clyde Lamb, constable and deputy sheriff since 1926, was indicted for obtaining money by false pretense. Pope’s Digest, § 3073. A jury found him guilty and fixed punishment at one year in the penitentiary.
Acting, ostensibly, in his official cápacity (but in fact without warrant of law) appellant collected an excessive sum of money from Ern. McDaniel who had agreed to plead guilty to a charge of possessing untaxed liquor. It was understood that the lowest permissible fine would be assessed. Justice of the Peace Erith Dixon entered on his docket a fine of $5. Dixon’s fees amounted to $2.30, and $1.30 was credited to the constable, a total of $8.60.
There .was proof that McDaniel was arrested Saturday, August 10, 1940, and placed in jail. Thirty minutes later he was released by appellant, who told him “they” were going to fine him. The Negro was directed to return the following day.
McDaniel testified that the next day, in response to appellant’s suggestion, he went with appellant to see the justice of the peace, remaining in his (McDaniel’s) car while the two officials conferred in appellant’s home. McDaniel then went home, but returned in about an hour, appellant having stated that the fine and cost amounted to $30. It was agreed that the amount might be paid in installments. Appellant accepted $15, for which a re ceipt was given. It read: “Balance, $15 as forfeiture on fine and cost, possessing liquor.” Later, according to McDaniel, three payments were made to Lamb: one for $10, one for $4, and one for $1. McDaniel was not able to produce the ten-dollar receipt, but exhibited, another, dated October 13 (unsigned) evidencing payment of $5, and marked, “balance $1.” He testified $4 was paid at the time the receipt was written, but that the remaining dollar was paid at a later date.
It is first insisted that the money collected was based on a future transaction, and therefore does not come within the false pretense statute. False pretense is a misrepresentation of an existing fact or past event, as distinguished from a promise to do something in the future, or a misrepresentation regarding what is to be done in the future. Lawson v. State, 120 Ark. 337, 179 S. W. 818. In the Lawson case, however, it was held that where the defendant falsely represented himself to be a revenue officer, and that it was within his power to arrest witness, but proposed to “end the matter” for $300, which was given him, the accused was guilty of obtaining money by false pretenses.
In the instant case there was no misrepresentation in respect of the officer’s capacity, or identity, but there was a false statement regarding the obligation. Appellant either knew, or bjr the exercise of slight care could have ascertained, that the fine and costs only amounted to $8.60. Appellant denies having received more than $15. There is convincing evidence that he admitted, prior to trial, that $30 was paid by McDaniel. The explanation was that such payment was “a forfeiture — a sum forfeited when a man didn’t want to appear in court.”
There was substantial evidence that after receiving the first $15, appellant collected an additional $15. This did not relate to a future transaction.
Exception was taken to the court’s refusal to give appellant’s requested instruction, shown in the footnote. There is no evidence that the items — costs and fine— amounted to $15; -lienee, refusal to give the instruction was not error. In appellant’s brief it is only argued that costs, fine, etc., amounted to “approximately” fifteen dollars.
The strongest proof of appellant’s guilt comes from witnesses who testified that when he was confronted with details of the alleged transaction there was an admission that $30 was received. Justification was predicated upon the claim that the payment was a forfeiture.
Affirmed.
The statement apparently had reference to fine and costs.
“If you find that the defendant collected only $15 from Ern. McDaniel, and the fine, J. P. and constable, and the amount due the sheriff, amounted to the sum collected, then you will acquit the defendant.” | [
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Griffin Smith, C. J.
Georgia Johnson, a person of unsound mind, died in April, 1940. From December, 1926, Edd Hodges had been guardian. An administrator was appointed in June, 1940, and two months later Daisy Bright, an aunt with whom the incompetent had resided, filed- claim for $3,437.20. She alleged the amount to be due as difference between a reasonable charge for services rendered and $2,862.80 paid during a period of slightly more than ten years.
Payments by the guardian varied from a low of $57.80 in 1933 to a high of $565 in 1939. A uniform charge of $50 per month is asserted. In the same claim the account of Hodges, guardian, for $960.03, was presented. Appellant’s demand and that of Hodges were allowed by the administrator August 31 — the same day presented; and in September there was court approval. February 10, 1941, at a term of probate court subsequent to that during which the claims were approved, the court set aside that part of the judgment allowing appellant $3,-437.20, and directed that a hearing on the merits be had. Daisy Bright has appealed.
The only question is whether the court had power to vacate its former adjudication.
Appellees are a sister and' brothers of the deceased by the half-blood. Contention is they had no information of the claim; that the administrator is not a creditor, nor related to any of the parties, and was appointed to aid appellant in wrongfully acquiring the dead girl’s estate. This is denied by appellant, who interposed a demurrer to appellees ’ substituted motion to vacate the judgment. When the demurrer was overruled a response was filed.
Appellees rely upon § 8246 of Pope’s Digest for authority to have the judgment nullified, and have proceeded in the manner directed in § 8248.
That courts of record lose control of their judgments and decrees after lapse of the term and thereafter may not disturb them (except as provided by statute and for the purpose of making corrections, mmc pro tunc, in respect of misprision and clerical error) is well settled. Spivey v. Taylor, 144 Ark. 301, 222 S. W. 57.
Appellant insists that the judgment is erroneous because the petitioners did not allege they were parties to the proceeding in which judgment was rendered. The argument is that suit could be instituted in chancery court only. Hoshall v. Brown, 102 Ark. 114, 143 S. W. 1081.
In the Hoshall-Brown Case the language relied upon is: “These judgments of the probate court, moreover, were final after the expiration of the term at which they were rendered, and could not be reopened by the probate court, and could only be called in question by appeal or by original bill in chancery on the allegation of fraud, accident or mistake.” The statement is quoted from an opinion by Chief Justice Bunn, the case 'being Jackson v. Gorman, 70 Ark. 88, 66 S. W. 346. It was held in the Hoshall-Brown Case, written by Mr. Justice Carroll D. Wood, that certain decisions had no application to the case at bar “for the reason that the exceptions presented by appellants . . . are nothing more nor less than a collateral attack upon the judgment of the probate court. ??
It must be conceded that the statement by Chief Justice Bunn, if literally construed, supports contentions of appellants. But then, as now, the law which appears as § 8246 of Pope’s Digest was in effect, and it must have been the purpose of the court to say that in the case under consideration the methods of relief mentioned were available. There was no express holding that the statute could not be invoked to set aside a probate court judgment.
In the Jackson-Gorman Case it was held, and reaffirmed in the Hoshall-Bfown Case, that probate courts are courts of superior jurisdiction. See Sewell v. Reed, 189 Ark. 50, 71 S. W. 2d 191; Branch v. Veteran’s Administration, 189 Ark. 662, 74 S. W. 2d 800; Levinson v. Treadway, 190 Ark. 201, 78 S. W. 2d 59.
In Dunn v. Bradley, 175 Ark. 182, 299 S. W. 370, the circuit court declined to reverse action of the probate court in refusing to set aside its judgment probating a will. This court affirmed, but said: “One of the grounds for vacating a judgment [of the probate court] after the expiration of the term is ‘for fraud practiced by the successful party in the obtaining of the judgment or order. ’ Section 6290, C. & M. Digest, subdivision 4.” [See, also, Young v. Young, Guardian, 201 Ark. 984, 147 S. W. 2d 736.]
On behalf of appellant it is argued that allowance of her claim by the probate court involved a special proceeding, as distinguished from a civil action. Pope’s Digest, §§ 1229, 1230, 1231. But § 8246 of Pope’s Digest applies to “The court in which a judgment or final order has been rendered.” That an order of the probate court allowing the claim of a creditor has the force and effect of a judgment was decided in Jackson v. Gorman and Hoshall v. Brown, supra, and in many other cases; and this being true, the remedy by which the claim was converted into judgment was an action. Appellant alleged an indebtedness, that it was unpaid, and invoked judicial power to the end that the claimed obligation might be collected. In view of expressions appearing in many decisions of this court to the effect that orders of the probate court have the force of judgments, we are not persuaded that it would be proper to hold that allowance of such claims must be classified as special proceedings and that § 8246 of Pope’s Digest may not be resorted to, as in the instant case.
The close question, we think, is whether there was proof to sustain allegations of the substituted motion. The statement filed by appellant was not itemized other than through the entry of annual charges, corresponding credits, and a showing- of the difference. Yet it must be presumed that the probate court had in mind all circumstances and facts relating to original approval when the order of revocation was made. The court knew what methods were practiced in obtaining judgment; and its finding that appellant’s conduct constituted legal fraud will not, therefore, be disturbed. The same judge made both orders, and the imposition for which a judgment may be vacated after lapse of the term of a probate court (and after intervention of a new term) appears on the face of the record in the exhibit attached to the claim. There is no allegation of a contract with the guardian, although denial is made that no such contract existed. Pope’s Digest, § 100. This denial is in appellant’s response to the motion to vacate.
We think the ends of justice would be best served, and no rule of law violated, by holding that the probate judge did not abuse discretion of the court in avoiding the judgment and in directing that a hearing be had on the merits of the case. Appellant is now represented by able, ethical attorneys, who may be relied upon to protect her interests.
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Mehaeey, J.
The appellee, Joe Gold, instituted this action in the -Sevier county chancery court against the appellants and Theodore Davis, Mrs. G. O. Collins, Fred A. Iiaak, E. L. Pelham, U. S. Antimony Mining- Corpora tion, Stibnite Production Company, a corporation,- and Tom Arms, Henry Byes, Carl Smith, N. W. Fortune, Bob Caddell, John Barnes, and George Miller. The defendants, U. S. Antimony Mining Corporation and Stibnite Production Company and E. L. Pelham did not appear in the court and did not file any pleadings, but made default. The other defendants appeared in person and by attorney.
The appellee, in his complaint, asked that the power of attorney given to Davis and the quitclaim deed .executed by Davis to the U. S. Antimony Mining Corporation be canceled, annulled and set aside, and the title of the property so conveyed to said corporation, be revested in the plaintiff as trustee, and that the equipment described in the complaint be vested in plaintiff as trustee, and that the interests of the defendants be established; that the claims of the defendants Tom Arms, Henry Byes, Carl Smith, N. W. Fortune, Bob Caddell, John Barnes and George Miller be declared void; that the rights of the plaintiff in and to said property be declared superior and paramount to those of any of said defendants, and that the plaintiff have judgment against Davis, Collins, and the U. S. Antimony Mining Corporation for the purchase price of the said Otto Mine and the equipment thereof; that said amount be declared a first lien on all of said property, and that said property be ordered sold for his costs and other proper relief.
Notice of lis pendens was filed, and there was- a motion by defendants Kendrick and Eiermann to require the plaintiff to make his complaint more definite and certain.
Separate answers were filed denying the allegations in the complaint. A reply by plaintiff to the answer of Tom Arms and others was filed. There was then an order appointing a receiver. The receiver’s inventory was filed, and after hearing all the evidence, the court entered a decree stating that all parties appeared by their attorneys except the defendants, U. S. Antimony Mining Corporation and Stibnite Production Company and E. L. Pelham. The decree stated that the Stibnite Production Company had been duly served, and that it further appeared that E. L. Pelham and U. S; Antimony Mining Corporation had been duly served by the publishing of a warning order; that the cause was thereupon submitted upon the pleadings, the report of E. K. Edwards as attorney for the non-resident defendants, the proof of publication of warning order upon the notice lis penclens, and upon the testimony of witnesses ..taken orally before the court, and upon the record of Joe Edgar, justice of the peace, in the case of Tom Arms and others against Theodore Davis, Joe Gold, and U. S. Antimony Mining Corporation. After briefs of counsel had been filed, a receiver, Custer Highes, was appointed to take charge of the property of the U. S. Antimony Mining Corporation, and directed to take charge of said property and to make and file an inventory thereof. Said receiver gave bond in the sum of $1,000.
The court found that the plaintiff, Joe Gold, is the owner of 200 shares of stock in the U. S. Antimony Mining Corporation, a corporation organized under the laws of the state of Louisiana; that said corporation has not qualified to do business in the state of Arkansas, and the court further found that Joe Gold had purchased the lands described-in Sevier county for the corporation and had paid therefor the sum of $600, which sum had not been repaid to him. The court further found that Joe Gold, the appellee, bought and furnished to said U. S. Antimony Mining Corporation for use at and upon the mine located upon said land and known as the Otto Mine, machinery and equipment now located at said mine, costing the said plaintiff the sum of $1,118, which amount has not been repaid to the plaintiff by the corporation or anyone for it. The court further found that Tom Arms and others had performed work and labor upon the above described property in the aggregate amount of $553.50; decreed that the property purchased and paid for by the appellee should be declared to be his property, subject, however, to the payment of the laborers’ claims above set forth in the sum of $553.50. The court further found that the appellee had paid the labor claims and that all of the said property should be declared free and clear of the, claims of the laborers. The court found that the power of attorney issued by appellee to Davis was void and that the same should be canceled; also that the quitclaim deed executed by Davis to the U. S. Antimony Mining Corporation was void and should be canceled and held for naught. The court further .found that defendant Davis, without any authority from the U. S. Antimony Mining Corporation, entered into a contract with Stibnite Production Company to sell to said corporation the land described and equipment at the mining property; that the instruments were executed without authority of the corporation and that all of said contracts and agreements and instruments should be canceled and the agreement of sale be declared null and void.
It was further decreed by the court that all of the property mentioned should be delivered over to the plaintiff, Joe Gold, by the receiver, but finds that if the U. S. Antimony Mining Corporation, or any of its stockholders, desire to reclaim or redeem said property, it.or they may do so by the payment to Gold, within 30 days, the amount paid out for laborers, the receiver’s fee, the amount of court costs, and the further sum of $1,718 paid out by plaintiff for the property described; that upon the payment of said amount into the court, the said Joe Gold shall deliver said property to the corporation or its stockholders who so redeem the same. The receiver ’s inventory described the property, and the court fixed the receiver’s fee at $35, and found that the plaintiff had paid this amount to the receiver.
The appellants, Kendrick and Eiermann, filed exceptions and have appealed to this court. No one else has appealed.
There was some conflict in the evidence, but after a careful consideration of all the evidence, we have concluded that the finding of the chancellor was supported by the evidence.
As we have already said, the U. S. Antimony Mining Corporation was organized in Louisiana, and incorporators were Theodore Davis, G. O. Collins, and E. L. Pel ham. Davis was president, Pelham, vice-president, and Collins, secretary-treasurer. At the time of the incorporation it had a lease on 100 acres of land in Sevier county. Gold had entered into an agreement with Davis and Collins to invest $1,000 with said parties in carrying on the enterprise and he was to receive 200 shares of the capital stock, which at that time was fixed at $20 per share.
The undisputed evidence shows that Gold advanced the money in the amount .found by the court. After the decree the appellants’ filed motion to vacate the decree, and they argue that the decree should not have been entered on July 8, 1940, because they had not had time to make arrangements for the Louisiana corporation to comply with the Arkansas law so that it might do business in Arkansas.
In the first place, July 8th had been fixed for the time of rendering the decree for some time, and appellants do not show that they were prejudiced by the entering the decree on that day. There is no effort to show that they could, at any time, have arranged for the Louisiana corporation to do business in Arkansas; there is no evidence that they could have done this.
It seems to us that it is immaterial, so far as appellants are concerned, whether the power of attorney and quitclaim deed to the Louisiana corporation should have been canceled or not. It is true that one of the parties, in his evidence, claimed to have spent money relying on the power of attorney, but that party did not appeal, and neither of appellants shows that he lost any money because of the cancellation of the power of attorney or the deed.
It is also contended by the appellants that the court erred in finding that Gold was the owner of 200 shares, but failed to adjudicate the interest of other stockholders, contrary to the principles of equity. There was no reason why the appellants could not have been present and requested the court to make this finding, but neither of them did so; and they cannot now complain that the court did not make this finding. There is, however, no dispute about their ownership of stock or their interest in the corporation, and all that the court found that affected their rights was that Gold should be reimbursed for the money he spent. The decree provided, however, that the corporation or any of its stockholders might redeem all the property by paying Gold’s debt.
Appellants ask that they be given an'opportunity to have the U. S. Antimony Mining Corporation qualified to do business in the state of Arkansas, or'organize a new company. Appellants were not prohibited by the decree, or in any other manner, from qualifying the corporation to do business in Arkansas, and they have had practically a year in which to do either of these things. •So far as the record shows, however, nothing has been done by them.
There is practically no dispute about any proposition of law involved in this case, but it is simply a question of fact.- The rule of this court has been, for a long time, that we will not reverse the decree of the chancellor on the facts, unless Ms finding appears to be against the preponderance of the evidence. We are of opinion that the chancellor’s decree in this case is supported by the evidence, and it is, therefore, affirmed. | [
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G-reenhaw, J.
This is an appeal by the former wife of the appellee from an order of the Pulaski chancery court entered on April 24, 1941, modifying its decree entered on November 24, 1931, by reducing the alimony of $60 per month awarded appellant in the first decree to $45 per month, on application of the appellee. This case was tried by the court upon the pleadings and the exhibits thereto, and the depositions of the appellant and appellee herein, together with the exhibits thereto attached.
It appears that the appellant and appellee lived together as husband and wife in Richmond, Virginia, where the appellant still resides. The appellee came to Arkansas, where he has since resided, and subsequently brought suit in the Pulaski chancery court against the appellant for a divorce, to which the appellant filed an answer and cross-complaint. The court on November 24, 1933, dismissed the complaint for want of equity and granted appellant a divorce upon her cross-complaint, awarded her the custody of their fifteen-vear-old son, and adjudged and decreed that appellee should pay his wife the sum of $100 per month, beginning December 1, 1933, for a period of twenty-four months for the support and maintenance of herself and son, the sum of $75 being for her and $25 for the boy. At the expiration of the twenty-four month period the amount payable to her was to be reduced to $60 per month, the $25 monthly allowance for the child to remain in effect in the future. Immediately following the support and maintenance provision of dhe decree, copy of which was attached as an exhibit to the petition herein, appeared the following paragraph :
“The court doth find that this decree is by agreement and consent of the parties, and it is by the court approved in all respects and is hereby entered as a consent decree; that all property not disposed of at the commencement of this action which either party hereto obtained from or through the other during the marriage is hereby annulled, and in consideration or by reason thereof, be restored to them respectively.”
The lower court found that the appellee herein was entitled to a modification of the decree by a reduction of the monthly payments of $60 to $45 per month, and entered an order to that effect, from which is this appeal.
The evidence shows that the appellant is 48 years of age and the appellee 47. Appellee at the time the first decree was entered in November, 1933, was earning approximatly $60 per week. He married again on January 1, 1934, about five weeks after the divorce was granted to his wife, the appellant herein. He is now earning approximately $100 per week, or about $40 more per week than he was earning at the time of the divorce decree in which he consented to the allowances therein made. He is employed by a local corporation, in which he has purchased stock and is paying for it out of his salary.
Appellee claimed that the husband of his sister was in bad health and this family needed his financial assistance, but the evidence showed that his niece who has a responsible position in a bank in Bichmond is able to help her parents, and it was further shown that the appellee has a brother engaged in the newspaper business in Texas who is in a position to render financial assistance, if necessary, to the family of his sister.
Appellee further claimed that his step-mother in Virginia needed financial assistance from him, but it was shown that she is in the Christian Church Home at Jackson, Florida, and at present requires no financial assistance from the appellee.
The son of the appellant and appellee came to Arkansas because the appellee refused to provide for his education if he' remained with his mother in Virginia, and since that time the son was in the custody of the appellee until he became 21 years of age, over a year ago. The son is now married, and appellee sometimes helps his son and daughter-in-law financially.
Appellee further testified that he had purchased a home for which he is now paying.
After the divorce, the appellant, in order to qualify herself as a teacher, spent more than $1,500 going to school in order to prepare herself for this profession. She attended school for two years, including summer sessions, and finally obtained a position as a substitute teacher in Richmond, Va. She has been regularly employed since 1939, earning about $1,200 a year. About 1939, appellant was forced to undergo a serious major operation. She has been in poor health since that .time, and is still under the care and treatment of a physician, the expenses incident to her illness and operations amounting to more than $700. Appellant owns no property and has no income other than her salary as a teacher and the monthly payments which she received from the appellee.
Appellant further testified that her necessary monthly expenses amount to the sum of $127.50. These expenses were itemized in her deposition, and they appear to us to be reasonable. With her salary of $100 per month and the $45 per month allowed her in the modified decree she would have left, after paying her necessary monthly expenses, only the sum of $17.50.
We have carefully considered all of the evidence in this case, and cannot agree with the lower court that the monthly award of $60 given appellant in the original decree should be reduced. While the desire of appellee to assist his family is praise-worthy, appellee is under no legal obligation to contribute anything to the support of his step-mother, the family of his brother-in-law, nor to his son and his wife; nor was it shown that his contributions to them are such as to entail any periodic and fixed payments by him, but rather that the assistance rendered them by him is only .spasmodic and irregular. Appellee admits that he is paying for stock in the corporation by which he is employed from month to month, thereby accumulating an investment for himself which will be of no benefit to the appellant. He is paying for a home which will inure to his own benefit, but not to the benefit of the appellant. These are no doubt worthwhile investments, but they do not relieve the appellee of the obligations to his former wife provided in the original decree of divorce.
This is not a case where'the income of the former husband has been materially reduced to such an extent as to justify a modification or reduction of former allowances. On the other hand, the appellee in this case is now drawing, according to his own testimony, approximately 66 2/3 per cent, more salary than he was drawing at the time of the original decree. Under the modified decree the allowance to the appellant has been reduced 25 per cent. It was also in evidence that the appellee, his brother and sister are the owners of real estate in Bichmond, and that they will come into possession thereof upon the death of the step-mother.
The appellee has no children by his second wife for whose support he would be morally and legally bound. He voluntarily entered into another marriage soon after the divorce, and any obligations on the part of the appellee to provide for his second wife, under the circumstances in this case, should not jeopardize the rights of his former wife, the appellant herein. According to the undisputed evidence in this case, the appellee is in much better financial condition to pay alimony to his former wife now than when the divorce decree was granted in which the agreement to pay her $60 per month after twenty-four months was incorporated in the decree by consent of the appellee.
Appellant further testified in her deposition, on March 4, that the appellee paid her only $30 per month for the two preceding months, which, of course, was only one-half of the amount due her under the November, 1933, decree. If it is true that the appellee is in default in any payments due the appellant, the court below will no doubt, upon appropriate application, make suitable orders to enforce their payment.
The decree of the court below is, therefore, reversed and remanded, with directions to dismiss the petition of the appellee for want of equity.
It further appearing that this court has heretofore made an order in this ease for the appellee to pay the sum of $25 attorney fees for the attorneys of appellant, and that that sum is inadequate for the work done by appellant’s attorneys herein, the appellee is ordered to pay an additional attorney fee of $50 to the appellant’s attorneys, together with the expense of printing the' briefs for appellant in excess of the $25 heretofore allowed appellant for this purpose.
McIíaney, J., dissents. | [
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Smith, J.
This suit is predicated upon breach of a contract between appellant and appellee. Just what appellant is, and how organized and operated, does not appear, but on June 7, 1938, appellee made written application for membership in the association. The application contained the recital: “I authorize and direct my employer (whose name was not stated) to deduct from my gross earnings $2 per month, beginning' one month from the date of this application, and to pay the same to W. Gr. Stiles, as agent and attorney in fact for the association.” This application was apparently intended to authorize any person employing the applicant to pay the association dues of $2 per month. Upon this application there was issued to Branch, the appellee here, a certificate of membership, which entitled him to certain hospital services and medical attention.
A complaint was filed in the court of a justice of the peace, alleging a breach of the obligations of this certificate of membership. The summons which issued was served by the constable on “'C. Wyss, agent of defendant at said 0. Wyss’s office in Ola, Yell county, Arkansas.” C. Wyss was the secretary and manager of a lumber company by which Branch was employed. The undisputed testimony is to the effect that Wyss was not the agent of the association, and had no connection with it except that Branch’s application for membership in the association authorized the lumber company, as his employer, to deduct' and remit $2 per month of his wages to the association.
The association appeared specially before the justice of the peace and moved to quash the service of the summons, and when that motion was overruled an answer was filed, reserving the question of the sufficiency of the service, in which answer liability on the certificate of membership was denied. Judgment was rendered by the justice of the peace for the amount sued for, from which the association appealed, reserving the question of the sufficiency of service of process. There is a sharply disputed question of fact whether the appeal was perfected within the thirty days allowed by law for that purpose. While that question was before the circuit court, application for a writ of certiorari was prayed, upon the ground that the judgment of the justice of the peace was void for want of service. The circuit court held that the appeal had not been perfected in time, and on November 27, 1940, denied the application for certiorari, and this appeal was perfected February 10, 1941. Pending final order, the cases were consolidated in the circuit court.
If the judgment of the justice of the peace court was rendered without service — as we think it was. — it becomes unnecessary to decide whether the appeal was perfected in time.
It had long been the rule of practice in this state that, if the defendant questioned the sufficiency of the service of the process by which he had been brought into court, and his motion to quash the service was overruled, he might, by an appeal, have the service quashed by showing its insufficiency, but that his appearance was entered when he did so. After citing a number of cases so holding it was said in the case of Anheuser-Busch, Inc., v. Manion, 193 Ark. 405, 100 S. W. 2d 672, that: “By that rule one who has successfully defended his position and has established the fact by appeal that the effort to capture him was wrongful is told that because he struggled to avoid capture he must now surrender. Though he prove, the trial court had no jurisdiction of his person, he is remanded to the processes of that court on account of the very fact that he has established the wrongful exercise of those processes. A theory so technical, so inconsistent and anomalous should have no place in modern law. We have heretofore given notice that that matter of procedure was under re-examination as indicative of our purpose to announce a sounder principle. See Chapman & Dewey Lbr. Co. v. Means, 191 Ark. 1066, 88 S. W. 2d 829; Robinson v. Means, 192 Ark. 816, 95 S. W. 2d 98; Safeway Cab & Storage Co. v. Kincannon, 192 Ark. 1019, 96 S. W. 2d 7. There is no rule of property involved, there is no vested right in any rule of procedure held by any litigant. We, therefore, hold appellant has not by appeal entered its appearance, and we overrule that part of the opinions in cases above cited as so holding that an appeal enters appearance.”
The reasons inducing this change of practice apply to suits brought in the court of a justice of the peace as well as to those brought in other courts, and we, therefore, hold that one not served in a suit before a justice of the peace, who, at all times, questions the sufficiency of the service, and does not waive that question, does not enter his appearance when he appeals from the judgment of the justice holding the service sufficient.
But was the service sufficient? Opposing counsel discuss the case of Baskins v. United Mine Workers of America, 150 Ark. 398, 234 S. W. 464, where it was held that “An unincorporated association cannot, in the absence of a statute authorizing it, be sued by its society or company name, but all the members must be made parties, since such bodies, in the absence of statute, have no legal entity distinct from that of their members.”
We do not know what appellant is. Appellee designates it a benevolent association, which, under the provisions of § 2257, Pope’s Digest, may sue and be sued in its corporate name. But, even so, process must be served upon it as required by law.
The certificate of membership, upon which this suit is predicated, is signed “Peoples Medical Protective Association, by W. G-. Stiles, its agent and attorney in fact.” A reading of the certificate indicates that Stiles is the association, that is, that he is operating under that name. But, even so, Stiles was not served with process. The only service had in this case was upon Wyss, the secretary and manager of the lumber company by which Branch was employed, and the only connection the lumber company has with this litigation is that it was authorized by appellee Branch’s application for membership to deduct and remit $2 per month to the association in payment of Branch’s monthly dues. Certainly, neither the lumber company nor Wyss as its manager was the agent of the association for purpose of service of process in a suit against the association, so that the case stands as if no service was had.
This being true, the case of Chevrolet Motor Co. v. Landers Chevrolet Co., 183 Ark. 669, 37 S. W. 2d 873, applies and governs. There, a defendant not properly served appeared specially for the purpose of quashing the service, which motion was overruled, after which judgment was rendered by default. The defendant in that case, as in this, filed petition for a writ of certiorari, which there, as here, was denied. The judgment in that case was reversed and the cause was remanded to the circuit court with directions to quash the judgment of the justice of the peace court as being void for the want of proper service.
For the same reasons, the same order will he made here. | [
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MoHaney, J.
This action originally was one by-appellee against appellant to cancel an alleged void tax sale and donation certificate. A decree granting the relief prayed was affirmed by this conrt November 13, 1939. Patterson v. McKay, 199 Ark. 140, 134 S. W. 2d 543. Thereafter, appellee filed a motion in the same case in the chancery court for a writ of assistance in which it was alleged that appellant is now and has been since the rendition of the original decree in possession of the 80 acres of land in controversy and refuses to surrender same to appellee wrongfully and unlawfully, “and in violation of the decree, holding said lands without claim or title or right of possession.” Appellant demurred to this motion on the ground that the court had no jurisdiction to order the issuance of the writ; that the lower court and this court found and held that the original action was not for possession but only to remove a cloud on title; and that the action cannot now be converted into one of ejectment. The court overruled the demurrer, granted the writ of assistance as prayed and this appeal followed.
In so holding, we think the court fell into error. As said in the recent case of Allison v. Williams, 191 Ark. 976, 88 S. W. 2d 1001;-“The office of the writ of assistance has ever been confined, not only in this country, but in England as well, to lend (lending) aid to the original equity jurisdiction, and such writ cannot be employed as a substitute for other common law or statutory actions.”
It is well settled “that equity jurisdiction to quiet title, independent of statute, can only be invoked by a plaintiff in possession holding the legal title. The reason is that where the title is a purely legal' one, and some one else is in possession, the remedy at law is plain, adequate and complete, and an action by ejectment cannot be maintained under the guise of a suit to quiet title. In such case, the party in possession has a constitutional right to trial by a jury.” Jackson v. Frazier, 175 Ark. 421, 299 S. W. 738; Fisk v. Magness, 193 Ark. 231, 98 S. W. 2d 958.
As stated above, it was held on the former appeal of this case that the chancery court had jurisdiction to cancel a void tax sale and a donation certificate based thereon at the instance of appellee even though appellant was in possession, and it was very strenuously there insisted that the action was one to quiet title against a defendant in possession, but we held it was not, but only to remove a cloud on title. Even so, we very carefully warned appellee in that case that: “When the possessory action is begun, many authorities cited by appellant will be applicable.”
It appears to us that appellee is seeking to do by indirection what he admittedly could not do directly. He seeks to convert a non-possessory action in equity into one in ejectment and still maintain it in equity, thereby depriving appellant of all right to have compensation for his improvements made. It was held in the case of Beloate v. State, 187 Ark. 17, 58 S. W. 2d 423, that the provisions of § 3708, C. & M. Digest (§ 4663, Pope’s Digest) do not require that a tender of the value of improvements be made to an occupant under a donation certificate in a suit attacking the tax sale upon which the donation certificate is based. 'But it was not held there that the occupying donee under a donation certificate might be dispossessed without compensating him for the value of the improvements made. On the contrary, it was held in said Beloate case that if the tax sale were held void “the court would, no doubt, ascertain the value of any improvements made upon the land by the donee by virtue of his certificate of donation under § 10120, Crawford & Moses’ Digest (13884, Pope’s Dig.) and require the payment thereof as a condition upon which a writ of possession might issue.” Appellant may not be deprived of this right merely because the tax sale was held bad in the former opinion. For aught that appears in the record to the contrary, appellant may have had such possession that he may not now be dispossessed, even though the donation certificate has been canceled as being based upon a void tax sale. That, too, is a question which appellant has the right to have tried in a court of law. Under the provisions of act 7 of 1937, appearing as § 8925, Pope’s Digest, possession under a donation certificate for two years suffices to defeat a recovery of possession in the original action. Appellee received all the relief to which he was entitled in the original action from a court of equity — the cancellation of certain instruments or conveyances as clouds on his title. He now desires to obtain possession, but he cannot get it in this summary way. Appellant has the right to defend his possession in an action at law.
The decree will be reversed, and the cause remanded with directions to sustain the demurrer, and for further proceedings according to law, the principles of equity and not inconsistent with this opinion. | [
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McHaney, J.
On January 30, 1925, appellee, J. T. Blackshare, and wife executed their promissory note for $2,000 secured by a mortgage on fractional north half southeast quarter section 14, 22 north, 7 east, Clay county, Arkansas, to E. D. Huffman. Said note was not paid at maturity, taxes became delinquent, both general and drainage, and insurance premiums were not paid, as required.by the mortgage. The note and mortgage were in due course sold and assigned to Bank of Gerald in Missouri, and it is now in the hands of appellant, Commissioner of Finance of the state of Missouri for liquidation. The firm of Linke & Hoffman at all times represented as agents the mortgagee and his assignee, the Bank of Gerald. Said firm attempted to get the mortgagors to pay the taxes, assessments and mortgage indebtedness, and caused foreclosure proceedings to be instituted, whereupon the mortgagors, on February 8, 1935, executed and delivered their deed to the property to Ellen N. AufderHeide, for the mortgagees, and the foreclosure suit was thereupon dismissed. The mortgaged property became delinquent for the drainage district taxes for 1930 in the Central Clay Drainage District, and in a foreclosure proceeding by the drainage district, the land was condemned and ordered sold and was sold to the district on November 22, 1932, for the taxes of 19301. Title thereto remained in the district until January 9, 1936, when it sold and conveyed same to appellee, J. L. 'Blackshare, who took possession thereof and still remains in possession. He paid the district $185.12 for his deed to same.
Appellants brought this action as one for unlawful detainer in the circuit court on January 7, 1937, against J. T. and J. S. Blackshare. Later, on motion of J. T. Blackshare, it was discovered that there was no such person as J. S. Blackshare, and his name was dropped from the action, and J. T. Blackshare answered with a general denial. Later still, appellants discovered that J. L. Blackshare, father of J. T., was living on the place and was claiming title by reason of an unrecorded drainage district deed. He was made a party and the complaint was amended so as to allege that J. T. was a tenant of appellants, and that he executed a deed to his father, J. L., which only assigned his right as tenant, and that due to the fact J. L. was a tenant at the time he purchased from the drainage district and that he was in privity of blood and estate with his son, J. T., appellants were entitled to have the drainage district deed canceled or treated as a redemption or to have J. L. held as a trustee under said deed, and they offered to repay his outlay for said deed, with interest and costs. Other allegations of fraud were made. They prayed the appointment of a receiver to collect the rents, the cancellation of the drainage district deed and that their title be quieted. By consent the case was transferred to equity. Appellees answered with a general denial. Trial resulted in a decree dismissing the complaint for want of equity and this appeal followed.
For a reversal of this decree appellants make two contentions: 1st, that the privity between the father and son estops J. L. Blackshare from asserting his drainage .district title against them; and, 2nd, that they had a binding contract with said district that the lands should not be sold to a third person.
1. It is true, as appellants point out and as shown by stipulation, that the appellees had owned the land in controversy jointly, then separately and finally J. T. became the owner and mortgaged same, which mortgage was held by appellants. This mortgage was dated Jan-nary 30, 1925, and due November 30, 1929, with 7 per cent, interest. It was not paid at maturity or at all. On February 8, 1935, J. T. conveyed same by quitclaim deed to Ellen N. AufderHeide who was the nominee of Linke & Hoffman, agents of appellants, and on September 23, 1936, she conveyed by quitclaim to the Bank of Gerald. The foreclosure action was dismissed. It was agreed that J. T. remain in possession and farm the land, and that he could repurchase and appellants aided him or tried to help him borrow the money to repurchase, but to no avail. It is also true that neither a tenant nor a mortgagor can dispute the title of the landlord or mortgagee so long as they remain in possession. This proposition is not disputed by appellees. But there is here no such question. J. T. Blackshare did not purchase the drainage district title and J. L. Blackshare was never a tenant of appellants or a mortgagor in possession. "We find no evidence of fraud or of a scheme or conspiracy between them to defeat the lien of the mortgage or to acquire title adverse to the landlord, further than the fact of the relationship between them. The complaint alleged a conveyance from son to father, but there was no evidence to establish the allegation. J. L. did not acquire possession as a tenant through his son, but took possession under his deed from the drainage district. Appellants knew the land had forfeited for the nonpayment of the drainage district taxes, that it had been sold to the district, and that the period of redemption was two years. They knew these facts all the time and their agents, Linke & Hoffman, wrote numerous letters to J. T. Blackshare during 1933 in an effort to get him to pay the taxes. The land was also forfeited and sold for state and county taxes, to the knowledge of appellants. Failing to get any cooperation from J. T., none of their letters being answered, foreclosure action was begun against him on November 26, 1934, which resulted in his quitclaim deed to Aufder-Heide of February 5,1935, and a dismissal of the action. It was nearly a year later when J. L. Blackshare purchased from the drainage district, January 9, 1936. We think the failure of appellants to pay the taxes, knowing that this mortgagor had not done so, or to redeem from the sale to the drainage district during the period of redemption, or to purchase from the district during the more than 13 months title remained in the district after the expiration of the period of redemption, evidences gross negligence or an intent to abandon any claim to same on the part of appellants.
Nor do we think the evidence sufficient to overcome the finding of the trial court that there was no collusion between the Blackshares. It is said they went to the drainage district office together at the time J. L. bought its title and that he had a deed from his son, and there was some evidence to this effect. It was denied by both of them and we are unwilling to say that the finding of the court is against the weight of the evidence.
2. As to this contention, that appellants had a binding contract with the district not to sell this land to a third person, we are of the opinion it cannot be sustained and that it is not ruled by the case of Blanton v. Jonesboro B. & L. Assn., 176 Ark. 315, 3 S. W. 2d 964. The court there said: ‘ ‘ The record shows that Blanton purchased the lot with notice of the outstanding contract made by the secretary of the drainage district with Bay. Indeed, this is how Blanton came to purchase the lot. The secretary of the drainage district told him about the letters he had written to Bay, and Blanton persuaded Causey to ask the board of directors of the drainage district to execute a deed to Blanton, and the latter, having notice of the contract of Bay, acquired no better title to the lot than the drainage district in whose shoes he stands.”
Assuming that there was here an oral contract between the district and Miss AufderHeide to give her the prior right to purchase said land, there is no showing that J. L. Blackshare had any notice of such arrangement, and he was therefore a purchaser for value without notice. Having held the title for more than two years after the period of redemption had expired, the district would have been justified in assuming that Miss Aufder- Heide, or the interests represented by her, had decided to abandon the idea of a repurchase. In any event, J. L. Blackshare had no notice of the agreement and same was not binding on him.
We, therefore, conclude that the decree is correct, and it is accordingly affirmed. | [
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McHaney, J.
Appellants and appellees, except Carrie Estes who is the wife of appellee, Frank Estes, are the children and sole heirs at law of Thomas S. Estes who died intestate 'September 21, 1934. Oma Estes, his widow, died October 19, 1939.
Appellants brought this action against appellees for partition of the real estate of which their father died seized and possessed, and to cancel two certain deeds executed by their mother on May 30, 1936, attempting to convey the real estate of her husband to two of their sons, appellees Frank and Elza Estes. Appellees defended on two grounds, first, that- their father had conveyed the lands to their mother in 1893 and that she owned said lands and had the right to convey same; and, second, that they had an oral agreement with their father and mother in 1929 to give the land and personal property to them, if they would move back on the place, pay all his obligations, and take care of their parents during their lives. They alleged they complied with said agreement, moved on the land, paid their father’s debts, including taxes, and took care of their parents.
Trial resulted in a finding that there was no such oral agreement and that their mother had no title to the land, except dower and homestead, which terminated with her death, and that her deeds conveyed no title; the court further found that appellees had expended for the benefit of the estate $795.99, and they should have a lien on the lands of the estate therefor, prior and paramount to the interest of the heirs; that the lands should 'be partitioned, and, since they were not susceptible of division in kind, they should be sold, paying first the lien of appellees, and the remainder, if any, should be divided among- the heirs. A decree was entered in accordance with the findings. There is here an appeal from the decree fixing a lien on the lands for said sum and a cross-appeal by appellees from that part of the decree cancelling the deeds of their mother to them and that they had no oral contract to give them the land.
Disposing of the cross-appeal first, we agree with the trial court that there was no valid oral contract to give appellees the real and personal property under the conditions stated and that the deeds from their mother, Oma Estes, conveyed no title because she never at any time had the title, and should be canceled as a cloud on title. The alleged oral agreement was said to have -been made in 1929. There was no memorandum thereof in writing. About a year later, appellees did move back on the place, Elza in the house with his parents, he being a single man, and -Frank in another house on the place. Each worked their father’s land and paid rent out of the crops in kind, and their father also worked, paid his taxes, looked after his affairs and was quite active to the time of his death. Elza had always lived in the home and Frank had formerly lived on the farm, and their work thereon, after their return, was no different from what it had previously 'been. As to the title of the mother, it was attempted to be shown that her husband had conveyed to her in 1893. At the time of executing the deeds to appellees in 1936, she made an affidavit that she owned the land, and appellees state that it was their understanding that their mother owned the land by reason of a deed made by their father years before. There was also the affidavit of a notary that he took the acknowledgment of the deed from Thomas S. to Oma Estes. Now, it is conceded that this evidence is insufficient to warrant the restoration of a lost deed, and since there is no such deed of record and none was found, the concession is well taken. The cross-appeal is, therefore, affirmed.
As to the direct appeal, we agree with' appellants that the court erred in declaring a lien on the land involved in the sum of $795.99, or in any other sum. Of the sums claimed to have been paid by them, $182.50 was paid during the lifetime of the father. Other items include payments for doctor’s bill and funeral expenses of the mother, and taxes paid by them after the father’s death. It is shown that they took charge of all the personal property of the estate of a substantial amount and have paid no rents since the death of their father. We think the personal property converted by them, together with the rents and profits, will equal or exceed the amount they have expended for their father and mother, and that these should be off-set, one against the other.
The decree on the direct appeal will he reversed, and the cause remanded with directions to enter a decree of partition and to order the land sold and the procéeds divided among the six heirs, share and share alike, costs to be paid by appellees. | [
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G-rieein Smith, C. J.
A single question is presented: Was there substantial evidence to sustain the jury’s verdict that Arthur C. Strobel died before midnight, January 29, 1938? If there is an affirmative answer, appellee is entitled to recover on her judgment for $4,000, with interest, penalty, attorney’s fee, etc. If substantial evidence is lacking, the judgment must be reversed.
The insured was employed by St. Louis Independent Packing Company — a subsidiary of Swift & Company — • in October, 1937. He acquired membership in Swift & Company Employment Benefit Association and was insured under a group policy issued by The Aetna Life Insurance Company. Strobel was stationed at Huntington, West Virginia, where he had resided with his wife for six months. He had possession of a company car, and using it, ostensibly, in due course of business,, left home about 1:15 Friday-afternoon, January 28, 1938. At 2:30 of the same day the company car was parked in a Huntington garage. June 18,1938, Strobel’s body, badly decomposed, was found in the St. Lawrence river near Montreal.
One Canadian two-dollar bill, two Canadian one-dollar bills, and an American one-dollar bill were found in his pockets.
The insured’s movements between 1:15 January 28 and June 18 are not accounted for. The only question submitted to the jury was whether Strobel died before midnight, January 29.
It was stipulated that after one o’clock January 28, the first afternoon train from Huntington “toward Montreal” left at 3:25, and that by taking this train Strobel could have reached the Canadian city at 9:45 p. m., January 29.
There were no marks of violence on the body. Medical evidence was that the corpse had been in water sev eral months, and that death was dne to asphyxiation by submersion. The coroner’s findings,were that death was due to “a probable accidental cause”; that it was not imputable to crime, “neither to the negligence of anybody,” and there was no necessity of a jury’s inquest.
Appellee contends that because no motive was shown for Strobel’s disappearance, and it was possible for him to have reached Montreal or some point on the southern shores of Lake Erie, Lake Ontario, or the St. Lawi'ence river prior to midnight of January 29, coupled with medical evidence that the body had been in water several months, an inference arose from which the jury could reasonably find that Strobel made the trip and died before the insurance lapsed, or that he was killed or kidnapped shortly after 1:15, January 28. Availability of air transportation is also suggested.
Among Strobel’s belongings, found in the company’s automobile in Huntington, was a report showing customer collections of $185.47. Net salary due Strobel for the week ending January 29 was $25.82. This was credited against the apparent obligation, leaving a balance of $159.66, which Strobel’s father paid February 18, 1938.
The plaintiff offered no affirmative proof that Strobel’s death occurred within the limited period; nor are the circumstances such as to give substance to an inference acceptable to reasonable minds.
It is not sufficient to say the insured might have met death before midnight of the 29th. There must be some condition from which, in normal sequence, it may be presumed that death occurred on or before the stated time.
In the case at bar the probabilities are opposed to the conclusion reached by the jury. Ætna Life Insurance Company v. Robertson, 195 Ark. 237, 112 S. W. 2d 436; DeReeder v. Travelers Insurance Company, 329 Pa. 328, 198 Atl. 45 (Pa., 1938).
The judgment is reversed, and the cause is dismissed.
Humphreys and Mehafey, JJ;, dissent. | [
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Holt, J.
This cause was tried below on the following agreed statement of facts:
“On March 1, 1937, the county court of Logan county, Arkansas, duly made and entered its order calling in all of the outstanding county road district warrants of Logan county for the purposes authorized by law. Said call-in order and all proceedings incident thereto and in connection therewith were in strict compliance with the law, so far as said call and proceedings apply to the county road district warrants involved in this cause.
“There are twenty-four political townships in Logan county, and, at the time of the issuance of the warrants hereinafter mentioned and set forth and here involved, each political township in Logan county was a separate road disti'ict. The three mill county general road tax, when voted, levied and collected, was duly apportioned to the respective road districts in the county. Each road district was served by a road overseer who was elected by the people in the regular biennial election.
“Claims for work done, services performed and material furnished on roads in the respective road districts were required to be made in conformity with the law in regard to claims against the county; they were required to be duly verified, filed with the county clerk and acted upon by the county court.
“Matt Anderson et al. (appellees), shown on the list hereto attached, complied with the call-in order aforesaid and delivered to the county clerk of Logan county road district warrants of Logan county, Arkansas, for the year, against the district, in the amount and carrying the warrant number indicated in the attached list which is made a part hereof; and the county clerk issued to each his receipt for the warrant so surrendered, the number of the clerk’s receipt also appearing on the attached list.
“The warrants issued, as shown by said list, were for services performed, material furnished or work done on the county roads of Logan county and the claimants' performing said work, rendering services or furnishing material were issued road district warrants of Logan county as shown by the attached list. A majority of said warrants now being owned by parties who were not the original claimants.
“All county roads of Logan county, either lead from farm to market or intersect some road that leads to market.
“Upon examination of said warrants and of other proof the county court on June 1, 1937, canceled said warrants and refused to re-issue the same.
“The county clerk of Logan county preserves all claims filed against the county for a period of ten years without reference to whether the warrants are paid or not, so that the county clerk now has on hand all claims against the county filed within the past ten years, including the claims on which the warrants herein listed and here involved were issued.
“Each warrant issued and each claim on which warrant was issued was in excess of the county and road district revenues for the respective fiscal year indicated. The road districts of Logan county were numbered and did not carry the name of the respective political township. The county officials and all interested parties -knew the number as well as the name of said townships and road districts.
“Specimen copies of claims and orders of allowance thereon, on which the said road district warrants, were issued, are hereto attached and made a part hereof.
“Neither party shall be precluded by this stipulation from making any other, further or additional proof which is deemed necessary and proper for the full development of the-facts in this case.”
Leon Munn, county clerk of Logan county, testified: “Back there when we had road districts in Logan county, we knew, the county clerks knew, the road overseers of the respective townships and road districts and when the road overseer would come in and file a. claim or make out his report, we knew which road district he belonged to and in making the claim out we made it against his' road district, and maybe the county judge would come along and allow this claim and order it paid out of that road district,” and sometimes the county judge ordered these claims paid out of the Highway Turnback Fund.
As indicated the claims, with which we are concerned here, grew out of services performed by the various road overseers, in the various townships of the county, and for supplies furnished. Each claim bears the township road district number, the amount of the claim, the verification, and the order of allowance.
From the order of the county court on June 1, 1937, canceling said warrants and refusing to re-issue them, claimants (appellees here) appealed to the circuit court and upon a trial before the court, sitting as a jury, all parties being present and represented by counsel, the court found that all original warrant holders, or claimants, should receive re-issued warrants for the full amount and be paid in full by the county treasurer “out of any funds in his possession, or coming into his possession for the purpose of paying same,” but that all claimants who were not original warrant holders, should be paid on the basis of 50 per cent, of the amount of the original claim and entered judgment accordingly.
Appellant, Logan county, has appealed and a cross-appeal has been filed by those claimants who are not original claimants.
The contentions of the parties are stated by appellees, in their brief, in the following language:
“In this case, Logan county, the appellant, contends that none of the claims should be paid from the turnback —i.e., it urges that the claims should not be paid at all. It contends that the contracts on which the claims are based were contracts for payment from a particular fund, the Township Road District Fund — that the contracts were made after the fiscal county revenue was exhausted and that under Amendment No. 10 to the Constitution, the contracts were and are void.
“The appellees, who are also the cross-appellants, contend that the claims being bona ficle claims for work done on the fann-to-market roads and payable from the Turnback Fund; that they were erroneously written against the Township Road District Fund and should have been written against the Turnback Fund originally; that the statutes of the state of Arkansas direct their payment from the Turnback Fund and that the circuit court erred in reducing their claims by 50 per cent, when Logan county admittedly received full value. ’ ’
All of the warrants in question were issued in the years from 1926 to 1934, inclusive, and “each warrant issued and each claim on which warrant was issued was in excess of the county and road district’s revenues for the respective fiscal years indicated.”
Constitutional Amendment No. 10 provides: “. . . no county court . . . shall make or authorize any contract or make any allowance for any purpose whatsoever in excess of the revenue from all sources for the fiscal year in which said contract or allowance is made; ? ?
Each claim involved here is signed and sworn to by the -original claimant and bears the approval and order of allowance of the county court and evidences the contract between the parties. Each claim evidences the fact that a certain numbered road district in Logan county is indebted to the claimant in a certain sum for services performed or for material furnished, and each of these warrants specifies payment from a particular fund, that is the Township Road District Fund.
As to the jurisdiction and power of county courts, in Watson and Smith v. Union County, 193 Ark. 559, 101 S. W. 2d 791, this court said:
“By § 28, art. 7, of our Constitution, county courts ‘have exclusive original jurisdiction in all matters relating to county taxes, . . . the disbursement of money for county purposes, and in every other case that may be necessary to the internal improvement and local concern of the respective counties. . . .’ Section 2279, Crawford & Moses’ Digest, provides: ‘The county courts of each county shall have the following powers and jurisdictions: “Exclusive original jurisdiction in all matters relating to county taxes, . . .; to audit, settle and direct the payment of all demands against the county; ... to disburse money for county purposes, and in all other cases that may be necessary to the internal improvement and local concerns of the respective counties. . . .”
“We have many times held that the county court acts judicially in allowing claims. Monroe County v. Brown, 118 Ark. 524, 177 S. W. 40; Seelig v. Phillips County, 129 Ark. 473, 196 S. W. 456. ... A similar situation existed in Leathem & Co. v. Jackson County, 122 Ark. 114, 182 S. W. 570, Ann. Cas. 1917D, p. 438. It was there held, to quote syllabus, as follows: ‘When a county court is authorized to do an act purely administrative in its character, such as make a contract, it may also ratify such act, when done by the county judge in vacation, and thereby bind the county as effectively as if the contract was made by the county court in the first instance. ’
“Contracts of the kind in question are within the exclusive jurisdiction of the county court, . . .”
Claimants here accepted the warrants in question which were drawn against a specific fund, “The Town ship Road District Fund,” which was created out of the apportionment of the three mill road tax. The county court in approving and allowing these claims acted judicially. It possessed original jurisdiction. Appellees accepted the warrants as issued without complaint.
Once approved by the county court, its judgments became final when not appealed from. Here each claimant swore that the particular road district, indicated in the affidavit, was indebted to him. As to whether the county court abused its discretion in ordering the warrants to be drawn against the particular fund, in this situation, cannot be a matter for consideration here.
In the case of Anderson v. American State Bank, 178 Ark. 652, 11 S. W. 2d 444, the county court of Franklin county entered into a contract and issued warrants in payment, to be paid out of the Turnback Fund, a spe-' cific fund. There this court said: “The warrant itself shows that this claim was to be paid out of the highway fund derived from the state revenue, and it could not be paid out of the general revenues of the county. It was not the intention that it should be so paid, and, for that reason, the revenue of the county derived from taxation and the expenditures of the county are immaterial here. . . .”
Further on in the opinion it is said (p. 658): “So in this case the owner of the warrant must look alone to the highway fund in Franklin county for its payment. The holder of the warrant could not look to any other fund, and it could not be paid out of any other fund, )?
Counsel for appellees in support of the judgment of the trial court, and of their contention that the county court in each of its orders on the claims involved abused its discretion by not ordering the warrants issued against the Turnback Fund, rely strongly on the recent case of Washington County v. Day, 197 Ark. 1081, 126 S. W. 2d 602. We are of the view, however, that the principles announced there do not apply here. In that case the county court made an order condemning lands of the claimant for nse as a highway right-of-way. There was no contract between the county court and the landowner. The landowner filed a claim against the county for damages for taking his land; his claim was against no particular fund. The landowner contended that the warrant issued to him in payment for damages should be issued in accordance with provisions of § 6968 of Pope’s Digest. That section provides: “. . . Provided further, all damages allowed under this act shall be paid out of any funds appropriated for roads and bridges, and if none such, then to be paid out of the general revenue fund of the county.”
There were three accounts in Washington county at the time: the general revenue account, the road and bridge account, and the turnback account. The county court ordered the claim paid out of the turnback, which was overdrawn for an estimated three years. It appeared that two of the above accounts against which the claim might have been allowed had ample funds with which to pay claimant, but the county court refused to order the claim paid out of either of .these funds and directed its payment out of the turnback account which showed a deficit of more than $40,000. Under the facts in that case, this court held that the action of the county court was arbitrary and an abuse of discretion under the provisions of the statute, supra.
We come now to the contention of appellees that the warrants in question should have been re-issued under the provisions of act 299 of the Acts of 1939. It is our view, however, that this act does not control here.
Section 1 of the act • provides: “Where in any county in this state on January 1, 1939, there were outstanding warrants that had been issued in excess of the revenues received for the Highway Turnback or the County Three Mill Road Funds, for the years 1937 and 1938, or where bona fide claims or contracts made for which there were no warrants issued as of January 1, 1939, that said claims or contracts were also in excess of the revenues against said funds, that said warrants, claims and contracts, if bona fide claims, warrants or contracts, shall be validated . . . ” and said warrants shall be paid ont of the Highway Turnback Fund.
It is apparent that the first part of the above quoted section undertakes to validate all invalid outstanding’ warrants issued against, and in excess of, the turnback funds or the “three mill road funds,” for the years 1937 and 1938. The second part of the section undertakes to validate all contracts or claims on file, where warrants had not been issued as of January 1, 1939, and where said claims or contracts were also in excess of the revenues “against said funds.”
Appellees,contend that they come within the terms of this second part of the above quoted section. We think it clear that the words ‘‘ said funds ’ ’ in the second part of the above quoted section refer to the turnback and three mill road funds for 1937 and 1938, mentioned in the first part, and that the Legislature intended by this act to validate invalid outstanding warrants issued in excess of the revenues received for the highway turn-back or the county three mill road funds, for the years 1937 and 1938, and also to validate contracts and claims, where warrants had not been issued prior to January 1, 1939, for the years 1937 and 1938 only, because made “in excess of the revenues against said funds.”
Since the warrants or contracts involved here were not issued or made in 1937 or 1938, but during the period from 1926 to 1934, we think it clear that act 299, supra, has no application.
We do not at this time determine the effect of act 299, insofar as it relates to the Three Mill Road Tax Fund, for the reason that, as above indicated, the express language of the act limits its application to warrants issued during 1937 and 1938.
All parties agree that these warrants were issued by the county in good faith for labor performed or for material furnished and that the intention was that they should be paid. However, meritorious these claims may be, the fact remains that at the time they were made warrants drawn in payment exceeded the revenue in the particular fund against which drawn, for the year in which drawn, and under the plain terms of amendment No. 10, supra, were absolutely void.
. The judgment on appeal is reversed, and the cause is remanded with directions to the trial court to enter judg’ment not inconsistent with this opinion. This order on direct appeal necessarily disposes of the contention of appellees on their cross-appeal. | [
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McHaney, J.
Appellees, Mrs. Dandridge and the First National Bank of Paris, Arkansas, brought this action against appellant to compel it to perform specifically a contract of life insurance issued by it to her on October 18, 1927. The bank was made a party plaintiff because the policy had been pledged to it to secure an indebtedness. The complaint alleged that appellant had wrongfully lapsed the policy on its records and had continued it as extended term insurance which would expire February 22, 1948.
Appellant defended on the ground that the policy lapsed for failure to pay the quarterly premium due July 18, 1939, within the grace period; that application for reinstatement was made by insured on September 18, 1939, in which she stated she was in the same condition of health as when the policy was issued; and that within the preceding two years she had had no illness, disease or bodily injury, nor had she consulted or been examined by a physician. Appellant alleged that these statements were known by her to be false, in that she had consulted physicians at a Ft. Smith hospital and had been operated upon for a tumor of the breast within two years prior to her application for reinstatement, and had also consulted physicians within said period for other serious ailments. The policy was reinstated and it was alleged that in doing so it relied upon these false representations, and would not have reinstated same if she had stated the true facts regarding her condition of health and her consultations with and treatments by physicians. The answer further alleged that on May 10, 1940, insured notified it she desired to make a claim for disability benefits under the policy, and its investigation on this matter developed the fact that its approval of her application for reinstatement had been procured by said misrepresentations. It accordingly elected to rescind the reinstatement and tendered back all payments made, with interest, since reinstatement. The net value of the policy was thereupon applied to purchase extended insurance.
Appellees demurred to this answer which was sustained, and upon appellant’s refusal to plead further, a decree was entered reinstating the policy and directing appellant to perform all its obligations as originally issued. This appeal followed.
The answer pleads and the demurrer concedes that the insured’s policy was reinstated through fraudulent misrepresentation. The policy contained the following clauses, here material: “This policy may be reinstated at any time within five years after any default, upon written application by the insured and presentation at the home office of evidence of insurability satisfactory to the company and upon payment of overdue premiums with five per cent, interest thereon from their due date. Any indebtedness to the company at date of default must be paid or reinstated with interest thereon in accordance with the loan provisions of the policy.”
“This policy shall be incontestable after two years from its date of issue except for nonpayment of pre mium and except as to provisions and conditions relating to disability and double indemnity benefits. ’ ’
“In event of default in payment of premium after three full years’ premiums have been paid, the following benefits shall apply:
“ (a) Temporary Insurance — Insurance for the face of the policy plus any dividend additions and any dividend deposits and less the amount of any indebtedness hereon, shall, upon expiry of the period of grace, be continued automatically as temporary insurance as from the date of default for such term as the cash surrender value less any indebtedness hereon will purchase as a net single premium at the attained age of the insured, according to the American Table of Mortality and interest at 3 per cent. This temporary insurance will be without participation in surplus.”
The question here presented for decision is exactly the same as was presented in New York Life Ins. Co. v. Campbell, 191 Ark. 54, 83 S. W. 2d 542, and that is, as stated by appellant: “Where the holder of a life insurance policy has allowed it to lapse and has obtained re-, instatement by misrepresenting the condition of his health, does the incontestable clause in the policy operate immediately to preclude the insurer from attacking the reinstatement?” This question was answered in the affirmative in that case, and we are now asked to reconsider and overrule it. It is conceded that unless we overrule that case, this must be affirmed. We agree that this concession is well taken, and are of the opinion that we would have to overrule also, in principle, all the eases cited therein, and particularly, the case of Ill. Bankers Life Ass’n v. Hamilton, 188 Ark. 887, 67 S. W. 2d 741, 94 A. L. R. 1194. Also, the decision in the Campbell case has been cited and quoted from with approval in the recent case of Union Life Ins. Co. v. Bolin, 201 Ark. 555, 145 S. W. 2d 734, where this language is used: “Stress is laid upon the fact that the trial court found — and was warranted in finding — that Bolin correctly answered the questions contained in the reinstatement application. But this fact is not of controlling importance. It would have been had the policy been reinstated. In that event the company would be concluded by the fraud of its agent in not writing the correct answers given by Bolin in the application for the reinstatement. It was so held in the case of New York Life Ins. Co. v. Campbell, 191 Ark. 54, 83 S. W. 2d 542, where it was said: ‘Even so, the insurer had a fair opportunity to make such investigation in reference to the truthfulness of the answers contained in the application for reinstatement prior to the reinstatement as it saw fit and when it accepted the insured’s statements in reference to his health, and physical condition, and the policy was reinstated by the insurer, the door was forever closed to future investigation.’ In that case the policy had been reinstated. Here, it had not been, and unless and until it was, there was no contract of insurance.”
The cases cited in New York Life Ins. Co. v. Campbell, supra, in addition to the Hamilton case, are New York Life Ins. Co. v. Adams, 151 Ark. 123, 235 S. W. 412; Security Life Ins. Co. v. Leeper, 171 Ark. 77, 284 S. W. 12; Equitable Life Assur. Soc. v. King, 178 Ark. 293, 10 S. W. 2d 891; and Life & Cas. Ins. Co. of Tenn. v. McCray, 187 Ark. 49, 58 S. W. 2d 199. It is asserted that these cases are not in point and do not support the Campbell case. With this we cannot agree. One effect of all these cases is, as stated in the Adams ease, that “the reinstatement was not granted as a gratuity on the part of the company, but as a part of the contract expressed in the policy itself to the effect that a reinstatement could be obtained, as a matter of right, at any time within five years after default ‘upon presentation at the home office of evidence of insurability satisfactory to the company’.” In that ease, as also in the King case, the application for reinstatement provided that the statements by the insured as to his health, etc., contained therein should be deemed to be warranties, the exact language being “I warrant them to be full, complete and true. ’ ’ This court said: “The company had no right to enlarge the-terms upon which reinstatement could be obtained, and the requirement of a warranty of the truth of the answers was a distinct enlargement of the contract.” In the Leeper case, supra, that holding was reaffirmed by holding that an application for reinstatement which, contained an agreement that “in, the event of self-destruction, whether sane or insane, within one year from the date of approval by the company of this application for reinstatement, the amount payable as a death benefit under said policy shall be equal to two annual premiums on said policy, and no more,” was not binding on the insured. A headnote in that case is: “Where a life insurance policy gave an absolute right of reinstatement upon terms which did not include a new contract with reference to a forfeiture in case of suicide, the insurer had no right to impose that additional feature upon the assured in procuring a reinstatement.” And in the McCray case, supra, another case of suicide, the policy provided against self-destruction “within one year from the date of issue of this policy,” and we held that the one year clause ran from the date of the policy and not from the date of the reinstatement. The Hamilton case, supra, is almost exactly in point with the Campbell case and with this case. The reinstatement provisions and the incontestable clauses are substantially the same. In the Hamilton case, the policy lapsed for failure to pay a premium. Application was made to reinstate it in which false and fraudulent answers were given, and the policy was reinstated. The insured died more than two years after reinstatement. This court held that “the defense of falsity of statements in the application for reinstatement cannot avail the insurer” (188 Ark. 887, 67 S. W. 2d 743, 94 A. L. R. 1194) because of the incontestable clause in the policy. The late Justice Butler, speaking for the court, there said: “The insurer had all the time it desired to investigate the risk before accepting it and should, and likely does, anticipate that deceit might be practiced by applicants for insurance, and, through its own processes, has means to discover if such deceit has been practiced, and having announced its satisfaction to bind itself, no subsequently discovered circumstances should avoid the policy except the nonpayment of premiums.” And, after citing and commenting on the cases above •mentioned and others, said: “So, in the instant case the reinstatement created no new contract, but revived the original to the same extent as if there had been no lapse. This rendered the incontestable clause available and certainly, since more than two years had elapsed between the date of the reinstatement and the death of the insured, this clause is effectual to waive all defenses except the one reserved in the contract, namely, the nonpayment of premiums. Our cases cited have ¡been approved, and their doctrine reaffirmed in the recent case of Life & Casualty Ins. Co. of Tenn. v. McCray, 187 Ark. 49, 58 S. W. 2d 199, and are in accordance with the weight of authority.” Citing cases.
But, learned counsel for appellant say, that this Hamilton case is not in point and should be distinguished by the fact that the insured died more than two years from the date of reinstatement, whereas in the Campbell case and in the case at bar, the claim arose within two years from the date of reinstatement. Even so, can any one doubt, from a reading of that opinion that this fact made the slightest difference in the result reached? We think not.
Bo, we are asked to overrule not only New York Life Ins. Co. v. Campbell, supra, but the doctrine announced in all the other cited cases, all of which have a direct bearing on the decision in that case. We decline to do so, even though Judge Butler may have been mistaken in saying that the holding in the Hamilton case was in accordance with the weight of authority.
Moreover, on reconsideration of the holding in the Campbell case, we are further convinced of its soundness and that any other holding would do violence to the express language of the policy. The reinstatement clause above quoted gives the insured the absolute right to reinstatement at any time within five years after any default, upon written application by the insured and the ‘ ‘ presentation at the home office of evidence of insurability satisfactory to the company” and the payment of overdue premiums with interest. This provision makes the company the sole judge of the evidence of insurability so presented. Of course it cannot refuse reinstatement arbitrarily. Union Life Ins. Co. v. Bolin, supra. If the company is not satisfied with the evidence presented, it has the right to ask for such additional evidence as it may desire or to require a physical examination at the expense of the applicant, as the applicant is required to furnish or to present “evidence of insurability, satisfactory to the company. ” But when such evidence is presented and the policy is reinstated, the matter is closed to further inquiry or question, if the time limited in the incontestable clause has expired. This clause plainly provides that: ‘ ‘ This policy shall be incontestable after two years from its date of issue,” with but two exceptions not applicable here. That provision limits a contest of the policy to two years from its date, and not from the date of any reinstatement. Life & Cas. Ins. Co. of Tenn. v. McCray, supra. So, if the two-year contestable period has expired when the policy is reinstated, the reinstated policy is not subject to contest by the express terms of said clause. The reinstated policy is not a new contract, but is the same old policy. It was so held in the McCray case and in the Hamilton case.
It is said that our holding in the Campbell case is contrary to the great weight of authority and this may be true. We do not stop now to determine. But, in so holding, we do not stand alone, as shown by the cases cited by Judge Butler in the Hamilton case, one of which Wamboldt v. Reserve Loan Life Ins. Co., 191 N. C. 32, 131 S. E. 395, held that, where the original contract was changed six years after its date to cover double indemnity, total disability and premium waiver by riders attached to the original policy, bearing the same dates as the original, “such supplemental contracts were subject to incontestable clause contained in policies — and no defense was available to insurer on the supplemental contracts which was not available in action on policies.”
Most of the courts, holding a contrary view to ours, seem to base their reasons on the idea that reinstatement creates a new contract and that the incontestable clause, although barred by lapse of time, is revived and becomes available to contest a reinstated policy for fraud. Our idea is that to so hold, something must be read into the policy that is not there, but might have well been there, had the company so desired. Such a holding changes the incontestable clause to read that “this policy shall be incontestable after two years from its date of issue or after the date of any reinstatement thereof.” It is well settled that courts do not, or should not, make contracts for the parties, and that the contract as written will be most strongly construed against the party writing it.
We axe aware that the Campbell case has been criticized in some cases, see Rosenthal v. New York Life Ins. Co., 94 Fed. 2d 675 and 99 Fed. 2d 578, and Chambers v. Metropolitan Life Ins. Co., (Mo. App.) 123 S. W. 2d 29, but we are still of the opinion that it is not the proper function of a court to read words into an insurance policy for the benefit of the company that are not there, so as to make a defense available to the company that the literal unambiguous language of the policy excludes.
It may be proper to say that we agree that appellee should not be permitted to profit by her own fraud, but where the means of discovery of the fraud were available, as they were here to the appellant, at the expense of appellee, and it deliberately took a chance without making any investigation, then under the contract here presented, legal relief should be denied.
The judgment is accordingly affirmed.
The Chief Justice concurs in the holding that the appeal is controlled by the Campbell case, but dissents from the court’s action in declining to overrule the precedents. | [
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Humphreys, J.
On November 22, 1940, appellee brought suit for maintenance of herself and child against appellant, in the chancery court of Phillips county, alleging that they were married on December 24,1925, and that a boy child was born to them who is now twelve years of age, and that appellant, although able to do so, refuses to further contribute to their support.
Appellant filed an answer admitting the duty rests upon him to contribute a reasonable amount toward the support of the child, but denies any liability to support appellee for the reason that she has failed and refused to come from New York, where she resides, to West Hel ena and reside with him in accordance with her promise to do so when he came to Arkansas to establish himself as an eclectic physician on the 30th day of May, 1937, and, by way of cross-complaint, prays that he be granted a divorce from appellee on the ground that they have voluntarily lived separate and apart for more than a period of three years, and that under the laws of the State of Arkansas he is entitled to a dissolution of the bonds of matrimony.
The cause was submitted to the court upon the pleadings and testimony resulting in a decree denying appellant a divorce and requiring him to pay appellee $20 per week toward the support of their child, from which is this appeal.
Appellee and appellant testified at length and were the only witnesses who testified in the case. Although their testimony is quite lengthy it is only necessary to relate a few of the facts in order to determine the issues involved on this appeal. Those facts are, in substance, as follows:
Appellant was an eclectic physician and appellee a professional nurse at the time they were married. They became interested with several other physicians in establishing the Bryon Compensation Clinic in New York City. Together they accumulated about $12,000 or more which was deposited in a bank in that city, a part of it being in a checking account and a part in a savings account. The clinic was finally dissolved after considerable litigation and it became necessary for appellant to secure a new location. He took several thousand dollars and moved to West Helena leaving his wife and boy in New York until he could establish himself, under an agreement with appellee that as soon as he could secure a sufficient clientele to justify him in doing so he would send for appellee and their son. In the meantime, appellee obtained employment as superintendent in the Women’s Hospital at Brooklyn, New York, and has earned an average salary of $175 a month, now raised to $200 a month. She expended the money that was in the bank after paying considerable to lawyers and her earnings in the support of herself and child. The child was afflicted and it took a great deal of money to support them. At the time of the trial appellant was making out of his medical profession an average of about $150 a month out of which he had to pay office rent, employ an assistant and his own living expenses. After leaving New York appellant sent appellee about $150 in small amounts from time to time. Neither appellant nor appellee had been able to accumulate any property and about all that either had when the ease was tried was what they earned. Appellant had his practice and appellee had her position.
After appellant came to West Helena, he and appellee corresponded, but finally he ceased to write to her. Just when they ceased to correspond does not appear from the record. Until they ceased to correspond, they had regarded their relationship as that of husband and wife. He was in West Helena, for the purpose of establishing himself in the medical profession, and she was waiting in Brooklyn, New York, for appellant to send for them.
Appellant contends that the court erred in refusing to grant him a divorce under § 7 of act 20 of the Acts of the General Assembly of 1939, which is as follows: “Where either husband or wife have lived separate and apart from the other for three consecutive years, without cohabitation, the court shall grant an absolute decree of divorce on the suit of either party, whether such separation was the voluntary act or by the mutual consent of the parties, and the question of who is the injured party, shall be considered only in the settlement of the property rights of the parties and the question of alimony. ’ ’
Appellant assumes and argues that when he left for West Helena with the understanding that after he established himself, appellee and his son would come to him, it constituted a separation as of date March 30, 1927, by mutual consent or voluntary act, and since they had not actually lived together for more than three years before he filed his cross-complaint, he was entitled to a divorce under § 7 of the act. This would be true if they separated as husband and wife voluntarily or by mutual consent or for any other reason when he came to West Helena. According to the testimony of both of them there was no separation as husband and wife at that time. The relationship of husband and wife was to continue and did continue until all of a sudden he ceased to write to her. They regarded themselves as husband and wife until they ceased to correspond with each other. The record does not show when this occurred. The burden was upon appellant to show when the separation as husband and wife began and that it had continued for three consecutive years from that date prior to filing his cross-complaint. He did not meet this burden and thereby bring himself within the terms of the act.
Appellant also contends that the court erred in allowing appellee $20 a week for the support and maintenance of the child. Of course if the needs of the child alone were considered the allowance was not unreasonable, it appearing that the child was afflicted and -needs special care and expensive treatment, and the duty rests upon the father to provide for his child or children as far as he has ability to do so. Not only the needs of the child must be considered, but the ability of the father to contribute and the extent thereof must also be considered.
The trial court found that appellant earned $150 a month gross out of his profession. The record reflects that his earning ability is all he has. He owns no real or personal property. He operates a small clinic in three rooms which he rents. He employs a maid to assist him at the clinic. The amount he pays for rent, utilities and to the maid is not disclosed by the record. His clientele is largely composed of day laborers who pay him by small orders on the mill where they work.
If the order of the court is affirmed, and appellant is compelled to pay appellee $80 a month out of his gross earnings, it only leaves him about $70 to pay his office rent, utilities, and his assistant, to say nothing of his own living expenses, necessarily including board, clothes, and transportation to visit his patients.
The custody of the child was awarded to appellee who -earns $200 a month net. Of course it is not her pri mary duty to support the child, hut her love for him will prompt her to assist in providing for his needs. The boy will not suffer in any event if the amount allowed by the court is reduced to $30 a month. We think an allowance of $30 a month under all the circumstances is about as much as appellant will be able to pay out of his earnings and live himself.
The decree -is modified so as to allow appellee $30 a month for the support and maintenance of the child, and as modified is in all things affirmed. | [
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Smith, J.
The Greene & Lawrence Counties Drainage District No. 1 was organized under the provisions of act 318 of the Special Acts of the General Assembly of 1911. The district borrowed $260,000 from the State National Bank of Little Bock, and issued its bonds to the bank for that amount. Betterments were assessed amounting to $567,990.25, and assessments against the benefits of 3 per cent, were levied for each of the years 1912, 1913, 1914, and 1915. Only interest was to be paid during these four years. For the next sixteen years, or until and including 1931, portions of the principal were payable. An order of the county court was entered showing the amount payable each year. All landowners in the district were, of course, affected with constructive notice of this order, and had this constructive notice been made actual it would have appeared that the last taxes to be paid were those for the year 1931.
Appellant owned an improved 80-acre farm in the district, on which she had paid the taxes originally extended on the tax hooks against her lands, including those for the year 1931. No taxes were extended for the year 1932.
On October 14, 1932, tbe board of directors of the drainage district adopted the following resolution:
‘ ‘ Resolution
“At a meeting of the Board of Directors of Greene & Lawrence Counties Drainage District held on the 14th day of October, 1932, the following resolution was adopted:
“Be and it hereby is resolved: That for the year 1933 there be levied and collected as against all the lands in Greene & Lawrence County Drainage District an assessment of 2% of the betterments heretofore made as against said lands in said district.
“Be it further resolved: That the Secretary be and he hereby is instructed to certify a copy of this resolution to the county courts of Greene and Lawrence Counties, Arkansas, to the end that they may cause said levy to be made and extended as against said lands by the respective clerks of said counties.
“I, J. L. Tyner, Secretary of the Board of Directors of Greene & Lawrence County Drainage District, hereby certify that the above and foregoing resolution was adopted at a meeting of the Board of Directors held on the 14th day of October, 1932.
“Witness my hand this 19th day of October, 1932.
“ J. L. Tyner
“Secretary Board of Directors “Greene & Lawrence County “Drainage District.”
Pursuant to this resolution the county court entered the following order:
“Greene County Court Record
“In the Matter of Greene and
Urder
• • Lawrence County Drainage District
“It appearing from a resolution adopted by the Board of Directors of Greene and Lawrence County Drainage District on the 14th day of October, 1932, that it will be necessary to levy and collect in the year 1933 an assessment of 2% of the betterments made as against the lands in said district, the premises being by the court seen and considered.
“It is, therefore, by the court considered, ordered and adjudged that the said assessment of 2% of the betterments as against the Greene county lands in Greene and Lawrence Drainage District as made by the Board of Directors of said district is hereby confirmed, and the clerk of this court is hereby ordered to make extension of said assessment as against said lands on the tax books covering taxes to be collected in the year 1933.
“Geo. H. Bogers
“County Judge.”
Pursuant to this order of the county court an assessment of 2 per cent, against the betterments was levied which appellant failed to pay. Her land was returned delinquent, and along with certain other lands was ordered sold under a decree of the chancery court rendered April 9, 1934, foreclosing the district’s lien for unpaid taxes. In obedience to this decree the commissioner appointed under it sold appellant’s lands on October 20, 1934, for the sum of $12.34, this being the amount of taxes extended against it. In due course the purchaser received the commissioner’s deed, which was duly approved. The purchaser died, and in 1940, his heirs-at-law brought suit in the circuit court to recover possession of the lands. On motion the cause was transferred to the chancery court, where a decree was rendered awarding possession to the plaintiffs, from which decree is this appeal.
The cause was submitted on the pleadings, consisting of .the complaint and answer and an amended complaint, which contained the following allegations. The 2 per cent, of the betterments for which the lands were sold was merely a reduction of the 6 per cent, installment previously extended against the lands which had not been collected. In other words, it was for the collection of a tax previously authorized but not extended against the lands for the full amount.
It is agreed that the record presents for decision no question of fact, and that the decision of the cause turns upon the construction of § 11 of Special Act 318 of 1911, p. 886, which reads as follows: “If the tax levied shall prove insufficient to complete the improvement, the hoard shall report the amount of the deficiency to the county courts of Greene and Lawrence counties, and said county courts shall thereupon make another levy on the property previously assessed for a sum sufficient to complete the improvement; which shall he collected in the same manner as the first levy; provided, that when any work has been begun, under the provisions of this act, which shall not be completed and paid for out of the first or other levy, it shall be the duty of said county courts to make such levy for its completion from year to year, until it is completed; provided, that the total levy shall in no case exceed the value of the benefits assessed on said property, and the performance of such duty may be enforced by mandamus, at the instance of any person or' board interested. ’ ’
It is conceded by appellant that the district had the power to levy this 2 per cent, assessment or, for that matter, any other per cent, of the original assessment of benefits not exceeding the whole amount thereof to pay the debts of the district; but the question is whether the commissioners complied with the requirements of the act in the exercise of that power.
Here, the property owner had paid her taxes continuously and consistently for twenty years, and had paid the taxes extended for the year 1931, this being the last year for which taxes had been assessed in the order of the court above referred to. Appellant had not paid all the taxes assessed against her lands originally, nor did she pay all that might subsequently have been levied. The district had not exhausted the power conferred by the act to levy taxes, but before any levy for any additional year later than 1931 could be imposed the act required that the board of directors should report any deficiency to the county court.
It is not contended that the board made any report of a deficiency in its revenues to discharge its obligations, nor was it shown in the resolution of the hoard how the deficiency had arisen, that is, by the failure to collect taxes previously imposed. Appellant had the right to assume, and, no doubt, did assume, that she had discharged the lien of the drainage district against her lands by the twenty consecutive payments from and including 1912 to 1931. This assumption was supported by the fact that no taxes were extended for the year 1932. Now, while authority existed to extend other taxes, that authority was derived from the subsequent action of the county court, to be based upon the report of the commissioners of the district showing the deficiency and the amount thereof making a levy subsequent to 1931 necessary.
It is true the district was not required by the act to give notice to the landowners that an additional levy had been made, and it may be true that the landowners might not have known of this order even though the law authorizing it had been complied with. But the question here is the one of power or, rather, how a power to levy taxes may be exercised, and here the provisions of the act are that the power is to be exercised upon a report of the board showing a deficiency and the amount thereof. No such report was made.
It was said in the case of Fleming v. Weaver, 98 Ark. 455, 136 S. W. 189, that “The proceedings for divesting the owners, resident and nonresident, known and unknown, of their estate in the lands subject to the levee tax derive their .only sanction from the statute, and the court must see that its provisions as to jurisdiction are complied with, or their judgments will be utterly void, and, of course, subject to collateral as well as direct attack.” The language just quoted appears in the opinion in the case of Van Etten v. Daughterty, 83 Ark. 534, 103 S. W. 737, and the question there involved was the sufficiency-of the service of process upon the landowner to confer jurisdiction upon the court to order the foreclosure of the lien of an improvement district for delinquent taxes; but it is, of course, as essential that the law providing how a tax lien may be imposed be complied with as it is that the law in reference to the enforcement of the lien be complied with. Alexander v. Capps, 100 Ark. 488, 140 S. W. 722.
The failure to file the report of deficiency relates to the power to sell, as it was the jurisdictional fact upon which the right to make the additional levy depended. Lacking* this, the jurisdiction did not exist to assess the 2 per cent, "betterment, and the decree of the court below will be reversed and the cause will be remanded with directions to permit the redemption which appellant offered to make. | [
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Mbhaffy, J.
One J. L. Barnett owned a small retail grocery business in Craighead county, Arkansas, and he sold his stock of merchandise and fixtures in bulk to the appellant, Ellis R. Griffin; the consideration 'being* $263.67.
It is undisputed that at the time the merchandise was sold, Barnett owed to the appellee, Puryear-Meyer Grocery Company, $57.41, and that he owed appellee, Turner Furnishing Goods Company, $51.85.
This action was instituted by Puryear-Meyer'Grocery Company, Inc., against Ellis R. Griffin, purchaser of the stock of merchandise from Barnett, in the chancery court of Craighead county, Arkansas.
The plaintiff alleged in its complaint that Barnett owed it $57.41, and that said Barnett owned and operated a retail grocery store in Brookland, Arkansas, and that the groceries, goods, wares and merchandise were sold to Ellis R. Griffin, the' entire stock of merchandise, together with all fixtures, for a sum in excess of $350; that the sale was made without complying in any way with § 6067 of Pope’s Digest, and that Barnett did not furnish, nor did the defendant receive, a written list of the names and addresses of the creditors of said Barnett with the amount of indebtedness due and owing to each, certified under oath, and that he did not complywith the Bulk Sales Law.
The Turner Furnishing Goods Company filed an intervention and alleged that said Barnett, at the time of the sale to Griffin, was indebted to it in the sum of $51.85 and prayed that the stock of goods, wares and merchandise sold by Barnett to defendant be impounded to pay its indebtedness. The original plaintiff prayed that Griffin be declared a trustee in possession of said stock of groceries and fixtures.
Ellis R. Griffin filed an answer denying the material allegations and alleged that there was a substantial compliance with the Bulk Sales Law, and that Barnett made assurance to the defendant that there were no creditors; that Barnett was a citizen of Craighead county, head of a family, and entitled under the laws to exemptions in the sum of $500, and that the value of the goods, wares, and merchandise purchased by him, together with all other personal property owned by Barnett, did not exceed the sum of $500, and for that reason the sale was not in violation of the Bulk Sales Law, and prayed that the complaint be dismissed.
Griffin also filed an answer to the complaint of the Turner Furnishing’ Goods Company which was substantially the same as his answer to the complaint of PuryearMeyer Grocery Company.
The chancellor entered a decree and rendered judgment against the defendant in favor of Puryear-Meyer Grocery Company in the sum of $57.41 and interest, and judgment in favor of Turner Furnishing Goods Company in the sum of $51.89 and interest. The defendant saved exceptions and prayed an appeal to the Supreme Court, which was granted, and the case is here on appeal.
There is no dispute about the indebtedness of Barnett to the appellees in the amounts for which judgments were given. Griffin testified that he asked Barnett for a list of the creditors, and Barnett answered that he had no creditors except on the ice box, and that he (Griffin) had known of no creditors until about the 14th of May; that Barnett was a married man and lived with his wife, and had no other property except a Chevrolet car on which he owed the sum of $560.
Carl Robins testified that he heard Griffin ask for the creditors, and that Barnett answered that he owed nothing except on the ice box.
Ruben Griffin testified to substantially the same.
The attorneys stipulated that. J. L. Barnett was a married man, head of a family, and a resident of Brook-land, Craighead county, Arkansas.
Appellant, in his brief, states that he concedes that Barnett owed the money sued for. He also says that there was no strict compliance with the Bulk Sales Law, but it is alleged that he exercised good faith in the transaction, and made a substantial compliance with the Bulk Sales Law.
There was no substantial compliance with the law. In the first place, we think from all the circumstances in the case, when Barnett stated that he did not owe anything except on the ice box, he evidently meant that there were no liens on any of the other property. The Bulk Sales Law not only provides that the purchaser must demand and receive a written list of the names and addresses of the creditors of the seller,‘with the amount of the indebtedness due and owing to each, but this must be certified under oath to be a full,' accurate and complete list of his creditors and of his indebtedness. The law further provides that at least ten days notice must be given before taking possession of the property. This statute was not complied with, but appellant says he acted in good faith.
It was stated in the case of Griffin v. Batterall Shoe Company, 137 Ark. 37, 207 S. W. 439: “Under our Bulk Sales Law one who buys a stock of goods without giving notice to creditors, as required in such act, becomes a receiver, and is liable pro rata to creditors, although the sale was made in good faith.”
Appellant calls attention to the case of McKelvey v. John Schaap & Sons Drug Co., 143 Ark. 477, 220 S. W. 827. In that case the court said, among other things: “The Bulk Sales Law does not create a lien on property which follows it in the hands of subsequent purchasers. . . . It merely makes a purchaser in violation of the statute liable as receiver to the extent of the value of goods purchased.”
Appellant also calls attention to the case of Glantz v. Gardiner, 40 R. I. 297, 100 Atl. 913, L. R. A. 1917F, 226. In that ease the court said: “that is to say, without any regard to the solvency of the vendor, or the fairness of the purchase price to be paid, or the good faith of the vendor and vendee, and although the transaction may not be fraudulent in fact, it will be fraudulent and void in law so far as the vendor’s creditors are concerned unless the vendee or transferee does the things required of him by the provisions of the statute. In other words, in order to guard against the commission of actual fraud in the class of sales with which it deals, the law regulates them by requiring the performance of certain acts in the carrying out of such a sale and declares that the failure to perform these acts will render the transaction fraudulent in law.”
Appellant next contends that the property involved' was not subject to the Bulk Sales Law for the reason that it was exempt to the seller, and it is argned that so far as exempted property is concerned, there can be no fraudulent conveyance. Appellant cites the case of Stanley, et al., v. Snyder, et al., 43 Ark. 429.
Appellant also refers to the case of Erb v. Cole & Dow, 31 Ark. 554. The statement in that opinion relied on by appellant is expressly overruled in the case of Blythe v. Jett, 52 Ark. 547, 13 S. W. 137, in which the court said: “In Erb v. Cole & Dow, 31 Ark. 554, this court decided that it is incumbent on a party who attacks a sale on the ground that it was made to hinder, delay or defraud creditors, ‘to show that if it had not been made the goods would have been subject to seizure and sale upon execution.’ But after careful examination and consideration, we cannot approve this decision, and are constrained to overrule the same as to the principle announced in the quotation made above.”
Every citizen of Arkansas is entitled to exemptions mentioned in the constitution and statutes, but in order to get his property exempt, he must comply with the law. § 7188, et seq, Pope’s Digest.
If appellant had complied with the Bulk Sales Law by requesting a written statement, sworn to by Barnett, he would doubtless have received a list of the creditors and could then have applied for his exemptions by following the requirements of the statute. This he did not do. Barnett did not testify at all, and there is no satisfactory evidence that his property was worth less than $500. In fact, we think from the evidence and circumstances that it was probably worth considerably more than this amount. At any rate, while two or three witnesses testified that Barnett owned household equipment, there was no attempt to show its value. Barnett could have testified, if called upon, to the amount of his property and its value. The witnesses who did testify did not know the value of his property.
Under our statute a debtor, claiming property to be, exempt from execution, is required to make a schedule of all his or her property including moneys, rights, credits, and choses in action specifying the particular property claimed as exempt under -the constitution and file the same with the officer after giving five days notice, in writing, to the opposite party. If he would claim exemption for any of said property, he must bring himself and his property within the exceptions of some statute by proper proof. Blythe v. Jett, supra. In this case he would have to claim property as exempt and offer proof as to the value of his property.
The appellant wholly failed to comply with the 'Bulk Sales Law and failed to show the value of all of Barnett’s property.
The decree of the chancery court is affirmed. | [
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Mehafey, J.
This action was instituted by appellant claiming title to lot 11 of block 8, Chickasawba Addition to the city of Blytheville, Arkansas.
The appellee filed answer denying the allegations of the complaint, and claimed title to said lot 11 by purchase from the Commissioner of State Lands, and by a purchase from the receiver of Drainage District No. 17 on December 13, 1933.
The following stipulation was entered into by the parties as the evidence in the case: ■ “This suit involves title and ownership of lot 11, block 8, Chickasawba Addition to Blytheville; and that both parties claim through the common source of Clyde and Mary Phillips Robinson.
“Appellee obtained judgment against Robinsons, had execution levied upon lots 11 and 12, block 8, Chickasawba Addition, on April 3, 1929; said Clyde and Mary Phillips Robinson claimed their homestead and the court allowed them lot 12 and the east 27% feet of said lot 11. The west 22% feet of this lot 11 was sold by the sheriff under the execution to appellee April 27, 1929, certificate of purchase was then issued, but sheriff’s deed was not made until July 29, 1938. It is recorded at Blythe-ville on July 30,1938, book 79, p. 463.
“Appellee also claims under state deed of June 4, 1930, for 1926 forfeiture. Because of various reasons, this sale and forfeiture to the state is void, but the appellee contends that appellant cannot now raise the question of void sale and forfeiture because of the provisions of § 8925 of Pope’s Digest pleaded as a bar. On the other hand, appellant contends that by such deed appellee merely redeemed said lot from 1926 taxes, and that he gained no advantage by such deed to the part of the lot which he did not claim to own under the sheriff’s sale.
“Said lot 11 became delinquent for 1926 drainage tax, and was sold to Drainage District No. 17 under decree of November 21,1927, and deeded to the said district February 24, 1930. (Appellee secured a deed from this district May 15,1931, but failed to record his deed.)
“Said lot 11 became delinquent for drainage assessment for 1932, and was again sold to the drainage district May 10, 1933, under decree of February 24, 1933. (No commissioner’s deed was issued to the drainage district under this sale.) Appellee then secured a redemption deed from Drainage District No. 17, but his deed is not recorded.
“ ‘It is agreed that defendant (appellee) would testify that on February 19, 1932, he went to the circuit clerk’s office to redeem said lot 11, block 8, Chickasawba Addition, and at that time paid $33.50 for 1930 tax, and later he received a refund of a dollar over-payment; that at the time he was in the clerk’s office to redeem said lot, the 1927 and 19291 paving taxes were delinquent and listed in the same record only a few pages from where the 1930 delinquent list was recorded; that he asked the clerk to let him pay all the back taxes on said lot.’
“C. M. Buck, attorney for Paving District No. 1, if called would testify that since said district was organized it has never sold property returned delinquent and purchased by the district; that the deed to plaintiff (appellant) for 1927 and 1929 paving taxes he considers a redemption deed, and was made because Webb owned part of lot 11 and the district would not divide the tax on the lot; that had Williamson requested a deed to said lot it would have been given to him in the same manner.
“Appellant claims title to the east 27% of lot 11, block 8, Chickasawba Addition, under deed from Clyde Robinson to Mary Phillips Robinson, dated January 20, 1927; and from Mrs. Robinson to appellant, dated April 20, 1936. Both deeds recorded.
“Appellant claims title to all this lot 11 under deed from St. Francis Levee District. (This claim is now omitted because the sale like the sale for general taxes was void.)
“Appellant also claims title to the entire lot 11 under quitclaim deed of March 12, 1940, from Paving District No. 1 and Curbing, Guttering and Storm Sewering District No. 1, under foreclosure sale for 1927 taxes.
“Agreed'that all records, deeds, tax receipts, etc., referred to may be considered as part of the record in submitting the case.
“Stipulated and agreed that at all times mentioned herein, said lot 11, block 8, Chickasawba Addition to Blytheville, has been a vacant lot, unfenced and unoccupied, until a few days prior to the bringing of this suit, when appellant took possession of said lot by building a wire fence around it and by having weeds and grass cut.
“Appellee has paid total of $392.23 in taxes on said lot.
“Appellant has paid total of $110.46 in taxes on said lot.”
Several deeds were introduced, but it is not necessary to copy them in full.
Appellant contends first that the chancellor was in •error in holding- that the drainage district deed to appellee was a redemption of the west 22% feet of lot 11, block 8, above mentioned, and at the same time a sale of the east 27% feet, which he did not own.
It must be remembered that the appellee owned the 22% feet, and that he did not own the 27% feet when the lots were sold for taxes.
Section 13864 of Pope’s Digest provides that any owner or his agent or any other person for the owner, •etc., may redeem from tax sale. There is no provision for a stranger, or any person not having an interest in the land, to redeem. A similar provision is contained in the law providing for redemption from improvement district sale. No one but the appellee could have redeemed the 22% feet, and appellee could not redeem the 27% feet because he did not own it. Therefore, the sale to appellee was necessarily a redemption as to the 22% feet, and a sale as to the 27% feet.
Webster defines “redemption” as the “liberation or freeing of an estate from a mortgage; the purchase of the right to re-enter upon an estate on performance of the terms or conditions in which it was conveyed; the right of redeeming’ and re-entering into possession.”
It was said in the case of Murphy v. Casselman, 24 N. D. 336, 139 N. W. 802: “In this case there was no assumption of a debt to the vendee, but a mere right to repurchase in the vendor, and, though the word ‘redeem’ has often been used in other senses, this is the general and primary use of the word. In speaking of the subject, the Supreme Court of Wisconsin, in Lindsay v. Fay, 28 Wis. 177, has said: ‘Was such redemption an actual payment of the tax? It was said by the Chief Justice in Woodbury v. Shackleford, 19 Wis. 55, that “It is a settled principle in the construction of statutes of limitation that general words are to have a general operation, and, unless there can be found in the statute itself some ground for restraining it, it cannot be restrained by arbitrary addition or retrenchment. No exceptions can be claimed by or in favor of particular persons or cases unless they are expressly mentioned.” Applying these rules to this case, the conclusion seems inevitable .that a redemption of the land is not a payment of the tax. To hold otherwise would be to restrain the operation of the statute by arbitrary addition, which the rule of law forbids. There seems to be a wide difference between the payment of the tax by the owner of the land and the redemption of the land by him after it has been sold for non-payment of the taxes assessed upon it. There is really no tax to be paid when the land is thus redeemed. That has been canceled by the sale. .
It, therefore, appears certain that as to the west 22% feet of lot 11, it was redeemed by appellee. He was the owner, and had the right to redeem. He did not, however, have a.ny right to redeem the east 27% feet, but he did have a right to purchase it, which he' did. It is true, the deed shows a redemption, and it was a redemption of a portion of the land, and necessarily a sale as to that portion that appellee did not own. Page v. McCuing, 201 Ark. 890, 148 S. W. 2d 308.
It is next argued by appellant that she acquired title to lot 11, block 8, as follows: to the east 27% feet by deed from Mary Phillips Robinson, and to the whole lot by deed from Paving District No. 1, and Curbing, Guttering and Storm Sewering District No. 1. Appellant argues that this purchase from the Paving and Curbing* District was a purchase, and not a redemption, because she says it was headed a “Quit-Claim Deed.” Of course it makes no difference how the deed was headed or what it said —as to the property she owned, it was a redemption.
It is said by appellant that appellee failed to take possession of the property and failed to record his deed, and that appellant claimed possession by fencing the lot and clearing it of weeds a few days before suit was filed.
The court entered a decree in favor of appellee finding and holding that according to the stipulation appellee purchased at execution sale, the west 22y2 feet of said lot, and has since said date paid taxes thereon except certain taxes owed to Paving District mentioned in the stipulation; that the appellee undertook to pay these taxes, but by error of the clerk the taxes of certain years were omitted, and the appellee, believing* that he had paid all the paving taxes, was mislead. This finding of the chancellor is supported by the evidence.
The court also found that the sale by the Paving District to appellant conveys no title for the above reason, and also for the reason that there never was a deed executed as required by law, and no record exists as to confirmation. The deed of Drainage District No. 17, dated December 12, 1933, to appellee, Williamson, was not only redemption for taxes owing on that part of the lot belonging* to appellee, but was also a purchase of the remainder.
While the appellant claims that appellee’s purchase was a redemption and not a purchase, because of the statements in the deed, the entire deed is to be considered in determining its meaning, and the granting clause in the deed is as follows:
“Does hereby grant, sell, and quitclaim, unto the said J. J. Williamson, and unto his heirs and assigns, all rights, title, interest, and claim of the said Drainage District number seventeen of Mississippi county, Arkansas, by reason of the sale of said lands for the taxes for the years 1926 to 1930, inclusive, and in and to the following property, to-wit:
“ ‘Lot 11, block 8, Chickasawba Addition to the city of Blytheville, Arkansas, (and other lands).’ ”
We must also consider the fact that appellee did not own the east 27% feel and, therefore, had no right to redeem this part of the lot.
The findings of fact by the chancellor are supported by substantial evidence, and the decree is affirmed. | [
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Smith, J.
Appellant brought suit at law to recover possession of a 40-ac^e tract of land in Clay county. In reply to an intervention filed by George H. French, the cause was, on appellant’s motion, transferred to equity, where a decree was rendered dismissing the complaint as being without equity, from which decree is this appeal.
The land had forfeited to the state for the nonpayment of the 1928 general taxes due thereon. The sale was attacked upon various grounds, and its invalidity is not seriously questioned. The donation certificate was dated August 26, 1932, and it is admitted that appellant did not enter upon the land until December thereafter. He built a 2-room house and made certain improvements. On or about October 7, 1935, he remitted a dollar to the state land commissioner, with proof of improvements, all of which were returned to him by the commissioner in a letter stating that the land had been redeemed from the sale to the state by the Central Clay Drainage District under a deed to the district numbered 5689.
The land was located in the drainage district, and was subject to its taxes for the years 1928 and 1929, for the nonpayment of which it was sold to the district March 17, 1932, under a decree foreclosing the district’s lien for its taxes.
The drainage district sold the land to George H. French, who alleged in his intervention that he had also acquired the title of the original owner. He alleged his possession and ownership under these deeds through W. B. Burkes, his tenant, who was the defendant named in appellant’s complaint.
The testimony shows that appellant did not make and file with the commissioner of state lands proof of improvements and residence within sixty days after the expiration of two years actual residence.
The case is, therefore, controlled by the opinion in the case of Ware v. Dazey, 201 Ark. 116, 144 S. W. 2d 463, where it was held, to quote headnotes, that “Under Acts of 1887 and 1891, as amended by Act 128 of 1933, donee of land must make final proof within 60 days from expiration of two years after ninety days,” and that “When donee of land fails to make final proof within the time prescribed by law, effect of such failure is forfeiture of the right of possession, and all pi^ospective rights under the certificate terminate and right of possession reverts to the state without formality, and without notice.”
In the case just cited it was also held that when the proof was not thus made the donee under the certificate of donation forfeited his rights thereunder, together with the right to have compensation for the value of any improvements made.
It is insisted that the foreclosure sale to the drainage district, under the decree foreclosing its lien for taxes, was void, for the reason that the title to the land was then in the state. Such was the holding in the case of Miller v. Watkins, 194 Ark. 863, 110 S. W. 2d 531, 111 S. W. 2d 466, 113 A. L. R. 913. But these sales were confirmed by act No. 329 of the Acts of 1939. Davidson v. Crockett, 200 Ark. 488, 140 S. W. 2d 695. But, if this were not so, French has the original title to the land, and in that capacity, had the right to intervene and defend the suit brought against his tenant by appellant.
Intervener French has the title acquired by the drainage district, as well as the title of the original owner, and the decree quieting his title and dismissing the complaint of appellant as being without equity is correct, and it is, therefore, affirmed. | [
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Griffin Smith, C. J.
Petitioner insurance company asks that we prohibit the Logan circuit court from entertaining jurisdiction in respect of a cause wherein C. N. Pringos, a policyholder, seeks judgment under a provision allowing compensation for sickness. The writ should be issued, it is said, because Pringos, a resident of Texarkana, Arkansas, became disabled April 7, 1941, as a result of pulmonary tuberculosis, and was at that time taken to State Sanatorium at Booneville.
Suit was filed July 16. Summons was served on the insurance commissioner at Little Bock. Another summons was served on A. 0. Barlow, described as agent for Mutual Benefit Health & Accident Association in Logan county. The return recites that Barlow “. . . is in charge of the agency of said defendant in the Southern district of Logan county. ’ ’
Coupled with the allegation that Pringos was a citizen and resident of Texarkana was the assertion that the Logan circuit court was without jurisdiction of the subject-matter or the person of the defendant.
There was attached to the motion to dismiss a list containing the names of thirty persons who from 1937 to June 22, 1941, had been sent to the sanatorium by order of the Miller county court under authority of %% 12616 and 12617 of Pope’s Digest. The statute referred to make provision for a charge against the county of half the maintenance cost; and, as emphasized by petitioner, the term “patients [of the] county” is used. A certificate of the Miller county judge, attesting that Pringos was a resident of that county, is dated June 30, 1941, more than two months after the patient was sent to the sanatorium.
Metropolitan Life Insurance Co. v. Baker, 197 Ark. 61, 122 S. W. 2d 951, is cited by petitioner as authority for the assertion that the court is without jurisdiction. In that case May Bell Baker, as beneficiary, sued in Crawford county on a policy issued to her husband, who just prior to his death resided in Franklin county. The assured died in Sebastian county. After citing § 7675 of Pope’s Digest, the opinion holds that the statute localizes the action, providing that it may be brought in the county where the beneficiary resided or where the insured died. It was then said that since Baker lived in Franklin county and died in Sebastian county, the Crawford circuit court, under § 7675 of Pope’s Digest, had no jurisdiction. “We are of opinion,” the court said, “that suits of this character must be brought in the county where the assured lived, or where he died.”
Section 7715, Pope’s Digest, allows the beneficiary under a policy of accident insurance to sue in the county where the insured resides or in the county where the accident occurs. Jurisdiction of the defendant is acquired by service upon an agent in any county in the state, or upon the insurance commissioner. The statute refers to “accident insurance,” but does not mention disability occasioned by sickness. In Continental Casualty Co. v. Toler, 188 Ark. 139, 64 S. W. 2d 322, prohibition was denied when it was sought to halt the suit of O. L. Floyd, instituted in Grant county, where the plaintiff resided. The policy afforded indemnity against accidental bodily injury, and, in addition, provided indemnity for accidental death. The suit was one to recover “. . . for gross damages for breach of the contract.” The statute, by its express terms, applies to accident insurance; but the court’s holding (two of the judges dissenting) was that “. . . an action for insurance against injury by disease in the same policy necessarily takes the same venue.”
Section 7676 of Pope’s Digest makes all provisions of laws applicable to life, fire, marine, inland, lightning, or tornado companies apply to all insurance companies transacting any kind of business within the state. Section 1369 of Pope’s Digest, which appears under “Civil Procedure” at page 609, provides how service may be had on all foreign and domestic corporations that maintain a branch office or place of business.
.The holding in Grovey v. Washington National Insurance Co. 196 Ark. 697, 119 S. W. 2d 503, is that service may be had on foreign insurance corporations through summons served on a soliciting agent residing in the county where the suit is filed. In Pacific Mutual Life Insurance Company v. Henry, 188 Ark. 262, 65 S. W. 2d 32, the holding is (quoting a headnote) that “Under Crawford & Moses’ Digest, §§ 1151, 1152, service of summons on a foreign insurance company’s general agent for service in Pulaski county [gave] jurisdiction to the court in another county where the company had a local agent. ’ ’
In Scottish Union & Nat’l Ins. Co. v. Hutchins, 188 Ark. 533, 66 S. W. 2d 616, we said: “Service was had on a local agent of petitioner in Forrest City, and it is further contended that the service was bad because not on the designated agent. This contention was ruled adversely to petitioner in the recent case of Pacific Mutual Life Ins. Co. v. Henry.”
It is our further view that there is no prima facie showing that Fringos did not intend to change his residence. While it is true the county judge certified the insured as a resident of Miller county in April, it is equally true that on March 26, preceding, Act 266 of 1941 relieved counties of the obligation of paying maintenance accounts for tuberculous patients, and the certificate of the judge sheds no lights on Fringos’ intentions as to residence after leaving Texarkana. His wife moved with their child to Fort Smith and secured employment. A great deal of Fringos’ time is spent in bed, under a doctor’s directions, and if recovery is effected at all, the process may require months or years. There is nothing in the record, other than the fact that he formerly lived at Texarkana, to indicate that he regards Miller county as his home. His intention in that respect would govern. That man has an absolute right to change place of abode for any reason was decided in McGill v. Miller, 183 Ark. 585, 37 S. W. 2d 689, and reaffirmed in Shephard v. Hopson, 191 Ark. 284, 86 S. W. 2d 30. In re Deans, 208 F. 1018 affirmed (1916) U. S. v. Deans, 230 F. 957, 145 C. C. A. 151, there is the holding’ that residence is a matter of intention. On the other hand, the intent of one to abandon his domicile and take up another must be ascertained from all facts and circumstances. State v. Red Oak Trust & Savings Bank, 167 Ark. 234, 267 S. W. 566.
In the complaint there is the allegation that . . plaintiff is now residing in the Southern district of Logan county.”
In view of the circumstances compelling plaintiff’s removal from Texarkana; the fact that his wife has been employed at Fort Smith; and the indeterminate nature of plaintiff’s tenure at State Sanatorium, the court, on the face of the record, was not without jurisdiction. If at trial it should be shown by appropriate proof that plaintiff’s claimed residence in Logan county is without merit, the trial judge will no doubt take notice of such evidence and be guided accordingly.
Our holding now is that a proper showing for prohibition has not been made.
"Writ denied.
Act June 1, 1911, p. 423.
Act 266, approved March 26, 1941, subdivision B, § 4, conditionally sets aside $300,000 annually “. . . to the county tuberculosis fund to be used as a substitute foi’ county appropriations for the state tuberculosis sanatorium for the. benefit of indigent needy tuberculosis patients.”
Page 698, Arkansas Reports; p. 504, Southwestern Reporter.
Pope’s Digest, §§ 1368, 1369. | [
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Holt, J.
A jury in the Clark circuit court convicted appellant, Effie Todd, on the charge of assault and battery and fixed her punishment at a fine of $1. Appellant has appealed.
During the closing argument on behalf of appellant, the record reflects the following colloquy:
“Mr. Brown (arguing the case to the jury) : It would be a shame to convict the defendant on this evidence and subject her to working sixty or ninety days on the County Farm. Mr. Crawford (deputy prosecuting attorney): Gentlemen, don’t worry about her having to work out a fine on the County Farm; she will sell enough whiskey to pay the fine. Mr. Brown: Tour Honor, I wish to ask at this time for a mistrial because of the highly prejudicial statement which the prosecuting attorney has just made. Court: Overruled. Gentlemen of the jury, you will not consider that statement. Mr. Brown: Save my exceptions.”
The parties have stipulated that the charge against appellant does not involve the sale of liquor and that there is no testimony in the record tending to connect appellant with the sale, possession or drinking of any kind of intoxicants. Appellant ■ urges here but one ground for reversal and that is that the trial court erred in refusing to declare a mistrial on account of the prejudicial and improper argument of the prosecuting attorney. We think this contention must be sustained.
We said in Crow v. State, 190 Ark. 222, 79 S. W. 2d 75: “It has long been the established doctrine in this state that a wide range of discretion is allowed circuit judges in dealing with arguments of counsel before juries; this because they can best determine at the time the effect of unwarranted arguments. True, this discretion is not an arbitrary one, but may be reviewed if its exercise is abused.”
Here it is conceded that there is no evidence, in the record, that appellant had had any connection with drinking, or the sale of intoxicating liquor. For counsel representing the state to make the unqualified state ment that “she will sell enough whiskey to pay the fine” was highly improper and prejudicial to the right of appellant to that fair and impartial trial guaranteed to her under the Constitution of this state (art. II, § 10). The court’s mild admonition to the jury not to consider the statement was not sufficient, in our opinion, to remove the damage done. The effect of the argument was to charge appellant with being engaged in the illegal sale of liquor, commonly called “bootlegging,” and a charge that was not true, and which was but emphasized by the failure of the prosecuting attorney to offer to withdraw it.
Even though appellant’s punishment was fixed at the nominal amount of $1, when under the statute it might have been as much as $200 (§ 2959, Pope’s Digest), we are not prepared to say that the jury might have convicted appellant without this improper argument.
In the case of German-American Ins. Co., et al. v. Harper, et al., 70 Ark. 305, 67 S. W. 755, appellees’ attorney in his argument said: “Gentlemen of the jury, if you knew Marshall’s business methods, you would say: ‘ God save the plaintiffs and God save all those who deal with him’.” Marshall was not a party to the suit, but was an important witness for the appellant. On appeal this court said: “These remarks were gravely prejudicial. True, they were not made under the sanction of an oath as a'witness. But the statement of matters of fact by counsel of high character and excellent standing in the profession might be as readily accepted and believed by the jurors, and make as profound and ineradicable impression upon their minds as if they had been uttered under oath. . . . The remarks of the learned counsel, if not directly, certainly by insinuation, conveyed to the jury a knowledge on his part of Marshall’s business methods which were so inefficient or disreputable as to make him untrustworthy, and one whom all having business in his line should shun.”
In Hughes v. State, 154 Ark. 621, 243 S. W. 70, this court reversed the judgment because of improper and prejudicial remarks of the prosecuting’ attorney even though, the lower court told the jury that the remarks were improper and should not be considered. There this court said: “Considering* the highly prejudicial character of the remark its effect could not be removed by a mild admonition of the court. ’ ’
We also quote from the opinion in Hogan v. State, 191 Ark. 437, 86 S. W. 2d 931: “As was said by Judge Mulkey in Quinn v. People, 123 Ill. 333, 15 N. E. 46, quoted by Judge Wood in German-American Ins. Co., et al. v. Harper, et al., 70 Ark. 305, 67 S. W. 755: ‘As well might one attempt to brush off with the hand a stain of ink from a piece of white linen’ as to remove from the minds of the jury the impression that must have been created by the remarks of the prosecuting attorney. In Adams v. State, 176 Ark. 916, 5 S. W. 2d 946, we said: ‘ This court will always reverse where counsel go beyond the record to state facts that are prejudicial to the opposite party, unless the trial court by its ruling has removed the prejudice ’ . . . ”
It is our view, therefore, that counsel’s argument was highly improper and prejudicial to appellant’s rights, and that the error was not cured or removed by the mild admonition of the court to the jury not to consider it. Nor do we think that the argument in question was in answer to the statement of appellant’s attorney and therefore, invited error.
Appellant was being tried on the charge of assault and battery defined (§ 2957, Pope’s Digest) as “the unlawful striking or beating of another,” the punishment for which is a fine only'.
The statement of appellant’s attorney that it would be a shame to convict her on the evidence and subject her to working sixty or ninety days on the County Farm was, at most, an opinion and did not warrant the highly improper and prejudicial remark of the state’s counsel, which was in no sense a proper answer to this statement.
For the error indicated, the judgment is reversed and the cause remanded.
Mehaeey, J., dissents.' | [
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Holt, J.
Appellants brought suit in ejectment in the Logan circuit court, northern district, against W. S. Rogers, appellee, to recover possession of land in the north one-half of section 34, township 9 north, range 23 west, in Logan county, Arkansas. Upon motion of appellee, the cause was by agreement transferred to equity. Appellants alleged in their complaint that they are the owners of the north one-half of section 34 and the south one-half of section 34, township 9' north, range 23 west, and are entitled to possession; that appellee, Rogers, has been in possession of this property since January 1,1934.
Appellee answered denying the claim of appellants to the title, or the right to the possession of the land.
Upon a .trial the court found the issues in favor of appellee and dismissed appellants’ complaint for want of equity. This appeal followed.
The land in controversy lies in the north one-half of section 34, and it is undisputed that appellee is in possession. On behalf of appellants the evidence discloses that on July 18,1932, Mrs. S. C. Howell, for a consideration of $700, entered into a contract to convey to appellants the land described as the south one-half of section 34, and on January 16, 1934, she executed a warranty deed to the south one-half of section 34 to appellants in accordance with the terms of the contract.
On October 11, 1935, Charmelcy Jean Cravens Hollenberg, Jesse Edgar Cravens Ownby, Emma Batson Cravens Grulick and Sophe Cravens Howell executed a quitclaim deed for a recited consideration of $10 to the north one-half of section 34 to appellants. The grantors in this quitclaim deed are the heirs of J. E. Cravens, deceased. The records of these lands prior to about 1888 were destroyed with the burning of the Logan county courthouse and appellants state in their brief “after the year 1888 the lands in section 34 in some manner passed to J. E. Cravens, these appellants’ ancestor in title.” The record before us, however, does not show that this land ever passed to J. E. Cravens. There is evidence that J. E. Cravens during- his lifetime, and his heirs after his death, from time to time paid the taxes on this land, but these payments were not at any time made under color of title.
Appellee is the owner of the land adjoining, and lying west of the land in the north one-half of section 34, the land involved here, and his land is described as “Beginning at a point 220 yards east of southwest corner of southeast quarter (SE1/^) of northeast quarter (NE%), run north to Arkansas river’s edge, and beginning from same corner as described above and running thence east to Arkansas river’s edge, all above being in section 33, township 9 north, range 23 west, and containing 20 acres more or less, together with all accretions thereunto formed by the Arkansas river,” situated in the northern district of Logan county, Arkansas.
Appellee acquired this property by deed from Mrs. Sallie Rogers March 14, 1932, and she acquired it from George 0. Patterson by deed in 1916.
Section 34 is immediately east of, and joins, section 33. The Arkansas river runs almost due north and south across section 34 and all of this section is taken up by the river bed with the exception of the land here involved, which lies in the west part of the north one-half of section 34 extending from the river’s edge west to the section line between section '33 and section 34, and the land in the south one-half of section 34 extending from the river’s edge west to this section line between section 33 and section 34.
This suit being one in ejectment, in order for appellants to recover the land involved here they must do so on the strength of their own record title and not on the weakness of appellee’s title. In Haynes v. Clark, 196 Ark. 1127, 121 S. W. 2d 69, this court said: “This being a suit in ejectment, it is well settled by numerous decisions of this court that appellants were not entitled to succeed in recovering the tract of land involved, unless they could do so upon the strength of their own title. They were not entitled to rely on the weakness of the title of appellees. Beardsley v. Hill, 77 Ark. 244, 91 S. W. 757; Allen v. Phillips, 87 Ark. 185, 112 S. W. 403; Winn v. Whitehouse, 96 Ark. 42, 131 S. W. 70; Wallace v. Hill, 135 Ark. 353, 205 S. W. 699; Robert v. Brown, 157 Ark. 230, 247 S. W. 1058; France v. Butcher, 165 Ark. 312, 264 S. W. 931; Robinson v. Cravens, 176 Ark. 682, 4 S. W. 2d 533.”
And in Bunch v. Johnson, 138 Ark. 396, 211 S. W. 551, it is said: ‘ ‘ There is nothing in the record from which it can be inferred that appellants or their grantors were ever in the actual possession of the real estate in question. They must, therefore, depend, for a recovery, upon the strength of their record title and not the weakness of appellees’ title. Wolf v. Phillips, 107 Ark. 374, 155 S. W. 924; Brasher v. Taylor, 109 Ark. 281, 149 S. W. 1107.”
Appellee, as we have indicated, is in possession of this property, and appellants have never been in possession, and we think appellants have failed in their attempt to establish title, or right to possession. The quitclaim deed to appellants of October 11, 1935, supra, conveyed nothing because the grantors had no title-to convey.
Appellants’ claim of title to this property on account of tax payments made at irregular intervals by their grantors and the ancestor of the grantors, can avail them nothing for the reason that these tax payments were not made, according to the evidence disclosed by this record, by anyone holding color of title.
In Fletcher v. Malone, 145 Ark. 211, 224 S. W. 629, this court said: “The mere payment of taxes without color of title does not, no matter how long continued, constitute such an invasion of the owner’s rights as to call for action on his part, for that alone could never create a cloud on his title, nor operate as a divestiture thereof. Penrose v. Doherty, 70 Ark. 256, 67 S. W. 398; Jackson v. Boyd, 75 Ark. 194, 87 S. W. 126; Chatfield v. Iowa & Ark. Land Co., 88 Ark. 395, 114 S. W. 473.”
Appellants also insist that they have title to the land in question under the provisions of § 8709 of Pope’s Digest which provides in part that “All land which has formed or may hereafter form, in the navigable waters of this state, and within the original boundaries of a former owner of land upon such stream shall belong to and the title thereto shall vest in such former owner, his heirs or assigns, or in whoever may have lawfully succeeded to the right of such former owner therein. . . .”
It was the purpose of this legislation to give title to the former owner where his land reformed as an island within the boundaries of his original grant. But for this provision such island ivould become the property of the state. We think, however, that this section has no application here for the reason that the great preponderance of the testimony (in fact we find none to the contrary) shows that the land here involved is not an island, but is, in fact, land formed and added to appellee’s land by accretions.
Appellants next complain of the trial court’s refusal to permit them to introduce evidence of a conversation between Mrs. Sallie Rogers, appellee’s grantor, and G. 0. Patterson in 1915. At the time of the trial Mr. Patterson had 'been dead for several years. The evidence sought to be introduced is stated by appellants’ counsel in the following language: “We offer to prove by this witness that in 1915 he talked with Mr. Patterson about his holdings and Mr. Patterson stated to him that his land only ran one-half mile east from the center of section 33 and that it stopped at the east section line of 33.”
We think no error was committed here. This evidence is general in its scope. It does not attempt to point out any fixed and definite 'boundary line or monuments as marking any boundary line. In fact, the testimony of Mrs. Rogers discloses that at the time the alleged conversation took place the east’ boundary line of the land which Patterson was conveying to her, and which she conveyed to appellee, was in the Arkansas river.
In the recent case of Norden v. Martin, ante, p. 180, 149 S. W. 2d 550, this court quoted with approval the rule as to the admission of testimony of this character as announced in 8 Am. Jur., p. 814, § 96, as follows:
“The declarations of a deceased former owner are admissible in evidence, but in order that they may be received, they must establish some fact, as a cornerstone or particular marked line, and they are not admissible when they are mere statements that certain lands lay within the boundary of such former owner, or' that it was the same as had been conveyed in a certain deed, or merely as to facts which might tend to a general reputation as to the true boundary. Evidences of declarations 'by a deceased owner as to boundaries is inadmissible unless made while he was actually in possession and claiming it as owner.”
Finally appellants claim that the trial court should have ordered division of the north one-half of section 34, the land here involved, between the parties as an accretion to the lands of both parties, and relies upon the case of Malone v. Mobbs, 102 Ark. 542, 146 S. W. 143, Ann. Cas. 1914A, 479. "We think the rule laid down in that case can have no application here for the reason that the great preponderance of the testimony is, as the court found, to the effect that the land here involved, all of which lies in the north one-half of section 34, was formed and added to appellee’s land by accretions from west to east, and is not an accretion from south to north to the south one-half of section 34, which south half, it is conceded, appellants own.
As has been indicated, the river cuts across the north one-half and the south one-half of section 34 from the north almost directly due south. The record reflects that land has also formed by accretion from west to east on the south one-half of section 34, appellants’ land. The testimony of W. M. Baumgartner, one of the appellants, is to this effect (quoting from his testimony): “Q. When was the first time any cultivating was done in section 34? A. About 1931 or 1932. Q. That was when it began to come back? A. In the south half, yes, and I guess about the same time in the north half. Q. That part in the southwest corner of north half of 34 was put in in 1931 or 1932 at the same time the south half.of 34 was put in? A. Yes, sir.” The surveyors’ maps in evidence corroborate this testimony.
Finding no error, the decree is affirmed. | [
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Griffin Smith, C. J.
The appeal is from a decree dismissing for want of equity a complaint in which it was alleged that Mrs. Kate McRae Bracy disposed of 82 acres of land in Union county with the fraudulent intent to defeat creditors.
July 15, 1927, L. K. Snodgrass, Julia G. Snodgrass, S. Y. Bracy, and Kate M. Bracy delivered to Bankers Trust Company, of Little Rock, agent, their executed notes aggregating $47,500, secured by deed in trust on certain real property. The notes became due July 15, 1932. The indebtedness was reduced to $42,000, and maturity was extended to July 15, 1934 There is testimony of an oral agreement under which maturity was extended to January 29, 1941, with payment of $2,000.
By indorsement of May 4,1936, the indebtedness was assigned to Mortgage Loan & Insurance Agency, Inc., agent.
Mrs. Braey died intestate in May, 1939. June 30 of the same year Van E. Manning was appointed administrator of Mrs. Braey’s estate. Manning’s wife is a daughter of the Braeys.
Claims on behalf of noteholders were allowed July 27, 1939, by Manning, administrator. There was approval by the Pulaski probate court two days later. The order recites that interest had been paid to January 15,1939.
Two witnesses familiar with Little Rock real estate testified for plaintiffs. Opinion of one was that at forced sale the Main street property would probably bring $22,500, but in the open market with six months within which to procure a purchaser, it might be worth $25,000. The Markham street property was valued at from $5,250 to $5,550.
The second realtor valued the Main street property at $1,000 per front foot. This witness thought the Markham street property was worth from $6,500 to $7,500.
If, as one of appellants’ witnesses believed, the Main street property exclusive of improvements was worth a minimum of $16,000, and the Markham street property had a minimum value of $5,250 with improvements, and if insurance of $20,000 carried on the Main street property improvements and $12,000 carried on the Markham street improvements should be added, the total would be $53,250. This assumption presupposes that the improvements were not overinsured.
At present Snodgrass and Braey are paying $350 per month, which is slightly in excess of interest at 5 per cent., taxes, insurance, etc.
There was testimony on appellees’ behalf that in 1934 the Union county lands were worth “about $5 per acre and up.” Actual value of a particular tract would depend on oil potentiality, it was said.
Appellees insist that the Union county lands were not a gift to Mrs. Manning. Alfred Bracy was in the roofing business and needed capital. Sam Bracy, Jr., and Mrs. Manning, turned over to Mr. and Mrs. Bracy certain stocks, the value of those surrendered by Mrs. Manning being from $2,400 to $3,000. Using Mrs. Manning’s stock, and certificates belonging to Sam Bracy, Jr., S. Y. Bracy borrowed money for Alfred’s needs. There was an understanding that the stocks would be returned, or that property of like value would be substituted.
S. Y. Bracy’s testimony that the property was transferred for a valuable consideration is not denied, al though E. J. Risley, Commercial National Bank trust officer, told of conversations with Bracy in which the latter said he did not believe he could induce Mrs. Bracy to mortgage “the lands in south Arkansas at Mt. Holly.” Bracy is quoted by Risley as having stated that the lands came to his wife through her grandmother, “and she had a sentiment about it.” However, in what appears to have been the same conversation, Risley says Bracy spoke of certain financial involvements as to which Mrs. Bracy was informed, “. . . so she consulted a lawyer and he suggested for her to deed this land to someone, and when everything blew over they could put it back like it was.” Risley says he told Bracy [the trouble] “was all blown over, and the land should be added to the mortgage. Mr. Bracy said it could be done.”
Appellants argue that, while in respect of the Little Rock security there has been no foreclosure, it is known by both parties to the mortgage that should sales be decreed the property would not be sufficient to satisfy the debt, and consequently there would be a substantial deficiency judgment. "We find nothing in the record indicating that appellees share this view. A fair inference to be drawn from S. Y. Bracy’s testimony is that $40,000 was paid for the Main street property alone; and, he added, “I would hate to take less than that for it. ’ ’ The holdings on Markham street were bought from two owners, one of whom was paid $6,500, and the other $7,000. Improvements were made. Mr. Bracy testified it was worth $12,000 “at least.”
Pointing to the fact that appellants are secured creditors,- appellees argue they are in the position of subsequent creditors, and insist the case is controlled by Cave v. Zimmerman, 198 Ark. 684, 130 S. W. 2d 717, and Barry, Trustee v. Cassinelli, 200 Ark. 627, 140 S. W. 2d 112. In those cases Home Life & Accident Co. v. Schichtl, 172 Ark. 31, 287 S. W. 769, was cited and followed. Appellants agree that “While the presumption of fraud of certain conveyances, qualifiedly fraudulent in other respects, is not applicable in favor of secured creditors, . . . the rule does not apply in the case at bar for the reason that -before the conveyance was made it was agreed between the Bracys and the appellants’ agent that the Union county land would be available as security also on the mortgage, and even after it was conveyed this same ágreement was made.”
The fallacy of this reasoning is that Mrs. Bracy, the owner, did not agree to mortgage the Union county lands. If it be urged that S. V. Bracy was agent for his wife, the answer is that, without written power of attorney, he could not bind her in the • manner desired by appellants.
Robinson v. Bigger, 199 Ark. 1152, 137 S. W. 2d 738, is cited by appellants. In that case there had been foreclosure; also the fraud was clearly proven. It is not analogous to the instant case.
There is insistence that the conveyance was to pay a debt barred by the statute of limitations, the shares of stock having been 'delivered in 1929, and the deed to Mrs. Manning not having been executed until 1934 — more than three years. There was no testimony showing when the indebtedness matured. The statute of limitation would not begin to run until payment was due; nor can a third party interpose the defense for the debtors.
The charge of fraud has not been sustained. Hence, the chancellor did not err in dismissing the complaint.
Affirmed.
Plaintiffs are: Arthur, Ruth, and Stanley Less; the Commercial National Bank, of Little Rock, trustee of the estate of H. L. Remmel, deceased; Jo Frauenthal, administrator with the will annexed of the estate of Sam Frauenthal, deceased; the Commercial National Bank, of Little Rock, trustee of the estate of T. J. Darragh, deceased; Jarrett and Norma Davis, and Sam Davis, Jr.; Mrs. W. W. Wilson; F. J. Sehmutz, administrator of the estate of Mary B. Amis, deceased; Mrs. Olive Jeanette French, Miss Minnie Melton, Ed. Narkinsky, Miss M. N. Repetti; the Commercial National Bank, of Little Rock, trustee for Mrs. M. D. Hyatt; and the Commercial National Bank, of Little Rock, as trustee for Maxine Anderson. The land is described as west half of the southwest quarter of section 28, township 16 south, range 18 west, and two acres, more or less, in the fractional north half of the northeast quarter of section 33 of the same township and range, described by metes and bounds. An amendment to the complaint made allegations as to disposition of 5.04 acres, details of which are not material to this opinion.
L. K. Snodgrass and S. V. Bracy, when the notes and deed were executed, were partners in the drug business. The business was incorporated in 1933. Julia G. Snodgrass was the wife of L. K. Snodgrass, and Kate M. Bracy (sometimes referred to as Mrs. Kate McRae Bracy) was the wife of S. V. Bracy.
West 50 feet of lots 10, 11, and 12, block 33, and the south half of lot 10, block 78, Little Rock.
A prior extension had advanced maturity to July 15, 1933.
The interest rate was 5 per cent, per annum, and 10 per cent, after maturity. The claims were classified as third class. Pope’s Digest, § 97.
The same witness testified that “Without improvements on the Main street property I would cut it down to about $17,500 — that 25 feet, or $16,000 for the 25 feet if the improvements were not on it.”
The reference was to “property on the west side of Main street between Markham and Second, assuming that the buildings are all old, fairly well maintained as to condition — in other words, $25,000 as to the value of any of the property in the middle of the block. In 1937 we sold the north 39 feet of lot 9 to Arkansas Amusement Corporation for $36,500. It is immediately south of the Snodgrass & Braey property. That was for less than $1,000 a foot, but the buildings were not in as good a state of repair as [the Snodgrass & Braey] buildings. It was a cash sale, but for a specific purpose.”
Indicative of the value placed by the mortgagee at the time the loan was made is the condition that fire and tornado insurance of $48,000 should be carried in companies designated by the mortgagee. [It is not the intention, by referring to insurance on buildings and other improvements, to hold as a matter of law that the amount for which policies were issued represents actual or approximate values.]
Oldest son of Mr. and Mrs. Bracy.
The loan negotiated by S. V. Bracy in 1932 was $9,150. The personal debt was secured by shares of the common stock of United Drug Company, some of which, according to Risley’s testimony, belonged to Mrs. Bracy. In “all these transactions” Risley dealt with Mr. Bracy for Mrs. Bracy.
The deed from S. V. Braey and Mrs. Kate McRae Bracy to Mrs. Mary Braey Manning recites “One dollar in hand paid by Mary Bracy Manning, and other good and valuable considerations,”
Shortly after this conversation occurred Alfred Bracy died.
Cf. Wilks v. Vaughan, 73 Ark. 174, 83 S. W. 913; Papan v. Nahay, 106 Ark. 230, 152 S. W. 107; Kaufman v. Citizens Bank, 189 Ark. 113, 70 S. W. 2d 572; Ramsey v. Broyles, 199 Ark. 1161, 137 S. W. 2d 744.
A power to convey lands must possess the same requisites, and observe the same solemnities, as are necessary in a deed directly conveying- the lands. Clark et al. v. Graham, (U. S.), 6 Wheat. 577; Thompson on Real Property, v. 7, §§ 3878, 3883 (Permanent Edition). See Revised Statutes, ch. 31, § 23, Pope’s Digest, § 1837, for requisites of power. [See, also, act 27, approved January 31, 1939, relating to power of attorney of married women for waiver of homestead and dower.] | [
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Smith, J.
The chronology of the facts out of which this litigation arose is of controlling importance, and we, therefore, state them in their sequence.
On June 6, 1933, Mrs. Charlotte Welch, who, by a subsequent marriage became Mrs. Condrey, operated a monument business on a lot in the city of Fort Smith which she owned. On the date mentioned J. D. Firestone and his then partner purchased the personal property used in connection with this business, and took a lease on the lot for a period of two years. A ‘ ‘ Bill of Sale and Contract” was executed, which recited a consideration of $2,120 as balance of purchase money. Certain payments were made, and on August 4, 1934, Mrs. Welch agreed to accept $1,500 cash in payment of the balance due on the purchase money.
Firestone and his partner borrowed that sum of money from the First National Bank of Fort Smith, and by way of security gave the bank a chattel mortgage on the property which they had purchased from Mrs. Welch, consisting of the machinery, equipment, tools, and furniture used in connection with finishing the monuments for sale, together with certain monuments, and grave markers, which constituted the stock of goods on hand for sale.
On August 14, 1934, Mrs. Welch indorsed on the bill of sale and contract its complete payment and satisfaction. The chattel mortgage was duly recorded, and Firestone subsequently purchased the interest of his partner and became the sole owner. At that time, Fire stone was not indebted to any party to this record except the bank.
The indebtedness due the bank was not paid in full, but was renewed on April 10,1936, and the renewal chattel mortgage included certain personal property subsequently acquired. The debt to the bank had 'been reduced to $900 on August 3, 1937, when a renewal chattel mortgage was given. On September 26, 1938, a balance of $700 remained due, and the chattel mortgage was again renewed.
The indebtedness secured by this last renewal mortgage was not paid, and suit was hied to foreclose it, with Us pendens notice. A decree foreclosing* the mortgage was rendered September 27,1940.
Mrs. Welch died, and on September 14, 1936, Firestone purchased the lot from her executor. Prior to that time he had occupied the lot as a tenant. Firestone borrowed the money from the bank to pay for the lot, and to secure this separate loan executed a real estate mortgage to the bank on the lot. On September 23, 1938, Firestone borrowed from Mrs. Irene Soule the amount of money due on the lot and secured by the mortgage thereon, and gave Mrs. Soule another mortgage covering the lot in substitution for the mortgage on the lot given the bank.
As has been said, the decree foreclosing the chattel mortgage given the bank was rendered September 27, 1940, and pursuant to its directions the commissioner appointed to make the sale had taken possession of the mortgaged property and had advertised it for sale.
On January 23, 1940, C. P. Ahlgren, receiver, recovered judgment in the municipal court of Fort Smith against Firestone for $96.10, on which a payment of $50 was made, leaving a balance due of $46.10. On February 13, 1940, W. C. Townsend & Company recovered judgment in the municipal court of Fort Smith against Firestone for $84.31, on which a payment of $30 was made, leaving a balance of $54.31.
After the rendition of the decree in the foreclosure proceeding, Mrs. Soule intervened in that proceeding and filed a motion to modify said decree and order of sale, in which motion she alleged that Firestone had, on September 23, 1938, executed to her a mortgage on the'lot and “all appurtenances thereto belonging,” and that she had instituted foreclosure proceedings on June 19, 1910. In this motion it was alleged that so much of the machinery on the lot as was covered by the chattel mortgage was a part of the realty, and it was prayed that such machinery be excluded from the decree of sale.
The chattel mortgage to the bank also covered what might be called the stock of goods, consisting of monuments, grave markers, etc. The intervening judgment creditors insist that the chattel mortgage upon the stock of goods was void.
Upon hearing these motions and interventions, they were dismissed as being without equity, and this appeal' is from that decree.
The machinery first purchased from Mrs. Welch was located in that part of the building which had a dirt floor, and the pieces of machinery were set on individual concrete bases, which might have been removed without damage to the 'building; but we think, nevertheless, that they were fixtures in 1931, when the bill of sale and contract was executed. But we also think that the effect of that instrument was to destroy their character as fixures. They were sold separate and apart from the building in which they were stationed, and this, in legal effect, was a severance, which invested them with the character of personalty.
Our case of Hensley v. Brodie, 16 Ark. 511, is cited, among other cases to support the following statement of law appearing as § 70 of the chapter on Fixtures in 26 C. J. 692: “By the weight of authority, a separate sale or mortgage of articles previously annexed to the land has the effect of rendering them personalty, although in no way physically severed.” A similar statement of the law, with citation of cases supporting it, appears in vol. 22, Am. Jur., p. 727, and also at § 10 of the chapter on Fixtures in 11 R. O. L., p. 1066.
Here, the owner of the lot and the fixtures sold the fixtures apart from the lot. This was a constructive severance, which made what had been fixtures personalty. To secure the repayment of the money borrowed to pay for them, a chattel mortgage was executed to the bank which had loaned the purchase money, and this chattel mortgage, by renewals thereof, duly recorded, has been kept in force and effect.
When Firestone purchased the lot he gave a mortgage upon it to secure the repayment to the bank of the additional loan made to pay for the lot. Mrs. Soule loaned Firestone the money to repay the bank, and by the new mortgage which she then took from Firestone she acquired the same security which the bank had, that is, a. mortgage on the lot which did not include the fixtures, because, as herein stated, they had been previously constructively severed, and we think the court properly dismissed her intervention. She may, of course, proceed with her suit to foreclose this mortgage.
We are of the opinion also that the court properly dismissed the interventions and motions of the judgment creditors, whose insistence is that the chattel mortgage to the bank was void insofar as it covered and related to the stock of merchandise on hand, consisting of monuments, grave markers, etc.
Appellants designate the chattel mortgage as a running mortgage on the stock of merchandise, from which stock of merchandise goods were sold and the stock replenished as the sales were made.
To support the contention that the mortgage was void, we are cited to Lund v. Fletcher, 39 Ark. 325, 43 Am. Rep. 270, in which case it was said that a fluctuating lien, which opened to release what was sold, and to take in what was purchased, is invalid in law.
But this is not true as between mortgagor and mortgagee, the mortgage being valid as between them; nor is it true as to a third party where the mortgagee takes possession of the mortgaged property before the third party has questioned the validity of the mortgage or has fixed some lien upon it.
This is made very clear by the. opinion in the case of Little v. National Bank of Mena, 97 Ark. 57, 133 S. W. 166, in which case Justice Hart quotes from and approves the holding in Lund v. Fletcher, supra, and cites other cases to the same effect.
In this Little case, supra, the lumber company executed a mortgage on its stock of lumber on hand and all other lumber thereafter acquired during the life of the mortgage. The lumber company continued in possession of the lumber, selling and replenishing the stock in the usual course of business, until default was made in the payment of the debt secured by the mortgage, when the mortgagee took possession of the mortgaged lumber. A receiver was appointed at the suit of other creditors of the lumber company who took over all the assets of the lumber company, including the lumber. The bank intervened in that suit, and asserted the validity of its mortgage which was denied by the other creditors upon the ground that it covered an open stock of goods. The trial court sustained the validity of the mortgage, from which decree the creditors appealed to. this court. In affirming this decree it was there said: “Constructive fraud is relied upon, arising from the fact that by the terms of the mortgage the mortgagor was allowed to sell the. lumber in due course of trade on his own account, and not as agent of the mortgagee. There are two lines of decisions upon this question — one holding that the mortgage' is absolutely void, and that no subsequent act of the parties can impart any validity to it, and the other holding that the mortgage is valid between the parties, but invalid as to subsequent purchasers, attaching or execution creditors or others acquiring specific liens upon the property. See case notes to 25 L. R. A. (N. S.), pp. 110 and 145, and 17 L. R. A. (N. S.), p. 937. In the case of Lund v. Fletcher, supra, our court held that in such case the mortgage ‘was invalid, save between the parties, on account of the power left in the mortgagor to sell in ordinary course of business.’ It necessarily follows that, if the mortgage is valid between the parties, it constitutes a lien upon the property against every person except subsequent purchasers and creditors acquiring a specific lien upon the property; and such is the effect of the decision in the case of Lund v. Fletcher, supra,, and other similar cases in this state. This view is strengthened by the decisions of our court, which held that if a mortgagee takes possession of the mortgaged chattels before any other right or lien attaches his title under the mortgage is good against everybody, if it was previously valid between the parties, although it be not acknowledged or recorded. Garner v. Wright, 52 Ark. 385, 12 S. W. 785, 6 L. R. A. 715; Applewhite v. Harrell Mill Co., 49 Ark. 279, 5 S. W. 292; Martin v. Ogden, 41 Ark. 186.”
Here, a foreclosure of the chattel mortgage had been decreed and the property advertised for sale before the judgment creditors attempted to impose a lien under their judgments on the personal property by levying an execution thereon. The Little case, supra, is, therefore, authority for holding that the chattel mortgage is valid as to these judgment- creditors.
As to the real estate mortgage, it appears, from what has been said, that it did not cover the fixtures, which had previously been severed and had become personalty.
Among the cases cited by appellants the one which appears chiefly to be relied upon is that of Coffman v. Citizens Loan & Investment Co., 172 Ark. 889, 290 S. W. 961. There an automobile dealer gave a mortgage on a stock of cars which were kept for indiscriminate sale to the public. The mortgagee filed suit against the receiver for the dealer, who claimed possession of the cars under title-retaining notes given the dealer by purchasers who boug'ht cars before the mortgagee took possession of them under its mortgage. In other words, the rights of subsequent purchasers had accrued before possession was taken of the cars by the mortgagee. The receiver stood, as against the mortgagee, in the shoes of the purchasers, and the receiver’s right of possession was sustained.
But, here, it may again be said, the chattel mortgagee had taken possession of the personalty before the rights of any subsequent purchaser or lienholder accrued.
A late case, sustaining the views here expressed, which cites a number of other cases to the same effect, is that of Wasson v. Beekman, 188 Ark. 895, 68 S. W. 2d 93.
The decree is correct, and is, therefore, affirmed. | [
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McHaney, J.
Appellee and one Fred Carson, a minor, by Ms father and next friend, brought this action against appellant to recover damages for personal in juries sustained by them as a result of a collision between a car in which they were riding and an ambulance owned and being operated at the time by the employees of appellant and on her business. The negligence alleged and relied on is that appellant’s employee, one Mitchell, was driving the ambulance on the wrong or left side of the road and “at a high, illegal and unreasonable rate of speed, to-wit, seventy-five miles per hour, on a bend and curve of said road. ’ ’ Appellant answered with a general denial of all material allegations of the complaint and a plea of contributory negligence. She also filed a cross-complaint against appellee claiming careless and negligent operation of his car, which caused damage to her ambulance in the sum of $311.28, for which she prayed judgment. Carson elected not to proceed with his action and did not appear as a witness in the case although he was riding in the car with appellee at the time as a guest. Issue was joined on the cross-complaint by a general denial of its allegations.
Trial resulted in verdicts and judgments against appellant for $1,318 for personal injuries to appellee and $341 for damages to his car. This appeal followed.
For a reversal of these judgments appellant first contends there is no substantial evidence to support them and that the court should have directed a verdict in her favor at her request. Counsel for appellant conceded in oral argument that unless the physical facts belie appellee’s testimony so as to render it unsubstantial, then they are in error in making this contention. The mere fact that appellee stands alone in his testimony as to how the collision occurred and that he is contradicted by several witnesses, five of whom live near the scene of the accident and at least two of whom saw it, in addition to the driver of the ambulance and another employee of appellant riding therein, does not justify us in saying there was no substantial evidence to support the verdicts and judgments and in reversing and dismissing the action. It does appear to us that the great preponderance of the evidence was contrary to the jury’s finding, and, if it so appeared to the trial court, it was his duty to set the verdicts aside and grant a new trial. But that was a ques tion for that court to determine. The motion for a new trial was overruled and that was tantamount to a holding that the preponderance lay with appellee’s uncorroborated evidence. Many cases might be cited to support the rule that the uncorroborated testimony of the appellee is substantial, one of the late cases being Norton & Wheeler Stave Co. v. Wright, 194 Ark. 115, 106 S. W. 2d 178, where the late Mr. Justice Butler, speaking for the court, said: “We agree with the appellants that the record seems to present a case where the preponderance of the evidence is against the verdict. A number of witnesses, who were present at the time of the alleged incident from which the injury is said to have grown, contradict in round terms appellee’s testimony to the effect that no accident happened and the appellee was not injured as he contended. The verdict must rest on the uncorroborated testimony of the appellee. The question as to where lies the preponderance of the evidence is not for us to say. That is the duty of the trial judge, who, by his refusal to set aside the verdict, has set his seal of approval upon the truthfulness of the testimony given by the appellee. This conclusion, under settled principles of law, we are forced to adopt. We, therefore, treat the testimony of appellee as true and view it in the light most favorable to him, and if it appears from that testimony that there is substantial evidence to support the verdict, we, too, must approve it. ’ ’
The undisputed facts show that appellee was driving his car east on Bond Special road which was graveled and that the ambulance was going west when they collided on a curve in the road, the outside of which was on the side to the north. Appellee says the ambulance was driven across the center of the road and on to his side, and, in an attempt to avoid the collision, he cut his car sharply to his right and into a ditch, but failed to escape. His car was struck on the left front fender just behind the bumper, knocking off the left front wheel and stripping the left side of his car. The left front wheel of the ambulance was knocked back under the fender. After the impact the ambulance went forward from two to four feet and the bent under wheel cut out a depression in the gravel and the ambulance was knocked some short distance to its right, and stopped on its own right side of the road. Appellee’s car came to a stop about 15 feet behind- the ambulance and headed across the road to its left. Appellant says the ear did not go into the ditch on its right and a number of witnesses so testified as they saw no tracks so showing. She also says her ambulance was on its own proper side of the road as conclusively demonstrated by its position on the road after the collision. ¥e are unwilling to say that these conclusions necessarily follow. Appellee’s car suffered some injury to its right side which he said was caused by striking the bank of the ditch. This injury to the right side of his car is corroborative of appellee’s statement that he ran his car into the ditch in an effort to avoid a collision on his side of the road. The position of the ambulance and the ear on the road, as also the marks or tracks made by each, or lack of tracks, was a part of the evidence tending to establish appellant’s contention, and were circumstances for the consideration of the jury. They were not such physical facts as conclusively establish the incorrectness of appellee’s testimony nor were they opposed to any unquestioned law of nature. In St. L. S. W. Ry. Co. v. Ellenwood, 123 Ark. 428, 185 S. W. 768, it was said: “Appellate courts take notice of the unquestioned laws of nature, of mathematics,.of mechanics and of physics. So where there are undisputed facts shown in the evidence, and by applying to them the well known laws of nature, of mathematics and the like, it is demonstrated beyond controversy that the verdict is based upon what is untrue and what cannot be true, this court will declare as a matter of law that the testimony is not legally sufficient to warrant the verdict. In the case at bar the conditions surrounding the plaintiff, as testified to by the defendant’s witnesses, furnish a very strong argument against the credibility of his testimony, but this is as far as the record authorizes us to go. It cannot be said that the testimony of the plaintiff is contradicted by the physical facts or is opposed to any unquestioned law of nature. His testimony related to matters, situations and conditions which might or might not have existed, and his right to recover depended wholly upon the truth or falsity of his testimony. His testimony was, therefore, evidence of a substantial character and if believed by the jury, was sufficient to warrant a recovery in this case.”
The so-called physical facts here were dependent upon the testimony of witnesses who contradicted appellee as to how the accident occurred and were for the jury to consider together with all the other facts and circumstances.
It is next argued that the court erred in giving instruction No. 2 at appellee’s request. This instruction told the. jury that if they found that the ambulance was driven on its left-hand side of the center of the road and ran into and struck the ear of appellee, he would be entitled to recover unless he was guilty of contributory negligence. The criticism of this instruction is that it is abstract and was not based on any substantial evidence. Since, as we have already shown, there was substantial evidence, the objection to this instruction cannot be sustained.
It is next said that the court erred in permitting one of counsel for appellee to make a prejudicial argument to the jury, and in not declaring a mistrial because thereof. We cannot agree. The court sustained appellant’s objections to the remarks when made and instructed the jury not to consider them. The remarks objected to had nothing to do with the merits of the case and were more in the nature of a “spat” between counsel, and appear to be in response to something said by one of counsel for appellant. No error was committed in refusing to declare a mistrial.
It is finally insisted that the verdict is excessive both as to personal injuries and the damage to the car. Without detailing the injuries suffered by appellee ás supported by substantial evidence, we think the award is not excessive. The amount allowed for damage to the car was $341. The repairs cost $156. It is said this verdict is excessive by the difference between these two amounts. We do not think that follows, because it is well known, or at least the jury had the right to find, that a repaired car is never the same as it was before the injury.
The judgment Is accordingly affirmed. | [
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Holt, J.
Appellant on May 31, 1940, brought this action in replevin to recover a compressor, a jack hammer, and other machinery, valued at $1,100 and for damages. Appellant alleged in its complaint that it was the owner and entitled to the immediate possession of the property involved. The answer was a general denial and alleged “that the property mentioned in plaintiff’s complaint was on the 31st day of May, 1940, stored at Dudley Laffoon’s by Orville Timbrook, deputy sheriff. That he levied on the above mentioned property by an execution obtained by Ed Kelley in the justice of the peace court of Bertie Roberts whereby he had obtained a judgment for $108.50 against the Brunn Construction Company.” Upon a jury trial, there was a verdict in favor of appellees, and from the judgment thereon comes this appeal.
At the trial below it was stipulated by the parties, and the court so instructed the jury, that the only issue to be determined by it was: Did the plaintiff become the owner of this property on the 8th day of January, 1940, and is it the owner at this time?
As indicated, the jury determined this issue against appellant. Appellant earnestly insists here that there was no substantial evidence upon which to base the verdict and that the court erred in refusing to direct a verdict in its favor at the close of all the testimony. It is our view that this contention of appellant must be sustained.
On behalf of appellant (plaintiff below) H. E. Newlin testified that he (Harve E. Newlin) is president and Frank Mosbacher is vice-president of the plaintiff, Industrial Machinery 'Company; that the Industrial Machinery Company is the owner of the following property: “One Ingersol-Rand Jack Hammer No. 424760, serial No. G1349, model S 49, of the value of $100, one Gardner-Denver Air Pump, model AAD, 1001, serial No. 71940; and one Waukesha Gas Motor No. 1020, XA HU, serial No. 101805 H. Unit No. 10199, said air pump with gas motor of the value of $1,000; the total value of all of which is $1,100”; that it was acquired by purchase January 8,1940, as evidenced by a bill of sale.
The bill of sale is in the usual form and recites that Fred W. Brunn has for $1 and other valuable consideration sold to the Industrial Machinery Company the property described in the complaint.
• Frank Mosbacher corroborated the. testimony of H. E. Newlin.
On behalf of appellees, Ed Kelley testified that he was previously employed by the Brunn Construction Company and that he obtained a judgment against it for $108 in November and that he placed an execution in the hands of constable Orville Timbrook to collect that judgment. The testimony of this witness continues as follows:
“Q. When was this judgment obtained by you against the Brunn Construction 'Company? A. In 1939, wasn’t it? Q. You obtained the judgment in 1939? The court: I am doubtful about this. I think you ought to have a copy of the judgment. You can’t prove anything by oral testimony that could be proved by the record. The record is the best evidence. You’d better get a copy of the record. Q. I show you here an exhibit of the plaintiff’s testimony and I will ask what the date of that document is? A. The bill of sale? Q. And execution by Fred W. Brunn. Is that the Brunn of Brunn Construction Company? A. Yes, sir. Q. This bill of sale, dated January 8, 1940, was one of the Brunn Construction Company? The man that owned the company? A. Yes, sir. Q. And I believe the plaintiff admits there was a judgment against this company? Mr. Shouse: We admit he has a judgment. Q. Obtained previous to the bill of sale? Mr. Shouse: No, we don’t admit when it was obtained, but that throws no light upon the issues.”
Orville Timbrook on behalf of appellees testified that during the years 1939-1940 he was acting as constable of Zinc township. “Q. You are the man that took charge of the machinery? A. Yes, sir. Q. You were acting as constable with an execution when you took charge of this machinery? A. Yes, sir. Q. That was before January 8, 1940? Mr. Shouse: His execution would be the best evidence. Q. Did you serve that execution as constable ? A. Yes, sir. Q. And took charge of this machinery as constable? A. Yes, sir. Q. Now, I wish to ask you if you had a conversation with the fore man of this Brunn Construction Company? A. Yes, he said, that ... Q. You heard the deposition read by Merle Shouse. The deposition is just the same as a man testifying. I will ask you if you know Harve E. Newlin who worked for the Brunn Construction Company? A. No, a fellow by the name-of Fred Brunn is all I know.
‘ ‘ Q. When you levied on the machinery you talked to the man in charge? A. Yes, sir. Q. What did he tell you about this machinery? Mr. Shouse: We object. Q. Was there some man in charge of the property? A. Yes. Q. Did you talk with him ? A. Yes, I talked to a fellow by the name of Fred Brunn. Q. Were they agents ? A. They were the boss that went in the name of Brunn Construction Company. That is what they called it to everybody down there. Mr. Shouse: We object to the statement about what they told him. The court: Yes, that would not be competent. Mr. Shouse: There were two men. You talked to one. Was that Mr. Brunn? A. Zeke Brunn. Q. And the other was Fred somebody? A. Yes, sir. Q. And they were in charge of the work in this county conducted by the Brunn Construction Company. Is that what you mean to say? A. They were the boss of it. Q. The Brunn Construction Company was doing some work near Zinc? A. It was Zeke Brunn, and Fred . . . what you call his name. Q. Do you know how much work the Brunn Construction -Company did down there? A. No, they were working on the dip to the railroad. I don’t know how many dollars they spent.”
Since the sole question here involved is that of ownership of the property on January 8, 1940, we have set out the testimony somewhat at length. It will be observed that the direct and positive evidence on behalf of appellant is that it purchased and became the owner of the property in question on January 8, 1940, for a valuable consideration and received a bill of sale therefor in proper form and duly acknowledged.
The testimony offered by appellees appears to be an attempt to show that sometime before the institution of the present suit Ed Kelley obtained a judgment against the Brnnn Construction Company, and that subsequently an execution was issued on this judgment. Just when this judgment was obtained, before what court, and when the execution was issued, this record does not reveal. Such judgment would not be a lien on personal property such as involved here and the court properly so instructed the jury.
A careful review of this entire record fails to disclose any substantial evidence to refute the positive evidence of appellant that the property here involved has belonged to it since January 8, 1940', and that it is entitled to possession thereof. This court has many times held that juries may not base their verdicts upon conjecture and speculation. In National Life & Accident Ins. Co. v. Hampton, 189 Ark. 377, 72 S. W. 2d 543, it is said: “It is the well-settled doctrine in this state that a jury’s verdict cannot be predicated upon conjecture or speculation. ’ ’
And again in Fort Smith Gas Company v. Blankenship, 193 Ark. 718, 102 S. W. 2d 75, this court said: “The indulgence in inferences will not supply a nonexistent fact. Inferences to support a verdict arise out of facts established by evidence. Other inferences are purely speculative, or maybe guess work or conjecture. This method of dealing with the rights of parties has been condemned by many decisions. (Citing numerous cases.)” See, also, Missouri Pac. R. Co., Thompson, Trustee, v. Wright, 197 Ark. 933, 126 S. W. 2d 609; Coca-Cola Bottling Company v. Wood, 197 Ark. 489, 123 S. W. 2d 514; and cases there cited.
For the error indicated the judgment is reversed, and the cause remanded with directions to enter a judgment in favor of appellant. | [
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G-rieein Smith, C. J.
This is ,a second appeal. In March, 1940, the judgment procured by Phillips (who alleged total and permanent disability and' obligations arising by reason of appellant’s contract of insurance) was reversed and the cause remanded for refusal of the trial court to require the plaintiff to submit to X-ray examinations in Pine Bluff or Little Rock.
Cumulative monthly payments which would be due appellee if he is entitled to recover were added to the judgment in the instant case. The insurance company contends it was entitled to an instructed verdict. Instead, the court gave the plaintiff’s Instruction No. 1, shown in the margin.
The contractual provision as to disability requires payment by the company if the insured is suffering from an impairment of body which continuously renders it impossible for him to follow a gainful occupation.
The policy was issued in 1927. The following year Phillips moved from McCrory to Sheridan. His business in McCrory was “ice moving.” In 1935 he and Vance Thompson built an ice plant at Benton, each owning a half. It was operated less than a year, then leased, and still later sold. For three years appellee has owned the Sheridan ice plant. Shortly before trial its capacity was enlarged. When Phillips was asked on cross-examination if he did not testify in the first trial to having paid Thompson $3,000, earned through operation of the plant, he replied: “I said I probably had liquidated some indebtedness, but I don’t think I designated the way I got the money.” Asked where the money came from, he replied: “ Well, I just don’t know. ’ ’
Appellee had owned an ice plant at Rison. It was destroyed by fire in 1936, after having been operated about two years. He also owned a liquor store on the outskirts of Sheridan. Its operation extended over a period of eighteen months. He also owned a filling station, and leased it. Until three months before the trial from which this appeal comes appellee and his wife had deposited money in a Sheridan hank, bnt the practice had been changed. Although conceding that his business was profitable, appellee professed not to know where surplus money was kept other than that his wife took it to Little Rock. He was equally indefinite regarding a former illness. He had served in the navy and drew $30 monthly disability compensation, but did not know what the nature of his disability was. Other essential facts had been “forgotten” by appellee, or he did not know the answers to material questions. He had applied for additional insurance while partially disabled, but insisted the applications were made the year before. Throughout the cross-examination there is an obvious lack of candor.
Appellee is afflicted with duodenal ulcers and is partially incapacitated. Claim for benefits was recognized by appellant and certain payments made. These were discontinued in December, 1938, the company’s eonten tion being that appellee had recovered to such an extent that his disability did not fall within the terms of the policy. He had formerly weighed over 200 pounds. At trial his weight was slightly in excess of 160 pounds.
In spite of the inconveniences occasioned by the ulcers, appellee continued his business activities, increasing his holdings and expanding their capacities. He drove an automobile when necessary, made frequent trips to Little Pock and other places, and in many respects gave to his commercial enterprise executive supervision. The attention was sufficient to make them profitable and to improve appellee’s financial status.
Evidence that appellee’s disability did not prevent him, from following a gainful occupation is abundant; nor is it shown that such activities were at the price of extraordinary physical suffering, or that appellee worked only because of necessity. We have said that total disability exists if the insured is unable to perform any substantial part of the work connected with his or her business. While the word “impossible” — -impossible to follow a gainful occupation — is used in appellee’s policy, the term is to be construed by courts in the light of facts incident to each case, and it may sometimes be synonymous with “impracticable.”
If the disease it is claimed causes disability (although not compelling inactivity) is such that slight effort might reasonably be expected to result disas trously, the insured would not he required to take the risk, although admittedly to do so would not be impossible.
The case at bar is controlled by the decisions in Missouri State Life Insurance Co. v. Snow, 185 Ark. 335, 47 S. W. 2d 600; Lyle v. Reliance Life Ins. Co., 197 Ark. 737, 124 S. W. 2d 958; Ætna Life Ins. Co. v. Person, 188 Ark. 864, 67 S. W. 2d 1007; Metropolitan Life Insurance Co. v. Guinn, 199 Ark. 994, 136 S. W. 2d 681; New York Life Insurance Co. v. Ashby, 199 Ark. 881, 138 S. W. 2d 65; General American Life Ins. Co. v. Chatwell, 201 Ark. 1155, 148 S. W. 2d 333.
The judgment is reversed, and the cause is dismissed.
Mutual Life Insurance Co. v. Phillips, 200 Ark. 77, 137 S. W. 2d 910.
“You are instructed that the question for you to decide in this case is, Was the plaintiff, L. A. Phillips, totally and permanently disabled on the . . . day of December, 1938, and if he was permanently and totally disabled at the time, did that disability continue from that time up until this and it is reasonably certain that his disability will continue the rest of his life.”
Appellee testified that he did not deposit in any bank money coming from operation of the liquor store. There were the following questions and answers: Q. Don’t you have any bank account on your liquor business? A. We don’t depend on the bank to pay our bills. Q. You mean to say that it takes all of that to pay your bills? A. No, I didn’t say that. Q. What do you do with the money over and above that needed for expenses and paying bills? What disposition do you make of the surplus money? A. Just live on it and buy an automobile once in a while. Q. Do you run a bank account in connection with any of your business enterprises? A. No. Q. Do you carry a bank account? A. Yes, but not in connection with any of my business. Q. What does your bank account consist of? What items go into it? A. Just money we don’t need to pay bills with. We sometimes pay by check, but about all of the money I put in the bank is money I think I can keep for a few days. Q. The money realized from your liquor store and ice plant and from any other business enterprise that you have — you first use the profits to pay bills and buy automobiles and use for living expenses, and if you have a surplus you put it in the bank? A. Yes. Q. Do you do business with the bank in Sheridan? A. No. Q. Where do you keep your bank account? A. Little Rock. Q. With what bank? A. Mr. Chowning, I had rather not answer that question. [The court ruled that the question should be answered.] The witness then replied that he didn’t have any bank account personally. Q. What did you mean a moment ago when you said you kept it in Little Rock? A. My wife has a bank account in Little Rock. It is a trust fund for our child. I don’t know anything about it — what it is. [Appellee further-testified that he did not know what bank in Little Rock the account was with.] Q. So all the surplus money you make in the course of the operation of your business is turned over to your wife? A. All we make; she gets that.
The following is copied from appellant’s reply brief:
“At a time when the appellee was seeking an allowance from this appellant under the policy involved in this suit of a claim for total and permanent disability, he was, without the knowledge of this appellant, applying for and passing successful physical examinations for life insurance in two other companies. The Pyramid Life Insurance Company of Little Bock and the National Life & Accident Insurance Company of Tennessee.
“The policy with the Pyramid Life was issued and was in force at the time of this trial. A policy with the National Life & Accident Insurance Company would have been issued except for the fact that Dr. O. W. Hope of Sheridan, who examined appellee for the'company, happened to discover three or four days after having found him physically fit for the insurance and mailed his approval in to the company that Mr. Phillips had filed a claim with this appellant for total and permanent disability. He then passed this information along to his company, which prevented an issuance of the policy.” [Appellee insists the testimony upon which these statements were predicated was incompetent. Since our decision is not dependent upon the evidence its competency is not determined.] | [
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Grieein Smith, C. J.
S. E. Davis was nightwatchman for Critz Chevrolet Company, North Little Eock. Parts of the property under Davis’ observation were two lots used for displaying second-hand cars.
During the night of September 4-5, 1940, Davis was killed. Dr. H. A. Dishongh, coroner, who examined the corpse about seven o’clock in the morning, September 5, thought death had occurred several hours earlier. The skull had been penetrated in two places. The holes were separated by a narrow strip of the bone structure. Indications were that the wounds had been made with a blunt instrument — “a sledge hammer, or a bigger object than a.pistol.” The body was found near the middle of one of the lots. There were cars on either side. To the south was a galvanized iron building used as a garage. A chair was nearby. The watchman’s pistol was on the ground near the body. An officer testified the weapon contained two discharged shells; that Davis was lying on his right side with his head to the west. One arm was extended. The pistol was within approximately a foot of the dead man’s hand.
H. A. McClain, filling station operator, was on his way home shortly after eleven o’clock (September 4). He passed the Chevrolet property and saw a white man (presumably Davis) sitting in a chair near the corner of the main brick building. A Negro woman was talking with him. The chair was on the outside of the building, in the street. Through curiosity witness drove his car around the block — between the building and the used car lot. The woman, whose position had chang*ed, stopped to let the car go by. As witness went by, the watchman flashed his light “down the side going between the cars.” When witness passed the Negress she ran back of his car “up in the used car lot. ’ ’
At 11:18 or 11:20 officer Jack Morgan saw the defendant going east. He knew her personally and asked where she was going. Appellant replied that she was on her way home.
S. A. Moss, Critz service manager, testified that the office was usually closed at six o’clock. Davis ordinarily came to work at six. Late in the afternoon four tires were sold for $50, a single bill having been received in payment. It was turned over to Davis to be kept until the following-day. Davis put the bill in his purse. This occurred between six and seven o ’clock.
Joe Loebner, witness for the state, lived about 200 feet from the used car lot. Between 11:30 and 12:00 o’clock, September 4, he heard two shots, but did not know the direction whence the sounds came. On cross-examination the witness testified that the explosions could have been backfires from an automobile, but he did not think they were. The sounds were “right together.”
Chester Dinwiddie, appellant’s brother, testified he was living in North Little Bock upstairs over “Popeye’s” place during September, 1940. At midnight appellant came to the house occupied by witness. His wife, Pear-line, opened the door. Appellant threw some money on the bed and asked that it be counted. It consisted of a fifty dollar bill, three fives, one ten, eleven ones, and seventy-five cents in silver, a total of $86.75. Appellant told witness the babj^ of Esau Dinwiddie (another brother) was sick, and that witness had been sent for. With his wife and appellant, witness walked to a point near the Ben McGehee Hotel and there engaged a taxicab. The parties were taken to Esau’s home near the Lincoln avenue viaduct. The baby was not sick. Witness asked appellant if she intended to return with them, and she replied “no.” Appellant was wearing a white dress. It was torn and revealed a spot of blood. In commenting on the dress the witness said: “It was so torn up I don’t know whether [the blood] was in the back or front.” Appellant took off the dress, threw it on the floor, and asked witness to put it in the charcoal burner. He refused to do so. There was no fire in the stove, and appellant did not explain why she wanted the dress disposed of. She borrowed a dress from witness’ wife. The torn garment was retained and turned over to the officers. Another brother, Elijah Dinwiddie, and his wife, were also present at Esau’s home. Appellant did not act nervously, nor did she disclose the source of the money, or that Davis had been killed.
George Looney testified he was staying with Esau Dinwiddie, and that appellant came to the house “pretty late.” Looney was asleep when she came. Appellant spent the night there. The following day appellant, with Esau Dinwiddie and other'members of the family, went to Augusta. The witness (Looney) drove them in his car. He borrowed $15 from appellant for use in making a payment on his car. When the party arrived in Augusta appellant had a fifty dollar bill.
Anthony Seats, one of appellant’s uncles, lived at Augusta. Appellant, with Esau and others, visited him. It was after four o ’clock in the afternoon. Esau and witness attempted to get a man named Nickerson to change the fifty dollar bill. He declined, but Blackwood, next door, sold them five gallons of gasoline and took the bill, making the necessary change. The bill was slightly stained or discolored with what appeared to be blood. It was introduced as an exhibit.
Officer J. H. Anderson, of North Little Rock, received the bill from the Conner Motor Company (Ford dealer) of Augusta. The company also operated a service station.
On being recalled, Anderson testified he telephoned from Augusta, directing that the Dinwiddies be detained. When he returned appellant had confessed. Twenty dollars of the money taken from Davis had been recovered, other than the fifty dollar bill.
The confession, Anderson testified, was voluntary. It was made orally in the city hall in North Little Rock. Chester Dinwiddie was present. He urged appellant to tell the truth. The assistant prosecuting attorney informed the court that appellant “later made a statement to me about it, and that was taken down.” Officers Charles, Campbell, Blankenship and Morgan, participated in the arrests.
In her confession appellant implicated George Looney. Anderson testified they took appellant and endeavored, with her help, to locate and identify Looney, whom appellant had described as an ex-convict. They went to state police headquarters “to see if they had a picture and record there.” Anderson was not present at state police headquarters when appellant was again questioned, and when she is alleged to have made a second confession.
According to Anderson, appellant directed the officers to a water tank near the Missouri Pacific bridge, “where supposedly they could find the iron she hit Davis with.”
At trial, testimony relating to the alleged confession was taken in chambers. Officer Charles testified he arrested appellant just 'before noon. That evening appellant was driven to state police headquarters and questioned in a room used by the officers. She was not taken into the room where there were face masks and machine guns. No attempt was made to question appellant at that time— “there was no occasion to do so, because she had already admitted the crime. ’ ’ The officers were looking for George Looney’s picture.
Appellant testified that after her arrest she was taken to state police headquarters. This occurred about one o’clock Friday afternoon. She denied having made a confession in North Little Rock, and insisted that the officers began hitting her. At state police headquarters she was carried through a room “where there were a lot of men sitting at a desk.” There were face masks on the wall. Pistols were in evidence. There was a machine gun “in a glass cage, and there were clubs and straps, and a lot of pictures. ’ ’
Appellant contended she was made to sit in front of a table — “then they got wooden clubs and straps and a rubber [hose] and laid them on the table.” The machine gun was also procured and placed on the table before appellant. ‘ ‘ Then a man with a strap across his shoulder got a leather thing and put it around my neck till I could hardly breathe. They caught me by the hair and beat me in the face until I felt like fire on the inside of my face. Then he stood me up till he gave out, and I said, ‘no, I will tell the truth.’ Then he pushed me to Mr. Charles and he turned the chair down and beat me till he had the strap torn all to pieces.”
Appellant insisted she was threatened with the machine gun, and kept at state police headquarters “until almost day,” and “I had to say something to keep from dying. They had carried me 'back to North Little Rock and hit me two or three times. This man [pointing to one of the officers whose name does not appear in the record] asked me if I would sign a piece of paper or something. I signed it Saturday morning in the North Little Rock police station.”
In describing further the circumstances attending the transaction, appellant said: “I was sitting in the room by myself and he came back. I said, ‘Don’t beat me, don’t beat me and make me say I did it; please don’t.’ He said, ‘You are going to say you did it,’ and I said it and signed the paper.”
Officer John Charles denied appellant was coerced or mistreated. The accused, he said, volunteered the information that she had killed Davis, and that the iron used by her was concealed near a rain barrel under the Missouri Pacific bridge. After taking appellant to state police headquarters the officers were back in North Little Rock by ten o’clock, and witness (Charles) was in bed by eleven. “We didn’t stay at state police headquarters more than twenty minutes.”
In response to a question by the court, Deputy Prosecuting Attorney 'Bogard said: “Your Honor, when this girl made her statement she more or less made it to her own brother. . . . I told her brother this:‘It will be better for you — she has implicated you — because even if you didn’t have anything to do with the killing, the money was traced to you’.”
Bogard testified that after the verbal confession was made he took two stenographers for the purpose of having it repeated and transcribed. At trial one of the stenographers, who had transcribed part of appellant’s statement, was ill. The court ruled that the written statement was inadmissible because of the stenographer’s absence, but permitted Deputy Bogard to examine appellant in respect of the so-called confession. The court also held that a purported confession made at the county jail was admissible. Appellant admitted she was not mistreated while in jail.
When trial was resumed in the presence of the jury, Officer Anderson testified that appellant’s confession was substantially as follows:
She was passing the Oritz lot about 11:30. Davis, seated in a chair in front of the main building, engaged her in conversation. They immediately went to the used car lot, where appellant got possession of Davis’ billfold and made an effort to get away. Her escape was prevented by a wire fence at the back of the lot. Davis, in the meantime, had discovered his loss and began calling to her. Seeing she could not get away in the manner intended, she returned to Davis. Davis fired two shots at her. Half way between the rear of the lot (wire fence) and Davis she passed a pick-up truck. Prom it she procured a tire tool. When Davis grabbed her and undertook to recover the money, she struck him two or three times with the iron. The tire tool was found near the Critz work shop. [It contained blood stains.] Appellant, finding that her dress was bloody, tore off part of it.
Appellant testified that she and Davis had been “going together” for eight or nine years. She had frequent “dates” with him. The morning of September 4 Davis came to her home — “We were sitting there laughing and talking and kissing, and he said, ‘ Do you want anything ? ’ and I said, ‘Yes, I want some groceries and clothes for winter, and I have to pay the rent.’ He said, ‘Come to the office at 10:30 or 11:00 o’clock tonight,’ and I said, ‘All right’.”
About half past ten o’clock she went to the car lot. Davis was sitting on the corner in a chair. “He caught hold of my hand and we walked across the street to the lot. He turned loose and Í walked into the house and to the cot and laid my head back. . . . We played around for the longest time.....Pie gave me some money— took it from his billfold without counting it. I had the money (it was folded) in my hand. ... In about thirty minutes a low, chunky man with bushy hair entered. I was lying on the'cot and didn’t see the man until he spoke. I was lying flat on my back and Mr. Davis was across me with his head on my shoulder. The man said, ‘This is what I have been suspicioning for a long time.’ He said, ‘When I get through with you, you will all make a pretty coffin for the police and public to find.’ Mr. Davis jumped up and said, ‘You will never remember telling the police or anybody else what you have seen or heard. ’ . . . Mr. Davis raised his pistol and this man hit him and knocked him back on me. They fought near the door. Mr. Davis said, ‘I don’t want the police or anybody else to know or come here and see you.’ As I was going for the door trying to get by this man I got hit on the shoulder, and left after I got free. When I got under the light I saw there was blood on my dress, and I went to my brother’s house. ’ ’
Other Facts — and Opinion
The court did not err in permitting appellant to be cross-examined in respect of the purported confessions; nor was there error in the manner statements were presented, or in the instructions relating thereto.
Instruction No. 18, in part, is: “There has been some testimony regarding a confession, and evidence presented to the court and jury on that question. Before you can consider any confession as evidence you must find (a) that the defendant did make a confession, (bj that the confession she made was the one you heard from the witness stand, (c) that the defendant told the truth, and (d) that the confession was voluntarily made.” [See Thomas v. State, 125 Ark. 267, 188 S. W. 805; Dewein v. State, 114 Ark. 472, 170 S. W. 582; Hendrix v. State, 200 Ark. 973, 141 S. W. 2d 852; Morris v. State, 197 Ark. 695, 123 S. W. 2d 513.]
The jury returned a verdict of murder in the first degree and the court adjudged that the defendant should suffer death by electrocution.
Counsel do not seriously contend that Davis was not killed by appellant. In the brief it is said: “The murder was committed (if committed by this appellant) after the commission of larceny, and in her attempt to escape from the lot.” Rayburn v. State, 69 Ark. 177, 63 S. W. 356, is cited as being in point. In an opinion handed down March 25,1901, a majority of the court held it to be unnecessary to charge specifically in the indictment that the murder was committed in an attempt to perpetrate robbery. Chief Justice Bunn dissented. On rehearing, June 1, 1901, the judgment was reversed because the court gave an instruction that the defendant was guilty of murder in the first degree if the jury found from the evidence beyond a reasonable doubt that the decedent was killed by the defendant while the latter was attempting to perpetrate a robbery. The indictment did not allege an attempt to rob.
The case is not applicable here because the information charged that Mary Dinwiddie killed S. B. Davis “unlawfully, feloniously and -willfully, and with malice aforethought, and after deliberation and premeditation, and with a felonious intent then and there to' rob. ’ ’
While there is no direct evidence, aside from the confession, that Davis was robbed (appellant having contended the money traced to her was a gift from Davis), we think her failure to report the alleged assault by the unknown man, lier flight, and the circumstances attending disposition of the money, were sufficient to go to the jury..
There was testimony, not set out in this opinion, that Davis’ relations with appellant were founded upon physical lust, and that sex propensities prompted the invitation that appellant meet him late at night where obscurity and convenience would contribute to the consummation of desire.
It is our opinion that the evidence does not show that appellant went to the Critz place for the purpose of committing robbery or murder, or that premeditation and malice actuated the crime. That she did kill Davis seems certain, but if, as the undisputed evidence shows, the meeting was planned for the purpose-of engaging in immoral physical conduct, and the robbery and homicide were incidental and without premeditation, the verdict of first degree murder is not sustained.
The judgment, therefore, will be modified by substituting 21 years of penal servitude; and, as modified, it is affirmed.
McClain did not, at the time of the transaction, know who the woman was. She was dressed in white. At trial he identified her as Mary Dinwiddie.
’ ~ nurse was elsewhere referred to as a billfold.
Davis has been divorced by his wife four or five years. | [
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Griffin Smith, 0. J.
Herman Burchfield and Mattie Sue Robinson sought to have J. N. Banks and others ejected from certain lands.
G. L. Burchfield (appellants’ father) conveyed the lands to C. T. Fincher in trust to secure a loan of $320 made by iBank of McNeil June 13, 1932. Prior to the debtor’s death in 1936 the bank became insolvent and its affairs were administered by Marion Wasson, state bank commissioner. May 25, 1934, Wasson filed complaint, alleging it was the' intent of Burchfield to convey to the trustee “the northwest quarter of the southeast quarter, less two and one-half acres in a square in the southwest corner thereof, and all of that part of the northeast quarter of the southeast quarter lying north of the St. Louis Southwestern Railroad Company running through said forty, containing 28% acres, more or less, all in section nine, township sixteen south, range tiventy west.” On account of a clerical misprision the land was described as shown in the footnote. Summons was served on Burchfield January 20, 1935. There was a prayer for foreclosure.
April 22,1935, it was decreed that the corrections be made, one of the recitals being* that the lands were in range twenty west. The direction to sell contained the description set out in the second paragraph of this opinion, except that the lands were referred to as being in range "twenty-two west. The notice of sale gave the range as twenty-two west, as did the commissioner’s report and deed. June 13,1935, the court confirmed.
January 25, 1937, Wasson, bank commissioner, and Fincher, trustee, petitioned for an order, nunc -pro tunc, to show that the lands were in range twenty. No action was taken by the court on this petition.
June 29, 1936, the bank commissioner, by deed, conveyed the lands to J. L. Banks, describing them as 'being in range twenty west.
The record contains a stipulation that when the trust deed was executed and at the time it was sought to have the description corrected, and also at the time of foreclosure, Gr. L. Burchfield did not own land in section nine, township sixteen south, range twenty-two west. It was also stipulated that if present Herman Burch-field would testify that in 1937 he went to an abstracter’s office in Magnolia “to examine the title to his father’s lands,” and that the abstract records did not show a commissioner’s deed or sale of lands belonging to Gr. L. Burchfield, in section nine, township sixteen, range twenty west.
The chancellor found that the trust deed foreclosed in 1935 correctly described the lands Gr. L. Burchfield owned; that the substitution of “range twenty-two west” for “range twenty west” was a typographical error, and that the correction should be made.
We agree. The evidence is clear and convincing.
Appellants complain that they were not made parties to the suit filed by Wasson in which the order, nunc pro tunc, was asked. There was no action on this petition. The fact that Gr. L. Burchfield had been dead five months when the action was attempted cannot adversely affect appellants in a cause that remained dormant.
The instant suit was brought by appellants and the adverse decree was rendered on appellees’ cross-complaint. There is testimony that Gr. L. Burchfield stated that he did not intend to “pay any attention” to the foreclosure suit.
Essence of the transactions is that the decree of foreclosure correctly described the lands, but because of subsequent errors they were referred to as being in range twenty-two west.
Since 'Burchfield did not own property in range twenty-two west, he was not misled in respect of the proceedings, and his heirs stand in no better position than did he. The purchaser acquired the property intended by all parties to be sold, and it passed beyond reach of the heirs before oil developments created new values and suggested the desirability of redemption. The right of redemption was waived in the trust deed.
There is no merit in appellants’ contentions.
Affirmed.
In his answer Banks alleged ownership of the lands. At the same timé he filed cross-complaint for the purpose of having a defective description corrected. The cause was thereupon transferred to chancery.
Twenty-eight and a half acres in the northeast quarter of the southeast quarter sec. 9, twp. 16, range 20,. and 37% acres in the northwest quarter of southeast quarter of sec. 9, twp. 16, range 20 west, containing in all 66 acres, more or less. | [
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Smith, J.
In 1918, the city of Stuttgart, by a proceeding the validity of which is not questioned, refunded its outstanding general indebtedness, by reissuing warrants against its general revenue fund in the amount of $36,922.50. These refunding warrants were payable serially, and in annual installments, and constituted what was known as the Elkins Loan. The maturities of these refunding warrants ran from September 1, 1918, to September 1, 1935, according to the ordinance which authorized their issuance. These warrants were paid as they matured from 1918 up to and including 1924, payments being made out of the “City General Purpose Fund.”
Many of the counties, cities and incorporated towns of the state had, like the city of Stuttgart, become so indebted that they could not operate on a cash basis. To enable these governmental agencies to operate on a cash basis the electors of the state adopted Amendment No. 10 to the Constitution at the general election in 1924. This amendment was held to be self-executing. Cumnock v. Little Rock, 168 Ark. 777, 271 S. W. 466; Lucas v. Reynolds, 168 Ark. 1084, 272 S. W. 653; Matheny v. Independence County, 169 Ark. 925, 277 S. W. 22; Martin v. State, ex rel. Saline County, 171 Ark. 576, 286 S. W. 873; Lybrand v. Wafford, 174 Ark. 298, 296 S. W. 729.
The city of Stuttgart availed itself of the provisions of this amendment by levying a tax of two mills for debt retirement, in addition to the five mills which all cities and towns have the authority to levy. This 2-mill levy has been made continuously since 1925.
Notwithstanding this amendment was held to be self-executing, the General Assembly, at the ensuing 1925 session, passed an enabling act, numbered 210, entitled, “An Act to facilitate the funding of the debts of counties, cities, and incorporated towns.”
The salient features of this act, so far as it relates to the questions here in issue, are: (1) That the city or town council shall, by ordinance, declare the total amount of the municipal indebtedness. (2) That ordinance shall be published for the time and in the manner required by the act. Any property owner is given the right to question this ordinance and to have it reviewed. (3) If the ordinance is not successfully challenged, the municipality is given the right to issue negotiable interest bearing bonds. (4) Provision is made for the sale of these bonds, and the rate of interest they shall bear is fixed. (5) Before or after the issuance of bonds the city council shall levy a tax on the existing assessed values of the property within the corporate limits which will suffice to retire the bonds as they mature, provided, this tax shall not exceed three mills on the dollar of such assessed valuation. (6) The money derived from this tax shall be kept separate and devoted exclusively to debt retirement.
The .city of Stuttgart did not issue new bonds, but treated the refunding warrants issued in 1918 as the debt to be retired with the proceeds of the 2-mill tax.
The council of the city of Stuttgart passed annually appropriate ordinances for the levy of this 2-mill tax, and certified the same to the quorum court which ordered its extension on the tax books. On November 5, 1934, the city council passed the following ordinance: “Be it resolved by the city council of the city of Stuttgart, in regular meeting- assembled, that the quorum court of Arkansas county, Arkansas, be, and is hereby, directed to levy a tax of two mills upon all property located within the corporate limits of the city of Stuttgart for the purpose of retiring the outstanding indebtedness commonly known as the Elkins Loan.”
Pursuant to this ordinance the 2-mill tax was levied and extended for the year 1934, but the taxes were not paid on lot 15, block 6, Bordfelt’s Addition to the city of Stuttgart, and the lot was sold to the state. Thereafter, under the authority of act 119 of the Acts of 1935, p. 318, the state filed suit to confirm this sale, and a decree of confirmation was rendered October 3, 1938. Excluded from this decree were certain lots and lands, lot 15, block 6, being among that number. The reason for the exclusion of this and other lots and lands does not appear, but the cause was continued as to them, it being recited that this was done by consent. However, on October 2, 1939, another decree was rendered in this confirmation proceeding, which included lot 15, block 6, so that the sale of the lot for the 1934 taxes was confirmed. On October 9, 1939, appellant Ingram purchased the lot from the state, and received the deed of the State Land Commissioner therefor. Later, Ingram filed suit in ejectment to recover possession o'f the lot.
An answer was filed, which alleged that the confirmation decree was ineffective to cure the tax sale, for the reason that the power to sell the lot was lacking, because the lot was sold for taxes not due thereon. The insistence is that there was no authority to levy the 2-mill tax for debt retirement, for the reason that the requirements of Enabling Act No. 210, supra, had not been complied with, and the case of Fuller v. Wilkinson, 198 Ark. 102, 128 S. W. 2d 251, and subsequent cases citing and following it, are relied upon to sustain this contention.
The cause was submitted to the court, and the relief prayed in appellant’s complaint was denied, from which judgment is this appeal. The court found that there was no power to sell the lot, and that “the tax sale and all proceedings thereunder are void because included in the amount for which the lots and real estate here involved sold for the year 1934, namely, lot 15 of block 6 of Bordfelt’s Addition to the city of Stuttgart, was a two (2) mill levy by the city of Stuttgart, in addition to the regular five (5) mill general fund levy, which was unauthorized by law, and that the inclusion of said amount in the sum for which said lot sold, rendered the sale thereof void, and as a consequence the tax deed by which the State Land Commissioner attempted to convey same to plaintiff was void and conveyed no title to plaintiff, and that the confirmation decree entered by the Arkansas county chancery court, Northern District, did not have the effect of curing the defect before mentioned in said sale, but was void insofar as it related to the lot and real estate herein described.”
In the Fuller case, supra, a 3-mill tax for roads, which the electors of the county had not voted, was extended upon the tax books and lands were sold for the nonpayment of this and other taxes. The sale was confirmed under act 119 of the Acts of 1935, supra; but that decree was held invalid, for the reason that there was lacking the power to sell the lands for the road tax which had not been voted.
' Here, the 2-mill tax for debt retirement had been voted, and by the governmental agency having that authority. Whether the proceeds of this tax have been properly applied is a question which may not be inquired into in this collateral proceeding. Whether the power of the council to levy this tax was exercised in the manner provided by law is a question which might have been raised before the sale of the land for the nonpayment of taxes, or, later, in the confirmation proceeding. The final opportunity to raise that question was presented when the state asked confirmation of the tax sale. As has been said, the confirmation of the tax sale, so far as it affected lot 15, block 6, was, for some reason not stated, continued, and the confirmation decree, as affecting this lot, was not rendered until a year later. Here was the time and opportunity to show that there had been no valid exercise of the power to levy the 2-mill tax. The chancery court had the jurisdiction to determine this question of fact, and the rendition of the confirmation decree is the conclusive evidence of a finding that the power had been properly exercised.
The analogy between this case and the Fuller case, supra, fails in this respect. There,- only the electors could vote-the road tax, and they did not do so. Here, the city council had the power to vote the 2-mill tax, and it did so. Whether' this power was exercised in the manner provided by law was a question which the chancery court had the jurisdiction to determine, and the confirmation-decree is conclusive of that issue. Had the decree of confirmation in the Fuller case, supra, been held invalid because there were irregularities in the election at which the 3-mill road tax was voted, the analogy which appellee seeks to draw between that ease and this, would be complete; but such was not the case. In that case there had been no exercise of the power to vote the tax; here, there' has been. The 2-mill tax was voted and levied by the council, which had that authority, and this action was duly certified to the quorum court.
It would appear, from the recitals of the first decree of confirmation, that the proceeding* had assumed an adversary character, it being* recited that the cause was continued by consent as to certain lands, lot 15, block 6, being* among that number. But, whether this be true or not, the confirmation proceeding* is conclusive of the issues which must be decided before the decree may be rendered. It was said in the ease of Avera v. Banks, 168 Ark. 718, 271 S. W. 970 (to quote a headnote) that “A decree confirming a tax title is conclusive against an absent claimant as well as against an intervener who contests petitioner’s right, the proceeding being in the nature of one in rem.”
Here, there was not lacking the power to extend the 2-mill tax against the land, and the agency having that power exercised it. Whether this power had been exercised in the manner authorized by law was a question which should have- been raised and determined in the confirmation proceeding*. The answer interposed in this case constitutes a collateral attack on the decree of confirmation, and, in effect, asks a review of the decree of the chancery court confirming the tax title.
For the affirmance of the judgment from which is this appeal appellee cites and relies upon the case of Sherrill v. Faulkner, 200 Ark. 1006, 142 S. W. 2d 229. There, a confirmation decree rendered under act 119, supra, was vacated. But it appears that the landowner in that case availed himself of the provisions of § 9 of the act by appearing within one year after the date of the rendition of the decree, and set up facts showing the invalidity of the tax sale.
This appellee did not do. Moreover, in the Sherrill case, supra, the land had been sold for taxes, including a levy for the Crippled Children’s Home and Hospital, and for other purposes, in excess of five mills, for the levy of which there was no authority in the law. That case was not one where the power had been improperly exercised. It was, rather, a case where a power had been exercised which did not exist. In that ease there was lacking, therefore, power to sell land for a tax unauthorized by law.
The purpose and effect of act 119 and the distinction between it and the earlier confirmation act 296 of the Acts of 1929, p. 1235, were fully discussed in the ease of Fuller v. Wilkinson, supra. It was there said that the purpose and effect of act 119 was to cure all defects not relating to the power to sell. That holding has been reaffirmed and followed in a number of subsequent cases, the latest of these being the case of Faulkner v. Binns, ante, p. 457, 151 S. W. 2d 101, which cites intermediate cases.
Here, it may again be said that there was authority to levy the 2-mill tax for debt retirement, and that authority was exercised by the city council, clothed with that authority. Whether there were irregularities in the exercise of this power is a question which has been concluded by the decree confirming the sale.
It follows, therefore, that the judgment must be reversed, and the cause will be remanded for further proceedings in accordance with this opinion. | [
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MoHaney, J.
This is an appeal from a judgment for a $1,000 penalty against appellant, a foreign corporation, for doing business in this state without complying with applicable statutes relating thereto, §§ 2247 to 2250, inclusive of Pope’s Digest. The complaint alleged and the answer admitted the doing of business in this state without such compliance, but the defense was that the only business transacted in this state consisted in the construction of a levee in the White Biver Levee Drainage District, under a contract with the United States, let pursuant to the act of Congress approved Muy 15, 1928, 45 Stat. 534, Chap. 569, 33 USCA, § 702 et seq.; that the United States, through its district engineer, had advertised for bids for doing said work; that it had mailed a bid from its office in Jackson, Mississippi, to said engineer at Memphis, Tennessee, which bid was accepted ; that said engineer mailed to it a contract, which it signed and returned to said engineer at Memphis by mail; and that it thereafter entered upon such construction work in Arkansas. It, therefore, alleged that it was exempt from said statutes, and could not be held liable thereunder without violating the commerce clause and tlie due process clause of the Fourteenth Amendment to the Constitution of the United States. A demurrer to this answer was interposed and sustained. Upon its refusal to plead further, judgment was entered as above stated. This appeal followed.
The contention of appellant is that the above sections of our statutes have no application to it because it was “working* under employment of the Federal Government in the state of Arkansas. ’ ’ Does that fact exempt ití We think not.
Article 10 of the contract between the Government and appellant requires appellant to ‘ ‘ obtain all required licenses and permits and be responsible for all damages to persons or property that occur as a result of his fault or negligence in connection with the prosecution of the work.” While this article of the contract is not of controlling importance in determining the question of law presented, it is a declaration that, if the contractor is required by local law to obtain any licenses or permits, it must do so at its own expense and that its status as a contractor with the Government may not exempt it from local law.
Appellant relies upon Osborn v. Bank of United States, 9 Wheat. 738. There the bank was created by an Act of Congress and sought to restrain the State Auditor of Ohio who was attempting to collect a penalty or fine from it because it had established a branch and was doing-business in that state without compliance with the banking laws of that state. The injunction was granted in the-lower court and sustained in the Supreme Court. The decision was based upon the distinction there pointed out by Chief Justice Marshall -between a “private corporation, engaged in its own business with its own views” and “a public corporation, created for public and national purposes.” As to the former, a “mere private corporation,” he said it “would certainly be subject to the taxing power of the state, as an individual would be; and the casual circumstance of its being employed by the government in the transaction of its fiscal affairs would no more exempt its private business from the operation of that power than it would exempt the private business of an individual employed in the same manner. ” As to the bank it was said: “But the bank is not such an individual or company. It was not created for its own sake, or for private purposes.”
Appellant cites a number of other cases which we have carefully considered, but find them without controlling effect here. We cannot undertake to set them out and point out the distinctions. One of such cases is Gunn v. White Sewing Machine Co., 57 Ark. 24, 20 S. W. 591, 18 L. R. A. 206, 38 Am. St. Rep. 223. There the point for decision was whether the appellee, a foreign corporation, was doing business in this state without having complied with our laws. It was held that it was not, but was engaged in interstate commerce. Mr. Justice Battle there quoted from Pembina Consol. Silver Min. & Milling Co. v. Pennsylvania, 125 U. S. 181, 8 S. Ct. 737, 31 L. Ed. 650, as follows: “The only limitation upon this power of the state to exclude a foreign corporation from doing business within its limits, or hiring offices for that purpose, or to exact conditions for allowing the corporation to do business or hire offices there, arises where the corporation is in the employ of the federal government, or where its business is strictly commerce', interstate or foreign. The control of such commerce being in the federal government is not to be restrained by state authority. ” Citing cases. Appellant relies upon the language in the above quotation, “where the corporation is in the employ of the federal government,” as being authority for its exemption from our statutes above cited. But we think appellant was not “in the employ of the federal government” in the sense there used. It was under contract with the government to do a specific job in a certain way, using its own equipment and hiring its own employees, a typical case of independent contractor, and the ordinary relation of employer and employee, master and servant, principal and agent did not exist between it and the government. That it is an independent contractor and is not a government instrumentality, there can be no doubt. It was so held in the comparatively recent case of Trinity-farm Construction Co. v. Grosjean, 291 U. S. 466, 54 S. Ct. 469, 78 Law Ed. 918, where the appellant unsuccessfully sought to evade the payment of a state excise tax on gasoline consumed by it under a contract with the government, as here, to construct levees on the Mississippi River. See, also, James v. Dravo Contracting Co., 302 U. S. 134, 82 Law Ed. 125, 58 S. Ct. Rep. 208, to the same effect. In James Stewart & Co. v. Sandrakula, 309 U. S. 94, 60 S. Ct. 431, 84 Law Ed. 596, 127 A. L. R. 821, the court, speaking of a contract between Stewart & Company with the government to construct a post office building, said: “While, of course, in a sense the contract is the means by which the United States secures the construction of-its post office, certainly the contractor in this independent operation does not share any governmental immunity.” Citing the Dravo Contracting Co., case supra, and Helvering v. Mountain Producers Corp., 303 U. S. 376, 58 S. Ct. 623, 82 L. Ed. 907.
Appellant says, these cases are not in point, because they relate to taxes to be paid, either property, excise or privilege, or to state regulations after admission into the state, by a foreign corporation. It is conceded that such taxes are payable and local regulations valid, but that the requirements of the above statutes as to admission into the state are not applicable to a corporation doing work in this state under a government contract, because “the government might be deprived of desirable bids and agencies for its construction work to its loss, for it is easily conceivable that many corporations might rather forego a particular contract with the government than domesticate generally under the laws of the state where the work is to be done because of the consequences incident to general domestication, not to mention the cost of domestication which in some states is large.” This reasoning does not carry conviction, and we can see no more reason for the power to tax such a corporation under state law than the power to require it to comply with state laws in order to do business in the state and to pay the reasonable fees provided therefor.
Nor can we agree with appellant that the requirements of our statutes above cited, as here construed, •render them repugnant tp either the commerce clause or the due process clause of the 14th Amendment to the Constitution. Trinity farm Construction Co. v. Grosjean, supra.
The judgment is accordingly affirmed. | [
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Smith, J.
The decision of the question presented on this appeal is determined by the construction of the last will and testament of John Homer Blount, which, in ’ its entirety, reads as follows:
“Last Will and Testament of John Homer Blount. “In the name of Cod amen; Being of sound mind and disposing memory I make this' my last will and testament.
“Item (one) I desire at my death should I owe any debts to be paid out of my fraternal insurance.
“Item (two) I give and bequeath to my son, J. H. Blount, Jr., one-third of my real estate and one-third of my life insurance, fraternal .insurance and one-third of my personal property.
“Item (three) I give and bequeath to son, John Scott Blount, one-third of real estate and one-third of my life insurance, fraternal insurance and one-third of my personal property.
“Item (four) I give and bequeath to my daughter, Elizabeth Louise Blount, one-third of my real estate and one-third of my life insurance, fraternal insurance and one-third of my personal property.
“Item (five) I desire and will that none of my real estate shall be divided or sold before the year 1950, and if either of the above named children break or attempt to break this will of mine he or she shall be disinherited and be given the amount of ten dollars, instead of one-third interest in my estate as named herein above.
“Item (sis) My object in having the real estate remain intact until 1950, is to make each child invest his or her income from this will to acquire his or her individual property.
“Item (seven) In the event that I should die before either of the above children graduate from college course, each of the above named children shall be allowed one-third of the income from my estate to go to school at least nine months every year until each one has completed a college course. In the event that either child fails or refuses to go to school until he or she has completed the college course named heretofore, then he or she shall not be allowed one-third interest or any part of the income heretofore named for educational purposes.
“In case either of said children should die, then the other two are to share equally in the division of my estate and if any two should die, the living child shall have the entire estate.
“We the undersigned witnesses to the foregoing will do truly certify that the testament the said John Homer Blount signed said will in the presence of each one of us, all of us being together at the time, and declared the same to be his last will and testament and requested each one of us to witness the same and we each severally signed the same as witnesses in the presence of each and in the presence of the testator.
“Witness our hands this, the first day of August, 1919.
“Witnesses:
“John Homer Blount,
“J. 0. Winford,
“M. P. Remley.”
At the time of the execution of this will the testator was a widower, and none of his three children — two sons and a daughter — had completed their education to the satisfaction of their father. He later married, and was survived by these three children and his second wife, to whom no child was born.
These children, who are now of full age, and the widow entered into a contract with appellant to convey a tract of land owned by the testator at the time of his death. An abstract of the title to the land disclosed this will, upon which the title depends, and appellant declined to accept the tendered deed upon the ground that it would not convey the merchantable title for which the contract of sale provided. Suit was brought to enforce this contract, and a demurrer to the complaint was overruled and appellant was directed to accept the deed tendered and pay the purchase price, from which decree is this appeal.
It is not contended that this will was revoked by the marriage of the testator subsequent to its execution under the provisions of § 14520, Pope’s Digest, for the reason that no issue was born to the second marriage. But the will does not exclude the widow from the interest she would have taken had her husband died intestate.’ The devisees, however, take subject to the will, modified, as it must be, by the subsequent marriage of their father. The insistence is that the widow and these devisees, together, take the entire fee simple title, and that as all of them joined in the execution of the deed tendered there is no one who may complain of its sufficiency, for the reason that, subject to the payment of the debts as provided in item one (all of which have been paid), the children, as devisees under items two, three and four, take title in fee simple, subject only to the marital rights of the widow.
To sustain this contention the case of Bernstein v. Bramble, 81 Ark. 480, 99 S. W. 682, 8 L. R. A., N. S., 1028, 11 Ann. Cas. 343, is chiefly relied upon. The will there construed read in part as follows: “All the rest, residue and remainder of my estate, real as well as personal, and wheresoever situated, I hereby devise, give and bequeath to my beloved wife, Minna Elle, to have and to hold the same in fee simple forever. But in the case of the death of my beloved wife it is my will that all the estate then remaining and not disposed of by her by a last will or other writing shall pass to my said brother, Mortiz Elle, and my sister, Henriette Bernstein, or their heirs in equal parts.”
It was there held that the property mentioned was devised to the first taker in fee simple, and that the limitation over to another at the former’s death was void for repugnancy. This rule of construction, while hoary with age, is one which usually operates to defeat the intention of the testator when the will is read in its entirety and the intention of the testator gathered from its four corners.
But the authority of that case need not be impaired to ascertain the testator’s intention in the present case. There, the testator devised to the first taker title in fee simple, to be held forever. Not so here. Subject to and after the payment of his debts, the testator designated the quantum of his estate which each of his children should take, each a third, both of his real estate and personal property. But for what purpose and upon “what condition? We must read the will in its entirety to find the answer to that question and to determine just what the estate and interest is which items two, three and four devise.
It was said in the case of Piles v. Cline, 197 Ark. 857, 125 S. W. 2d 129, as has been said in many other cases, that, in construing a will it is the duty of the court to ascertain,, from a consideration of the language employed in the will, the intention of the testator, and to give effect to that intention, and, in'so doing, the will should he read in its entirety and effect given, if possible, to all the language employed. In this Piles case, it was further said: “Wills cannot ordinarily be written in a single sentence, and we must, therefore, read a will in its entirety and give effect, if we may, to all the language which the testator has employed. When we have done so, if the intention of the testator is clear, we have only to declare the intention thus expressed. If, however, the language of the will is ambiguous and the intention of the testator is not clear, we must invoke the aid of settled rules of construction with reference to which the will is said to have been written, although, in fact, the testator may have been wholly ignorant of these rules of construction. The application of these rules of construction may, in some instances, operate to defeat the actual intention of the testator, but, if so, the fault lies with him in failing to clearly express his intention.”
In the Bernstein case, supra, Judge Battle quoted from Underhill on the Law of Wills, vol. 2, § 689, as follows: “ ‘It is the rule that where property is given in clear language sufficient to convey oa% absolute fee, the interest thus given shall not be taken away, cut down or diminished by any subsequent vague and general expressions. This rule is applied where a fee is given either expressly by words of limitation, as to a person and his heirs, or by implication by a devise in general language through the operation of the modern statutes. If it is clearly the intention of the testator that the devisee shall own the fee simple, his subsequent language, directing that what remains of the property at the death of that devisee shall devolve upon a particular person or class of persons, will not cut down the fee to a life estate. The fee, being vested by express and appropriate words, will not be diminished by subsequent words of a vague and general character which are absolutely repugnant to the estate granted. . . .’ ”
We think there is no difficulty in ascertaining the testator’s intention when the will is read in its entirety. The testator used no vague and general expressions which operate to reduce the estate devised. The language employed is very clear and very definite, and does not reduce the estate from an estate in fee to a lesser estate. On the contrary, the language used explains the estate devised in items two, three and four. It might be said that if these items two, three and four stood alone, and there was nothing else in the will to explain and limit the estate and interest devised, they would be sufficient to devise a fee simple estate. But they do not stand alone, and the other provisions of the will which explain the nature and extent of the estate devised may not be ignored, if we are to give effect to the manifest intention of the testator, as plainly expressed in the language which he employed.
Item five directs that the estate be not divided or sold before 1950, a date just eleven years later than the date of. the testator’s death, of which limitation more will presently be said. It is urged that this is a mere admonition of a precatory nature. But it does not appear that the testator was merely advising; he intended to make the provisions of his will effective and mandatory and, to that end, resorted to the most effective means he could employ, by providing that any attempt to defeat his purpose by contesting the will should result in disinheriting the person who made that attempt.
Items six and seven make it certain, if it did not otherwise so appear, that the provisions of item five are not precatory in their nature, and explain why the estate should remain intact until 1950. He sought to compel his children to be frugal and to acquire property by their own endeavors. He evidently thought they could better do so if they were educated, and he made compulsory provisions for that purpose. He could not, of course, after his death, compel his children to complete a college course, but he could, and did, impose a penalty upon any child who failed to do so, this, being to deprive the disobedient child of the one-third interest in the revenues of the estate which the testator intended should be employed in taking a college course.
That the testator did not intend to devise a fee simple title to the third interest to each child further appears from the provisions of the will immediately following item seven reading as follows: “In case either of said children should die, then the other two are to share equally in the division of my estate and if any two should die, the living child shall have the entire estate.”
When we have read the will from its four corners, we think the purpose of the language just quoted was to make more effective the provisions of items six and seven. The testator did not intend that his estate should be sold or divided until 1950, and he sought to prevent his children from defeating that purpose by providing that if one or if two of the children should die, the survivor or survivors ‘ ‘ shall have the entire estate. ■ ’ This limitation upon the interest devised in items two, three and four remains effective until 1950, at which time if all the children shall have survived, they will then, but not before,' take title in fee simple to one-third each of the estate, and may divide the lands and sell them.
The will construed in the case of Bowen v. Frank, 179 Ark. 1004, 18 S. W. 2d 1037, read in part as follows: “Item four. I hereby give, devise and bequeath to my seven children and legal heirs, to-wit, Charles F., Robert B., John L., Walter A., Clara M., Elizabeth Gr., and Lenora E. Frank, now Mrs. S. A. Bowen, all of my property, real, personal and mixed, wheresoever situated, not already disposed of, which I now own or may hereafter acquire, and of which I may die seized and possessed, absolutely and in fee simple, and in equal shares. The division shall be made by three commissioners to be appointed by my said children, and the lots and parcels of land so divided shall be drawn for by them, and any difference in the valuation be settled among themselves. The property of my daughters, however, shall be held and owned by them for their sole and separate use and enjoyment, free from the debts and contracts of any husbands, for and during their natural lives, with remainder in fee to their children, and in default of children surviving either of them, then to my children who shall then be living, their heirs and assigns forever, and should any of my sons die without issue, his or their share shall also revert to my children then living, their heirs and assigns forever.”
The first sentence of this item devised to the testator’s'four sons and three daughters “all of my property, real, personal and mixed, wheresoever situated, . . ., absolutely and in fee simple, and in equal shares.”
This will was twice construed by the Supreme Court of Tennessee in the cases of Frank v. Frank, 120 Tenn. 569, 111 S. W. 1119, and Frank v. Frank, 153 Tenn. 215, 280 S. W. 1012.
We approved the construction of this will given it by the Supreme Court of Tennessee, and, in doing so, said: “ ‘In Frank v. Frank, 120 Tenn. 569, 111 S. W. 1119, the will of J. F. Frank was construed to mean that the four sons of J. F. Frank took an estate in fee, and the three daughters, Clara M. Frank, Elizabeth G-. Frank and Mrs. Lenora F. Bowen, each took life estates in the property therein devised, with remainder (1) to any child or children that either might leave surviving her; (2) in default of child or children surviving any daughter, to the brothers and sisters living at her death. . . . The remaindermen are declared by the will as construed in Frank v. Frank, 120 Tenn. 569, 111 S. W. 1119, to be the issue of each devisee, and no issue, the survivor of the four brothers and three sisters.’ ”
■ The construction of the will in the instant case is easier and more certain. As we have said, items two, three and four merely designate the share of the estate which each child should have, but it was not said that interest was given in fee, and we must read the entire will to determine for what purpose and upon what conditions this one-third interest to each child was devised.
In Schouler on Wills, Executors and Administrators (6th Ed.), vol. 2, § 898, pp. 1031-34, it is said: “A -will should be construed as a whole to carry out testator’s intention, and all parts should be compared with and read in the light of the others, in an effort to harmonize all parts, and his whole plan considered, and every word given effect if possible, including the preamble, and this rule like other rules of construction can only be applied when the construction of the will is doubtful. The court should look to the whole will and ascertain whether the intention of the testator appears with reasonable certainty there before attempting to resort to rules of construction for aid in construing a certain clause of the will. In the same way all the provisions of a codicil must be construed together.”
The provisions of the will that the estate shall not be divided or sold until 1950 does not violate the rule against perpetuities, and is not contrary to any law or any public policy, and we conceive no reason why it should not be upheld as valid. Such provisions in wills are quite common, and are uniformly enforced. The restriction against sale or partition is limited to the period of only eleven years, and is confined to persons all in being, and we think the limitation was one not beyond the power of the testator to impose. Moody v. Walker, 3 Ark. 147; Grissom v. Hill, 17 Ark. 483; Clark v. Stanfield, 38 Ark. 347; Cribbs v. Walker, 74 Ark. 104, 85 S. W. 244; Biscoe v. Thweatt, 74 Ark. 545, 86 S. W. 432, 4 Ann. Cas. 1136; Ward v. McMath, 153 Ark. 506, 241 S. W. 3. See, also, Union Trust Co. v. Rossi, 180 Ark. 552, 22 S. W. 2d 370.
We conclude,,therefore, that the deed tendered appellant by the widow and devisees of the testator would not convey the merchantable title for which the contract of sale called, and the decree will, therefore, be reversed, and the cause remanded with directions to sustain the demurrer. | [
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Grieein Smith, C. J.
When the litigation that resulted in this appeal originated in March, 1940, E. B. Kimpel operated the Cash and Carry drug* store in Dermott. His wife, M. E. Kimpel, operated the Kimpel drug store. In July, 1939, unpaid hills for merchandise supplied by appellant to the Kimpel store amounted to $846.83. A promissory note, payable to Archer Drug Company, on demand, was executed by E. B. and M. E. Kimpel. Suit to enforce collection was brought March 13,1940. Two days later an attachment was levied upon goods then remaining in the Kimpel store.
E. B. Kimpel, as trustee of the estate of B. A. Kimpel, intervened.
Prayer of the intervention was granted March 27. The stock of goods was moved March 29. An inventory of the Kimpel store taken March 11 by appellees showed stock valuation of $2,733.08. Appellant’s representative took an inventory March 15 and fixed values at $2,040.35. At the same time, another inventory taken for appellees showed' stock of $2,475.
According to E. B. Kimpel’s testimony, he purchased the Kimpel drug store for his wife in 1930. Its actual operation was by Kimpel’s brother-in-law, Murray Shafsky,
Total indebtedness of Kimpel and his wife incidental to the drug stores was $7,000, inclusive of the amount due appellant. A $4,000 loan on property owned by. the B. A. Kimpel estate was procured from Dermott State Bank. With from $1,500 to $1,600 of this fund appellees composed their obligations with creditors at 25 per cent., with the exception of “forty some odd dollars” and $68 in goods returned. No part of the Archer Drug Company note was paid. E. B. Kimpel testified that his mother was living when the $4,000 loan was made; that his wife borrowed the money from his mother, and had paid it back.
The Cash and Carry drug store’s bank account was in the name of Murray 'Shafsky. The Kimpel drug store had its own bank account. Checks were signed by Murray Shafsky or W. B. Perry.
On cross-examination of E. B. Kimpel there is the following:
“Q. You told us a while ago that merchandise was táken from the Kimpel drug store over to the Cash and Carry? A. Yes, sir. Q. How much; rather, how long did that continue? A. When Mr. Perry would run out of something or get a call for something he did not have. But, naturally, it was properly charged. Q. Do you know how much stock was put in there from the Kimpel drug store? A. I think about $800 worth.”
The court erred in dissolving the attachment. Section 531 of Pope’s Digest gives the plaintiff in a civil action the right to attach where the defendant has sold, conveyed or otherwise disposed of his property, or suffered or permitted it to be sold, with the fraudulent intent to cheat, hinder, or delay creditors; or where the defendant is about to sell, convey, or otherwise dispose of his or her property with fraudulent intent in respect of creditors.
E. B. Kimpel’s testimony sustains the conclusion that he intended his creditors should believe him insolvent. He will not. now be heard to say that possession of certain lots, an automobile, and an interest in his mother’s estate (which he testified had been absorbed by his sisters) can change the status. Indeed, we do not understand that it is contended he was not insolvent.
It must also be assumed that in taking merchandise from the Kimpel store and placing it in the Cash store, and in depositing sales receipts in the name of a third party — Shafsky—the natural consequences of such transactions were intended. Nor may goods be converted into money in the regular course of business by an insolvent debtor for the fraudulent purpose of defeating creditors.
There is no substantial evidence tending to prove consent by appellant’s agent that the goods be moved. The attempt to make this showing reflects merely an incident in negotiations whereby appellant displayed toleration without engaging in conduct the legal effect of which would have been to acquiesce in a transaction with knowledge of its extent and purpose.
The judgment is reversed, with directions to sustain the attachment.
Grounds of attachment alleged were that the Kimpels had sold, conveyed, or otherwise disposed of their property, or suffered or permitted it to be sold, with the fraudulent intent to cheat, hinder, or delay their creditors. Also, that the defendants were about to sell, convey, or otherwise dispose of their property with such fraudulent intent.
The intervention alleged that the attached goods were in a building owned by the B. A. Kimpel estate; that the building had recently heen sold to L. L. Jones, of McGehee, and that in order to effectuate the sale the personal property should he moved to another location.
Kimpel testified that he opened the Cash and Carry store “about the 20th of June or July- — I think the 20th of June.” The reference must have heen to 1939.
Perry (at time of trial a rural mail carrier) had been employed by the Kimpel drug store “as a druggist” for nine or ten years.
In explaining who was meant by “we,” E. P. Kimpel testified: “To be frank, my wife and I. What’s hers is mine and what’s mine is hers.”
Metcalf v. Jelks, 177 Ark. 1023, 8 S. W. 2d 462. See, also, Farris v. Gross, 75 Ark. 391, 87 S. W. 633, 5 Ann. Cas. 616; Arkansas National Bank v. Stuckey, 121 Ark. 302, 181 S. W. 913; Federal Land Bank v. Wright, 175 Ark. 401, 299 S. W. 384. | [
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McHaney, J.
Appellee Martin, being* indebted to appellant in the sum of $550.15 for borrowed money, executed and delivered to appellant his promissory note therefor, dated January 1, 1936, due one year later, with interest from date at 10 per cent, per annum, and to secure the payment thereof, on January 11, 1936, he and his wife executed and delivered to him their deed of trust on a certain 2%-acre tract of land in Mountain View, which was duly filed for record and recorded on January. 14, 1936. Said note not having* been paid at maturity, this action of foreclosure was filed June 27, 1940. The complaint alleg’ed that two payments had been made and indorsed on said note, but that he was unable to state the dates and amounts thereof because the note and deed of trust were in the possession of either appellee Martin or appellee Maxey; that on or about July 12, 1938, Martin came to him at his home in Syllamore and advised Mm that he had made arrangements with appellee Maxey to borrow on the same security a sum sufficient to pay the balance due appellant and for his own requirements, and requested appellant to turn said note and deed of trust over to him, so that he could figure the amount due thereon, and get the description of the land, which was by metes and bounds, to copy same in preparing a new note and deed of trust to Maxey, and out of the proceeds of which he was to pay appellant the balance due him, and if he failed to secure the loan the note and deed of trust would be returned to appellant; that relying upon such promise, he let appellee Martin have said note and deed of trust, and thereafter Martin secured a loan from Maxey in the sum of $600, for which he executed his note and he and his wife executed to Maxey their deed of trust on the same property covered by that of appellant; that Martin has failed and refused to pay him the balance due and refused to return his note and deed of trust; and that they were obtained by Martin through trickery, deceit and fraud of which Maxey had knowledge. He prayed for judgment on the note and foreclosure and sale of the property, giving Mm a first lien thereon. Maxey defended on the ground that Martin came to him to borrow the $600 and represented he owed appellant $250, which he advanced him on July 11, 1938, for the purpose of paying appellant’s debt and securing a satisfaction of his mortgage, and on the next day advanced to Martin the remainder, $350, taking the note and deed of trust of Martin and wife on the same property; that Martin assured him his mortgage was a prior one, as appellant had turned over to Martin his note and mortgage, and further that appellant phoned Mm that Martin had satisfied his indebtedness, and that he would satisfy the record the first time he was in Mountain View. He denied Martin secured possession of appellant’s note and mortgage by deceit and fraud. He prayed that if any judgment should be rendered on appellant’s note and mortgage it be held inferior to his lien. Martin did not answer.
Trial resulted in a decree rendering judgment for appellant against Martin, and wife in the sum of $392.84, and costs, and ordering a foreclosure of the deed of trust and a sale of the property described therein to satisfy same, but held same subordinate and second to the deed of trust of Maxey. This appeal challenges that part of the decree subordinating the lien of appellant’s deed of trust to that of appellee, Maxey.
We agree with appellant that the court erred in so holding. We have heretofore held in two cases that, while a parol agreement to satisfy a mortgage on real estate is not void by reason of the statute of frauds, § 6059, Pope’s Digest, “the proof, relating to the discharge or release thereof, must be clear, satisfactory and convincing. Title to real property and the validity and continued existence of mortgages thereon would be insecure by any less stringent rule.” Riley v. Atherton, 185 Ark. 425, 47 S. W. 2d 568; Udes v. Nyegaard, 189 Ark. 653, 74 S. W. 2d 795.
Measured by this rule, the evidence fails to support the decree, as it is neither clear, satisfactory nor convincing that appellant agreed to surrender his note and mortgage and accept an unsecured note for the balance due, as testified to by Martin, but strenuously denied by appellant. Appellee says Martin is not a party to this appeal, has no interest in the litigation, and, therefore, should be believed. We do not think so. Martin’s admitted conduct with both appellant and appellee, Maxey, was so reprehensible as to wholly discredit him. He got possession of the note and mortgage and refused to surrender them to appellant. Maxey advanced him $250 to pay off appellant’s mortgage, but instead of doing so, he converted it to his own use, thereby practicing a fraud on both of them. He represented to Maxey that he had paid appellant and the mortgage would be satisfied. Of course, appellant cannot be bound by any representations made by Martin to Maxey not made in his presence, and none were. Maxey says he called appellant on the telephone and that appellant told him he had been paid and would satisfy the record of his mortgage the first time he came to town, but appellant denies having any such conversation with Maxey.
Appellee says the possession of the note and mortgage by Martin is a circumstance tending to show payment or to support the alleged agreement to satisfy, and the rule that, as between two innocent persons who must suffer from the fraud of a third, he whose fault or negligence furnished the means to commit the fraud must bear the loss, is here invoked. But appellee Maxey did not know Martin had the note and mortgage. He advanced .Martin $250 to pay appellant who had never agreed to accept less than $300 in satisfaction of his note, and Maxey never had these instruments in his possession until about a year after making the loan. There is a presumption of payment where the mortgagor has possession of the evidences of the debt in a suit by the mortgagee to foreclose and the defense is payment. That rule can have no force here, as Martin admits he owes the debt and Maxey does not contend it has been paid. He, Martin, testified he was to give appellant a noté with personal indorsement which he never did. When wé eliminate Martin’s testimony as not being trustworthy, we- have nothing left but the testimony of appellant and Maxey who are equally credible, and the most that can be said of it is that “it is in equipoise,” as said in Udes v. Nyegaard, supra.
It appears to us that, as between appellant and appellee Maxey, the latter was the more negligent. He let Martin have $250 to pay appellant in satisfaction of his mortgage and did not see to its application. On the next day he took Martin’s note and mortgage without an abstract of title or an examination of the record to see if satisfaction had been noted of record. Had lie done so, he would have known that it had not been done. In fact he knew it had not been satisfied when he took his mortgage as he says appellant promised to satisfy the record when he came to town in a day or two. Maxey trusted his friend, Martin, who proved unworthy of the trust. He made this loan knowing of the prior mortgage — • knowing that it had not been satisfied. The explanation of Martin’s possession of the note and mortgage as given by appellant is corroborated by the fact that the new instruments were exact copies of the old, and their pos session by Martin had nothing to do with Maxey’s action in making the loan, first because he did not know Martin had them, and, second, he knew, when he advanced the $250 they had not been paid.
The decree will be reversed, and the cause remanded with directions to foreclose appellant’s mortgage as a first lien. | [
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Mehaffy, J.
On August 3,1940, the appellants filed in the Ouachita circuit court a petition for mandamus against the members of the Board of Civil Service Commissioners and A. R. Lamb. The petitioners prayed that a writ of mandamus issue against C. C. Allen, Joseph Coan and W. A. Daniels, Board of Civil Service Commissioners, city of Camden, Ouachita county, Arkansas, ordering and directing them to proceed according to law ' and to answer in writing their doings on the first day of the next term of court, and that said A. R. Lamb, on final hearing of this petition, be ordered and directed to repay each and every dollar that he has drawn from the treasury of the city of Camden as salary of chief of police of the city of Camden, and for other proper relief.
Appellees filed demurrer and each of them filed answers. Evidence was heard by the court and a copy of Ordinance No. 356 was read in evidence. The ordinance is entitled: “An ordinance to abolish the office of chief of police in the city of Camden, Arkansas, and for other purposes,” and it contains the following clause: “This ordinance being for the relief of the financially depressed condition of the city of Camden, an emergency is ‘ declared to exist, and this ordinance shall take effect from and after its passage.”
The only question involved in this appeal is whether a writ of mandamus should be issued to compel the civil service commissioners of the city of Camden to hold an examination for the office of chief of police.
Ordinance No. 356, to abolish the office of the chief of police of the city of Camden, was passed on December 20, 1937, and the circuit court held that said ordinance had never been repealed or revoked, and that there was no basis for a writ of mandamus against the civil service commissioners of Camden directing the holding of an examination for an office which does not exist.
This court said in the case of Fiveash v. Holderness, 190 Ark. 264, 78 S. W. 2d 820: “The only question involved on this appeal is whether Act 28 of the Acts of 1933, known as the Civil Service Act, is applicable to the discharge of a member of the police force for economic reasons. The purpose of the Civil Service Act was not to require cities of the first class to retain all of the police force and firemen in the employment of the several cities at the time of the passage of the act if, in the wisdom of the city council, their services could be dispensed with in the economical administration of such municipal government. The purpose of the act was to prevent their discharge or demotion without notice and an opportunity to defend against causes over which they had control or which were personal to them.”
In the case of Satterfield, Mayor, v. Fewell, ante p. 67, 149 S. W. 2d 949, this court said that the opinion in the case of Fiveash v. Holderness, supra, is applicable; and continuing, the court said in the Pewell case: “We there quoted and followed the rule announced in 2 Dillon, Mun. Corp., § 479, that ‘The purpose of the civil service statutes and of other laws prohibiting the discharge of employees .without cause assigned, notice, and a hearing, is to insure the continuance in public employment of those officers who prove faithful and competent, regardless of their political affiliations. These statutes are not intended to affect or control the power of the city council or the executive officers of the city to abolish offices when they are no longer necessary or for reasons of economy. They are not intended to furnish an assurance to the officer or employee that he will be retained in the service of the city after the time when his services are required. They do not prevent his discharge in good faith and without notice when the office or position is abolished as unnecessary, or for reasons of economy’.”
The above quoted cases are applicable here. There is no evidence in the record in this case that the council, in passing the ordinance, acted in bad faith or was guilty of wrongful conduct in the passage of said ordinance.
Appellants rely on Act 28 of the Acts of 1933, the act creating the Board of Civil Service Commissioners and defining the duties and powers of said Commission.
The Supreme Court of Washington said in the case of State, ex rel. Voris v. City of Seattle, et al., 74 Wash. 197, 4 A. L. R. 198, 133 Pac. 11: “The council having the right to abolish the position occupied by relator, it would be an unwarranted usurpation for the courts to go beyond the question of the good faith of that body. We find nothing in the record to overcome that presumption of regularity and integrity which attends every act of the coordinate branch of the government. If there was anything proven that would challenge the good faith of the council, the fact that five positions were abolished in the ordinance which abolished the relator’s position is a sufficient answer and enough to sustain our holding that the motive of the council was pure and prompted by a disposition to work economy. It would certainly be harsh doctrine to hold that a city council cannot reduce the expenses of a department.”
“A civil service act does not prevent the abolishing by the proper municipal authority of an office held by a civil service employee when done in good faith. And the placing of a position in the competitive class by the civil service commission will not preclude its abolition by the proper municipal authority.” 43 C. J. 600.
The rule above announced is supported by many cases, among which are the following: Funston v. Dist. Sch. Bd., 130 Ore. 82, 278 Pac. 1075, 63 A. L. R. 1410; Fitzsimmons v. O’Neal, 244 Ill. 494, 73 N. E. 797; Phillips v. Mayor, etc., of the City of New York, 88 N. Y. 245.
The city of Camden had the right, acting in good faith, to pass the ordinance abolishing the office of chief of police, and that ordinance being valid, mandamus wall •not lie to require the examination'for an officer where the office has been abolished.
The judgment of the circuit court is affirmed. | [
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Smith, J.
This appeal is from a judgment sentencing appellant to a term of ten years in the penitentiary for the crime of carnal abuse.
There appears to be but little, if any, question as to his guilt, and the sufficiency of the testimony to support the conviction is not questioned.
At the trial certain letters were offered in evidence which had been written by appellant while confined in jail to the girl he had carnally known.
These letters, while intended by appellant to be confidential, were not privileged communications. The child was not his wife, but, even had she been, the letters, having been intercepted, were admissible. Hendrix v. State, 200 Ark. 973, 141 S. W. 2d 852.
Upon the introduction of these letters counsel for appellant suggested they were the productions of an insane person, and the plea of not guilty was changed to one of insanity, and the request was made that appellant be sent to the State' Hospital for Nervous Diseases for observation and report, as provided by § 3913, Pope’s Digest. This, motion was denied, on the ground that no intimation had been given by appellant’s attorney prior to the trial that the question of appellant’s insanity would be raised, and that the plea came after the jury had been impaneled, sworn to try the case, and the greater part of the testimony on the part of the state introduced.
We think no error was committed in this respect. It was said in the case of Whittington v. State, 197 Ark. 571, 124 S. W. 2d 8, that the purpose of § 3913, Pope’s Digest, the provisions of which appellant sought to invoke, was to furnish a means for the examination of one who gave notice to the court that he pleads or intends to plead insanity as a defense to the crime charged, or where the court has reasonable information from some reliable source that the accused was insane at the time that the alleged unlawful act was committed or had become insane since that time.
Through failure to invoke the provisions of § 3913, Pope’s Digest, in the time and manner required by law, appellant lost the right to have the examination into his mental condition made, for which that section of the statutes provides; but the question of his sanity was, nevertheless, submitted to the jury. This is admitted, but the insistence is that the instructions submitting that question to the jury were not correct declarations of the law on the subject. This, in our opinion, is the only important or difficult question in the case.
Upon this issue the court charged the jury as follows:
“The burden of proving the insanity of the defendant devolves upon the defendant to show his insanity by a preponderance of the evidence unless the testimony on the part of the state shows such insanity by a preponderance of the testimony.
“Before insanity would "be a defense it would be necessary for you to believe by a preponderance of the evidence that the defendant was in such condition of mind at the precise time of the commission of the alleged act as not to know the consequences of his act or not to know right from wrong, or if he did know the consequences of his act, and did know right from wrong, that he was incapable of choosing between the right and the* wrong, and further you must believe that that condition, if you believe it did exist, was due to a mental disease of the mind, because if such condition or conditions, if it did exist or if they did exist, .was due to immoral depravity or a lascivious attitude it would not constitute such insanity nor would it excuse the commission of the act. It is only such mental conditions that are caused by mental disease or diseases of the mind that do excuse on the ground of insanity.”
Upon the giving of this instruction counsel for appellant remarked: “I believe the court told the jury that if it was caused by any immoral causes it wouldn’t be a defense. It seems to me that it would be a defense if it was from any cause.” Thereupon the court proceeded to charge the jury further as follows: “Gentlemen of the jury: The court intended to make it clear to you that the defense of insanity is a legal defense and to make clear to you that the mental condition of the defendant may be such as to make it the duty of the jury to acquit him, but the court intended to make clear to you that whatever mental condition did exist, it must exist because of the disease of the mind before it would be sufficient to constitute a defense and the court intended to make clear to you that mere immorality or lasciviousness impelling one to commit an act not due to a disease of the mind, would not be a defense.”
The distinction which the court made is one which exists in the law. If a man’s mind becomes so diseased that he is insane (as that term is defined in numerous cases, such, for instance, as Bell v. State, 120 Ark. 530, 180 S. W. 186; Hankins v. State, 133 Ark. 38, 201 S. W. 832, L. R. A. 1918D, 784; Watson v. State, 177 Ark. 708, 7 S. W. 2d 980, 59 A. L. R. 356), even though the diseased condition of the mind resulted from private vices, he is excused. But, if his mind becomes disordered, so that he loses control of himself, through passion, suddenly or violently aroused, whether that passion be of an amorous nature or the result of hate, prejudice or a desire for revenge, he is not an insane person within the meaning of the law. For instance, a man might have a provocation, apparently sufficient to make the passion irresistible, and, under, the influence of this passion, kill another. But he is not excused on that account. He would under § 2981, Pope’s Digest, be guilty of voluntary manslaughter. A man might voluntarily drink intoxicants, or voluntarily take drugs, until, while, under the influence of the intoxicant or the drug, he becomes irresponsible and unaware of his conduct. Yet, he is not excused from the effect of his'conduct under those conditions.
A headnote to the case of Byrd v. State, 76 Ark. 286, 88 S. W. 974, reads as follows: “2. As the specific intent to kill is unnecessary in murder in the second degree under our statute, if one voluntarily becomes too drunk to know what he is about, and then without provocation assaults and beats another to death, he commits murder in the second degree, just as if he were sober.”
So, a man might indulge and cherish a lascivious inclination until the desire to gratify it becomes irresistible, and thus become amorously crazed and be impelled by this passion to commit such a crime as rape or carnal abuse; but he is not to be excused on that account. He may be excused as an insane person only when his mind has become diseased and, because of this disease, he has lost the power to distinguish between right and wrong or, as the court told the jury in the instruction above copied, he is incapable, because of the diseased condition of his mind, of choosing between the right and the wrong.
But if one’s conduct was not induced by this mental condition, but from the excitation of the lower passions, whether of hate, prejudice, desire for revenge, or lascivious desire, he is responsible for his act. Frenzy is not insanity.
Read together in their entirety, we think this is the' purport of the instructions given by the court, and they are, therefore, not erroneous.
'The subject of insanity as a defense to the charge of the commissi'"1 of •> crime was exhaustively reviewed by Mr. Justice Wood in the case of Bell v. State, supra, and this has become a leading case on the subject. The learned justice there said: “. . . if insanity is interposed as a defense such defense cannot avail unless it appears from a preponderance of the evidence, first, that at the time of the killing the defendant was under such a defect of reason from disease of the mind as not to know the nature and quality of the act he was doing; or, second, if he did know it that he did not know that he was doing what was wrong; or, third, if he knew the nature and quality of the act, and knew that it was wrong, that he was under such duress of mental disease as to be incapable of choosing between right and wrong as to the act done, and unable, because of the disease, to resist the doing of the wrong act which was the result solely of his mental disease.”
The subject was again reviewed with equal care by the same learned justice in the case of Hankins v. State, supra, and both of those cases were reviewed by the same writer in the still later case of Watson v. State, supra, where it is said: “The instructions on the issue of insanity followed closely the law applicable to such issue as declared by this court in Bell v. State, supra. It could serve no useful purpose to reiterate the law announced in that case and in Hankins v. State, supra. The appellant objected generally to the instruction given by the court, and specifically to that part of the instruction relating to emotional and moral insanity. The appellant contends that there was no definition of emotional or moral insanity. But on examination of the instruction we find that the court in the instruction told the jury that ‘the fact that one’s reason is temporarily dethroned by anger, jealousy or any other passion, or the fact that he has become suddenly depraved to such an extent that his conscience ceases to control or influence his actions, is not a defense to criminal charge. In other words, what is commonly known as emotional or moral insanity is not a defense under the law of this state for one charged with crime.’ The instruction on the proposition of emotional and moral insanity thus conformed to the law as declared by the court in Bell v. State, supra, and was a sufficiently explicit definition of emotional and moral insanity. ’ ’
No error appears, and the judgment must be affirmed. It is so Ordered. | [
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Humphreys, J.
This suit for damages by appellee against appellant was brought in the circuit court of Nevada county December 9, 1939, growing out of a collision after dark on October 11, 1939, between appellee’s 1937 Ford sedan and appellant’s truck and trailer, being driven by W. C. McMahan, its employee. The Ford sedán was being driven by appellee’s son, Gerald Carter, and appellee was sitting on the front seat with him. The back seat was occupied by Tom Walker and two negro boys. They were en route to the county fair at Prescott having left Bluff City, the home and place of business of appellee, late in the afternoon, and came to the intersection of the highway with the Whelen Springs road and passed the Wynn filling station, situated in the forks of the two roads, where there was a rather sharp curve at the junction of said roads. The highway proceeds straight west for about 300 yards where it again curves to the right or northwest. The car and trailer collided on the straig’ht stretch of the road between the two curves about 100 yards west of the junction and about 200 yards east of the other curve. As appellee’s ear went out of the junction curve a large truck and trailer belonging to appellant, and driven by W. C. McMahan, came out of the west curve going east. After coming out of the two curves, both vehicles were on a straight stretch of road proceeding in opposite directions, appellee going west and McMahan going east.
Appellee introduced evidence to the effect that W. C. McMahan was driving the truck and trailer on the wrong side of the road, or on his left side .of the road; that Gerald Carter was driving on his right side of the road and when the truck and trailer did not move over to its right side of the road, Gerald Carter applied his brakes and pulled his car over against a ledge of gravel 12 inches high on his extreme right side of the road; that when McMahan was about 10 or 12 feet from the Carter car he pulled his truck sharply to the right and the front of the truck missed the Carter car, but the trailer which was fastened to the truck by what is called a “fifth-wheel” struck the Carter car about the left front light and demolished the left side of the car, the left front wheel being knocked off, the fender being torn off, the running board being mashed backwards and down to the ground; that at the time of the collision the Carter car was whirled around and almost headed in the opposite direction with the front end on the opposite side of the road near the ditch; that the truck went on down the highway about 75 yards and stopped near the junction of the highways and close to the filling station in the fork of the roads; that immediately after the wreck appellee was sitting straddle of a piece of wood or metal which comes up by the side of the seat of the car.
Appellant introduced testimony to the effect that the Carter car cut the curve and barely missed hitting the truck head-on, but after barely missing a head-on collision, the car cut back to its left, missed the front of the truck, but struck the front end of the trailer.
There is testimony in the record to the effect that after walking back to the Carter car in company with several parties who had come out of the filling station McMahan asked appellee and the others whether anyone was hurt and appellee stated to several parties there and at the filling station afterwards that he was not hurt. Appellee stayed at the Wynn filling station about one and one-half hours in conversation with parties who happened to be there and made no complaint to anyone that he was hurt and in stating that he was not hurt said that he was frightened and that his car was badly torn up. His son and the others who were with him caught a ride and went on to the fair and appellee later returned .to his home at Bluff City.
After W. C. McMahan stopped the truck at the filling station, he got out and joined several parties and went down to see about the condition of the car that had been struck by the trailer. Appellee testified that when McMahan came up to him he said, “Pat, I didn’t know it was you. If I had known it was you, I wouldn’t have run over you.” None of the other witnesses present heard the statement made by McMahan and McMahan denied making the statement. This statement by McMahan was admitted in evidence over the objection and exception of appellant.
Several days after the collision, a Mr. Gibbons, an insurance adjuster, went to see appellee and appellee claimed that all he wanted was damages for his car. He did not tell the adjuster that he had received personal injuries and made no claim to him that he himself had been injured. An estimate was made of the damages to the car which amounted to $206, but when the adjuster went to see appellee two or three days thereafter he demanded a new car. The adjuster declined to buy a new car for him because he said the damaged car was a 1937 model with 11,600 miles on the speedometer and, in addition, that it was not a total loss. Some six or seven days after the wreck and after the insurance adjuster declined to give appellee a new car, appellee claimed that he had received a personal injury in the wreck.
In bringing the suit two months after the collision’ appellee made W. C. McMahan a co-defendant with appellant, but never obtained any service upon him.
In the complaint appellee alleged that the collision was occasioned solely by the joint and concurrent negligence of appellant and McMahan because McMahan was driving at a high and dangerous rate of speed; that he failed to stop when he could have done so; that he was driving on the wrong side of the road and also alleged that he received serious, painful and permanent injuries for which, he should recover $30,000 and also damages to his car for which he should recover $600.
On June 20, 1940, appellee filed an amended complaint alleging an injury to his coccyx resulting in coccygodynia and a loss of sexual power.
W. C. McMahan filed no answer.
Appellant filed a separate answer denying each and every material allegation in the complaint and alleging that whatever injury appellee may have sustained was caused by the negligent driving of appellee’s own car at a high, reckless and dangerous rate of speed and also that appellee’s car was on the wrong side of the road.
The cause was submitted to a jury upon the pleadings, testimony introduced by the parties and instructions of the court resulting in a verdict and consequent judgment ag’ainst appellant in the sum of $10,000, from which is this appeal.
There is a sharp conflict in the testimony as to whether appellant, through its admitted agent, W. C. McMahan, was on the wrong side of the highway and failed to pull over to his side of the road until the cars were between 10 and 20 feet apart, and- that when he did attempt to pull over to his side of the road it was too late to prevent his trailer from hitting appellee’s car.
The testimony was also in sharp conflict as to whether either or both of the drivers, under the circumstances, was or were driving at a reckless rate of speed and in a dangerous manner.
We deem it unnecessary to set out and analyze the testimony in an attempt to reconcile the conflicts therein and content ourselves with saying that, after carefully reading the evidence, we have concluded that there is sufficient testimony of a substantial nature to warrant the jury in finding that appellant was to blame for the collision. It was exclusively within the province of the jury to settle the disputed question of fact as to whether appellant was guilty of negligence, and having done so, on appeal, this court will not disturb the verdict as to liability.
Appellant contends, however, that the trial court erroneously admitted in evidence the statement of W. C. McMahan, attributed to him by appellee, a short time after the collision, which statement is as follows: “Pat, I didn’t know it was you. If I had known it was you, I wouldn’t have run over you.” Appellant argues that this statement was not admissible as against it unless same was a part of the res gestae under the rule announced in the following■ cases and note: St. Louis Southwestern Ry. Co. v. Wilson, 119 Ark. 36, 177 S. W. 415; Itzkowitz v. P. H. Ruebel & Co., 158 Ark. 454, 250 S. W. 535; Liberty Cash Grocers v. Clements, 193 Ark. 808, 102 S. W. 2d 836; St. Louis-San Francisco Ry. Co. v. Vernon, 162 Ark. 226, 258 S. W. 126; Little Rock Traction Co. v. Nelson, 66 Ark. 494, 52 S. W. 7; River, R. & H. Construction Co. v. Goodwin, 105 Ark. 247, 151 S. W. 267; case note 130 A. L. R. 291.
We do hot think the statement made by McMahan is a part of the res gestae. At the time it was made the accident was over. The truck and car had stopped 100 yards or more away from each other, one east and the other west of the point of contact. All parties had gotten out of the truck and car. All had examined the damage done. Two men had come from the filling station with McMahan and these men had walked up the road approximately 100 yards or more when the statement was made. It was, therefore, clearly not a part of the res gestae nor admissible in evidence on that theory. It was not even admissible against W. C. McMahan because McMahan while named a party co-defendant was never served with summons and never filed any pleadings in the suit. It was not admissible in contradiction of the testimony of appellee as appellee had not then been on the witness stand.
Although it was an error to admit this statement, it was not prejudicial for the reason that there was ample substantial evidence in the record aside from this piece of evidence tending to. establish liability against appellant resulting from the collision.
It is true that this piece of evidence may have influenced the jury to return a larger verdict than they would have done had the evidence not been introduced. Of course, for a man to say he intentionally • ran over a person would influence a jury to return a larger verdict than had it been unintentional. This error so far as it affects the excessiveness of the verdict may be remedied by a reduction of the amount and need not necessarily bring about a reversal of the case.
There are some other questions of evidence presented but we do not regard them of sufficient importance to work a reversal of the judgment.
We have also examined the instructions given and refused and think those given were clear declarations of law applicable to the facts and those refused did not constitute errors for which the judgment should be reversed. We think upon the whole the jury were instructed fully and clearly on all the issues involved in the case.
We now come to a point which has given the court grave concern. We think it next to impossible for appellee to have received the injury to his coccyx in the manner described by him and we are unable to see how he could have gotten astride the little “rounded, one-half inch thick hard piece that comes on the side of the car seat.” An injury of this kind according to the doctors causes excruciating pain and causes it immediately. Not only did appellee not suffer excruciating pain immediately after the collision, but he told others that he was not injured in any way, that “I did not get hurt, but I had the hell scared out of me.” He continued for several days to tell his neighbors and friends that he did not get hurt and he told the insurance adjuster that all he wanted was a new car. After the insurance company refused to get him a new car he then began to talk about his injuries and he never claimed any injury to his coccyx until June,. 1940, at which time he amended his complaint.
Up until that time he had only claimed pains and aches and suffering in his limbs, back, etc. There is much evidence in the record tending to show that most of his trouble was due to Bright’s disease and high blood pressure. We think that there is no substantial evidence in the record that at the time of the collision he received the injury he now complains of and that the circumstances that he did receive such an injury are all against appellee. He emphatically denied all injury for several days. The record is replete with evidence that one receiving a fractured coccyx would know it immediately because the pain therefrom would be acute and excruciating. In fact in ordinary life one knows this to be a fact. It is unnatural for one who has received an injury to the coccyx in a collision to say “Hell, no, I ain’t hurt.” His statement to this effect and his conduct- and actions thereafter do not indicate that he received a fractured coccyx at the time of the collision. His very belated claim that he did receive such an injury is out of the ordinary and we do not regard the evidence in support of such a theory- as substantial. We think the statement of W. C. McMahan which was admitted to the effect that he had purposely run over the party he had met in the road unduly influenced the jury in determining the amount he should recover. The statement should not have been admitted but, as stated above, the error committed in admitting it can be cured by a remittitur from the $10,000 judgment down to a judgment for $1,000. The judgment is, therefore, reduced from $10,000 to $1,000 and, as reduced and modified, is affirmed. | [
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Gtrieein Smith, C. J.
Questions for determination are (1) whether act 133, approved March 13, 1941, was constitutionally passed by the house of representatives; (2) whether effect of the act is to authorize counties to issue interest-bearing evidences of indebtedness or the state to lend its credit to counties, in violation of art. 16, § 1, of the constitution, and whether amendment 10 is violated; (3) whether revenues of the state are pledged, in violation of amendment 20, and (4) whether vested rights arise within the meaning of amendment 7 which prohibits the declaration of an emergency in those instances where such rights are created.
Act 133 creates a “highway turnback fund control board,” consisting of the county judge of each county, the treasurer of state, and the state comptroller. It is made the duty of the state comptroller to audit and file his report, showing outstanding warrants issued for payment by the several counties from the fund created by § 23 (e) of act 11, approved February 12, 1934, as amended.
The county judge of any county is authorized to stipulate in writing the amount of turnback warrants “and the time or times of payment of the required amount or amounts out of the county apportionment of the highway turnback fund which, with an additional item for interest, will be sufficient to discharge a proportionate amount of securities to be issued [by the board, or separately by the county]; provided, that the maximum amount shall not be in excess of twenty-five per cent. of the county’s apportionment of such fund for any year. Said stipulation and agreement shall be filed with the state treasurer; and provided further, that the county judge of any county that shall so desire may execute and" offer for sale under the provisions of this act, separately and apart from any other county and the highway turn-back control board, bonds to fund the outstanding warrants of said county as shall be determined under the provisions of this act as of March 1,1941.”
Section 3 of act 133 provides for issuance of negotiable interest-bearing. bonds, notes, or debentures, . . not exceeding the aggregate amount of stipulated and agreed principal amount of warrants of the various counties, [to] mature at such time or times [as may be fixed by resolutions of the board] not exceeding thirty years. ’ ’
The securities áre payable, both as to principal and interest, from 25 per cent, of the 7.7 per cent, apportionment of county turnback money, ‘ ‘. . . and it shall be plainly so stated on the face of . . . such securities as well as that same does not constitute the general or full faith and credit obligations or an indebtedness of either the state of Arkansas or of any of the counties.”
After the securities are issued it becomes the duty of the treasurer of state to set aside in a special fund 25 per cent, of the annual allotment of 7.7 per cent, turnback fund, . . and said state treasurer shall withdraw from such special fund the amount necessary to pay the principal and interest of such securities as and when the same are scheduled to become due.”
Section five is a pledge that the state “. . . will not permit the apportionment provided by law for any county, after the issuance of such securities, to be changed or the percentage of seven and seven-tenths allotted to the highway turnback fund in § 23 of said act 11 of 1934 to be reduced prior to the payment in full of all securities so issued.”
When the bonds, notes, or debentures are sold, money accruing therefrom is payable to the treasurer of state and by him disbursed to the interested counties. Remittances are to be made to county treasurers, who are directed to keep the fund in a special account, to be paid out “. . . only for the retirement of the warrants covered by the stipulation and agreement as aforesaid of the county judge of such county.”
Prior to March 3,1937, county courts were permitted to incur obligations payable from the turnback fund, irresp’eetive of whether money was available to meet warrants issued pursuant to such contracts. In some instances anticipated receipts had been drawn against for several years in advance. Washington County v. Day, 197 Ark. 1081, 126 S. W. 2d 602. See § 4 of act 193 of 1937. To remedy this evil the Fifty-first General Assembly passed act 193, approved March 3, 1937. It was construed in Taylor v. J. A. Riggs Tractor Co., 197 Ark. 383, 122 S. W. 2d 608.
The Fifty-second General Assembly, acting, apparently, upon the assumption that act 193 of 1937 had been misconstrued, and that county judges had, in good faith, incurred obligations and allowed claims in excess of turn-back funds apportionable for the year affected, “validated” such claims and warrants for 1937 and 1938. Act 299, approved March 14, 1939. See Logan County v. Anderson, ante, p. 244, 150 S. W. 2d 197.
It now develops that more than a million dollars in county turnback warrants issued in excess of revenues are outstanding.
The Fifty-third General Assembly had the power to reclassify the turnback fund, and the fact that act 133 of 1941 is in partial negation of acts 193 of 1937 and 299 of 1939 is unimportant. The fund, not being one within the orbit of amendment No. 10, may be dealt with by the state through legislative action; and, although the effect of acts 193 and 299 was to give to the turnback all of the attributes of a county fund for use as restricted by the gratuity, the control of 25 per cent, of 7.7 per cent, of net motor vehicle fuel taxes is, by act 133 of 1941, given to the state.
We do not discuss, in detail, the charge that act 133 of 1941 was not legally passed by the General Assembly. It is our view that the measure was constitutionally enacted.
It is insisted that art. 16, § 1, of the constitution is violated.
Appellee’s brief cites opinions of this court sustaining acts 131 and 132 of 1933 authorizing issuance of revenue bonds by cities for the construction of sewer and water systems. Jernigan v. Harris, 187 Ark. 705, 62 S. W. 2d 5. It was alleged that the acts authorized-cities to lend their credit by issuing interest-bearing evidences ■of indebtedness. We held that the municipality, as such, did not incur obligations on account of the bonds, nor did it assume any responsibility for them. Payment, it was said, could not be made from taxes or other municipal revenue. A later case is Robinson v. The Incorporated Town of DeValls Bluff, 197 Ark. 391, 122 S. W. 552.
In support of the contention that act 133 does not violate amendment No. 20 to the constitution, attention is called to Page v. Rodgers, 199 Ark. 307, 134 S. W. 2d 573. In that case the legislature, by act 381 of 1937, directed that a portion of the turnback allotted to Saline county be applied in payment of bonds issued by Mable-vale Extension Road Improvement District No. 5. In the opinion it is said: “ It is undisputed that the district in question is a public enterprise, was completed and the •bonds issued after February 4, 1927. It is, therefore, entitled to share in the county turnback fund, for the state may bestow its bounty where it will.”
This expression appears in the opinion: “The only limitation provided [by amendment No. 20] is that the state shall issue no bonds or other evidences of indebtedness pledging the faith and credit of the state or any of its revenues for any purpose. No limitation is placed upon the paying’ out of the revenue of the state, but the limitation is placed upon the issuance of bonds pledging the faith, credit and revenues of the state.”
If it be conceded that, in a technical sense, the securities are not state of Arkansas bonds because, by the act, and by printed, engraved, or lithographed indorsement full faith and credit of the state are expressly withheld and affirmative notice is given that they do not create a debt against the state or any of the counties, we are still confronted with the fact of issuance under authority of the state, by an agency created for that purpose, and the state enters into solemn covenants (1) that it will not permit the turnback apportionment to be changed; nor (2) allow a reduction of the 7.7 per cent.
It is our view that when the state contrived to segregate 25 per cent, of the fund in question, and by using this as a guarantee covenants with money lenders that the securities will 'be paid with funds withheld from the counties, the state, in fact, is the moving agency. 'But for its guarantee to maintain the fund and to control its application, bonds could not be sold. So, in effect, if not in words, the state borrows money and- pledges its revenues.
It is true that § 23 (e) of act 11 of 1934 is a pledge, subject to certain provisos, that the allotment of 7.7 per cent, to counties will not be reduced. But, in respect of a gratuity by the state to its political subdivisions, the power of rescission is not prohibited by the constitution.
•Conceding that (in respect of some of the counties) appreciable public value would attend the funding of turnback warrants, this showing of merit does not alter the legal status of the transaction. We very reluctantly, therefore, hold that § 5 of act 133 is in conflict with amendment No. 20 to the constitution.
Keversed.
“All net tax derived from motor vehicle fuel under the provisions of § (c) of this act shall be divided: Ninety-two point three per cent. (92.3%) shall be deemed state highway revenue, an'd seven point seven per cent. (7.7%) shall be deemed county highway improvement revenue, and shall be credited by the treasurer of state to the ‘county highway fund’.”
For further information with reference to this fund, see Ladd v. Stubblefield, 195 Ark. 261, 111 S. W. 2d 555, and cases cited.
The stipulation is to be filed at a meeting called by the state comptroller.
Act 299 does not refer to the contingent turnback fund provided by § 51 of act 11 of 1934. [During the 1940 calendar year net .receipts from 7.7% of the tax on motor vehicle fuel were $843,206.56. Net receipts from one-fourth of a cent per gallon on gasoline for the same period were $448,060.60. Gross gasoline tax receipts were $11,311,637.33].
“Neither the átate nor any city, county, 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.” [But see amendments Nos. 10, 13, and 17.]
See McCutcheon v. Siloam Springs, 165 Ark. 846, 49 S. W. 2d 1037; Snodgrass v. Pocahontas, 189 Ark. 319, 75 S. W. 2d 223.
“Except for the purpose of refunding the existing outstanding indebtedness of the state and for assuming and refunding valid outstanding road improvement district bonds, the state of Arkansas shall issue no bonds or other evidence of indebtedness pledging the faith and credit of the state or any of its revenues for any purpose whatsoever, except by and with the consent of the majority of the qualified electors of the state voting on the question at a general election or at a special election called for that purpose.” | [
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Smith, J.
E. B. Shell, a resident of Jackson county, died intestate in the year 1920. His estate consisted of approximately 240 acres of land, of which about 165 were in cultivation and constituted his homestead. He left considerable personal property and a life insurance policy for $2,000 payable to his two oldest children. The policy was written prior to the birth of two other children later born. Surviving him were his widow, Mrs. Ola Shell, and four children, Rudy, Mardell, Lois, and Junior, the three last named being the children by a former marriage. Rudy was his only child by Ola, and Rudy died two years after his father’s death.
Mr. Shell was largely indebted, the exact amount of which does not appear except that there was an outstanding mortgage on the land to secure $2,600 of this indebtedness.
Mardell, the oldest of these children, was only eight years old at the time of the death of her father. The widow was appointed administratrix of her deceased husband’s estate, and was also appointed guardian for his minor children. The personalty was consumed in paying the debts, and the widow waived her claim of dower in the personalty to permit this to be done, and there was no source of income of the estate except the rents of the land, which the court found averaged $600 per year. This finding is questioned, it being contended that the rents were greater; but we do not think the testimony shows that the net rents were in excess of that average amount. The widow paid, not only the general taxes, but the special assessments of a drainage improvement district as well as the necessary and indispensable expenses of maintenance and repair. She kept the taxes paid. The testimony does not show how much of the rents was collected from the homestead as distinguished from the remainder of the land. But, from these rents, and without other income from the estate, the widow kept these children together and reared them. They were given all the school and other advantages which the community afforded.
As in too many other cases of this, kind, the widow made none of the settlements required by law of her administration and guardianship. Her explanation of this failure was that there was nothing to report, as all income was consumed and barely sufficed to keep the family going. It was shown that Mardell worked occasionally in the field, but the widow worked there more frequently.
The $2,000 insurance money belonging to Mardell and Lois was invested, under the order of the probate court, in a real estate mortgage, which proved to be unfortunate, and from which a large loss was sustained, but no attempt was made to charge the widow with liability for the loss thus sustained.
On October 25, 1939, Birdie Sheets, as guardian for Mardell, an incompetent person, filed petition for citation of Mrs. Shell, alleging that Mardell was declared incompetent on February 4, 1938, by the probate court for the eastern district of Lawrence county.
Mrs. Shell filed a final account, according to which she was not indebted to her ward in any sum, but the balance was in her favor. Exceptions to this account were heard, which resulted in a judgment in favor of the ward in the sum of $1,980.20, from which judgment is this appeal, and from which judgment there is a cross-appeal by Mardell’s present guardian.
It appears that Mrs. Shell gave bond as guardian in the sum of $10,000, the amount of which was later reduced to $1,000. The validity of this order of reduction is one of the several questions discussed in the briefs of opposing counsel; but this is a question which will not require decision in view of the conclusions which we have reached on other features of the case.
In the findings of fact, upon which the judgment is predicated, it is recited that “The court disregards all items of charges and credits after Mardell became 21 years old in 1934 for want of jurisdiction.”
It is true, of course, that Mrs. Shell should have filed regular reports of her administration and of her guardianship, and that she may be called to account for her failure to do so. It was said in Campbell v. Clark, 63 Ark. 450, 39 S. W. 262, that if this were not done, the door would be open for the perpetration of all manner of frauds against the estates of minors. That case is cited also in support of the proposition that, where a ward lives with her guardian as a member of his family, receiving board and clothing and rendering the ordinary household services required by parents of their children, such services will be presumed, in the.absence of a clear showing to the contrary, to be a sufficient compensation for the ward’s support. Reynolds v. Jones, 63 Ark. 259, 38 S. W. 151, is to the same effect.
It is, therefore, insisted that, as Mrs. Shell made no charge for which she claimed credit, she should not now be allowed credit for the living expenses of her ward. There are two answers to this contention. It is provided by statute (§ 6297, Pope’s Digest) that “The probate court may direct a guardian to expend for the maintenance and education of his ward a specified sum, although such sum may exceed the income of the ward’s estate; but, without such direction, the guardian shall not be allowed, in any case, for the maintenance and education of the ward, more than the clear income of the estate.”
It is an undisputed fact that the widow and her wards had their living from the income of the land, which was all of the estate, and we accept without hesitation the statement of the widow that this barely sufficed. The widow is not asking compensation for having paid the living expenses of her wards. She asks only that she be not required to pay them now their shares of the rents and income which were expended during the minority of the children for their support. She made these expenditures without an order of the court, but she does not ask for' anything more than we think she is entitled to have credit for, this credit not exceeding the clear income of the rents and the actual value of the necessities furnished the wards.
The second reason is that the guardian has the acquittance of her wards. It appears that through the foreclosure of the mortgage securing the loan of the insurance money above referred to title had been secured to the mortgaged land, known as the Curry place, which Mardell and her sister Lois wished to sell to one Bud House. An attorney was consulted, and a plan was agreed upon, whereby the wards g-ave their guardian a receipt in full for all demands against the guardian, and she joined with her wards in a conveyance of the land to House. As we understand the record, both Mardell and Lois were then of age, but Mardell was of legal age at that time, whether her sister Lois was or not, and Lois is not a party to this suit. Mrs. Shell testified that her home was destroyed by fire and the receipt was lost in the fire, but she is fully corroborated in this statement by the testimony of the attorney who assisted in making the sale and deed to House. Mardell and Lois were present at the trial, and neither denied this testimony.
Moreover, in 1937, when both Mardell and Lois were of full age and more than 21 years old, they requested Mrs. Shell to make partition of the estate. The right of the daughters to share in the rents of the homestead had then expired. There was then made what appears to have been a family settlement. It was agreed that the lands should be divided into four equal parts, one to the widow and an equal part to each of the three children. No contention was made that the guardian was then indebted to her wards. Three commissioners were appointed, who caused a survey of the lands to be made, dividing it into four parts of an approximately equal area. Deeds were exchanged to effect the partition. All of the children were then of age except Junior, whose disability of minority was removed so that he conld join in the partition proceedings.
It appears to us that this was a family settlement, which would be disturbed if the prior transactions between the parties were inquired into. The law favors family settlements, and will uphold them when fairly made.
For the reasons herein stated, we think the suit is without equity, and should be dismissed for that reason.
It is insisted, however, that Mardell is non compos, and was so adjudged in 1938. But this is a date subsequent to the receipt given in 1933 and the family settlement effected in 1937. It is insisted, however, that the testimony shows that Mardell was incompetent prior to both of the last named dates.
In support of this contention, Dr. J. L. Merrill was called as a witness; but his testimony was excluded for the reason, as stated by the court, that “It would have to relate back to the date of sale and before the execution of the releases to be competent.” Dr. Merrill’s examination was made in the fall of 1939. He expressed the opinion that “I do not think she is very competent,” as she appears to have the mind of a child. He made no physical examination and knew nothing of Mardell’s history, and his testimony shows that his examination was somewhat superficial.
Bud House was also called as a witness upon this issue; but his testimony may not be given much weight when it is remembered that he took a deed from Mardell for her interest in the 'Currv land.
James Alexander was also called as a witness upon this issue. He admitted that he had never been to school a day in his life. He was asked, “Is she a bright and intelligent girl?” and he answered, “Well, no, she is not.” He expressed the opinion that Mardell was not competent to transact business of a legal nature, but he stated no facts upon which that opinion was based.
The court below did not find that Mardell was incompetent. Ño finding upon that question was made. The judgment from which is this appeal is in favor of Birdie Sheets, guardian for Mardell Shell, an incompetent ; but this, we understand, to be a mere designation of the capacity in which Mrs. Sheets sued. The adjudication of Mardell’s incompetency in 1938 is prima facie evidence only of her incompetency at that time. Eagle v. Peterson, 136 Ark. 72, 206 S. W. 55, 7 A. L. R. 553. And it was said in the case of Shores-Mueller Co. v. Palmer, 141 Ark. 64, 216 S. W. 295, that the fact that a person was adjudged insane after he had made a certain contract does not establish his insanity at the time he made the agreement.
It is insisted that Mrs. Shell herself attempted to have Mardell adjudged insane. Mrs. Shell was asked, upon her cross-examination, the condition of Mardell’s mind in 1937, and she answered that “It was all right so far as I know.” She admitted that she “preferred a charg’e against Mardell in the clerk’s office so that the sheriff would come and get her.” The date of this event is not stated. Mrs. Shell explained her reason for doing so, that Mardell would not stay at home, but “was living with her man,” by whom she had an illegitimate child. Mrs. Shell thereafter took Mardell and her child into her home. It would appear that Mrs. Shell was complaining more of Mardell’s conduct than of her mental condition.
There is a circumstance which strongly indicates that no advantage has been taken of Mardell, and that she has not been defrauded, and that there is no equity in her case. It is that her sister executed a duplicate of the 1933 receipt which had been lost.
Upon the whole case we are of opinion that there is no equity in the case, and the judgment is therefore reversed and the cause dismissed. | [
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Mehaffy, J.
This action was instituted by- Carneal Warfield, as county judge of Chicot county, Arkansas, for a writ of mandamus to compel R. C. Chotard, treasurer of Chicot county, to pay a warrant in the sum of $90.57 for additional salary as county judge. The salary fixed by an act initiated in Chicot county is $2,500. The county judge claims that he is entitled to salary under act 125 of the Acts of 1941, wherein the salary is fixed at $3,750.
The county treasurer entered his appearance and filed a demurrer to the complaint. The court sustained the demurrer, dismissed plaintiff’s complaint, and the case is here on appeal.
In 1940, Chicot county initiated an act entitled: An act to fix the salaries and -expenses of the county officers of Chicot county, Arkansas, and to fix the manner in which such compensations and salaries shall be paid, to reduce the cost of county government, and for other purposes.
This initiated act became effective January 1, 1941. It not only fixes the salary of the county judge, but it provides that he shall perform certain duties, enumerating them. This act also prescribes the duties and fixes the salaries of the circuit clerk, county clerk, the sheriff and collector, the tax assessor, and the county treasurer.
The legislature of 1941 passed act 125, the title of which is: An act to amend § 1 of act 97 of the Acts of 1929, as amended by act 133 of the Acts of 1933 and act 409 of the Acts of 1939.
The first section of said act 125 reads as follows: “That § 1 of act 97 of the General Assembly of the State of Arkansas, approved March 7, 1929, as amended by act 133 of the Acts of 1933 and by act 409 of the Acts of 1939, be amended so as to read as follows:”
It then provides that the annual salary of the county and probate judge in each of the several counties of the state shall be as follows, and then names the amount of salary for each county judge in the state. There are seventy-five counties in this state, and yet act 125 did not undertake to change the salary in but seven counties. There was no change at all made in sixty-eight counties. It names Chicot county and fixes the salary at $3,750.
The initiated act of Chicot county is not mentioned •either in the title or in the act 125, and the question, therefore, is whether act 125 impliedly repealed the initiated act.
Act 125 does not purport to repeal any act, except it states in § 2: “All laws and parts of laws in conflict with the provisions of this act are hereby repealed.”
That is the usual clause added to acts passed by the legislature, but since the initiated act had just been adopted by Chicot county, and since said act was not mentioned in act 125, we think it plain that the legislature did not intend to repeal the initiated act. It simply, as the title shows, intended to amend % 1 of act 97 of 1929, as amended by act 133 of the Acts of 1933, and by act 409 of the Acts of 1939.
The legislature could not amend the initiated act. Amendment 14 to the Constitution of the State of Arkansas reads: “The General Assembly shall not pass any local or special act. This amendment shall not prohibit the repeal of local or special acts.”
The late Chief Justice McCulloch, speaking for the court, said: “While the title of the act is not controlling, it may properly be looked to, in case of doubt, for the purpose of ascertaining the true legislative intent. 2 Lewis’ Sutherland on Construction of Stat. § 339; 26 Am. & Eng. Enc. Law, pp. 628, 629.” Western Union Tel. Co. v. State, 82 Ark. 302, 101 S. W. 745; Payne v. State, use city of Booneville, 124 Ark. 20, 186 S. W. 612; Oliver v. So. Trust Co., 138 Ark. 381, 212 S. W. 77; Nixon v. Allen, 150 Ark. 244, 234 S. W. 45; Huff v. Udey, 173 Ark. 464, 292 S. W. 693; Conway v. Summers, 176 Ark. 796, 4 S. W. 2d 19.
It seems clear to us from the title of the act that there was no intention to amend or repeal the initiated act. Moreover, § 1 of the act itself does not mention the initiated act.
Appellant contends that when act 409 of 1939 was passed, fising the salaries of all the county judges in the state, it was the law applicable to Chicot county. Act 125 did not make any change in the salaries of the county judges of 68 counties.
The provision of Amendment No. 7 applying to local legislation reads as follows:
“The initiative and referendum power of the people are hereby further reserved to the local voters of each municipality and county as to all local, special and municipal legislation of every character in and for their respective municipalities and counties, but no local legislation shall be enacted contrary to the Constitution or any general law of the State, and any general law shall have the effect of repealing any local legislation which is in conflict therewith. ’ ’
The people not only adopted Amendment No. 7, but this court said in the case of Dozier v. Ragsdale, 186 Ark. 655, 55 S. W. 2d 779: “It will'be remembered that the amendment construed by this court in the case of Hodges v. Dawdy, supra, was adopted in 1910. Thereafter the present amendment was adopted, and, in submitting the present amendment to be voted upon, the provision for the Initiative and Referendum Amendment as to counties was in a separate paragraph, in which the amendment was not mentioned. It simply provided for local, special and municipal legislation of every character in and for their respective municipalities and counties. The fact that the people adopted this provision a second time, and having written it in such plain language that it cannot be misunderstood by any one, shows clearly that they intended to reserve to themselves the right to pass all local laws affecting the counties.”
In the case of Dew v. Ashley County, 199 Ark. 361, 133 S. W. 2d 652, the court, after stating that the trial court had given a statement, historical in effect, of all this class of legislation, and a' somewhat careful analysis thereof, said: “After a complete re-examination and study of the subject we cannot think there could be any benefit to the public or to any individual interested in this litigation to re-examine and extend unduly a discussion of local salary acts. In this case the assessor has been paid his full salary. If under the Constitution salaries of county officials are purely local matters and may be settled and determined by the people themselves, certainly when salaries shall have been so determined and fixed and shall have been paid, no officer may properly claim more than the amount so determined and the courts do not have power to amend the law.”
This court recently said: “Another reason not less cogent is that Amendment No. 7 permits the exercise of the power reserved to the people to control to some extent at least the policies of the state, but more particularly of counties and municipalities as distinguished from the exercise of similar’ power by the legislature, and, since that residuum of power remains in the electors, their acts should not be thwarted by strict or technical construction.” Reeves v. Smith, 190 Ark. 213, 78 S. W. 2d 72; Tindall v. Searan, 192 Ark. 173, 90 S. W. 2d 476.
Another reason why it is apparent that the legislature did not intend to amend or repeal this initiated act is that the initiated act fixes the salaries of all county officers, and it is expressly stated that the purpose is to “reduce the cost of county government.” Can it be believed that the legislature would intentionally increase the salary of the county judge of Chicot county when the express purpose of the initiated act was to reduce the cost of county government? Of course, it could not amend the act under the Constitution, and yet it is perfectly clear that it intended to amend certain acts. If it had intended to repeal the initiated act, it would certainly have said so. But when the Initiative and Referendum Amendment and the acts mentioned and the initiated act are construed together, the conclusion that the legislature did not intend to amend or repeal the initiated act, is irresistible.
“In the construction of amendments to statutes, the body enacting the amendment will be presumed to have had in mind existing statutory provisions and their judicial construction, touching the subject dealt with. The amendatory and the original statute are to be read together in seeking to discover the legislative will and purpose, and, if they are fairly susceptible to two constructions, one of which gives effect to the amendatory act, while the other will defeat it, the former construction should be adopted.” LaFargue v. Waggoner, 189 Ark. 757, 75 S. W. 2d 235, 25 R. C. L. 1067.
“Statutes must have a rational interpretation to be collected, not only from the words used, but from the policy which may be reasonably supposed to have dictated the enactment, and the interpretation should be rigorous or liberal, depending upon the interests with which it deals.” LaFargue v. Waggoner, supra, 25 R. C. L. 1077.
We think it would amount to a charge of bad faith on the part of members of the legislature (and this should not be done if it can be avoided) to hold that the legislature intended to repeal the initiated act and yet put nothing into the title or the act to indicate this intention, so that neither the people of Chicot county nor anyone else would have notice of its intention.
The Supreme Court of the United States, in discussing the question of the invasion of constitutional rights and a breach of faith on the part of the United States, said: “We are bound, if possible, so to construe the law as to lay it open to neither of these objections. Broughton v. Pensacola, 93 U. S. 266, 23 L. Ed. 896; Red Rock v. Henry, 106 U. S. 596, 1 S. Ct. 434, 27 L. Ed. 251; Hobbs v. McLean, 117 U. S. 567, 6 S. Ct. 870, 29 L. Ed. 940; decided at the present term, and cases there cited; United States v. Coombs, 12 Pet. 72, 9 L. Ed. 1004. The construction contended for by appellee preserves the good faith of the government, and frees the act from the imputation of impairing rights secured by the Constitution of the United States.” U. S. v. Central Pac. RR. Co., 118 U. S. 235, 6 S. Ct. 1038, 30 L. Ed. 173.
The decree is affirmed. | [
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Holt, J.
May 27, 1940, J. D. Toups, appellee, sued B. W. McWilliams, appellant, to rescind a contract for the purchase of real property in the city of Fort Smith, Arkansas, and to recover the amount paid by him under the terms of the contract.
It is alleged in the complaint that on October 1, 1937, Toups entered into a written contract with McWilliams, under the terms of which, appellant sold to appellee lot 5, block 10, Hawthorne Addition to the city of ‘ Fort Smith, Arkansas, for a consideration of $800, of which $100 was paid in cash and the balance to be paid at the rate of' $12 per month with 7 per cent, interest; that Toups agreed to keep the property insured in the amount of $700, 'to pay all taxes during the life of the contract; and “in the event of the said parties of the second part (Toups and wife) should fail to make six (6) monthly payments, as herein stated, then the said parties of the first part (McWilliams and wife) at their option may declare this contract null and void, and of no further force or effect, unless otherwise agreed upon in writing, and all payments made by the said parties of the second part to the said parties of the first part shall be forfeited to the said parties of the first part, as rents or damages, and for no other purpose, and the said parties of the first part shall be entitled to possession of the said property, without the due process of law, or costs, time being the essence of this contract”; that after all payments were made by Toups, appellant was to convey the property to Toups, “said conveyance to be a good and sufficient warranty deed, together with complete abstract of title.”
It was further alleged that “defendant represented to plaintiff that he was the owner of said lot upon which there was a two-room residence. Plaintiff believing- said representation to be true and relying thereon, executed said contract and paid defendant the said sum of $100 when said contract was executed, and made monthly payments thereon, amounting to $347, when he was informed that said residence was not on said lot, but on lot 5, block 3, Rector Addition to the city of Fort Smith, Arkansas, which said last mentioned lot was not owned by the defendant at the time said contract.was executed or now.”
The contract was made a part of the complaint.
There was a prayer that the contract be rescinded, that Toups have judgment against McWilliams -for $347, the amount alleged to have been paid appellant, and for costs.
Appellant demurred to this complaint, and upon its being overruled by the trial court, filed answer and cross-complaint denying every material allegation in the complaint, except the execution of the contract in question, and alleged that appellee, Toups, had breached the contract in that he had failed to keep the property insured, had not kept the taxes paid, and was in arrears for more than six months on his monthly payments.
He further alleged that at the time the Hawthorne Land Company sold him lot 5, block 10, Hawthorne Addition, the boundary lines of this lot were pointed out to him, that fresh stakes were at its four corners, that while these boundary lines and stakes included a fractional lot, described as lot 5, block 3, Eector Addition, which the Hawthorne Land Company also owned at the time, that the land company intended to convey to him, and he believed that he was purchasing all of lot 5, block 10, Hawthorne Addition, and all of lot 5, block 3, Eector Addition, the land within the boundaries so pointed out to him, and that said fractional lots together comprised the usual residence lot of 50 x 140 feet.
He further alleged that he has had adverse possession of both of these fractional lots for more than seven years, and that he has good title thereto by virtue of such adverse possession and his deed from the Hawthorne Land Company.
He further alleges that F. H. Allison claimed some interest in the property and asked that he be made a party defendant, and as defendant and cross-complainant below, appellant prayed that appellee’s complaint be dismissed, that the quitclaim deed held -by F. IT. Allison be canceled and that appellant’s title to said lots be quieted in him, that appellee’s contract for the purchase of said property, and all rights thereunder, be declared forfeited, that appellant be awarded possession of said property and that “in case the court shall not for any reason declare said contract forfeited, defendant be given judgment against the plaintiff for the balance due thereunder, and that same be declared a lien on said property and said lien foreclosed for the balance due this defendant, and said property sold under the orders of the court for the payment of said judgment. ’ ’
F. H. Allison filed answer to appellant’s cross-complaint, in which he asserted title to lot 5, block 3, Rector Addition, by virtue of a deed to him by A. M. Britton, who had purchased the property from the Hawthorne Land Company.
Appellee, Toups, also filed answer to appellant’s cross-complaint denying every material allegation therein.
The cause was heard before the court on July 2, 1940, and final decree entered September 19, 1940. The court found that on November 10, 1931, “the Hawthorne Land Company was the owner of lot 5, block 10, of Hawthorne Addition to the city of Fort Smith, Arkansas, and lot 5, block 3, Rector Place Addition to the city of Fort Smith; that both of said lots are fractional and adjoining, and both taken together comprise one residence lot 50 feet wide and about 140 feet deep . . . and that both together have the appearance of being one ordinary residence lot.
He further found “that on November 10, 1931, the defendant, McWilliams, purchased lot 5, block 10, Hawthorne Addition, from the said Hawthorne Land Company and received deed therefor, and when he purchased said property he believed that said lot 5, block 10, Hawthorne Addition, comprised the entire parcel of ground lying within the boundary lines of both of said lots; and he immediately went into possession of both of said lots, under claim of ownership, and right; and has since that time been in the actual . . . continuous . . . ad verse . . . possession of both lots; that believing himself to be the owner of the same, he built his house and garage upon the rear end of the parcel of ground on lot 5, block 3, Rector Place Addition; that he improved same, and that by reason of his adverse possession thereof for more than seven years, he has acquired the fee simple title of lot 5, block 3, Rector Place Addition, as against the Hawthorne Land Company and all other persons claiming by, through or under said company; that he acquired title in fee simple to said lot 5, block 10, Hawthorne Addition, by deed from the said Hawthorne Land Company.
“. . . that on April 30,1940, the said Hawthorne Land Company executed a quitclaim deed to A. M. Britton for said lot 5, block 3, Rector Place Addition to the city of Port Smith, . . . and on May 3, 1940, Britton executed a quitclaim deed to said lot to the cross-defendant, P. H. Allison, who claims said property by reason thereof, said deed is recorded . . . ; that said deeds and the record thereof are void as to defendant McWilliams, and constitute clouds upon his title and should be canceled. Said P. H. Allison has no title to said property because the Hawthorne Land Company-had no title to the property at the time it executed the deed to A. M. Britton and that cross-defendant, Allison, has no better title than said company and A. M. Britton had; that all right, title and claim of the said Hawthorne Land Company, A. M. Britton and P. H. Allison was barred by seven years adverse possession, and by estoppel and laches when said quitclaim deeds were executed; . . . that on October 1, 1937, defendant McWilliams and wife entered into a written contract with the plaintiff, J. D. Toups, and his wife, for the sale of said property to the Toups for a consideration of $800, $100 of which was paid in cash, and the balance of $700 was to be paid in monthly installments of $12 per month, beginning November 20, 1937, . . . Said Toups obligated themselves to pay taxes and assessments on the property and carry insurance in the sum of $700 for the protection of defendant McWilliams and his wife and that it is provided in said contract that title shall remain with the McWilliams until all payments shall be made; and that in case of default in six monthly payments, the said McWilliams might declare the contract null and void and all payments should therefore be forfeited as rents or damages and that McWilliams should be entitled to possession of said property.
“The court further finds from said contract that McWilliams, upon compliance with said contract, obligated themselves to convey said property to the purchasers . . . , said conveyance‘to be a good and sufficient warranty deed together with complete abstract of title’; that by reason of the condition of the title the plaintiff, Toups, is entitled to a rescission of said contract of purchase and to recover all payments he has made thereunder, which the court finds to be $350; and to secure payment of same Toups is entitled to a lien on both of said lots. ...”
The court took the matter of adjusting equities under advisement for further proof and after hearing proof as to rental value of the property and improvements made by Toups, allowed McWilliams an offset against plaintiff of two years ’ rent at $8 per month, less the value of improvements made by Toups, reducing Toups’ recovery to $150.
The court canceled the deed from the Hawthorne Land Company to A. M. Britton and the deed from Britton to Allison, and decreed that the title to said lot is vested in McWilliams and quieted the title in him, and enjoined all other parties to the suit from setting up any claim of title as against McWilliams and those claiming under him.
The court further decreed that Toups is entitled to rescind the contract and to recover $150 from McWilliams, after adjustment of equities, and adjudged a lien against both lots for payment thereof and foreclosed said lien. Pie decreed immediate possession to McWilliams with writ of assistance therefor.
McWilliams' has appealed from that part of the decree holding appellee entitled to rescission of the con tract and from the judgment in appellee’s favor for $150 damages. F. H. Allison has not appealed.
Appellee has not favored us with a brief.
It is undisputed, on the record, that appellant on November 10, 1931, by deed from the Hawthorne Land Company, acquired title to lot 5, block 10, Hawthorne Addition to the city of Fort Smith, Arkansas. It is also undisputed that at the time of this conveyance to appellant, the Hawthorne Land Company owned fractional lot 5, block 3, Rector Place Addition to the city of Fort Smith, Arkansas, which lot, being fractional, adjoined the lot so conveyed, and when the two lots were taken together, comprised an ordinary city lot of 50’ x 140 feet.
It is .also clear that appellant on November 10, 1931, took possession of both lots, erected a two-room house and a small garage thereon, made other improvements, and has continued to hold this property adversely for more than seven years and had so held it for that period of time before the institution of this suit. By adverse possession of seven years, subsequent to November 10, 1931, appellant acquired good title to lot 5, block 3, Rector Place Addition, and the court was correct in so holding. Section 8918, Pope’s Digest.
While appellant’s title to lot 5, block 3, Rector Place Addition, supra, was not good .as a record, or paper, title on October 1, 1937, when the contract to purchase was entered into, appellant’s title to this lot ripened into a good title by seven years adverse possession on November 10, 1938. The contract obligates appellants, when appellee, Toups, complies with its terms, to convey the property to him, “said conveyance to be good and sufficient warranty deed, together with complete abstract of title.”
While the contract to purchase called for a good title, and it was not such when the contract was made, we are of the view that it had become a good title by adverse possession when that question was raised.
This court held.in Hinton v. Martin, 151 Ark. 343, 236 S. W. 267, that a marketable title need not be a clear record title,- but may be a*title acquired by adverse possession. It was there said
“It is the insistence of appellant that, when the contract is construed as a whole, it discloses an agreement to convey a merchantable title as shown by the abstract, and that, as the title tendered was not a perfect paper title, the attorneys exceeded their authority under the contract in approving the title as having been perfected by the adverse possession of the vendor. '
“In other words, appellant contends that the examining attorneys ignored the rule announced by this court in the case of Mays v. Blair, 120 Ark. 69, 179 S. W. 331, and reaffirmed in the case of Shelton v. Ratterree, 121 Ark. 482, 181 S. W. 288, that under the contract the purchaser was entitled to a merchantable or marketable title, and that the title was not a marketable one, inasmuch as it depended on the adverse possession of the vendor. . . .
“In the case of Mays v. Blair we held that a title, to be marketable, must be a clear record title, and that title by adverse possession does not constitute a marketable title, which a purchaser under an executory contract is bound to accept. That doctrine was reaffirmed in the case of Shelton v. Ratterree, supra, where we refused to enforce the specific performance of a contract because the title tendered under the contract was not a title of record, but depended upon the adverse possession of the vendor. . . .
“This question has received our most careful attention, and a majority of the court have reached the conclusion that we were in error in holding that only a clear record title could be a ‘marketable’ title. The better reasoning, the weight of authority, and our own cases are to the contrary. . . .
“Notwithstanding the conclusion we have now reached, that a title by adverse possession may be so clear and free from doubt as to be a ‘marketable’ title, and may therefore be the basis of a suit for specific performance of a contract to convey land; and that our holding in Mays v. Blair and in Shelton v. Ratterree to the contrary is against the better reasoning and the greater weight of authority, we would not now depart from those two cases but for the fact that a majority of the court have also concluded that those cases do not follow our own cases of Griffith v. Maxfield, 63 Ark. 548, 39 S. W. 852, and Tupy v. Kocourek, 66 Ark. 433, 51 S. W. 69. . . .”
Appellee took possession of the property under the contract October 1, 1937, and remained in possession until September 19, 1940. The present suit was filed May 27, 1940. Appellee’s possession under the terms of the contract was the possession of appellant. The lower court by its decree correctly found g’ood title to be in appellant, but we think erred in holding that since appellant did not have record title at the time the contract was entered into appellee was entitled to rescind the contract.
We are also of the view that the preponderance of the testimony presented supports appellant’s contention that the fair rental value of the property in question was not less than $10 per month. On this point appellant testified that the property had never rented for less than $10 per month and appellee admitted that while he was absent from the property he rented it furnished for $15 per month.
Mike Hofrichter, after having qualified as to knowledge of rental values, testified the fair rental value of the property to be $10 per month. J. Ross Young and Mr. Duff corroborated this testimony. Troy McNeil, a real estate man in the city of Fort Smith, of long experience, testified that $10 per month would be a fair rental value.
While appellee, and two witnesses introduced on his behalf, gave testimony tending to place the rental value at $7.50 to $8, as indicated, we think the. preponderance of the testimony supports appellant’s contention.
It is conceded that Toups occupied this property for 36 months. Its rental value during this time would amount to $360. It is undisputed that appellee paid $350 on the contract.
It is undisputed that appellee failed to maintain insurance on the property, failed to pay taxes and had failed to pay the monthly installments due under the contract for a period of more than six months.
For the errors indicated, the decree is reversed, and the cause remanded with directions to permit appellee to pay the balance of the purchase price with interest to appellant, if he so elects, in which event appellant is directed to execute warranty deed to appellee. Should appellee refuse to pay said balance due within sixty days from date this judgment becomes final, the court is directed to declare a lien on said property for the amount due on the purchase price and order public sale thereof to satisfy appellant’s lien.
Each party to this litigation to pay his own costs in both courts. | [
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Humphreys, J.
The prosecuting attorney of the Second Judicial District of Arkansas, of which Crittenden county is a part, filed an information on June 11,1941, in the circuit court of said county against the appellant, Freeman Bramlett, charging him with murder in the first degree by shooting and killing Charlie Goad on June 9, 1941, with a shotgun then and there held in his hands after premeditation and deliberation and with malice aforethought.
Appellant pleaded not guilty to the charge of murder in the first degree as charged in the information, and both parties announcing ready for trial, a jury of 12 men was duly empaneled as the law directs and sworn to try the cause and, after hearing the evidence, instructions of the court, and argument of counsel, returned the following verdict, to-wit: “We, the jury, find the defendant, Freeman Bramlett, guilty of the- crime of murder in the first degree, in manner and form as charged in the information, and fix his punishment at death by electrocution. ’ ’ Signed — Royce Upshaw, Foreman.
Motion for a new trial was filed and overruled after which a judgment was entered in accordance with the verdict, from which is this appeal.
The first assignment of error insisted upon for reversal of the judgment is that the evidence is not sufficient to support the verdict. It is argued that the evidence, viewed in the most favorable light to the state, fails to show premeditation, deliberation and malice on the part of appellant at the time he shot and killed Charlie Goad.
A definition of premeditation and deliberation in 2 Brill’s Encyclopedia, Criminal Law, cli. 19, § 644, was adopted and approved by this court in the case of Weldon v. State, 168 Ark. 534, 270 S. W. 968, as follows: “Premeditation and deliberation may be inferred as a matter of fact from tbe circumstances of the case, such as the character of the weapons used, the nature of the wounds inflicted, the acts, conduct and language of the accused and the like.”
Malice, which is a necessary ingredient of murder in the first degree, may be express or implied. And this court has decided in a number of cases that the law will presume malice from the intentional use of a deadly weapon in the commission of a homicide unless the existence of malice is overcome by the proof of the killing. Some of the cases so holding are: King v. State, 117 Ark. 82, 173 S. W. 852; Reed v. State, 102 Ark. 525, 145 S. W. 206; Sweeney v. State, 35 Ark. 585; Howard v. State, 34 Ark. 433; and Fields v. State, 154 Ark. 188, 241 S. W. 901.
Keeping these definitions and rules in mind in order to ascertain whether the evidence is sufficient to sustain the verdict of murder in the first degree we herein set out a chronological statement of the facts viewed in the most favorable light to the state.
C. H. Bond had been lending Erby Bramlett and appellant money with which to make crops in Crittenden county about 10 miles from the town of Marion. Erby Bramlett and appellant lived near each other in separate homes. It seems that Freeman Bramlett had not been doing his full part in the cultivation of the crops, and there had been some discussion between appellant and Bond relative to this matter. Late in the afternoon of June 9, C. H. Bond, in the company of Charlie Goad and Cecil Goodman, went out to see Erby Bramlett and the crop and stopped at the home of appellant and called to him several times and attempted to get in the house. Appellant did not answer their calls and did not open the door for them although they thought they saw him lying on the bed in the house. After failing to get in the house, the doors' being locked, they went over to see the crops and to talk to Erby Bramlett.
Mrs. Joe Hamlett, who lived about 100 yards on the other side of the Bramlett home, stated that on the morning of the 9th of June she noticed appellant and his wife sitting on their front porch about sun-up; that she saw a car leaving the Bramlett home and could not tell who was in it, but that she knew Mr. Bramlett was driving; that the next time she saw appellant during the day was when he came to the pump to get some water, but the pump was not working; that she just saw him as he was leaving the pump and later saw him come out of his home and shoot at a hawk; and that still later she noticed C. H. Bond, Cecil Goodman and Charlie Goad drive up to the Bramlett home; that they stayed there about 5 or 10 minutes and then went away; that between 6 and 7 o ’clock she went to her brother’s home and that when she got opposite appellant’s home the buckets she was carrying knocked together and made a noise, and that appellant raised up from the bed in the north room and looked out at her; that after she returned from her brother’s she heard a shot and after the shooting Mrs. Bramlett, appellant’s wife, ran up to her.
A colored man by the name of Mitchell testified that during the afternoon appellant came up to where he was plowing and asked him if he wanted a drink of whiskey and that he told him no, and that after offering him the whiskey appellant went back home.
Miss Helen Davis was the step-daughter of appellant. She was 18 years old. She testified that about 8 o’clock p. m. on June 9 she and her grandfather, Mr. Ross, and her mother drove in a car to Marion and called at Judge C. H. Bond’s house; after leaving Judge Bond’s house they picked up Charlie Goad, who went with them, and that after picking up Mr. Goad they went out to appellant’s home and parked the car in the front yard; that when the car stopped they all got out about the same time and that Mr. Goad and her mother walked up on the front porch and that Mr. Goad called appellant 2 or 3 times and that her mother attempted to get in the front door with a key; that while they were on the front porch she and her grandfather went around to the back of the house and then came back to the front of the house and cut down a cage that contained a squirrel and that while doing so they heard two shots just a few seconds apart and that her mother came running around the house and ran on toward a ditch and that she and her grandf ather ran toward the highway; that appellant came out, of the front door of the house and shot her grandfather and went to the car and left in it.
J. M. Ross, the father of appellant’s wife and grandfather of Helen Davis, testified in corroboration of his granddaughter and in addition explained that they were going to appellant’s house to get some of his daughter’s clothes; that it was after dark when .they reached appellant’s home, but that the moon was shining; that he saw Charlie Goad and appellant’s wife on the front porch and heard Mr. Goad call appellant several times; that after he and his granddaughter had returned from the back yard and were standing on the front porch and'were cutting down a cage that had a squirrel in it, he heard two shots that sounded “sorta muffled”; that his daughter came running around the house from the back and that he himself ran toward highway No. 70 to get help; that after running about 30 or 35 yards he looked around and saw appellant throw up a gun and shoot him in the face and temple.
LeRoy Dalton, a colored man, testified that he lived about one-half mile from the home of Erby Bramlett and that on the night the shots were fired appellant passed his house on the way to Erby Bramlett’s home in his car; that he was on his porch when appellant came by and saw appellant flash the car lights on and heard a conversation that occurred between appellant and his brother, Erby Bramlett; that he heard appellant say he had killed one son-of-a-bitch, but that he did not get the right one.
The news was spread around that Charlie Goad had been killed at appellant’s home and Ivan Dickson, a deputy sheriff, testified that he arrived at appellant’s home about 9 o ’clock p. m. the night of the shooting and that there was no one there but Goad’s body; that he gained entrance through the back door; found Charlie Goad’s body lying on the floor in the kitchen with his left arm under him loosely holding his pistol; that Goad’s flashlight was burning and lying near the kitchen door; that he, Jim Robbins and Gene Dickinson, who were with him, made an examination of the house and found two empty shells and a note on the top of the dresser addressed to Erby stating, “June 10 is Jr.’s birthday. He will be 10 years of age. If something happens to me see that he gets what is mine if I have anything left. Your brother, Freeman”; that he found the front door thumb bolted and a 16-penny nail driven in the facing of the door to keep the door from coming open; that they found no shot or wads on the floor.
According to the testimony of the physician who arrived on the scene and the funeral director who came about the same time and took the body to the funeral home, Charlie Goad had been shot in the mouth and in the right shoulder, and that there was not an exit to the wounds from either shot; that around the shot in the mouth there were no powder burns, but that the wound in the right shoulder did have powder burns around it.
Appellant, who fled from the scene of the tragedy and first went to see his brother and then later to see a brother-in-law, was arrested the next morning near his home. He had slept during the night in or near the ditch.
Howard Curlin, the sheriff, testified that after arresting appellant he was bringing him back to jail, and that he asked appellant, “Freeman, why did you shoot Mr. Goad while he was on the floor?” and that appellant answered, “I just don’t know.”
The sheriff also testified that one of the shells given him showed that it had been ringed, the effect of which was to cause the shot not to scatter.
Appellant took the stand in his own behalf and admitted the killing, but claimed that he shot Goad in the defense of his home saying that during the afternoon of June 9 he went to sleep; that a racket or noise awakened him and that when he roused up there was a flashlight in his face; that he grabbed the gun and shot at the flashlight; that he did not know who it was, but that after he shot the first time the person kept coming toward him; that the flashlight in his face had frightened him, and that he did not know what it was all about; that he fired the second shot to protect himself, still not knowing who it was coming toward him; that after he fired the second shot he struck a match and lit a lamp and saw what he had done; that he then saw whom he had shot; that he had not heard anyone calling him previous to his being awakened and observing the flashlight in his face; that after he recognized Charlie Goad he wrote a note; that the reason he wrote the note was that he did not know but that he would be apprehended before he got to the sheriff, and did not know what the posse might do; that he had no animosity or feeling toward Charlie Goad and that Mr. Goad was a good friend of his; that he had nothing but the kindest feelings toward Mr. Goad, and had no desire to kill him; that he had not premeditated or deliberated over killing Mr. Goad; that after he had killed Mr. Goad he drove first to his brother’s home about a mile and a half from his home; that he told his brother that he had killed Mr. Goad; that after he left his brother’s home, he drove to his brother-in-law’s out from Luxora and told him of the killing and that he was coming back and give himself up to the sheriff; that after being there about 30 minutes he left and came back the way he went and that when he got to Crawfordsville “the law apprehended him” and he stopped his car; that he got out of the car and stepped across the fence into the field where he stayed all night; that he had a few drinks and went to sleep; that when he awakened the next morning he walked up the ditch bank and was surrounded by deputies; that he gave up and did not know whether he was safe or not; that he knew Mr. Goad was an officer and a popular man; that when he was awakened he could see someone coming toward him; that he could tell that it was a man, but could not tell who it was; that the shades were down just like his wife left them; that he did not make any statement to his brother that he had killed some son-of-a-bitch, but didn’t get the right one, as testified by Lelioy Dalton; that he knew Dalton and had never had any trouble with him; that he did not remember shooting his father-in-law; that he did not hear Mr. Goad that afternoon call, “Freeman, Freeman,” and rattle the front door; that he drove a 16-penny nail in the door facing because his wife had a key and he wanted to keep her from coming in; that he wanted to know who came in; that he did not see Mrs. Hamlett come by; that he was not on the bed in the north room; that after the shooting he did not look to see where he shot Goad; that he pegged the front door so that if anyone came in the house'they would have to come in the back way; that the back screen door was hooked, but the thumb-latch was not on it; that the reason he shot Mr. Goad was that Mr. Goad kept coming toward him and he did not know who it was.
We think the evidence is sufficient to show malice on the part of appellant in killing Charlie Goad even if he was surprised and awakened by a flashlight in the night time and grabbed his gun and shot the intruder, not knowing who he was, for he shot him a second time after he was down on the floor. The jury were warranted in finding that the first shot was not fired in close proximity to the flashlight. No powder burns were upon the wound inflicted in or near the mouth. Powder burns were around the wound in the left shoulder. This was the shot that was fired in close proximity to appellant; and his admission to the sheriff that he shot him on the floor without knowing why he did so very clearly indicates malice. He' does not claim that there was any necessity for him to fire this shot and this is the shot, according to the testimony of the physician and the funeral director, that caused the death of Charlie Goad. The jury were warranted in finding that the shot was fired after premeditation and deliberation and with malice aforethought. The fact that appellant ringed one of the cartridges is a strong circumstance tending to show that he had deliberated and premeditated over the matter. According to the evidence, if he had not ringed the cartridge the small shot therein would have scattered and not had the deadly effect it did have after being ringed. The effect of ringing it was to cause the shot to travel as a ball would travel and have a deadly effect. There are other circumstances in the record indicating that appellant was in his home premeditating and deliberat ing over doing bodily injury to someone who might enter the back door. He had bolted the front door and driven a nail into the facing so as to prevent it from being-opened from the outside. He had left the back door unlocked. He had ringed a shell so as to make it more deadly when fired. He had drawn the shades so that no one could see him or could see what he was doing in the house. He had refused to permit Bond and Charlie Goad from entering the house when they called to him and knocked that afternoon. He had refused entrance into the home through the front door to his wife and Goad. After shooting Goad he fled and on his return, instead- of going to the sheriff and surrendering as he said he intended to do, he slept in a field near the ditch during the night and made no attempt to surrender at all until he was surrounded by deputies. After discovering that he had killed Goad, he told his brother that he had killed one of the sons-of-bitches, but had not gotten the right one.
Under all the circumstances leading up to the killingj as well as the manner of the killing and appellant’s conduct after the killing, we think the evidence is sufficient to support the finding of the jury that there was premeditation, deliberation, and malice on the part of appellant in committing’ the homicide.
Appellant assigns as error the refusal of the court to give instruction No. 2 requested by him. This instruction defined voluntary manslaughter. But the court gave an instruction defining manslaughter in the language of § 2980 of Pope’s Digest. The language of the statute was applicable to the facts and was a clear instruction, and the court was not called upon to multiply instructions. Appellant also argues that instruction No. 2 offered by him should have been given because it defined terror and fear. The theory of appellant as to his right to kill because of the fear aroused in him by being suddenly awakened at night was presented to the jury in an instruction given by the court at his request on the question of justifiable homicide. Appellant assigns as error the modification of instruction No. 5 asked by him so as to add the clause ‘ ‘ acting without fault or neg ligence on his part.” We think this instruction was properly modified and as modified conforms to the law declared in the case of Deatherage v. State, 194 Ark. 513, 108 S. W. 904.
Appellant also assigns as error the refusal of the court to give instructions No. ’d 8 and 10 requested by him. These instructions were submitted to the court on the theory that Charlie Goad was attempting to arrest appellant, but there is no evidence in the record that any such attempt was made. In fact, the sheriff testified that Charlie Goad had no warrant when he went to the home of appellant and had no intention of arresting appellant and said Charlie Goad went along with the wife of appellant to appellant’s home in order to get some of her belongings.
Appellant assigns as error the failure of the court to permit his attorney to read as a part of his argument an extract from American Law Reports Annotated, vol. 34, p. 1482, which extract is set out at length in his brief at pages 54-56. It is unnecessary to set the extract out because the court did not refuse to permit the reading thereof on account of the subject-matter contained therein. It was ruled out in the exercise of the court’s discretion and the court had discretion in the matter under the rule announced in the case of Curtis v. State, 36 Ark. 284. It was said by the court in that case that: 1 ‘The court may in its discretion permit counsel to read law to the jury in a criminal case1, but it is its province to determine whether the law proposed to be read is applicable to the facts of the case. The matter of reading law to the jury, as part of the argument, is under the discretion and control of the court, and its rulings in the matter are not subject to review unless its discretion is abused to the prejudice of the accused.”
We are unable to see that the court abused its discretion in refusing to permit attorney for appellant to read the extract.
No error appearing, the judgment is affirmed. | [
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McHaNey, J.
This is a suit for specific performance brought by appellee against appellant to compel him to accept a deed to certain real property and pay for same, under a written contract between them providing that appellee should furnish an abstract showing a merchantable title in him. The abstract was furnished, but, in the opinion of appellant’s attorneys, it did not show such a title, and he declined to purchase.
The case was submitted to the trial court on an agreed statement of facts, substantially as follows: title to the property involved was in J. B. Talbot at his death in January, 1918. It forfeited to the state for the nonpayment of taxes of 1931, and was certified to the state October 15, 1935, and the state’s title was confirmed on November 3, 1936. On July 6, 1937, the state sold and conveyed a part of this land to Annie Bunn on July 6, 1937, and the remainder thereof was sold and conveyed to Paving District No. 69 of Pine Bluff (a municipal improvement district, formed in 1923), on March 25,1940. On November 2, 1939, the widow, heirs and devisees of J. ÍB. Talbot, deceased, and Annie Bunn conveyed to said Paving District the lands here in controversy in consideration of the agreement of said Paving District to permit J. B. Talbot’s widow, then advanced in years and with an expectancy of ten years, to occupy the large house on said property rent free (she then occupying said house as her home) for the term of her natural life, and in satisfaction of the accrued and delinquent paving taxes thereon. On April 3, 1940, said Paving District conveyed said lands to appellee, subject to the right of occupancy reserved to the widow, as aforesaid, and upon the express condition that appellee, his successors or assigns, should pay all taxes, both general and special, then due or thereafter to become due on said property. The said property is by the stipulation located as being immediately south of Rutherford Park Addition to Pine Bluff and is separated therefrom by Nineteenth avenue, which is commonly called Talbot' avenue. The paving district is three blocks long on Talbot avenue and the Talbot property involved here constituted exactly one-half the property embraced in the limits of said paving district, and the annual tax thereon was about one-half the total annual tax due the district, and all the Talbot property was included'therein except a small strip, hereafter referred to. Beginning in 1931, said property was delinquent in the payment of taxes to the paving district and so continued through 1938, aggregating $4,108.50, which exceeded the value of the property, and for each of said years the district defaulted in the payment of its bonds and continued in default until the consummation of the agreement, hereinafter referred to among the district, the Talbots and the bondholders in 1939. In 1938, the district brought suit to foreclose its lien for the delinquent taxes due on said property which extended for a distance of 1,180 feet east and west. There were only two houses on it, and the larger being the Talbot home, entirely in the district, and the smaller, being set back so far south of Talbot avenue, that only a part, about 18 feet of it, was in the district and the remainder on Talbot property outside the city limits and, of course, outside the district. (In this vicinity the city limits were 144 feet south of Talbot avenue, so that the depth of the Tal hot property in the district was only 144 feet, whereas the depth of a normal city lot in Pine Blnff is. 160 feet.) The Talbots were unable to pay their taxes to the paving district, and it was unable to pay its bonds with half its taxes lost. It was recognized by the bondholders and the district, if it continued its foreclosure suit and obtained title to the property in that way, the Talbots would have four years to redeem from the sale, during which time the property would not be salable, and that with only 18 feet of the smaller house in the district, such house could not be considered of any value. So it was agreed among them to make the conveyance aforesaid for the consideration set out. The result was that the district acquired all the Talbot property in its limits and 16 feet to the south thereof, which increased the depth thereof from 144 to 160 feet and included all of the smaller house, with sufficient for a back yard. The amount of the delinquent taxes, as stated above, was $4,108.50. The district deeded same to appellee for the bondholders and they surrendered for cancellation the same amount in bonds and interest coupons. The effect was to pay $1,188 delinquent bond interest and $2,920.50 delinquent bonds which paid all delinquencies through 1938. As a part of said agreement the bondholders surrendered. an additional amount of bonds and interest coupons in the sum of $415, which paid the 1939 taxes on said property, making a total consideration to the district of $4,583.50 for property of the agreed value of $4,000, and the district will be able to pay off the remaining bonds and interest in 1942. Because of objection to the clause in the deed from the district to the appellee, imposing a personal liability upon him, his successors and assigns for the payment of taxes, both general and special, upon said property, the district released such obligation by an instrument in writing to that effect, and it was stipulated that such condition was not a part of the agreement of the parties, and that appellee was not authorized to accept a deed with such a condition in it, and was never discussed with him at any time, and to this extent the deed was more favorable to the district than was contemplated by the parties.
The trial court, after writing a splendid opinion in the case, entered a decree enforcing the specific performance of the written contract.of sale of September 14,1940, between appellant and .appellee, and this appeal followed.
Until the passage of act 91 of the Acts of 1925, p. 281, a municipal improvement district had no statutory authority to purchase real estate sold under decree of the chancery court for collection of delinquent assessments, but such power was conferred by that statute, and again by act 207 of 1937, now § 7317 of Pope’s Digest.
Appellant contends that because the legislature has never conferred the power on such districts to acquire the title to lands, except under foreclosure and sale for delinquent taxes in the chancery courts, such power, as has been assumed in the case at bar, cannot be necessarily implied, because they “do not need lands and have no justification for acquiring title to them except in the one case where the taxes owing to the district are not paid and no one else will bid the amount adjudged to be due.” In other words, as we understand appellant’s contention, unless there is a foreclosure and sale to it in the chancery court, a municipal improvement district can acquire no title by a voluntary conveyance to it by the property owner in satisfaction of the delinquent taxes against, or for that consideration, but must go to the trouble and expense of a foreclosure proceeding, even though the delinquent' taxes amount to more than the value of the property and await the expiration of the period of redemption allowed the owner by law, fixed at four years by act 252 of 1933, before making disposition and realizing anything thereon. It was stipulated here that the delinquent taxes amounted to more than the value of the property. We can, therefore, safely assume no one would bid that amount therefor and the district would become the purchaser and after four years more would acquire the title. The whole object of the district was to collect its delinquent taxes and the object of said Acts of 1935 and 1937 was to aid such districts better to accomplish that end. The sole object of the district in this pase was to collect the delinquent taxes on exactly one-half the property in the district and it appears to us that it managed to do so in the only way open to it for effective results. It is frequently said the law does not require the doing of a vain or useless thing. What could be more vain or useless than to require such a district to bring suit to foreclose, or to prosecute one already brought to a foreclosure and sale for delinquent taxes, when the owner is willing to convey the property free, of any other liens or encumbrances in satisfaction of such delinquent taxes? Especially is this true when, as here, title vests at once, thus enabling the district to sell and realize thereon. We are, therefore, of the opinion that the express power conferred by statute to acquire property by foreclosure of .its tax lien, necessarily implies the power to accomplish the same result by a conveyance of the property owner, free of other liens.
Nor can we agree with appellant that this would be engaging in the real estate business for such districts any more than the acquisition of the property by foreclosure. The sole object in each instance is to collect its taxes by resale of the property.
It is also suggested that the district had no power, express or implied to acquire land beyond its boundaries. We agree with the trial court that “the inclusion of certain property lying outside of the district to include the whole of the little house was merely incidental to the main purpose of the deed executed by the Talbots to the district, the sole purpose of this conveyance being to acquire the property for the amount of the delinquent taxes due on it to the district. ’ ’
The only other argument made by appellant, other than the alleged erroneous description of the property in the Talbot deed to the district and in the districts deed to appellee, about which counsel are not very insistent, is that the deed from the district to appellee is burdened by the condition that he, his successors or assigns should pay all taxes then due or thereafter to become due on the property, which creates a personal liability on any one owning the property, and, unless released, prevents the title from being merchantable. It is stipulated that this provision was inserted in the deed from the district to appellee without authority of the bondholders and without discussing the matter with appellee, and the district -executed a release of this provision. The stipulation shows it was a mistake to put it in the deed, but even though it were not, such a condition would be unenforcible, as there is no personal liability for taxes on real property.
The decree is accordingly affirmed. | [
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Holt, J.
March 25, 1940, there appears to have been pending in the Phillips chancery court a cause No. 8898 in which H. H. Truemper was plaintiff and F. P. Lawhon, et al., were defendants. The record before us does not disclose the names of all the parties to that suit or reflect the pleadings or issues.
On the above date in the above styled cause, the court made an order in part as follows: “. . . there is presented to the court by verbal statement of the attorney for the plaintiff that the order made by this court on February 14,1940, directing Wooten-Epes Company ... to turn over to R. L. Brooks, heretofore appointed receiver in this case, certain cotton, the numbers and description of the bales of cotton being more particularly described in said order, cannot be delivered to the receiver for the reason that the cotton has been sold, which statement the court finds is true.
“It is, therefore, considered and ordered that the receiver be and he is hereby directed to proceed to collect the- proceeds of said cotton* by filing a suitable petition to enforce the landlord’s lien, and to give the defendants notice of the pendency of this action.”
Following this order, appellant, R. L. Brooks, receiver, filed petition in the above cause No. 8898, in which Truemper was plaintiff and Lawhon, et al., were defendants, against appellee, Wooten-Epes Company,seeking to collect the proceeds of six bales of cotton on which appellant, as receiver, claimed a lien and also sought an accounting of the proceeds from the sale of the cotton and prayed for a separate judgment against appellee.
In so far as this record discloses, appellee, WootenEpes -Company, was never a party in the suit of Truemper v. Lawhon, et al.
Following the filing of the petition by appellant, as receiver, the chancery clerk issued the following notice which was served upon appellee by the sheriff: “In the Phillips chancery court.' H. H. Truemper, plaintiff, v. F. P. Lawhon, defendant. Notice. To the WootenEpes Company: This is to notify you that a petition of R. L. Brooks, receiver, in the above styled case has been filed to enforce landlord’s lien against you for cotton purchased by you, which cotton, was grown upon.the farm of H. H. Truemper during’ the crop year of 1939, and sold to you by F. P. Lawhon, tenant of the said H. H. Truemper, and upon which cotton was a landlord’s lien.
“You are further notified that this petition will be presented to the chancery court at its adjourned term on June 5, 1940, and this notice is for the purpose of informing you of the pendency of the suit so that you may make whatever defense you may have to the petition. Jack McDonald, clerk. By Jennette Thurmond, D. C.”
Following service of this notice upon it, appellee, Wooten-Epes Company, appeared specially June 5, 1940, and filed its motion to quash the notice so served on it on the grounds that the proceeding instituted by the receiver, appellant, against it, was in fact a new and separate suit, that no summons had been served in the suit, that defendant was improperly before the court, and asked that the service of notice be quashed.
Upon the same day this motion to quash was filed by appellee, a hearing was had and the court sustained the motion to quash in the following language: . “Thereupon, the court, having heard the argument of counsel, was of the opinion that there was no proper service of summons on the defendant, Wooten-Epes Company, and that the said petition was improperly filed in this cause, a separate suit being required” and decreed “that the service upon the defendant, Wooten-Epes Company, in this cause be and it is hereby quashed, that this cause is hereby dismissed, in so far as the Wooten-Epes Company is concerned, without prejudice. ’ ’
From this order of the court, appellant brings this appeal.
Rule 9 of this court requires appellant to furnish us with an abstract of the pleadings, evidence, orders, and decrees of the trial court necessary for a full understanding of the questions there presented for decision. Flake v. Hill, 130 Ark. 257, 197 S. W. 33.
♦ The record presented here does not disclose the names of the parties to the original suit filed below, No. 8898, supra, the nature of that suit, the pleadings and orders appearing therein, or the status of those proceedings. This information cannot be gained from the transcript filed here and appellee, not being required to do so, has not supplied us with this information.
We are unable to determine, therefore, the trial court’s reason for quashing* the notice of summons, or the reason for its holding* that appellant’s petition was improperly filed in the original suit, without some knowledge of the nature of that cause and the parties thereto. However, in the absence of knowledge as to the reasons upon which the trial court based its actions, we must indulge the presumption here that the omitted proceedings and record were sufficient to justify the chancellor’s decree. Williamson v. Mitchell Auto Company, 182 Ark. 296, 31 S. W. 2d 413; McGowan, et al., v. Burns, et al., 190 Ark. 1177, 77 S. W. 2d 970.
With the record and proceedings in the original suit in Truemper v. Lawhon, et al., before it, the trial court held that the petition of appellant, receiver, should have been brought against appellee, Wooten-Epes Company, in a separate suit evidently for the reason that appellee was never a party to the original suit. In these circumstances appellant, as receiver, could not proceed in a summary manner against appellee without the formality of a separate suit against it and proper summons and service against it, and the court was correct in so holding. That appellant, receiver, did attempt to proceed against appellee, in a summary manner, is not only indicated by the petition which he filed in the original suit of Truemper v. Lawhon, et.al., but by the wording* of the notice, supra, which is not in the usual form of a summons.
On the question whether a receiver may proceed summarily to enforce a claim against a stranger to the suit in which he was acting as the duly appointed receiver, the annotator in 40 A. L. R. 904, says:’ “After the appointment of a receiver, he becomes entitled to the custody and control of all the property of the debtor, and it is his duty to secure all the assets available for the payment of creditors. 23 R. C. L. 71.
“The general rule, however, is well established that a receiver has no right ordinarily through summary proceedings, or in a summary manner, to take into custody property found in the possession of strangers to the suit claiming adversely. . . .
“Thus, it is held in Musgrove v. Gray, 123 Ala. 376, 26 So. 643, 82 Am. St. Rep. 124, that where a receiver seeks to recover possession of property in the hands of one not a party to the suit, the latter, if he asserts, in good faith, color and claim of right to the property, is entitled under the guaranty of due process of law to his day in court and a trial according to the customary forms of law, and the receiver should be required to bring an action against him, instead of proceeding by summary process.”
The author of High on Receivers, 4 ed., p. 174, § 145, says: “. . . And the court will not, upon a summary application, compel a delivery to the receiver of property purchased at a sheriff’s sale, under execution against the defendant, when the purchaser’s agent is shown to be exercising control of the property, with the power of reducing it at any time to actual possession. Under such circumstances, the court will first require the purchaser to be made a party to the litigation, that he may have an opportunity to defend his title and right of possession. And where personal property is in the possession of a third person, not a party to the receivership proceeding, under a claim of title, it is improper for the court which appointed the receiver to order bim to take possession of such property, but he should be instructed to institute a separate action at law for its recovery; . . .”
Finding no error, the decree is affirmed. | [
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Holt, J.
August 31, 1940, appellees (plaintiffs below) filed a verified complaint in the Franklin circuit court, Ozark district, in which the following allegations are set forth: '
“Comes now the plaintiffs, . . . and for their cause of action against the defendants, H. L. Wilburn, chairman, and O. G. Andrews, secretary, respectively of the Democratic Central Committee of Franklin county, Arkansas, and the Democratic Central Committee of Franklin county, Arkansas, state and allege:
“That the plaintiffs are duly elected members of the Democratic Central Committee of Franklin county, Arkansas, having been so elected in the Democratic primary held in said Franklin county, Arkansas, on the 27th day of August, 1940; that said plaintiffs filed their party loyalty pledges with the secretar}/ of said committee and paid their ballot fees with' said secretary all prior to noon May 15, 1940, same being 90 days prior to said primary election held on August 13, 1940; that said plaintiffs filed their nominating petitions with the names of ten or more qualified electors on said petitions with the secretary of said committee prior to August 6, 1940, the day said committee selected the judges, clerks, and bailiffs to hold the primary elections in said county for the 13th and 27th of August, 1940; that the plaintiffs complied with all the rules of the Democratic party of the state of Arkansas and all the laws of said state in qualifying to have their names placed on the ballot in said primary election held in Franklin county on the 27th day of August, 1940, as candidates for township committeeman from the various townships in Franklin county, Arkansas, more specifically named in this complaint hereafter.
“The plaintiffs further allege that their names were the only names placed upon said ballots for township committeeman from the various townships in said primary election held in said county on the 27th day of August, 1940.
“That under the law of this state and the rules of the Democratic party of the state of Arkansas and the laws of this state the plaintiffs are the duly elected township committeemen from the various townships and voting precincts hereinafter mentioned.
“The plaintiffs further allege that the defendants and each of them are g’oing to certify as the duly elected township committeemen from the various townships and voting precincts the names of persons other than the names of the plaintiffs as the duly elected township committeemen and have so stated to the plaintiffs irreparable damage and injury contrary to law and the rules of the Democratic party of the state of Arkansas.
“The plaintiffs were candidates for township committeemen and elected as such from the following named townships and voting precincts in the primary election held in Franklin county, Arkansas, on Tuesday, August 27,1940, as follows: . . .
“Under the rules of the Democratic party of this state and the law the plaintiffs are entitled to be certified by the defendants as the duly elected township committeemen from the townships and voting precincts above named to the exclusion of all other persons.
“The plaintiffs allege that unless the defendants are prohibited by an order of this court the defendants will certify persons other than the plaintiffs as the duly elected township committeemen from the townships and voting precincts above named when in truth and in fact the names of the plaintiffs were the only names that were eligible to go upon the said ballot and were the only names on said ballot as candidates for township committeemen from said townships above named in the Democratic primary held on the 27th day of August, 1940, in Franklin county, Arkansas.
“Wherefore, premises considered, plaintiffs pray that the court or the judge in vacation issue a writ of mandamus ordering the defendants to certify the names of the plaintiffs as the duly elected township committeemen from the townships and voting precincts above named and that said defendants be restrained and prohibited by proper order of this court from certifying the names of any other persons as the township committeemen from the townships above named other than the names of the plaintiffs, and for all other just and legal relief to which they may be entitled and for all of their cost herein laid out and expended.”
Appellants demurred to this complaint on two grounds: (1) That the court was without jurisdiction; and (2) that it did not state facts sufficient to constitute a cause of action.
Upon a hearing the trial court overruled the demurrer. Appellants elected to stand on their demurrer and refused to plead further, whereupon the trial court granted the prayer of appellees ’ complaint and awarded the writ of mandamus. This appeal followed.
It is well settled that a demurrer to a complaint admits the truth of all allegations of fact which are clearly pleaded. Herndon v. Gregory, 190 Ark. 702, 81 S. W. 2d 849. Legal conclusions are not admitted to be true by the demurrer. Texarkana Special School District v. Ritchie Grocer Co., 183 Ark. 883, 39 S. W. 2d 289.
While the circuit court would have the power, as was held in Stock v. Harris, 193 Ark. 114, 97 S. W. 2d 920, to issue a writ of mandamus to compel a county central committee to perform a purely ministerial duty, the appellants were not refusing to act in accordance with their duty but they were about to act in a manner contrary to what appellees conceived to be the legal or correct manner. This is evidenced by the following allegation in the complaint: “. . . that the defendants' and each of them are going to certify as the duly elected township committeemen from the various townships and voting precincts the names of other persons other than the names of the plaintiffs as the duly elected township committeemen.” The “other persons” referred to were not made parties to the. action.
The complaint alleges “. . . that the plaintiffs complied with all the rules of the'Democratic party of the state of Arkansas and all the laws of said state in qualifying to have their names placed on the ballot . . . that their names were the only names placed upon said ballot . . . and in fact the names of the plaintiffs were the only names that were eligible to go upon the said ballot and were the only names on said ballot as candidates for township committeemen.
We think a fair interpretation of these allegations is that appellees were the only persons eligible and qualified under the rules of the party organization, to have their names printed on the official ballot to be voted on. It will be observed, however, that nowhere in the complaint is it alleged that appellees’ names were the only names voted on by the electorate for the offices of central committeemen.
As has been indicated, while it may be that appellees ’ names were the only names printed upon the ballots for central committeemen, there is no allegation that the voters did not write in the names, on the ballots, of others for whom they wished to vote. This they had the right to do.
that the voters did not write in the names, on the ballots, of others for whom they wished to vote. This they had the right to do.
Section 4748 of Pope’s Digest contains the following provision: ‘ ‘ The primary election shall be conducted in conformity with this act and the general election laws of the state, and they shall 'be to all intents and purposes legal elections. . . .”
Section 4755 of Pope’s Digest provides: “All election ballots provided by the county election commissioners of any county in this state for any election shall be alike, and shall be printed in plain type; and shall contain in the proper place the name of every candidate whose nomination for any office to b¿ filled at that election has been certified to the said commissioners, as provided for in this act, and shall not contain the name of any candidate or person which has not been so certified. Below the names of the candidates for each office nominated by the organized parties, as well as those nominated by electors, shall be left a blank space large enough to contain as many names in writing as there are offices to be filled. ’ ’
Section 4757 of Pope’s Digest supplies a ballot form for general elections in which blank spaces are provided for writing in the names of anyone whose name may not appear on the printed ballot but for whom the voter may elect to cast his vote. It is our view that the effect of the above statutes is to give the voter the right to write on the ballot the name of one for whom he might wish to vote in a primary election, as well as in a general election; that other names, other than those printed on the ballots, were written in by the voters, and that the learned trial judge was of the view that the voters were without such right is clearly indicated by the following language taken from his opinion: “. . . I am inclined, Mr. Woolsey, to have the committee certify out the names who were listed on the ballot, you can’t write a man’s name on it and let them be elected, there isn’t any doubt in my mind about that; that is not the rule of the Democratic party.”
Until it had been determined who had been elected committeemen from the various townships, no duty rested upon the county central committee to certify any certain names as having been elected.
Having reached the conclusion that the trial court was without authority to grant the writ and the relief prayed in the complaint, its judgment is reversed and the cause remanded with directions to sustain the demurrer. | [
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Greenhaw, J.
The appellant, Mrs. Nannie Hughes, filed this suit against appellee, Mrs. Sallie Harrison, in the Saline chancery court on June 22, 1939, to obtain judgment upon a $3,500 note and a decree of foreclosure of a real estate mortgage given to secure said note. The note and mortgage were dated January 4, 1933. The note was due one year after date and bore 10 per cent, interest. The note and mortgage were signed by the appellee and her husband, D. M. Harrison. The real estate embraced in the mortgage was a piece of residence property owned by the appellee and her husband as an estate by the entirety. The mortgage showed on its face a proper acknowledgment by the mortgagors. There was a payment of one dollar credited upon the note on March 26, 1937. Mr. Harrison died in July, 1938.
The appellee filed an answer alleging there was no consideration for the note and mortgage, signed by her and that she did not sign of her own free will and accord, and was forced to sign same by reason of threats, coercion and misrepresentation; that the agents, servants and employees of appellant wrongfully and wilfully threatened D. M. Harrison with criminal prosecution, which threats and accusations caused him to force her to execute them; that she did not acknowledge same; that the sum of one dollar was not paid in March, 1937, or at any other time; that the note was barred by the statute of limitations, which was pleaded as a bar; that the makers of the note were not indebted to mortgagee, received no money thereon and same was issued without any consideration and should be canceled.
The court dismissed the complaint for want of equity, and the appellant, plaintiff below, has appealed from this decree.
The evidence showed that for many years the appellant’s husband, George Hughes, was engaged in the mercantile business at Benton, Arkansas, under the firm name of John L. Hughes & Son. Mr. Harrison was an employee of this firm both before and after the death of George Hughes, his employment extending over a period of some twenty jrears. Upon the death of George Hughes, his widow, the appellant herein, succeeded him in the business and operated it under the same firm name. Her son, John L. Hughes, managed the business after his father’s death.
In December, 1932, a concern engaged in the business of sales checking and auditing was employed to make an investigation and check upon the employees of J ohn L. Hughes & Son. These checkers and investigators made purchases at the store and filed reports showing that Mr. Harrison, an employee of the store, had failed to account for something over $3 on sales he made to them. A further investigation of the activities of Mr. Harrison was made. The evidence showed that a conference followed between D. M. Harrison, John L. Hughes, Clifford E. Garrison and C. M. Christiansen who were engaged in the sales investigation. The testimony showed that in this conference, on December 31, 1932, Mr. Harrison admitted that over a period of about ten years he had taken various sums of money and items of merchandise, aggregating $6,000, from John L. Hughes & Son. He signed a written statement to this effect on that date, according to the evidence of John L. Hughes and Clifford E. Garrison, this written statement further stating that he had been treated fairly at all times by J ohn L. Hughes & Son, that he had been accorded every courtesy and consideration during this interview and that his statement was freely given. This statement, which was introduced in evidence, was witnessed by Hughes, Garrison and Christiansen. Immediately thereafter an effort was made to collect as much as possible from Mr. Harrison, and he and his wife, the appellee herein, executed the note and mortgage sued on, on January 4, 1933. E. T. Holiman, a justice of the peace, took and filled in the acknowledgments on the mortgage.
Holiman testified by deposition that Mr. Harrison brought the mortgage to him after it was signed by him and his wife, and he took his acknowledgment, and that Mr. Harrison told him it did not amount to anything. He later went to the Harrison home and took the appellee’s acknowledgment. He was later recalled as a witness, and testified that when he went to take appellee’s acknowledgment, he did not hear her say that she did not sign it of her own free will, hut that he was hard of hearing and it was possible he did not hear her.
John L. Hughes testified that Mr. Harrison admitted in his presence after a long conference with him and the investigators that he had taken money and merchandise aggregating $6,000, and that D. M. Harrison wrote the statement, introduced in evidence, in his own handwriting and signed it; that D. M. Harrison, according to his statement, had not accounted for all the moneys that came into his hands and he took the matter up with him, and that Harrison made his own figures voluntarily. No audit was made of the condition of the store and he did not personally know whether Mr. Harrison was short in his account and owed the store, and simply relied on Harrison’s statement. He further testified that Mr. Harrison paid $1 on the note in March, 1937. The appellant did not testify.
Julia Harrison, a daughter-in-law of appellee, testified that in a conference between her, Mr. Harrison, and the investigators, these investigators told her that they had been called in by the George Hughes estate to investigate Mr. Harrison in regard to a shortage in buying and selling cotton; that he had been receiving a commission on certain transactions with cotton and that they figured that over a period of time he had received benefits from the commissions to the extent of $6,000, which he would have to pay back to the Hughes estate or they would disgrace the whole family by sending him to prison; that if he would pay back the $6,000 they would dismiss all charges. Mr. Harrison then told them that he had a verbal agreement with Mr. Hughes, the father of John L. Hughes, when he first began working for the company that he was to receive a salary plus certain commissions on cotton, and that when Mr. Hughes died his son took over the business as manager and there after agreed with Mr. Harrison that he would continue on the basis agreed upon between him and his father.
The appellee, Mrs. Harrison, testified that she signed the mortgage, but it was done through protest and not of her own free will; that she did not know of her own knowledge under what circumstances the mortgage was made, but as far as she knew she never received any money or credit by signing it; that Mr. Holiman did not act in the capacity of justice of the peace in taking her acknowledgment; he just asked her if she signed it, about two weeks after she actually signed it; that she told him she signed it, but it was against her will, and her husband was on the porch and told her to hush; that Holiman did not have the mortgage with him. Her husband told her she would have to sign it for their own protection to get rid of the "government” men, and her. husband was awfully upset for about two weeks. She testified that her husband was not indebted to Mrs. Hughes when the mortgage was given, and further testified that the signature to the statement above referred to was not her husband’s signature.
C. C. Prickett and wife, Ophelia Harrison and O. E. Harrison testified in connection with the signature of D. M. Harrison to the written statement. Some of them said it was not his signature and the others said it did not look like his signature.
We have carefully considered all of the evidence in this rather unusual case. The evidence showed that these investigators had no regular place of business; that they went from place to place in pursuing their work. The evidence further showed that in addition to receiving pay for their actual work of making investigations, they were to receive 50 per cent, of any amount which they or their employer recovered from employees through their investigation and efforts.
We do not attempt to say, from the record in this case, whether or n'ot Mr. Harrison was actually short in his accounts. At least, there was no substantial evidence to this effect, except the written statement which the investigators and Mr. Hughes say he made and signed. It is rather strange, if Mr. Harrison had actually appro priated money and property belonging to the Hughes estate as claimed in this case, that he would be continued in the same capacity as an employee of the Hughes estate until his death in July, 1938. It is also strange that during all of this time no interest or any substantial amount of this indebtedness was paid. It is only claimed that Mr. Harrison paid $1 thereon, and it is obvious that if this payment were not actually made the suit was barred by the statute of limitations .at the time it was filed. According to the testimony of some of the witnesses, threats were made by these investigators in order to effect collection. There is evidence that statements were made by these investigators that if this alleged shortage were not settled, Mr. Harrison would be prosecuted and sent to prison, and if settled the charges would be dismissed.
According to the evidence, the property sought to be foreclosed was the home of Mr. and Mrs. Harrison, and no effort was made to foreclose upon this mortgage until after appellee’s husband died, more than five and one-half years after its execution, although the note was due one year after date.
The trial court did not make any findings of fact or assign any reason why the complaint of the plaintiff was dismissed for want of equity. It may be the court found that there was a want of consideration, or that the suit was barred by the statute of limitations, or that the note and mortgage were void for the reason that they were executed under threats of a criminal prosecution, and the promise that if they were executed the prosecution would be dropped. If the last was the basis of the court’s decree in dismissing the complaint, we can not say that there was not a preponderance of the evidence to justify such a finding. In the case of Goodrum v. Merchants’ & Planters’ Bank, 102 Ark. 326, 144 S. W. 198, Ann. Cas. 1914A 511, this court, among other things, said: “Any contract, therefore, the consideration of which is to conceal or withhold evidence of a crime or to abstain from the prosecution therefor, is void, although it may represent a just debt and security for its payments. Rogers v. Blythe, 51 Ark. 519, 11 S. W. 822; Kirk land v. Benjamin, 67 Ark. 480, 55 S. W. 840; Beal & Doyle Dry Goods Co. v. Barton, 80 Ark. 326, 97 S. W. 58; Johnson v. Graham Bros. Co., 98 Ark. 274, 135 S. W. 853.”
It would unduly extend this opinion to attempt to set out the substance of all of the testimony in this case. Suffice it to say that we have carefully considered all of the evidence and all questions raised and discussed in the briefs, and are unable to say that the decree of the trial court is contrary to a clear preponderance of the evidence.
The decree is, therefore, affirmed.
Smith, C. J., dissents.
Mehaffy, J., not participating. | [
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Griffin Smith, C. J.
Appellant contends that a judgment for $1,194.36 rendered by default and without proof, is erroneous. We have the same view.
Appellant’s wife purchased real property in Nevada county, Arkansas, upon which were remnants of an old sawmill. A boiler and engines were set in concrete. The mill had been owned by H. C. Trevillion, who upon ascertaining that the salvage had been sold for $100 to Dee Curtis, junk dealer of Texarkana, sued L. J. Naperskie in a justice of the peace court at Prescott for an amount equal to that received by Naperskie from Curtis. When the controversy arose the payment made by Curtis was placed in bank, subject to adjudication of title. When trial was reached, Naperskie appeared with counsel; thereupon the cause was dismissed, and within a short time complaint was filed by Trevillion in circuit court, the amount contended for having been increased to $1,194.36.
Summons directed to L. J. Naperskie was left with his wife at the residence acquired by her in Nevada county. It is contended that Mrs. Naperskie failed to inform her husband that the summons had been delivered to her. Insistence is that L. J. Naperskie is a resident of Talco, Texas; that his wife purchased the Nevada county farm for her own purposes; that he did not live in Arkansas with her, but only made occasional visits, and that the service so procured was not valid. Appellant says that before he knew of the summons, judgment had been rendered (September 24, 1940) at an adjourned term of court. When informed of the procedure (in December, 1940) he employed counsel. In early January, 1941, appellant moved that the summons be quashed. Counsel for appellee refused to enter their client’s appearance in response to the motion to vacate. Court was adjoprned until April 28, 1941 — -a date subsequent to six months after September 24. Hence, this appeal.
In moving to have the summons quashed and judgment vacated, appellant has consistently denied jurisdiction of the court. Cox Investment Company v. Major Stave Company, 128 Ark. 321, 194 S. W. 701; Anheuser-Busch, Inc., v. Manion, 193 Ark. 405, 100 S. W. 2d 672.
Section 1533 of Pope’s Digest provides that trial by jury may be waived by the parties in actions arising on contract, and, with assent of the court, in other actions, by failing to appear at the trial. The section is a reprint of § 363 of the Civil Code (1869) and appears as title IX. The title is subdivided into four chapters. Chapter III, Art. II, is: “If the taking of an account, or the proof of a fact, or the assessment of damages, is necessary to enable the court to pronounce judgment upon a failure to answer,- or after a decision of an issue of law, the court may take the account, hear the proof, and, in actions founded on contract, assess the damages. . . (Pope’s Digest, § 8204.)
It will be observed that the two sections of the Digest are taken from the same title of the Civil Code, and are to be read together. Conversion is alleged as a cause of action in the instant case; hence § 1533 has no application.
In Unionaid Life Insurance Co. v. Powers, 180 Ark. 154, 20 S. W. 2d 610, it was argued that judgments were void “because the suits were for unliquidated damages for an alleged breach of contract, and there was no evidence offered or submitted to sustain the allegations.” The actions were on benefit certificates of insurance. There was failure to answer, and the court assessed damages without submission of any question of facts to a jury. The decision affirmed that such submission was not required under § 6248 of Crawford & Moses ’ Digest, now § 8204 of Pope’s Digest.
In Greer v. Newbill, 89 Ark. 509, 117 S. W. 531, it was held that allegations of damages must be proved. The action was in chancery where a jury was not requisite.
Section 1455 of Pope’s Digest (Civil Code, § 146) requires every material allegation of a complaint, for the purpose of the action, to be taken as true, but “Allegations of value, or of amount of damages, shall not be considered as true, by the failure to controvert them.” Cf. Derrick v. Cole, 60 Ark. 394, 30 S. W. 760; Johnson v. Frank, 16 Ark. 199; Hodges v. Crawford, et ux., 25 Ark. 565; Marshall v. Green, Exr., 24 Ark. 410.
In Stark v. Couch, 109 Ark. 534, 160 S. W. 853, it was said: “. . . our constitution and law guarantee the right to a trial by a jury which shall extend to all cases at law without regard to the amount involved.”
In the case at bar judgment was rendered without proof of the damage alleged. The transaction, not having been contractual, could not be disposed of by the trial judge alone. It was requisite that a jury be empaneled and evidence submitted to it.
For the error indicated the judgment is reversed, and the cause is remanded with directions to determine the issues raised by appellant’s motion to quash. | [
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McHaney, J.
Appellee, Fort Smith Couch & Bedding Company, a domestic corporation, brought this action against appellant to enjoin him from collecting from it an income tax based on its income for the year 1940, on the rates of tax fixed in act 129 of 1941, Acts of 1941, p. 312, and alleged that it had filed its return covering the income year 1940, under the provision of act 118 of 1929, and that its tax for such year amounted to $744.93, of which it had paid one-half on the filing of its return; that appellant is wrongfully demanding a tax on its income year of 1940 based on the rates fixed in said act 129 of 1941 in the sum of $1,487.33; that said act is not retroactive as to 1940 income; and that by the express provision of paragraph (c) of § 2 thereof, the rates prescribed by said § 2 apply to the income year of 1941. It was also alleged that the whole of said act 129 is inoperative, ineffective and void because, as originally introduced and passed.in the house as house bill 282, it was amended in the senate by striking out § 3 and substituting’ therefor a new section, and passed as amended; and that the house did not thereafter concur in said amendment, and, therefore, it was not constitutionally enacted as provided by § 22 of art. 5 of the Constitution. It is also alleged that it did not pass by the vote required by Amendment No. 19. On application of said appellee, the court granted a temporary injunction.
The Arkansas Amusement Corporation also a domestic corporation, intervened and adopted the allegations of the complaint. Appellant answered admitting the status of the parties and the correctness of the income tax return made by appellant, but asserted the applicability of the rates prescribed by said act 129 to the income year of 1940 as well as the validity thereof.
The appellee, Puhlic Utilities Company of Crossett, also a domestic corporation, filed an independent action against appellant, setting* tip similar allegations to those above set out, but in addition stated that its income year ended November 30,1940, and that it had made its income return for that year showing a tax due of $288.01 which it had paid on the filing of said return on March 14, 1941. It also alleged a new ground of attack on the validity of said act 129 based on sub-section (b) of § 2 relating to the tax on foreign corporations. The answer to this suit contained appropriate admissions and denials.
The facts were stipulated that appellees and intervener had made correct returns and had tendered the correct tax based on act 118 of 1929. The dispute was over the applicability of the rates fixed by act 129 of 1941 to the 1940 income, and as to the proper enactment of the latter act. The trial court sustained the act, but held that it did not apply to corporate income of 1940, and entered a decree making the temporary order permanent. There is here an appeal and cross-appeal. We dispose of the cross-appeal first.
Section 1 of said act 129' repeals paragraph (e) of § 14039 of Pope’s Digest which allowed a $1,500 exemption to foreign and domestic corporations. Section 2 (a) provides the rate of tax for domestic corporations and § 2 (b), the rate for foreign corporations in this language: “Every foreign corporation doing business in this state shall pay annually an income tax on the corporation of its entire net income as now determined by the income tax laws of Arkansas, on the following basis: ” It is said that the italicized word ‘ ‘corporation” as used therein is meaningless and so it is. It is also argued that, since it is meaningless, the act requires a tax on the whole net income of a foreign corporation, both that earned within and without this state, which would be unconstitutional and void as being discriminatory as between domestic and foreign corporations. We do not agree. Under the Income Tax Act of 1929, § 14026 (b) of Pope’s Digest, it is provided that “every foreign corporation — shall annually pay an income tax equivalent to two (2%) per cent, of a proportion of its entire net income to be determined as hereinafter provided.” We think the scrivener of the former act must have made a clerical or typographical error in using the word “corporation” instead of the word “proportion.” Assuming that appellees have the right to raise the question, we hold that is a mere clerical misprision as shown by a comparison with the former act.
It is further contended that act 129 failed to pass because it was amended in the senate, which amendment was not concurred in in the house. But the records of the senate, other than the journal, show that the amendment in the senate was receded from or withdrawn.' Section 22 of art. 5 of the Constitution provides, among other things, that “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 shall be entered on the journal and a majority of each house be recorded thereon as voting in its favor.” The journal does show the adoption of Amendment No. 1 to the house bill in the senate, but it is silent as to .its withdrawal or to any action receding therefrom. It was shown in evidence that the minutes of the secretary of the senate and another record of the secretary of the senate entitled “House Bills in Senate,” both of which are on file with the Secretary of State, recite the fact that Amendment No. 1 to house bill 282 was withdrawn. These are public records on file with the Secretary of State, and are required to be so filed. Section 6171, Pope’s Digest. There is a presumption of the regularity of the passage of a bill from the fact of its enrollment, its approval 'by the Governor and its deposit with the Secretary of State. In Helena Water Co. v. Helena, 140 Ark. 597, 216 S. W. 26, it was said: “The silence of a legislative journal, on matters not required to be entered on the journal, cannot conflict with the presumption of the regularity of the passage of a bill.”
The act was enrolled, approved, filed and now appears in the printed acts. In Mechanics B. & L. Assn. v. Coffman, 110 Ark. 269, 162 S. W. 1090, it was held that the courts may resort to any information filed under the statutes, to determine what the journal shows. See, also, Perry v. State, 139 Ark. 227, 214 S. W. 2.
Without entering on an extended discussion of the contention that the emergency clause is insufficient under Amendments No. 7 and 19 to the Constitution, we think it enough to say that we find the argument of erossappeilants without substantial merit, and the decree will be affirmed on the cross-appeal.
' As to the direct appeal, sub-section (c) of § 2 of said act 129, after setting out the rates of tax on all corporations in (A) and (B) provides: “(C) The above provided rates shall apply to the income tax year of 1941.” The question is, What is the meaning of the words “income tax year?” Do they mean “income year” or “tax year,” as defined in the Income Tax Act of 1929? There, “tax year” is defined in sub-section 11 of § 14025, Pope’s Digest, to mean “the calendar year in which the tax is payable,” and “income year” is defined in sub-section 12 to mean “the calendar year or the fiscal year, upon the basis of which the net income is computed under this act, if no fiscal year has been established they mean the calendar year.” The word “fiscal year” is defined as “an income year, ending on the last day of any month other than December.” - Also, said Income Tax Act of 1929 left no doubt as to the first income to be taxed thereunder. -Section 14027 of Pope’s Digest specifically provides: “Such tax shall first be assessed, levied, collected and paid in the year 1929 and with respect to the net income received during the calendar year 1928; provided, when the taxpayer’s income year ends on any date other than December 31,1928, only that portion of such annual income shall be taxable under this act as is applicable to the calendar year 1928.” How easy and simple it would have been for the Legislature to have said in the 1941 act, that: “Such tax (the new rates) shall first be assessed, levied, collected and paid in the year 1941 with respect to the net income received during the calendar year 1940; provided, ’ ’ etc. Or, had said sub-section (O) provided that: “The above uro vided rates shall apply to the ‘income year’ of 1940,” then there conld be no donbt about what year’s income was to be taxed on the new rates. Instead, without further definition of terms, the Legislature used a combination of the two well defined terms, “income tax year,” with the result that no one can tell with certainty whether the new rates are to be based on the 1940 income or the 1941 income. Appellant contends that the words ‘ ‘ income tax year” mean the same as “tax year” and that the word “income” should be ignored, but we do not think we may do this.
There are two well settled rules for statutory construction In this state. One is that, “It is presumed that all legislation is intended to act only prospectively, and all statutes are to be construed as having only a prospective operation unless the purpose and intention of the Legislature to give them a retroactive effect is expressly declared or necessarily implied from the language used. ” State v. K. C. & M. Ry. & B. Co., 117 Ark. 606, 174 S. W. 248; Special School District of Texarkana v. Bd. of Imp. of Pav. Dist. No. 13 of Texarkana, 127 Ark. 341, 191 S. W. 918; Elrod v. Bd. of Imp. of Pav. Dist. No. 45, 171 Ark. 848, 286 S. W. 965. In Rhodes v. Cannon, 112 Ark. 6, 164 S. W. 752, the rule is thus stated: “No statute will be given retroactive effect if it is susceptible of any other construction.” Now, to give this statute the construction contended for by appellant would be in the very teeth of this rule. There are no express words giving it a retroactive effect and we find no language in the emergency clause or elsewhere that necessarily so implies. At least we cannot say that the statute is not susceptible of any other construction. If the Legislature intended to make the act retroactive so as to tax, with the new rates, 1940 income, it certainly did not-choose definite language to express such intention. The second rule is well stated in Wiseman v. Ark. Utilities Co., 191 Ark. 854, 88 S. W. 2d 81, by the late Judge Butler as follows: “It is the general rule that a tax cannot be imposed except by express words indicating that purpose. The intention of the Legislature is to be gathered from a con sideration of the entire act, and where there is ambiguity or doubt it must be resolved in favor of the taxpayer, and against the taxing power. ’ ’
Counsel for appellant make a very plausible argument that the word ‘ ‘ income, ’ ’ as used in said sub-section (C), is used in its adjective sense and is definitive or descriptive of the kind of tax year, and we concede that it may have been so used, but we cannot say that it was necessarily so used, which we would have to say to support the contention.
The argument made by counsel relative to the presence of the emergency clause and its recitals is not convincing. Under Amendment No. 19' to the Constitution, the Legislature could not have increased the tax rates without an emergency; and, without such a clause, a referendum petition would have postponed operation of the act until approved by the people, whereas, with such a clause, a referendum petition would not stay operation of the act.
We are, therefore, of the opinion that the trial court correctly enjoined appellant from collecting the new rates of tax on 1940 income and the decree is accordingly affirmed. | [
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Humphreys, J.
On January 26, 1939, appellee brought suit against appellant, Alma B. Morgan, in the chancery court of Woodruff county, for divorce under the latter part of the 5th subdivision of § 4381 of Pope’s Digest which is as follows: “Or shall offer such indignities to the person of the other as shall render his or her condition intolerable.”
He alleged that the acts which rendered his condition in life intolerable consisted of unmerited reproach, rudeness, contempt, studied neglect, open insult, and a number of other things, habitually and systematically pursued by appellant.
He also alleged that he and appellant had executed a deed to certain lands in Woodruff county with the understanding that the deed should not become effective during the lifetime of Alma B. Morgan and should not be placed of record until tbe death of Alma B. Morgan; that in violation of the agreement T. J. Fakes, Jr., conveyed the lands to Alma B. Morgan, appellant herein, and placed the deeds of record contrary to the agreement and without his knowledge or consent, after making a correction in the original deed from Alma B. Morgan and appellee to T. J. Fakes, Jr., by inserting other lands therein which were not included in the original deed from appellee and appellant to T. J. Fakes, Jr., and prayed that the deed from appellee and appellant to said Fakes and the deed from Fakes to Alma B. Morgan be canceled!
The complaint also contained an allegation that appellee was a resident of the state of Arkansas at the time he instituted the divorce proceeding.
Appellant, Alma B. Morgan, filed an answer denying all the material allegations in the complaint and T. J. Fakes, Jr., also answered that the deed from appellant and appellee to him was made on appellee’s initiative and that said deed was delivered to him and became effective from the date of execution and delivery. The prayer of the answer was for a dismissal of the suit for divorce as well as for the cancellation of said deeds.
The cause was not tried until & year and nine months after it was filed. In the interim, a great deal of testimony was taken not only upon the issues of whether appellant was entitled to a divorce and to have the two deeds canceled, but also covering the accumulation of properties and what disposition had been made of said properties during the entire period of appellant’s and appellee’s married life.
The cause was submitted- to the trial court on the 9th day of September, 1940, upon the pleadings and the testimony and exhibits in the case resulting in a decree of divorce to appellee, the cancellation of the two deeds and a final disposition and apportionment of all the properties which either or both owned between them. From that part of the decree granting a divorce and canceling the two deeds an appeal has been duly prosecuted to this court. Of course the trial court based his division of the property upon the divorce decree, after setting the two deeds aside, and if the decree be affirmed . neither appellant, Alma B. Morgan, nor appellee questions the division of the properties made by the court, hence, it is entirely unnecessary for us to set out any of the evidence relating to any of the properties except that part of the decree setting aside the two deeds in question.
Appellant questions the validity of the decree upon two grounds: First, that the court acquired no jurisdiction of the case because appellee was a nonresident of the state of Arkansas at the time he filed the complaint on January 26, 1939, and, second, that appellee’s testimony relative to and responsive to the allegation for a divorce was not sufficiently corroborated to entitle him to a divorce upon the ground alleged.
(1) We find no evidence in the record of any probative force showing that appellee was a nonresident of the state at the time he instituted his suit for divorce. On the contrary we think the great preponderance of the evidence is to the effect that on December 24, 1938, appellee went to Warsaw, Missouri, with his brother without any intention of changing his residence from Arkansas to Missouri. His brother was a younger man than he and had come down to visit him several times during the fall of 1938, and not being satisfied with the way his brother was being treated in appellee’s and appellant’s home he came to McCrory where appellee resided with appellant and took him to ‘their old home where Walter, his younger brother, was residing in the home 'of their parents which had been acquired by Walter. Each occupied a room in the old home and took their meals out with a neighbor. About a month after appellee went with his brother to Missouri he brought this suit alleging that he was a resident of Arkansas. The evidence shows that when he went to Missouri with his brother he did not sever any of his business connections in McCrory and did not sell or dispose of any of his property. At the time he was a director in the Bank of McCrory and continued in that relationship and continued thereafter to pay his poll tax in Woodruff county and vote as usual. There is nothing in the record showing any declared intention on his part to change his residence from Arkansas to Missouri. It is true that he remained in Missouri and is still there with, his brother, his explanation being that he intended to return to McCrory as soon as the divorce suit was disposed of. It seems that the divorce suit was pending quite a longtime during the taking of the testimony and preparation of the trial thereof. The interim between the institution of the suit and the trial thereof being a year and nine months. Appellee had been a resident of McCrory, Arkansas, for about thirty-five years at the time he left for Missouri and did not leave with- any declared intention of changing his place of residence. Our interpretation of the evidence is that he just went on a visit to Missouri with his brother until the suit for divorce could be tried and to get away from the environment and the embarrassment which might arise during the preparation and trial of the cause.
Our attention is called to § 4383 of Pope’s Digest which is as follows: “The proceedings shall be in the county where the complainant resides, and the process may -be directed in the first instance to any county in the state where the defendant may then reside.”
That statute was construed in the case of Wood v. Wood, 140 Ark. 361, 215 S. W. 681, to mean that actual and not constructive residence was required, but took occasion to say that a residence once established in Arkansas would not be changed by a temporary visit to another state. We do not think this record shows that'appellee ever moved out of this state.
(2) Appellant and appellee married in 1899 or earlier in the state of Missouri and moved to McCrory, Arkansas, where they established a home. Appellee was in business there and remained in the first home they acquired and later in the second home for about thirty-five years. At the time they were married appellant had a daughter that she was devoted to and the daughter was partially reared in their home. The- daughter afterwards married a man by the name of Fakes, and a boy was born to them and was recognized by appellee as a grandson. This grandson, T. J. Fakes, Jr.,-was reared in their home. Appellant became dissatisfied with MoCrory and wanted to move away, and appellee secured a home in Little Rock at an expense of over $7,000, and after living there from three to five years she became dissatisfied and moved to Cotton Plant where she lived for about two years during which time appellee paid most of her expenses. The home in Little Rock was sold at a loss of about $4,000. After living at Cotton Plant about two years, she went back to their home in MoCrory which was repaired at an expense of about $5,000 and there the couple lived until the separation on December 24, 1938. Appellee became quite ill in the spring of 1938 and was unable to prosecute his business. He. turned his office and other things over to his grandson and in a short time it was sold, and the money derived from same was deposited in the bank. This money and other moneys which were collected after appellee became ill were used in the support of the family and was checked out largely by the grandson and appellant for those purposes. The safe and other fixtures were moved to the home.
To make a long matter short, appellee testified that after he became too ill to work appellant became dissatisfied with him and treated him like a stranger in the home, refusing to administer to him as she should and later on requiring him to enter the house through the back door and to sleep out on the back porch which was not properly boarded in and without any stove or other heat in the room; that she cursed and abused him without provocation, told him that she did not love him and advised him to commit suicide. During the visits of Walter, his younger brother, to him, Walter found him living in the room not properly 'boarded in and without any fire therein to warm by. Walter testified that she abused him when he came to.visit his brother and when his brother got ready to go down town with him that she told them both to go up there and tell a pack of lies and accused Walter in the presence of appellee of having told around that she was a thief. Appellee further testified that his reason for going to visit his brother in Missouri was that he could not put up with the character of treatment appellant was according to him.
During the testimony of appellee he offered two letters which appellant had written to his nieces. These letters appear in the record and contain much matter which has not been abstracted by appellant’s attorneys for the reason that much of the matter contained in them is not printable. The letter written December 23, 1938, to appellee’s niece is as follows:
“He is the meanest devil I ever saw, I just hate him. He eats like a hog and is able to do a day’s work, but never does one thing but sits on his lower end and sleeps. He is too lazy to love. I have everything to do and he makes more work and keeps me at home like as if I had a dozen children. I can’t depend on him for anything. He would burn the house if I left him. I have never told him to leave, but will be glad when he is gone. I have always worked like a dog while he had from one to two negroes waiting on him. I have been a true wife and that is,more than he has been to me. For years he kept a batch of women down here while I Avas in Mexico vdth my dying child. I tried every way for him to come and he layed drunk here and pretended he had heart trouble.
“He stinks like a hog, just can hardly stay in the room, he smells so bad. . . . The old devil won’t do anything but go to town and sit around and worry people.”
In a part of the letter not quoted there is an admission on the part of appellant that she and her husband had not lived together as man and wife for many years.
The other letter written on January 24, 1939, is, in part, as follows: “I understand Jeff alms to come back the first of February. You can tell him I have no room for him and I don’t want to be bothered and begin again to live in hell like I did before his dear brother Walter come down after him and helped him slip in the house while I was down town and steal his clothes and leave between suns like thieves. . . . I have made my house into an apartment and the spare room is rented so he had better stay up there with his God — • . . . Brother Walter.”
Much of the subject matter contained in this last letter was a repetition of the subject matter contained in the first letter.
Appellant in explaining the'contents of these letters said that she was in great distress on account of her husband preparing to leave her and on account of the condition of her health. Appellant testified, in substance, that she had been devoted to appellee and had waited upon him when he was sick. We copy herein certain excerpts from her testimony. Relative to smoking’ she said “It gave me the headache so bad I couldn’t stand it. I would come in where he was and open windows and doors and was just so near crazy and my head hurt so I would say something like this, ‘I didn’t know I would have a pig to board.’ ” In explanation relative to saying she wished he would commit suicide, she said: “He would go to town and get a letter from that brother of his, just raving around, trying to put him up to something and would come, shaking his hands like that— saying, ‘I guess you want me to die?’ I would say, ‘If that suits you, brother, just go to it.’ ” Appellant testified that when they were coming out of court she took her husband by the arm and said, “Jeff, come out here and let me talk to you.” She said, “How could you get up and take an oath before God Almighty and swear to all those lies?”
We think the general effect of her testimony, when taken in connection, with the contents of the letters she wrote appellee’s nieces, clearly reflects that she held appellee in contempt, at least after he became ill in the spring of 1938, and perhaps as far back as some time in the year 1937. It is true T. J. Fakes, Jr., who lived in the home, claimed that he was treated kindly in the home and that a neighboring lady had visited them frequently and never discovered any lack of harmony in the home.
The deed from the grantors to T. J. Fakes, Jr., which was canceled by the court, originally described the home in MoCrory and two other pieces of property, one piece which Mr. Morgan did not own. This deed was executed in November, 1937. Appellee signed the deed, but did not acknowledge it before a notary public. After the execution of the deed as originally prepared appellant and T. J. Fakes, Jr., caused another piece of property to be attached to the deed by fastening or clipping the additional descripton in the original deed. Appellee testified that he knew nothing of this until he saw the deed after it was placed on record and introduced in evidence. According to his testimony the deed was not to be delivered or placed on record, but that it was to be held by George Barber and used only in the event of the death of Mrs. Morgan; that appellant then suggested that this deed in the hands of George Barber could be destroyed and another deed executed in the event of a sale. Appellant denies this testimony, but appellee is corroborated in this statement by T. J. Fakes, Jr., who testified as follows:
“Q. Mr. Morg’an has testified that when this deed was executed there was an understanding that it was not to be placed on record, except in the event of the death of Mrs. Morgan? A. I don’t know just exactly whether that was the gist of the thing or not. It seems like there was some kind of an understanding, but I don’t remember. Q. But notwithstanding that understanding you placed the deed on record and conveyed to your grandmother on the advice of people in town? A. Well, we were advised to put it in her name so dad couldn’t put her out.”
A few days after appellee left, T. J. Fakes, Jr., got hold of the deed and placed it of record, and then he prepared a de~ed himself covering the property to appellant.
We think that the weight of the evidence shows that appellant induced appellee to sign the deed in the absence of a notary public who presumably took the acknowledgment and that appellee never acknowledged same. We also think that a condition for the execution of the deed was that it should not be delivered unless appellant died before appellee died and that the deed did not become effective at all because tbe condition was violated.
The court properly canceled the deed.
The court accepted the testimony of appellee, his brother, and the letters as true and found that there was sufficient corroboration of appellee’s testimony relative to the mistreatment of appellant in such a way that his life was rendered intolerable. "We are not willing to disturb the finding of the chancellor under the whole evidence because we think the finding and decree is not contrary to a preponderance of the evidence.
The general rule relative to the sufficiency of the corroboration in divorce proceedings we find compiled in the 17th Amer. Jurisprudence, under the title on Divorce and Separation, in § 386, and is as follows: “It is difficult to lay down a general rule as to what corroboration is required in a divorce case. The decisions yield a variety of expressions significant in view of the facts to which they have been applied.
“It is not necessary that the testimony of the complaining spouse be corroborated upon every element or essential of his or her divorce. It has been said that since the object of the requirement as to corroboration is to prevent collusion, where the whole case precludes any possibility of collusion, the corroboration only needs to be very slight.
“If an essential fact is difficult of proof, corroboration may be sufficient though weak.
“Written communications have frequently been relied upon as corroboration.”
As stated above after the decree was granted the court divided all the property in the proportion of $10,077.96 which was unincumbered to appellant and property to appellee of the value of $12,750 which was incumbered to the extent of $3,846.41.
As we understand no contention is made that the court did not divide the property in a fair and equitable manner and neither party objected to the division made by tbe court so it is unnecessary for ns to review that portion of the evidence and decree.
No error appearing, the decree is affirmed. | [
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McHaney, J.
As appellants say: “This suit was brought by W. O. Hazelbaker as a taxpayer of Eudora Special School District of Chicot county, Arkansas, to-determine the validity of a certain refunding bond issue of that district. Equitable Reserve Association, as a holder of some of the bonds thereby refunded, intervened. The complaint of the plaintiff alleged various grounds upon which the refunding operation was invalid, and asked that the bond issue be declared void and that the defendants be restrained from making any payments thereon put of the funds of the district.
“A temporary restraining order was issued, but upon final hearing the order was dissolved, the legality of the refunding bonds was sustained, and the complaint was dismissed. From that decree this appeal is prosecuted. According to a stipulation appearing in the record, the original plaintiff, W. O. Hazelbaker, ‘was requested and induced to withdraw from the case,’ and ‘to abandon his right of appeal’ by his filing of a written ‘Waiver Of Right Of Appeal.’ This, however, did not succeed in ending the litigation, as counsel for appellants arranged for the substitution of another taxpayer, R. W. Wall, who intervened after the entry of the decree and prayed an appeal to this court, which was granted.”
Under date of March 25, 1940, appellee school district entered into a written contract with Walton-Sullivan & Company, bond dealers of Little Rock, Arkansas, as follows: “We appoint you our agent to assist in selling approximately $140,000 of bonds of the Eudora Special School District, Chicot county, Arkansas. The bonds are to be 4y2% per annum, payable semi-annually, and to mature as follows:
“Bonds to mature January 1,1942, through January 1, 1960, bonds to be callable in ten years at 101 and accrued interest.
“These bonds are being issued for the purpose of refunding outstanding bonds bearing 5%.
“You are to pay for printing and trusteeing the bonds and the approving attorneys’ opinion as to the legality of the issue. You are to have the right to name the trustee, place of payment and attorney approving the legality of the bonds.
“When you have found a purchaser for these bonds at 103 we agree to execute the necessary papers to effect the issuance of these bonds. The purchaser of the new bonds shall have the privilege of converting them to a lower coupon, said conversion to be figured according to Universal Bond Values Tables.
“Said issue of bonds is to be payable from 9 mills ad valorem tax, which tax will be levied until all of the bonds have been paid in full.
“When you have secured a purchaser for this issue of bonds at the price mentioned above we agree to pay you 3% of the par value of the issue.
“This contract shall terminate one year from .date hereof unless extended by mutual consent by indorsement hereon.”
The conversion option given in this contract was exercised, and sometime in the fall of 1940 the district issued $154,000 of 3%% bonds, bearing date July 1,1940. These bonds were deposited with the State Board of Education to be surrendered and delivered to the holders of the old 5% bonds outstanding as they were surrendered for cancellation. That the transaction as consummated was an exchange of new bonds for old is shown by the certificate of sale, executed by the president and secretary of the district’s board of directors and of the registration by the county treasurer, dated October 11, 1940, in the former of which it is stated: “Total amount of cash for which sold, Exchanged for outstanding bonds.” It is undisputed that Walton-Sullivan & Co. did not buy the new bonds, as contemplated by said contract, but they either bought the outstanding bonds and exchanged them or procured the holders thereof to surrender same in: exchange for new bonds. In any event, all the outstanding bonds have been surrendered and exchanged for new bonds, all of which has met the approval of the State Board of Education, except $11,500 of the old bonds. In order to take up this amount in cash the district advertised and sold to Simmons National Bank of Pine Bluff the remainder of the new refunding bonds on December 27; 1940. This suit was filed. December 30, 1940, when a temporary injunction halted further proceedings.
To reverse the decree dismissing the complaint for want of equity, several questions are argued by appellants. It might be well now to say that as to the Equitable Reserve Association, listed as an appellant, and who was an intervener in the action below, the question was whether the bonds held by it were callable. The court found on the undisputed evidence that they were callable, although not so specified in the bonds themselves, and decreed a reformation thereof to show this fact. If it has appealed from this decree, it presents no argument on the question, so as to it the decree is affirmed on the callability of the bonds.
The first argument against the decree of dismissal is that the district’s agent, Walton-Sullivan & Co., acted in a dual capacity both as seller and purchaser of the bonds, which invalidated the transaction. We think this statement assumes a fact that did not exist. While the district’s certificate of sale above mentioned does say, on the blank form prescribed by the Department of Education, “To whom sold — Walton-Sullivan & Company, Little Rock, Arkansas,” it later shows that the new bonds were not sold at all, bnt were “Exchanged for .outstanding bonds.” So, there was no sale of the new bonds to Walton-Sullivan & Co. They did either purchase the outstanding bonds with their own funds and deposited them with Simmons National Bank or procured the holders to so deposit them for the purpose of having said bank surrender them to the State Board of Education in exchange for new bonds, and the whole proceeding had the approval of the State Board. They were exchanged for 3y2 per cent, bonds upon a basis of par for 4y2 per .cent, bonds. We see no basis in this for a charge of duplicity or double dealing by Walton-Sullivan & Co.
It is next argued that the new issue of $140,000 exceeds the statutory limit of 7 per cent, of the assessed valuation of the district and is void. This argument is based, not on the fact that the outstanding bonds exceeded 7 per cent, of said valuation, because they were issued prior to the statute so limiting bond issues, but on the fact that, on January 1, 1941, the district had cash on deposit with the county treasurer, to the credit of the building or bond fund, in a sum in excess of $5,000 which should have been used to pay bonds maturing on said date which would have reduced the district’s bond debt to $135,000, for which amount refunding bonds could have been issued. It must be remembered that this is a refunding of bonds, and not a bond issue to fund a non-bonded debt. So long as a bond is outstanding it may be refunded, which is simply a renewal of the note by giving a. new one. We can see no reason why the district might not renew or refund a bond instead of paying it by agreement with the holder, even though the district might have on hand a sum sufficient to pay same. Whether this is true or not, failure to pay one or more bonds with cash on hand could not have the effect of voiding the whole issue or of the one or more that might have been paid, but was not. These bonds were refunded prior to January 1, 1941, and the district’s credit balance may not have been in the treasury at that time.
It is next said that the conversion cost the district more than 4% per cent, bonds would, and was, therefore, invalid and unlawful. In the first place, the matter of conversion must meet the approval of the Department of Education. Section 11507 of Pope’s Digest provides that “No conversion shall be made as provided herein until the terms of the conversion have been approved by the State Department of Education.” So, the Department is made the final arbiter of this matter by statute, and the courts will not go behind the Department’s finding, in the absence of fraud. Here the Department approved the conversion and its figures show a small saving thereby. For a further discussion of this matter see Lakeside Special School District v. Gaines, ante p. 779, 153 S. W. 2d 149.
Two other questions are argued, one, that the district could not date its bonds back to July 1, 1940, and, two, that the $11,500 bond sale, made to pay off bonds not tendered for refunding, was not advertised and sold to the highest bidder, which we dispose of by saying we find them without merit.
The argument is also made that Walton-Sullivan & Co. has collected or will collect a fee in excess of the 3 per cent, of $140,000 provided for in the contract herein-before set out. It would be impossible to adjudicate their rights in this action as they are not parties hereto. We may say, however, that this opinion will not be res adjudicóla of a suit by the district or any taxpayer thereof to which said firm is a party in which a determination of their rights may be involved.
Affirmed.
Mehaffy, J., not participating. | [
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McHaney, J.
The late S. H. Mann and W. W. Campbell, were by the chancery court of St. Francis county, appointed receivers of the assets of the firm of Brandon & Baugh of Forrest City in the year 1926, and continued to act as such receivers until their discharge in 1937. Brandon & Baugh were the owners of an undivided one-half interest in about 900 acres of land in said county, and appellee was the owner of the other undivided one-half interest therein, he being in possession as tenant of the one-half interest of said firm. Brandon & Baugh were also the owners of the 40 acres of land here in controversy, being the southwest northwest 20, 4 north, 5 east, and being surrounded on the south and east by said 900-acre tract and on the north by land owned by Walker individually. ' The receivers continued to rent the one-half interest of Brandon & Baugh to appellee at $6 per acre and thought they were renting him also the 40-acre tract which had been rented by him prior to the receivership, although • they never at any time collected any rent from him. Their interest in the 900-acre tract was sold by the receivers to a third party in 1933 and later appellee acquired that interest and became the sole owner thereof. The 40-acre tract was not sold and appellee continued in possession of it through the year 1936, without paying any rent, although there were 16 acres in cultivation by him and was worth an annual rental of $6 per acre or $96. ‘ It became delinquent for general taxes and for levee taxes for the years 1931, 1932, and 1933. In November, 1934, the receivers paid the delinquent general taxes, but for some reason overlooked the delinquent levee taxes. At this time they discovered that the title to this tract was still in them as receivers and that appellee had been in possession thereof since their appointment and had paid no rent. They .then, or shortly thereafter, began negotiations with him for the sale of this tract to him and continued same to May, 1937, just prior to their sale of said land to appellant, Collier.
On February 25, 1935, a decree was rendered, pursuant to a suit by the St. Francis Levee District, foreclosing the levee tax lien for the years 1931, 1932 and 1933. Between that date and the date of the commissioner’s sale, December 7, 1935, someone paid the levee tax for 1932 and that year’s tax was stricken, but on December 7, 1935, the land was sold to appellee for levee taxes of 1931 and 1933 in the total sum of $24.75. During all this time appellee was in possession and was negotiating with the receivers to purchase same. While he had paid rents for said tract to Brandon & Baugh, he had been in possession under the receivership and had paid no rents to them. He offered to buy same from the receivers, but would not offer more than $450, and failing to agree on the price, they sold same to Collier on May 22, 1937, for a consideration of $500, pursuant to the order and direction of the chancery court.
As stated above the land was sold to appellee at the foreclosure sale on December 7,1935. The commissioner duly made his report of sale and it was approved and confirmed on December 21, 1935, but no deed was executed because of the two-year period of redemption allowed by statute. On December 18, 1937, eleven days after the period for redemption had expired, the receivers filed their petition to redeem, setting up the matters heretofore stated and other matters, and- alleging that because thereof appellee is estopped to claim the land by reason of said sale and purchase, and they tendered a sum in excess of the $24.75 paid by him at such sale, in satisfaction of said amount with interest. Both Collier and appellee intervened in the action setting up their respective claims. Trial resulted in a decree for appellee, in which, the commissioner’s deed dated December 18, 1937, to him was approved and confirmed; the petition of the receivers to redeem and the intervention of Collier were dismissed as being without equity; and a judgment was rendered against Collier for the rental value of the land, less the taxes paid by him, and his deed from the receivers was canceled. This appeal followed.
We think the court erred in so holding. It appears that the only material fact in dispute is as to the time and nature of the negotiations for the sale of this land by the receivers to appellee. Mr. Campbell testified in support of the petition for redemption which was filed by Mr. Mann. He said he discussed the sale of this tract with both appellee and the latter’s son; that he and Mann discovered that this tract was a part of the estate of which they were receivers on November 28, 1934, the date they paid the state and county taxes thereon; that they then got in contact with appellee and told him they thought he would be the proper one to own the tract, since he owned the other land around it, and did not expect to sell it to anyone else if he wanted it, and he said he was interested and would let them know about the price; that he talked with appellee and his son on several occasions and that he was never able to get a definite offer until about a month before they sold to Collier, and that offer was $450; that they thought the offer insufficient and sold to Collier for $500; that during this time it was his understanding that a price would eventually be agreed upon and when the sale was made, there would be an adjustment between them and appellee as to any repairs made or taxes paid by him and the rent he might owe them; that he did not question about the rent as he thought the trade would be made and they would sell to appellee.; and that they would not have let him remain in possession without paying rent unless they had thought the property would be sold to him.
Appellee denied that he ever had any direct negotiation with the receivers about the purchase of the tract, but admitted that he did .through his son, George P. Walker, Jr., who testified that he talked with Mr. Campbell on three different occasions in the fall of 1936 about the proposed sale to his father and that he reported to his father who said he would buy if the price was right, but would not pay $750', the price asked, and that he told Campbell his father said he would not pay more than $450. Appellee testified further that he rented this 40-acre tract from Brandon & Baugh until the receivership, paying them $6 per acre cash rent, and continued to operate it after the receivers were appointed but never discussed the matter of rent with the receivers and did not pay any rent to them. He never at any time told them he had bought the land at the levee tax sale. He frankly admitted that he knew he would be purchasing land that belonged to the receivers, which was already in his possession and had been since the receivers were appointed without paying any rent to anyone.
It appears to us that appellee has assumed a very untenable position — one without any vestige ■ of justice or equity. For many years he has been a tenant of the receivers on this 40-acre tract, without any express contract of tenancy with them it is true, but one that is necessarily implied. He was a tenant of Brandon & Baugh and paid them $6 per acre until the receivership. Thereafter, he continued in possession and cultivated 16 acres of the tract, but because the receivers, not being as familiar with the land as Brandon & Baugh, apparently overlooked the fact that this small tract belonged to them, as receivers, they made no demand on him for rent. So, for many years, knowing that the receivers were ignorant of their rights, he remains in possession, cultivates the land, pays no rent, discovers they have failed to pay levee taxes, buys at the sale, offers to buy from them, says nothing and sits tight. In so doing, by his silence he perpetrated a constructive if not an actual fraud upon them. We think it was his duty to speak to them about the rent. He knew they were overlooking it. Failing in this, we think it was his duty to inform them, at least when he was negotiating with them to buy, that lie had bought at the levee tax sale. Having been in possession for about 10 years without paying any rent and without making disclosure of this fact and that he had so purchased, we think he is now estopped to assert the levee district title against the rightful owners.
The decree will be reversed and the cause will be remanded with directions to treat the purchase by appellee as a redemption from the levee tax sale, to cancel the levee district deed issued to him on the payment by appellants to appellee of the $24.75 with interest from December 7, 1935, and to quiet and confirm the title in appellant, Collier. It is so ordered. | [
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Holt, J.
George H. Evans died in 1875, testate. Under his will he gave to his daughter, Edith Elizabeth, a life estate in an 80-acre tract of land described as the south half of the southwest quarter, section 30, township 11 north, range 9 east, Mississippi county, Arkansas. The remainder he gave to the children of Edith Elizabeth. Edith Elizabeth died February 7, 1934. 'She had been married three times: Her first husband was Clifton St. Clair; her second, James H. Cannon; and her third, John Keen. Appellants, Jacob H. Cannon and F. D. Cannon are the sons of Edith Elizabeth by her husband, James H. Cannon. The remaining appellants are Edith Elizabeth’s grandchildren.
Under his will, George H. Evans gave to another daughter, Lavina (sometimes referred to as Letitia) who married J. W. Uzzell a life estate in other property with the remainder in her children.
The property here involved, with other property, having become delinquent for the taxes for 1877, was sold to John W. Uzzell, Edith Elizabeth’s brother-in-law, and a clerk’s tax deed issued to him dated September 13, 1880, carrying the following description: West half of section 30, township 11 north, range '9 east.
By a decree on November 6, 1885, in a case then pending between L. L. Uzzell and George E. Cannon, and others, John and Elizabeth Keen were appointed guar-dians ad litem to answer for certain minor defendants in that suit and to ask on their behalf that the cause proceed on a joint petition in another case then pending entitled “John Keen and Elizabeth Keen, his wife, late Cannon, Letitia T. Uzzell, et al.”
A decree on this joint petition was rendered November 2, 1886, as follows:
“Now on this day come the petitioners, John Keen and Elizabeth Keen, his wife, in their proper persons and George E. Cannon, Anna E. Cannon, Franklin D. Cannon and Jacob H. Cannon, minors by their next friend, John Keen and Edith Elizabeth Keen; and Letitia T. Uzzell, E. A. Carlton and Nina W. Carlton, his wife, Cate Uzzell, Edith A. Uzzell and John E. Uzzell, in their own proper persons, and William T. Uzzell, Katie Uzzell, George H. Uzzell, Helen Uzzell, Paul D. Uzzell, Edith E. Uzzell, minors, by their next friend Letitia T. Uzzell, and file their petition showing that they compromised and settled the case of L. T. Uzzell v. George E. Cannon, et al., now pending in the court by agreeing the legal title to the northeast quarter (NE%) of section thirty-six (36) in township eleven (11) north, range eight (8) east, therein mentioned shall be vested in the said Letitia T. Uzzell for life with remainder to the said Nina W. Carlton, Edith A. Uzzell, John E. Uzzell, William T. Uzzell, Katie Uzzell, George H. Uzzell, Helen Uzzell, Paul D. Uzzell and Edith E. Uzzell, and that the tax title to the east half of section twenty-five (25), township ■ eleven (11) north, range eight (8) east, and west half of section thirty (30), township eleven (11) north, range nine (9) east, owned and claimed by said Letitia and her children shall be vested in the said Elizabeth Keen and the said George E. Cannon, Anna E. Cannon, Franklin D. Cannon and Jacob H. Cannon, and said petition up for consideration and the court having heard testimony thereon and being satisfied that it is for the interest of the minor petitioners as well as the adults, that the prayer of said petition is reasonable and just and ought to be granted.
“It is therefore ordered, adjudged and decreed that the legal title to the said northeast quarter of section 36, township 11 north, range 8 east, be divested out of said Elizabeth Keen, George E. Cannon, Anna E. Cannon, Franklin D. Cannon and Jacob H. Cannon, and vested in the said Letitia T. Uzzell for life, with remainder to her children, Nina White Carlton, Edith A. Uzzell, John E. Uzzell, William T. Uzzell, Katie Uzzell, George H. Uzzell. Helen Uzzell, Paul D. Uzzell and Edith E. Uzzell; and all interest owned or claimed by the said Letitia T. Uzzell, Nina W. Carlton, Edith A. Uzzell, John E. Uzzell, William T. Uzzell, Katie Uzzell, George H. Uzzell, Helen Uzzell, Paul D. Uzzell and Edith E. Uzzell in and to the east half of section 25, township 11 north, range 8 east, and the west one-half of section 30, township 11 north, range 9 east, be divested ont of them and vested in the said Elizabeth Keen, George H. Cannon, Anna E. Cannon, Franklin D. Cannon and George H. Cannon, and that this decree operate as a deed, and that the costs of these proceedings be equally divided between the parties in interest hereto.”
February 22, 1886, Edith Elizabeth, then Keen, conveyed by warranty deed her interest in the south half of the southwest quarter, section 30, township 11 north, range 9 east, the land involved here, to her husband, John Keen, and on September 23, 1887, she conveyed her interest in the 80-acre tract in question to her children. By mesne conveyances through many hands, and mortgage foreclosures over a period of some 55 years, the appellees here acquired this property through a foreclosure September 14, 1926, and have owned, occupied, controlled and enjoyed it with the rents and profits since that time.
Following the death of Edith Elizabeth Cannon Keen, February 7, 1934, appellants here, claiming as remaindermen, brought suit in an attempt to recover this property, together with rents and profits alleged to be due. Upon a trial of the cause, the court found the issues in favor of appellees and dismissed appellant’s complaint for want of equity. This appeal followed.
As has been indicated, the will of George H. Evans created a life estate in the land .here involved in his daughter, Edith Elizabeth, with remainder in her children.
Appellee’s title rests upon the decree of November 2, 1886. If this decree is valid, it terminated the life estate of Edith Elizabeth Keen, through the partition of the 80-acre tract here in suit and other lands. In that decree, the title of John W. Uzzell based upon the tax sale was involved and was adjudged. Now, the tax sale may have been found invalid when made, as it appears to be, but it may also have been found that Uzzell had possession of the land under his tax deed for a length of time sufficient to render the tax sale impervious to the attack of either the life tenants or the remainder-men (§ 13860, Pope’s Digest). None of the minors have attempted to redeem from the tax sale to Uzzell. At any rate, the rights of the parties were adjudged, all the persons being before the court who had any right to question the validity of the tax sale, and new titles were created upon the apparent finding that the tax sale to Uzzell had conveyed title to him, the effect of the decree being to terminate the life estate and to constitute the life tenant and the remaindermen tenants in common. That finding, through many years, has not been questioned, and many conveyances have been made upon the faith of the validity of that decree.
Appellants contend that that decree cannot affect the rights of the minors involved because they were not properly in court by guardian ad litem, but were represented by John Keen and Edith Elizabeth Keen as their next friend and that under the statute {% 1329, Pope’s Digest) a minor must be defended by a guardian or a guardian ad litem. That question might have been raised by demurrer (§ 1411, Pope’s Digest). When such objection is not raised in apt time, it is waived (§ 1414, Pope’s Digest).
In the case of Davie v. Padgett, 117 Ark. 544, 176 S. W. 333, it appears that the plaintiff was sixteen years of age and instituted suit without guardian or next friend, and there this court said: ‘ ‘ The judgment is not void because of the plaintiff’s incapacity to sue, but that defect only constitutes error which calls for a reversal of the judgment, if taken advantage of in apt time. It has always been the rule of this court that judgments against infants are not void because of the omission to appoint a guardian, but are merely voidable and can only be avoided on appeal or writ of error or other direct proceedings authorized by statute.”
Since that decree was entered nearly fifty-five years ago no one has instituted proceedings attacking it directly or collaterally in an attempt to void it, and we think it valid and binding. The minor defendants affected by that decree have taken no steps to void it within three years after having reached their majority (§ 8939, Pope’s Digest).
All parties in interest, including J. H. Cannon and F. D. Cannon, two of the appellants here, were made parties to the suit in which the above decree of November 2, 1886, was rendered. John Keen, the Edith Elizabeth Cannon Keen branch of the family, as well as the Uzzell branch, were all parties. This is clearly indicated in the decree. While appellant, Jacob H. Cannon, is referred to twice in that decree as Jacob H. Cannon, in the latter part the word “George” is used for Jacob. This clearly, we think, was a clerical mistake and that Jacob was intended. It is also undisputed that there was no George E. Cannon. There was a girl, Georgia E. Cannon, and we think it clear that the court intended Georgia E. Cannon and that the name George E. Cannon was a clerical error.
While the suit out of- which came the decree of November 2, 1886, is not captioned a suit for partition, we think it clear from that decree that it was a partition suit and was so treated by all parties and the court. As we have indicated, that decree clearly vested the title to the property here in question in Mrs. Edith Elizabeth Keen and her children as tenants in common. Holding, as the court in the 1886 decree did, the tax sale to John W. Uzzell, supra, valid, the effect of that tax sale was to destroy the life estate and cut off the rights of the remhindermen.
In Champion v. Williams, 165 Ark. 328, 264 S. W. 972, this court said: “The tax sale, if valid, would have barred the right of all interested parties, those holding remainder interests as well as the life tenant, for the sale operated in rem, and all parties were bound by
Any party dissatisfied with that decree of November 2, 1886, should have taken proper steps in apt time to question it. From the time of its rendition, approximately 55 years ago, it has not been attacked directly or collaterally. During all of this time the binding force and effect of that decree has been recognized generally. This property has been sold and mortgaged from time to.time, has passed into and through many hands until, as has been indicated, it came into the possession of appellees by purchase at a mortgage foreclosure sale in 1926. During all this time appellants have stood by without complaint. To permit appellants to come in at this late date and lay any claim to this property is without equity and the chancellor properly so held..
In the recent case of Parsley v. Ussery, 198 Ark. 910, 132 S. W. 2d 1, this court said: “This suit was filed twenty-three years to the day after said circuit court judgment was'rendered, during all of which time all the parties hereto, and the public generally have recognized said judgment as valid and binding. The general rule is, as stated in 34 O. J. 541, that, 11 Long lapses of time greatly strengthen the presumptions in favor of the validity of judgments.’ ... To seek now, after this long lapse of time, and after, innocent third parties have made large advances on the strength of it, to set aside said judgment where four of them were parties thereto is without equity as the trial court properly held.”
On the whole case, finding no error, the decree is affirmed. | [
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McHaney, J.
Appellant brought this action, in the nature of one for specific performance, against appellees for the enforcement of a written contract of lease of certain real property in the town of Lonoke, with an option of purchase. Trial resulted in a decree dismissing appellant’s complaint for want of equity, and he has appealed.
Appellant was desirous of acquiring’ title to four lots in Lonoke and, to this end, had considerable negotiations with the owners who lived in another, state. Finally he got an offer to sell for a cash consideration of $2,600. He tried to borrow the money to consummate the deal from several persons, including appellee, Joe Melton, but was unable to do so. After several unsuccessful attempts to get appellee to furnish the money to buy the property in appellant’s name, with a mortgage back to appellee as security, the latter agreed to purchase the property, enter into a contract of lease thereof for three years with appellant upon the payment and performance of certain conditions, with an option to purchase at any time within three years for the price paid, conditioned upon the performance of said conditions. Accordingly on December 22, 1938, appellee wrote appellant the following letter: “I have this day made a deal to purchase lots three (3), four (4), five (5) and six (6), in block seven (7), Hicks & Reynolds Survey, from John R. Loomis, Trustee in the matter of the Estate of C. W. Hine, deceased, at and for the-sum of $2,600. I have paid $500 in cash down. The balance due to be paid as soon as a good deed can he delivered to me. I then agree to lease this property to you for a period of three years at a rental of $500 per year. The rental is to be paid in monthly installments commencing 30 days from the date of the delivery of the deed to me and the signing of the lease from me to yon. I further agree that at any time during the three years yon are permitted and authorized to purchase this property from me at and for the sum of $2,600, the actual amount I paid for same.”
It took more than a year to close the deal with the owners, and on March 1, 1940, title having been acquired by appellee, the parties entered into the written lease agreement mentioned in said letter, and it was agreed that appellee was to rent the property to appellant for three years at an annual rental of $500, payable monthly on the first day of each month, $41.66 being paid for the month of March at the date of signing the contract. Other conditions imposed were the erection of a filling station, to be begun within 10 days and completed within 90 days, to cost not less than $1,000 and insured for not less than that sum to be paid for by appellant, who was also required to pay all taxes during the term of the lease. It was further agreed that “in case default is made in the paying of the monthly rental when due, ’ ’ or the taxes are not paid, or the erection of a filling station is not made as above set out, the agreement should be void, and all moneys paid for rent or expended for improvements shall he considered rent and appellant agreed to vacate the premises on request. Another clause in the contract reads: “If all payments of rent, 'taxes and insurance above mentioned are met as set out herein, and the improvements carried out as specified, then the second party shall have an option and the right at any time within three years from March 1, 1940, to purchase this property for the price of $2,600 cash, the amount first party paid for same. In case default is made in the payments, the option shall not exist, and any and all improvements made on these premises shall go and become the property of the party of the first part, and this contract shall expire when default is made, or if the rental is paid for three years, and the purchase price is not paid as agreed, the contract is ended.”
The complaint was filed August 2, 1940, and, although appellant admits that he failed to pay the rentals as agreed and failed to erect a filling station, he alleged that on July 18, 1940, he notified appellee he was ready, willing and able on said date to pay the purchase price of $2,600, with all arrears of rent and offered to make a tender thereof, and demanded a deed of conveyance of said lots, which was refused by appellee on the ground that, in his opinion, the contract had terminated. Appellees defended the action on the ground that appellant failed to perform the conditions of the lease agreement, thereby forfeiting his right or option to purchase.
We think the trial court correctly dismissed the complaint as being without equity. The contract of March 1, 1940, was simply a lease agreement with an option to the lessee to purchase on certain conditions, and was made pursuant to and in accordance with the written agreement of December 22,1938. Such a contract is legal and binding upon the parties, and, being in writing, its meaning and import must be determined from the instrument itself, parol evidence not being admissible to show that they intended to make a different contract. Thomas v. Johnston, 78 Ark. 574, 95 S. W. 468. It was held in that case that “a landowner may agree with another that the relation of landlord and tenant shall subsist between them until it shall be changed into the relation of vendor and vendee by payment in full of certain amounts named. ’ ’ Syllabus 3. In that case the landowner leased to another certain farm land for three years at $150 per year, payable October 1 each year, and it was agreed that if the notes given for said payments were promptly paid, with interest, as they became due, the owner bound himself to convey said land to the lessee by deed. In that respect that case differs from this, as here the rent stipulated was not a part of the purchase price, in the event the option to purchase was exercised, but was in addition to the $2,600 appellant agreed to pay. In that case, making the payments, called rent, according to the terms of the contract, entitled the lessee-purchaser to a deed. It was held that failure to pay as stipulated did not change the relation of landlord and tenant to that of vendor and vendee. Judge McCulloch there quoted from 18 Am. & Eng. Enc. Law, pp. 168, 169, in part as follows: “. . . So, also, a lease may give to the lessee an option to become a purchaser without preventing the creation of the relation of landlord and tenant prior to the proper exercise of such option, though the payments made as rent are to be credited upon the purchase price in case of the exercise of such option. Where it is stipulated in the contract of sale that the tenant shall pay rent during his occupation, and until the conveyance is made, the relation of landlord and tenant is created.” See, also, Goode v. King, 189 Ark. 1093, 76 S. W. 2d 300; Wright v. Burlison, 198 Ark. 187, 128 S. W. 2d 238.
Appellant suggests that an instrument executed for the purpose of securing the payment of money is in effect a mortgage, whatever its form may be. But the writing in evidence does not constitute an agreement to pay money except for rent and not for the property. He also cites and relies on Morris v. Green, 75 Ark. 410, 88 S. W. 565, to support the proposition that, where an agreement is simply one for the payment of money, a forfeiture, incurred by its nonperformance, will be relieved against on payment of the debt, interest and costs, and so it does. But the contract here is not simply one for ihe payment of money. In ihat case the contract was one of vendor and vendee, under a bond for title, with a forfeiture provision on failure to pay. Here it is one of landlord and, tenant with an option to buy, conditioned upon the tenant’s prompt payment of the rents on the first day of each month, and other conditions, none of which were performed. Assuming without deciding that appellee waived all the conditions except payment of the rent as agreed, still appellant breached that condition and by so doing forfeited his option to buy. As above stated, the rent payment made and those agreed to be made did not constitute a part of the purchase price and were not to he credited thereon. His right to purchase at all depended upon the performance of the conditions stated. It is a hard contract, but appellant was competent to make it, of lawful age, and does not claim there was any fraud or other inequitable conduct on the part of appellee in its procurement. Courts do not make contracts for the parties, and we feel that we would have to change this one to grant appellant the relief prayed.
Affirmed. | [
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Humphreys, J.
J. C. Day and Sadie Day became husband and wife in September, 1919, and lived together until February, 1936, at which time he abandoned her in the state of Mississippi and afterwards moved to Arkansas. After residing’ in Arkansas for a considerable length of time, more than ninety days, he brought a suit in the chancery court of White county, Arkansas, against his wife, Sadie Day, for divorce under the seventh subdivision of § 2 of act 20 of the Acts of 1939, which is as follows:
“Where either husband or wife have lived separate and apart from the other for three (3) consecutive years, without cohabitation, the court shall grant an absolute decree of divorce at the suit of either party, whether such separation was the voluntary act or by the mutual consent of the parties, and the question of who is the injured party shall be considered only in the settlement of the property rights of the parties and the question of alimony. ’ ’
He alleged in his complaint that he was and had been a resident of White county for two years next before filing the complaint and that he and Sadie, his wife, had lived separate and apart more than three consecutive years without cohabitation.
Service was obtained upon her by warning order in the manner required by la.w and having made default when the ease was called for trial the court heard evidence in support of the allegations of the complaint, and, on July 8, 1940, ordered, adjudged, and decreed that the bonds of matrimony theretofore existing between J. C. Day and Sadie Day be annulled; set aside, and forever held for naught.
Prior to the institution of this suit J. 0. Day had filed a suit in Adams county, Mississippi, for a divorce from Sadie Day on the ground of intolerable treatment, which was dismissed for want of equity, from which no appeal was taken and later he brought a suit for divorce from her in Cross county, Arkansas, on the ground of intolerable treatment which was also dismissed on the ground of res adjudicata of the suit brought in Adams county, Mississippi, from which no appeal was taken.
Then it was that he broug’ht suit for divorce in White county, Arkansas, on a different ground from the ground alleged in the first two suits, with the result stated above.
On the 8th day of July, 1941, about one year after J. C. Day had secured a divorce from her she filed a motion to set. aside the decree on the ground of fraud in the procurement thereof alleging that she had a meritorious defense thereto, and on cross-complaint prayed for a divorce on the ground of abandonment.
An answer to her motion and cross-complaint was filed by- J. C. Day denying the material allegations in them and upon a hearing' on the issues joined and testimony introduced the court denied the motion to set the decree of divorce aside and dismissed her cross-complaint praying for a divorce, from which she has duly prosecuted an appeal to this court.
The court, however, entered an order allowing her $25 a month alimony for twelve months beginning October 1, 1940, and from the allowance J. C. Day appealed to this court. He filed no brief and on failure to do so has abandoned his appeal.
J. C. Day died on April 5, 1941, and on motion her case was revived in the name of E. W. Langley, administrator of the estate of J. 0. Dav, deceased.
Learned attorney for appellant contends that the trial court erred in refusing to set the decree of divorce aside, but, on inspection of the record, we find no testimony showing’ that J. C. Day had not resided in Arkansas more than ninety days before he brought his suit in White county, and, according to the undisputed evidence, J. C. Day and Sadie Day had lived separate and apart more than three years without cohabitation before he brought his suit in White county.
Based upon the record made, the court correctly refused to set the decree of divorce aside.
The trial court also correctly refused to grant appellant a decree of divorce on her cross-complaint because the bonds of matrimony once existing between them had been dissolved by the decree of divorce granted to J. C. Day on July 8, 1940, in the suit wherein he was plaintiff and she was defendant.
Whatever alimony was due appellant when J. C. Day died on April 5, 1941, is riot recoverable here because the rule announced in the case of McLaughlin v. Todd, Guardian, 201 Ark. 348, 145 S. W. 2d 725, is that pending suits for divorce abate when either husband or wife dies. If appellant has any remedy which accrued to her prior to the death of her husband she must recover it in a separate proceeding in a court that has jurisdiction of the subject-matter and not in the chancery court that has lost jurisdiction by the death of one of the parties to the proceeding.
No error appearing, the decree is affirmed. | [
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Holt, J.
Appellant, Climet Jones, sued appellee, Missouri Pacific Railroad Company and Guy A. Thompson, Trustee, to recover damages for personal injuries alleged to have been received while alighting from appellee’s mixed freight and passenger train at Okolona, Arkansas, on April 3, 1940. He alleged in his complaint that after the train had stopped at Okolona, and while he was attempting to debark therefrom, appellee’s employes caused the train to move forward in a “sudden, violent and careless manner,” and as a result he was injured,
Appellee answered denying every material allegation of the complaint and further alleged as a defense that if appellant were injured it was due to his own carelessness, negligence and willful conduct in deliberately falling to the station platform.
Upon a trial and at the conclusion of plaintiff’s testimony, upon motion of defendant (appellee here), the court directed a verdict in favor of appellee. Appellee offered no testimony. Appellant has appealed.
Appellant Jones, along with Henry Stitt, after having purchased tickets, boarded appellee’s train at Delight, Arkansas. When the train reached Okolona, Stitt proceeded to get off the train with appellant Jones following close behind him. We quote from Stitt’s testimony:
“Well, I got off of the train — the train rolled up and stopped and I got off. I came down out of the train to the ground and I walked off the track a little bit and turned around and Jones was coming up and he fell from the train. . . . He fell from the second step. Q. Did he ever reach the stool or the step-box at the bottom of the steps? A. No, sir. . . . He fell about three feet. Q. Did you see anything that caused Climet Jones to fall? A. Well, yes, the train either taken a slack up or let it out. . . . All I knew, it either taken the slack up or let it out and it moved two or three feet. Q. Now, was it at that time that Climet Jones fell? A. Yes, sir.” He further testified that appellant was injured by the fall.
Appellant testified that he is 26 years of age; that the train was a mixed passenger and freight. “Q. When you got to Okolona, did the train stop? A. Yes, sir.” He and Stitt were the only two passengers that got off and Stitt got off first. “Q. When you started to get out of the train, I want you to tell this jury what happened. A. When I started out, just as I went to make — just like I was walking out the door — just as I went to place this foot on the second step the train gave some kind of little jerk that knocked my hand loose from the bar and I hit the back end of the other bar and hit the ground. Q. Describe this jerk you. are talking* about — what did that jerk cause! A. It caused this foot to slip out from under me and this one missed the step and I fell down on my shoulder and knee and back. Q. Did you strike anything in falling! A. I kind of struck the back of the train, as well as I can remember. Q. Had you ever gotten down to the stool or step-box? A. No, sir. Q. How far down the steps had you gotten? A. I hadn’t never got down on the steps — I was just fixing to get down on them. . . . Q. When you struck the ground, tell the jury what effect that had on you. A. I don’t know — I was knocked out. .. . . Now then, how far did the train move, if you know? A. I just don’t know — it didn’t move far. Q. All you know is it jerked? A. Yes, sir.”
He further testified that he was hurt, has been under the care of a physician since his injuries, and used crutches for a month.
Boamie Wylie testified on behalf of appellant that he was about a hundred feet from the train and saw appellant falling and that the train gave a lunge and appellant fell. He saw appellant on the ground and helped carry him to an automobile. His leg was bleeding.
Hosea Fultz testified: “It looked to me like the train made some little racket, like it might have moved or something like that. Q. Did you actually see the train move? A. It moved a little — it jerked. . . . Q. How far would you say it moved? A. It moved a foot or two. Q. It just simply jerked forward? A. Yes, sir. . . . Q. You say he was falling when you first looked over there? A. Yes, sir, he was falling out of the train when I. looked up. ’ ’ That he was about a hundred yards away at the time..
Under facts, similar in effect, the rule, as to the liability of the railroad company, is stated in Huckaby v. St. Louis, I. M. & S. Ry. Co., 119 Ark. 179, 177 S. W. 923, by this court: “The rule is so well established in this state as to be no longer questioned that a prima facie case of negligence is made out against a rgilroad company by proof of an injury to a passenger caused by the operation of its train. Section 6773, Kirby’s Digest (now § 11138, Pope’s Digest); Barringer v. St. Louis, I. M. & S. Ry. Co., 73 Ark. 548, 85 S. W. 94, 87 S. W. 814; K. C. Southern Ry. Co. v. Davis, 83 Ark. 217, 103 S. W. 603; St. Louis, I. M. & S. Ry. Co. v. Stell, 87 Ark. 308, 112 S. W. 876; St. Louis & S. F. Rd. Co. v. Coy, 113 Ark. 265, 168 S. W. 1106.
“And the rule is the same when the injury results from the operation of the train to the passenger while boarding or alighting from the train. St. Louis, I. M. & S. Ry. Co. v. Stell, supra; Kansas City S. Ry. Co. v. Davis, supra; St. Louis, I. M. & S. Ry. Co. v. Briggs, 87 Ark. 581, 113 S. W. 644; Choctaw, Okla. & Gulf Rd. Co. v. Hicky, 81 Ark. 579, 99 S. W. 839; St. Louis, I. M. & S. Ry. Co. v. Williams, 117 Ark. 329, 175 S. W. 411. . . .
“This appellant was attempting to board the train after it stopped and during the reasonable time it was supposed to stand for allowing passengers to embark, and the train was not expected to move, lurch or jerk in a way as to endanger her safety in so doing and she assumed no risk of injury therefrom, as the instruction erroneously told the jury. . .
And in St. Louis, I. M. & S. Ry. Co. v. Stell, 87 Ark. 308, 112 S. W. 876, this court in an opinion- by the late Justice Hart, said: “. . . it has been held that under § 6773 of Kirby’s Digest (now § 11138, Pope’s Digest), placing responsibility upon railroads where injury is done to persons or property by the running of trains, a prima facie case of negligence is made out against the company operating the train by the proof of the injury. This was a case where the passenger was injured while getting off the train. But there is no difference in the principle as applied to passengers embarking or debarking from a train. The reason of the rule is that the railroad company has sole control of the movement of its'trains and in that respect the passenger can do nothing to insure his personal safety.”
Under the testimony above abstracted, it is our view that appellant has made out a prima facie case of negligence and that the trial court erred in taking the case from the jury. According to the testimony presented appellant was injured while attempting to debark from the train after it had stopped at Okolona for that purpose. Under such circumstances any movement of the train, however slight, might be such as to cause an injury and amount to negligence on the part of the railroad company. After appellant established by substantial testimony that he was injured while- attempting to alight from appellee’s train, by movement or jerking of the train, a prima facie case of negligence, as has been indicated, was made out and it devolved upon appellee to show that it was not guilty of negligence under the circumstances.
The eases cited and relied upon by appellee: Missouri Pacific Rd. Co. v. Baum, 196 Ark. 237, 117 S. W. 2d 31; Missouri Pacific Transportation Co. v. Bell, 197 Ark. 250, 122 S. W. 2d 958; and St. Louis-S. F. Ry. Co. v. Porter, 199 Ark. 133, 134 S. W. 2d 546, are not controlling here. In each of those cases the facts are different and a different rule applies.
In the Baum and the Porter cases the injured passenger had safely boarded the train and it was held that before a recovery could be had, it was necessary to show some unusual, violent and unnecessary lurch or jerk of the moving train not assumed by the passenger which would amount to negligence on the part of the railroad company, and that no such negligent conduct had been established.
In the Bell case the plaintiff was attempting to alight from a bus and in so doing fell in the aisle and was injured when the bus stopped, which Bell contended was occasioned by an “unusual, unnecessary or a violent jerk,” and it was there said: “It is undoubtedly true that appellee fell in the bus, and it may be true that she was injured in the fall, but the proof fails to show that it was the result of the second stopping, or that the second stopping, if any, was sudden, unnecessary or violent, and these were the grounds of negligence relied on in the complaint and without proof of which no recovery can be sustained.”
For- the error indicated, the judgment is reversed, and the cause remanded for a new trial. | [
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G-rieein Smith, C. J.
The court set aside in part G. F. Scrape’s deed conveying 220 acres of land to his wife, holding that the transaction was a fraud on creditors. The appeal is from that decree.
Mary Phillips Robinson, agent and attorney in fact for Mary E. Oglesby, plaintiff below and appellee here, procured judgment against G. F. Scrape for $2,164.96 on a complaint filed December 6, 1938. Scrape’s deed is dated December 7, 1938. The recited consideration is love and affection and the assumption of mortgages aggregating $11,400. The instrument was filed for record at 9:30 a. m. on the day of its date. December 7, 1938, Scrape executed a bill of sale conveying to his wife all of his personal property. By amendment to the complaint Mrs. Scrape was made a defendant.
Appellants insist a preponderance of the evidence does not support the court’s finding that the deed was without consideration. Emphasis is given to Mrs. Scrape’s testimony, and that of her husband, which is to this effect: At the time of her marriage Mrs. Scrape had certain funds, perhaps $600. For twenty-six years the couple had pooled earnings. Profits went into a “general fund.” The agreement to pay $11,400 of mortgage debt was of benefit to the husband. Mrs. Scrape had loaned money to her husband over a period of years.
OTHER PACTS--AND OPINION.
The wife admitted knowledge that her husband owed at least a part of the rent for 1937 and 1938. The so-called “loans” made from time to time were not evidenced by writings, nor were account books kept. Mrs. Scrape had permitted her husband to handle all business affairs and to treat the property as his own; and after appellee procured judgment in circuit court, and while the suit in chancery was pending, no change in the manner of handling the property was made. Mrs. Scrape did not know when the deed was made. Mr. Scrape did not inform his wife of the purpose to convey. Some time in December, Mrs. Scrape ascertained the facts, and “was pleased.” She did not know what the personal property consisted of. When asked what she knew about the way the business was handled, Mrs. Scrape replied: “Well, I knew just about what any other wife would know.”
There was other evidence of knowledge by Mrs. Scrape of her husband’s indebtedness and there were circumstances from which a presumption of insolvency arose. In short, when Mrs. Scrape was informed that the deed had been executed, she could not have been in ignorance of its purpose. Summons was served on Gr. F. Scrape, December 6, and the next day he attempted to strip himself of property. Mrs. Scrape had not at that time assumed' payment of the indebtedness of $11,400. The deed was not delivered to her. Considerable time elapsed before the fact was brought to her attention. Although the circuit clerk did not remember who filed the deed for record, the clerk took Gr. F. Scrape’s acknowledgment. Mrs. Scrape testified that she did not know what consideration was set out in the deed.
It is next argued that the chancery court did not render a judgment against appellants, but merely declared the judgment of the circuit court to be a lien on the land. It is true there is no declaration in the decree reciting, in express language, that “judgment is hereby given.” This was unnecessary. The debt was not denied. Effect of the decree is to find that there was an indebtedness, and for all purposes other than technical sparring the obligation became a part of the decree as effectively as though formal language had been used to express what obviously was being done by intendment.
When the debt was declared a lien on 140 acres of the land, it was the judgment of the chancery court.
We think the sale ordered by the chancery court should be on a credit of not less than three months, as provided by statute for judicial sales. Pope’s Digest, § 8199; Neely v. Lee Wilson & Co., 126 Ark. 253, 190 S. W. 431. Direction in the decree was that the property be sold for cash. In this respect it is modified; and, as modified, it is affirmed.
Eighty acres claimed by the defendant as a homestead (but included in the deed conveying 220 acres) were excluded from the order canceling the transaction.
The indebtedness represented the balance due by Scrape as cash rent for 1937 and 1938 on lands owned by appellee. The judgment was obtained June 15, 1939.
Although the trial court found that “. . . said conveyances by G. F. Scrape, both of his land and personal property [were made] for the purpose of defrauding, cheating, hindering, and delaying the plaintiff in the collection of [her] judgment,” and that Mary J. Scrape . . accepted said conveyances with knowledge of the indebtedness [of G. F. Scrape to the plaintiff] and that said deed was without consideration and void as to the rights of [the] plaintiff,” there is no further reference to the personal property.
[There is no express prayer in the complaint or in the amended complaint asking cancellation of the personal property transaction, and the fact of its execution seems to have been alleged in order to show that Scrape had denuded himself of assets.]
At one point in her testimony Mrs. Scrape said her husband owed her “several thousand dollars” when the deed was made. | [
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Smith, J.
Two informations were filed against appellant, in one of wbicb he was charged with the crime of grand larceny, and in the other with the crime of arson. He entered a plea of guilty upon his arraignment, and was given a sentence of ten years in each case, the sentences to run and be served concurrently.
Subsequent to the rendition of these judgments, but at the same term of court, a motion was filed by appellant in which he prayed that the judgments be set aside and that he be allowed to enter a plea of insanity. In support of this motion several ex parte affidavits were filed to the effect that appellant was insane, both at the time when the pleas were entered and when the offenses charged were committed. Upon the filing of this motion the trial judge entered an order that appellant be sent to the State Hospital for Nervous Diseases for examination and report, pursuant to the provisions of Initiated Act No. 3 adopted at general election November 3, 1936, appearing as §§ 3913 et seq., Pope’s Digest. He was taken to that institution, where he remained under observation for about thirty days, at the end of which time the required report was made. This report indicates a very thorough examination, which appears to have been conducted by Dr. Hollis, who prepared the report, which was concurred in and signed by four other members of the hospital staff.
The report of the examination and observation is too lengthy to copy, but is summarized as follows:
“STATE HOSPITAL
“Case No. 43243 Criminal Under Act No. 3
“Year No. 1941 Name: Clifton Gunter
“January 17, 1941 8:30 A.M.
“Staff Meeting Report.
“Present: Dr. Davis “Dr. Hollis “Dr. Gehorsam “Dr. Engler “Dr. Hawkins
‘ ‘ Case Presented: Clifton Gunter by Dr. Hollis.
“Determined Diagnosis: 236. Psychopathic Personality.
“Dr. Hollis: We could elicit no signs suggestive of mental deficiency nor any signs upon which to pin a definite psychosis. It would seem that in this case we are dealing with a Psychopathic Personality. This is the type of individual who, seemingly, does not profit by his experiences and who persists in anti-social acts sometimes in the face of sure detection. It is quite probable that this boy is going to be a menace to society as long as he lives. As to whether he should be confined to the State Hospital or in the Penitentiary is a question which time alone will answer for us. I think he is responsible and was responsible at the time he committed the act for which he was indicted.
“Staff agreed to psychopathic personality.”
The judgment from which is .this appeal recites the finding that from a consideration of the depositions and the hospital report, appellant was sane, and the motion to set aside the judgments was overruled, and it was ordered that appellant be forthwith taken to the state penitentiary, to begin the service of his sentence, and this appeal is from that judgment.
It was said in the case of Carson v. State, 198 Ark. 112, 128 S. W. 2d 373, (to quote a headnote): “Under § 3901, Pope’s Digest, providing that ‘the plea of guilty can only be put in by the defendant himself in open court’ and § 3902, providing that ‘at any time before judgment the court may permit the plea of guilty to be withdrawn and a plea of not guilty substituted,’ the right to withdraw a plea of guilty rests in the sound discretion of the trial court, and its action in this regard will be reversed only when it clearly appears that its discretion has been abused. ’ ’
The motion to permit the plea of guilty to be withdrawn was not overruled upon the ground that it had not been filed until after judgment had been pronounced upon the plea, but was overruled upon the finding that appellant was sane. It was within the discretion of the trial court to determine whether a showing of insanity had been made which should be passed upon by a jury after the entry of his plea of guilty, and we are unable to say that the court abused its discretion in this respect, and the judgment must be affirmed, and it is. so ordered.
Mehaffy, J., dissents. | [
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McHaney, J.
Appellants claim title, to lots 17, 18, 19 and 20 of Boone’s Subdivision to Fort Smith as heirs at law of J. P. Nolen who died testate in Sebastian county sometime in 1917, his will being filed for probate February 21, 1917. Said will, in the first paragraph, after providing for the payment of his debts, states: “I dispose of my entire estate as follows.” In the second paragraph he gives to each of three sons named and to a granddaughter by a deceased son $1 each. The third paragraph of said will reads as follows: “To my beloved wife, Amanda Nolen, I give for and during her -natural life, the real estate on which I now live and all the improvements thereon, described as lots numbered 17, 18, 19 and 20 of Boone’s Subdivision of south half of the northeast, quarter of the southeast quarter of section 2, township 8 north, range 32 west, Sebastian county, Arkansas. At her death I give and bequeath to my grandson, Eugene Nolen, son of King Nolen, an undivided one-half of said land, last described, in fee simple forever; my said wife is to have the use and absolute control and possession of all of said land as long as she lives, with full power to sell, mortgage or otherwise dispose of an undivided one-half interest in said land or dispose of said one-half interest by will, in either or any instance, whether she sells or disposes of same by will her deed or will shall convey the fee simple title to said one-half. All the residue of my estate, real, personal or mixed wheresoever situate I give and bequeath to my beloved wife, Amanda Nolen. I name Arkansas Yalley Trust Company of Fort Smith, Ark., executor of this will.”
Amanda Nolen, widow of J. P. Nolen, and principal beneficiary under his will as aforesaid, continued to live on said property, and later married W. H. Perry. On September 28, 1929, Eugene Nolen, devisee under the will of his grandfather, J. P. Nolen, conveyed by warranty deed his undivided one-half interest in said property to W. IT. and Amanda Perry as tenants by the entirety, and the title to this one-half interest is not in dispute. Thereafter Amanda Perry died intestate leaving adult children by a husband other than Nolen or Perry, and on October 19, 1936, these children and heirs at law of Amanda convoyed all their interest in said lands to W. H. Perry and appellee, Paralee Perry. Thereafter W. H. Perry died testate, leaving all his property to appellee.
Appellee brought this action to quiet and confirm her title as against all appellants. They defended below on the ground that, by the will of J. P. Nolen, Amanda took a life estate in all of said lands and that Eugene Nolen took a remainder in fee in half of it, and as to the fee in the other half J. P. Nolen died intestate. Appellee contended below that Amanda took a life estate in all of it and Eugene took a remainder estate in half of it, and that Amanda, in addition to her life estate in all of it took a fee simple title to half of it, and that, therefore, J. P. Nolen did not die intestate as to any part of it. The trial court agreed with appellee, entered a decree accordingly, and this appeal followed, where the same contentions made below are now urged upon us.
We agree with the trial court and appellee. J. P. Nolen did not die intestate as to any of his property. He began his will by stating his purpose to dispose of his entire estate. After making the specific devises in article 3, above quoted, which, standing alone, might have conveyed only a life estate in said property with power of disposition during’ her life by deed or will in one-half of it, the testator provided: . “All the residue of my estate, real, personal or mixed wheresoever situate I give and bequeath to my beloved wife, Amanda Nolen.” Therefore, conceding without deciding, that, had that residuary clause been omitted, Amanda would have taken only a life estate in all the property, with power to dispose of half of it, and not having disposed of said one-half by deed or will it reverted, as held in stich cases as Little Rock v. Lenon, 186 Ark. 460, 54 S. W. 2d 287, and Piles v. Cline, 197 Ark. 857, 125 S. W. 2d 129. This residuary clause was not omitted and by it Amanda took all property not otherwise disposed of by the will.
As has many times been said, it is the duty of the court to ascertain, from a consideration of all the language used in the will, the intention of the testator and to give effect to that intention, unless contrary to some rule of law or public policy. Sheltering Arms Hospital v. Shineberger, 201 Ark. 780, 146 S. W. 2d 921. Another rule, equally well settled, is that wills should be so construed as to avoid partial intestacy, unless the language used compels a different construction. Union Trust Co. v. Madigan, 183 Ark. 158, 35 S. W. 2d 349; Pletner v. Southern Lbr. Co., 173 Ark. 277, 292 S. W. 370. When we give effect to these well known rules, we are forced to the conclusion that the testator, J. P. Nolen, intended to and did devise to his wife, Amanda, not only a life estate in all said lands, but the fee in one-half thereof.
The decree of the trial court so held, and it must be affirmed. It is so ordered. | [
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Smith, J.
On the morning of March 22, 1940, a collision occurred on highway 61 in Pemiscot county, Missouri, between a truck and trailer belonging to the Viking Freight Company, Inc., a foreign corporation, petitioner here, and a truck and trailer belonging to B. L. Holmes and driven by O. B. Carpenter. A. M. Sangalli was riding in the cab of the Holmes truck. He brought suit in the circuit court for the Chickasawba district of Mississippi county to recover damages to compensate the personal injury which he alleges he received through the negligence of Roy Myers, the driver of petitioner’s truck. Sangalli is a resident of this state. The summons in the case was served upon John W. Newman, petitioner’s designated agent for service of process, in the city of Little Rock, where Newman resides and maintains his office.
A stipulation was filed containing the following recitals. Sangalli is a resident of the state of Arkansas. The defendant freight company is a Missouri corporation, having its office and principal place of business in St. Louis, in said state, and has no office, officer or agent in the Chickasawba district of Mississippi county, nor in the state of Arkansas, except its designated agent for service of process, upon whom summons was served.
The cause of action alleged occurred on United States highway 61 in Pemiscot county, Missouri. The freight company operates a line of trucks between the city of St. Louis, Missouri, and the city of Memphis in the state of Tennessee, through the Chickasawba district of Mississippi county, and through Pemiscot county, Missouri, along United States highway 61, and the alleged cause of action occurred on that highway. The city of Blytheville is the court seat of the Chickasawba district of Mississippi county, Arkansas, and is the most convenient court seat to the scene of the collision.
The defendant freight company, hereinafter referred to as petitioner, appeared specially and filed a motion to quash the service of summons, upon the ground that the circuit court for the Chickasawba district of Mississippi county, Arkansas, was without jurisdiction of the cause of action. The circuit court overruled this motion, and petitioner has applied here for a writ of prohibition, the right to which is dependent upon the question whether the circuit court has jurisdiction to try the case.
The cause of action is predicated upon § 1394, Pope’s Digest, which reads as follows: “An action against a railroad company, or an owner of a line of mail stages or other coaches, for an injury to person or property upon the road or line of stages or coaches of the defendant, or upon liability as a carrier, may be brougiit in any county through or into which the road or line of stages or coaches of the defendant upon which the cause of action arose passes.”
It is insisted, upon the authority of the opinion in the case of The Bryant Truck Lines, Inc. v. Nance, 199 Ark. 556, 134 S. W. 2d 555, that prohibition should be granted. A careful examination of that opinion and of the transcript and briefs upon which the opinion was based discloses that the Bryant case was not predicated upon § 1394, Pope’s Digest. None, of the briefs contain any reference to it, and it is not certain that the provisions of this section of the statute would have applied if invoked, because the complaint alleged, and the testimony tended to show, that the truck company “makes with its trucks regular and special trips.” The act applies to a railroad company or to the owner of “a line of mail stages or other coaches” having definite lines of operation, and localizes cases against such operators to the counties through which they operate. Section 1 of act 70' of the acts of 1935, appearing as § 1377, Pope’s Digest, applies also to such operators, but, in addition, applies to all other operators of trucks, busses, etc., whether operating on fixed lines or not.
A re-examination of the briefs as well as the transcript in the Bryant case, supra, makes certain the fact that the plaintiff was not asserting any right to sue conferred by § 1394, Pope’s Digest. The truck company was sued as a foreign corporation without reference to that section, and it was attempted also to secure service by serving summons upon the driver of the truck, as shown by the sheriff’s return, as stated in that opinion. That opinion shows why service under § 1377, Pope’s Digest, was insufficient in that case, and also why service upon the designated agent in Poinsett county in a suit pending in White county was insufficient if the truck company was sued as a foreign corporation without reference to or relience upon § 1394, Pope’s Digest.
In the instant case the suit is expressly predicated upon § 1394, while the Bryant case was not. 'Such suits, that is, suits brought under the sanction of § 1394, must be brought “in any county through or into which the road or line,of stages or coaches of the defendant upon which the cause of action-arose passes.” The statute says “may be brought,” but these words were construed to be mandatory and to mean that tbe action “must be brought in one of the counties through or into which the railroad (or line of mail stages or other coaches) ran.” Spratley v. Louisiana & Ark. Ry. Co., 77 Ark. 412, 95 S. W. 776; Chicago, R. I. & P. Ry. Co. v. Jaber, 85 Ark. 232, 107 S. W. 1170.
Now, the cause of action here sued on is transitory in its nature, and might, ordinarily, be sued upon in any jurisdiction where service upon the tortfeasor could be had; but, if brought in this state, it is localized by § 1394, Pope’s Digest, and must be brought in a county through or into which the railroad or the stage or other coaches run. It appears, from the stipulation, that petitioner operates only through the counties of Mississippi and Crittenden in this state. So that, if this cause of action is brought in this state, under § 1394, it must be brought in one or .the other of the two counties, and not elsewhere, in the state.
The cause of action did not accrue or arise in this state. But, because of its transitory nature, the suit may be brought wherever proper service may be had upon the tortfeasor, and § 1394, Pope’s Digest, authorizes the suit to be brought in either Mississippi or Crittenden county. But how may service of process be obtained! Service was in fact had upon the petitioner’s agent designated for service in Pulaski county. Was it sufficient! The answer to this question is determinative of the petitioner’s right to prohibition.
It is urged that to hold the service sufficient is to offend against the law as declared by the Supreme Court of the United States in the case of Power Mfg. Co. v. Saunders, 274 U. S. 490, 47 S. Ct. 678, 71 L. ed. 1165. But § 1394 makes no distinction between corporations, whether foreign or domestic, and citizens of the state or of some other state. The act applies equally and alike to corporations, whether foreign or domestic, and to all other owners of such lines, whether corporate or individual. But proper service must be had in any and all cases.
Section 1394 is a venue statute, and we must look to other sections of the statute to determine how service may be had in a particular case. Under § 1394 all tortfeasors, to whom the provisions of the act apply, whether foreign or domestic corporations, or individual. owners, may be required to answer in any of the counties in which the venue is fixed. There is no distinction or discrimination. Petitioner applied for and obtained permission as a foreign corporation to do business in this state, but, as a condition upon which that permission was granted, it was required to designate an agent upon whom process might be served in any cause of action maintainable in this state; and service was had upon that agent.
The questions of venue and of service are not to be confused and treated as identical. So that we must first determine whether the venue was properly laid, and as appears from what has already been said the venue could only be laid in Mississippi or Crittenden county, and the suit was brought in the first named county. The second question is was the service upon the designated agent sufficient? This agent did not reside and was not to be found in Mississippi county or Crittenden county, and the action could not have been brought in the county in which the agent resided and was served, because the statute fixes the venue in another county.
' It was held in the case of Pacific Mutual Life Ins. Co. v. Henry, 188 Ark. 262, 65 S. W. 2d 32, that service on a foreign insurance company’s general agent for service in Pulaski county was sufficient to give jurisdiction to the court in another county wherein the insurance company had a local agent.
In the case of St. Louis S. W. Ry. Co. v. Owings, Adm’x, 135 Ark. 56, 204 S. W. 1146, a, transitory suit was brought in St. Francis county, but as the railway company maintained no agent for service in that county, service was had upon the agent for service of the railway company in an adjoining county, and this service was held good.
The case of Yockey v. St. Louis-San Francisco Ry. Co., 183 Ark. 601, 37 S. W. 2d 694, was brought under § 1394, Pope’s Digest. There, a resident of Missouri sustained a personal injury through the operation of a train in that state to compensate which he brought suit in a county in this state through which the defendant railroad ran. It was held, after reviewing a number of our cases based upon § 1394, that the action was maintainable in this state where based on service upon an authorized agent of the railway company in this state.
We conclude, therefore, that the venue of this action was properly laid in Mississippi county through which petitioner’s line of trucks operate, and that service upon the agent designated to receive service was sufficient and proper.
The prayer for prohibition will, therefore, be denied. | [
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McHaney, J.
Appellants, other than the city of Morrilton are its mayor, recorder and chief of police. On October 9,1939, the city council passed and the mayor approved an ordinance, No. 454, levying an annual license fee or tax of $50 on all moving’ picture shows operating in the city three nig’hts per week or less, and $100 on all those so operating more than three nights per week, and an additional annual tax of 40 cents per chair on all chairs in excess of 300 with which any theatre is seated. On March 11, 1940, ordinance No. 458 was enacted which amended ordinance No. 454 by re-enacting its licensing’ and taxing provisions, and added the additional provision, prohibiting the issuance of a license to any person, firm or corporation “to operate more than one moving picture show within the corporate limits of the city,” and making it unlawful for any such person, firm or corporation “to operate or be interested in the operation of more than one moving picture show within the city limits,” etc. A fine of not less than $10 nor more than $50 per day is imposed for violations. An emergency is declared in § 2, that: “This ordinance being in the interest of fair competition and for the purpose of keeping down monopolies.”
Appellee brought this action against appellants to enjoin the enforcement of said ordinances. The complaint alleged that it is and has been the owner and operator of the Rialto Theatre in said city for some 12 or 13 years, and that it has expended for improvements and equipment for same some $15,000; that it has purchased a lot in the city for the purpose of constructing a theatre thereon for use by it; that ordinance No. 454 “is void and unenforceable for the reason that the license fee provided therein is unreasonable, inequitable and discriminates between persons or corporations pursuing the same occupation and for the further reason that said license fee is based on income”; that ordinance No. 458 is unreasonable and void in prohibiting the licensing and operating of more than one picture show in the city, in that it is unconstitutional; and that its enactment is not within the purview of the powers of the municipality.
To this complaint appellants demurred and also filed an answer, but they elected to stand on their demurrer, and the answer was evidently abandoned. The decree recites that the cause was submitted to the court on the complaint and exhibits, “and the demurrer of defendants, and the court after having heard the argument of counsel — doth overrule said demurrer, whereupon defendants refuse to further plead and elected to stand upon their demurrer, thus admitting the allegations of plaintiff’s bill.” A decree was entered in accordance with the prayer of the complaint. Hence this appeal.
A great portion of the brief of appellants is devoted to a discussion or recitation of matters alleged in its answer, which was abandoned by them, not submitted to the trial court, and, therefore, has no place in this record, but is extraneous thereto. The complaint alleged that the licensing and taxing provisions of said ordinances are unreasonable, inequitable and discriminatory. It appears to us that this is a question of fact, admitted by the demurrer. • Of course the city council has the right to regulate, license, tax, or to prohibit, under certain conditions, moving picture shows. See §§ 9589 and 9601, Pope’s Digest. But the business of operating moving picture shows is a lawful business and it may not be suppressed or unreasonably burdened by license fees and taxes which are unreasonably high or discriminatory. As we understand it, appellee does not complain of the $100 annual license fee, but it does contend that the so-called tax of 40 cents per chair for chairs in excess of 300 is unreasonable, inequitable and discriminatory. Whether it is, is a question of fact admitted by the demurrer, which the court properly overruled as to the tax. While this is true, we think it proper to say we will not feel bound by the principle of res adjudicate in another proceeding* to collect or enforce a proper tax or license fee, even of those provided by these ordinances, where a showing is made that the tax or license is not unreasonable and discriminatory.
We are also of the opinion that the power of the city council extended only to the right to regulate reasonably and did not include the power to prohibit appellee, or others, from operating more than ope picture show. The power to thus prohibit has not been conferred upon municipalities. For general principles see North Little Rock v. Rose, 136 Ark. 298, 206 S. W. 449; Replogle v. Little Rock, 166 Ark. 617, 267 S. W. 353, 36 A. L. R. 1333; Balesh v. Hot Springs, 173 Ark. 661, 293 S. W. 14; Ark. R. R. Com. v. Castetter, 180 Ark. 770, 22 S. W. 2d 993, 68 A. L. R. 1018.
In 62 O. J., p. 847, it is said: “The power to regulate moving* picture shows must be exercised reasonably and not capriciously or arbitrarily, and in passing on the reasonableness of an ordinance regulating the operation of moving picture shows, the court may consider what the effect of an ordinance would be when its provisions are given practical application; but after the building has been authorized and the owner has incurred expense in constructing it, the city has power only to regulate and not prohibit its use for moving picture purposes.”
With the limitation herein expressed, the decree will be affirmed. | [
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Gbeenhaw, J.
The H. Rouw Company filed suit against the .appellant in the Crawford circuit court to recover $2,676.92, alleged damages on seven separate shipments of strawberries in carload lots. During the trial the other appellees, the Bald Knob Strawberry Growers’ Association, the Russell Strawberry Growers’ Association, and the Ward Strawberry Growers’ Association, were joined as parties plaintiff. These cars were shipped from Bald Knob, Rnssell and Ward, Arkansas, in the White county strawberry district, to St. Louis, Missouri, from which point they were diverted on instructions of the H. Rouw Company to Kansas City, Missouri. Only five of these cars are involved in this appeal. Pour of them Avere sold and delivered in Kansas City, and one was again diverted at Kansas City and sent to Sioux City, Iowa, where it was sold to a Sioux Palls, South Dakota, concern through its Sioux City representatives. These shipments were all made during the last few days of April and the first few days of May, 1938. The complaint contains seven separate causes of action, joined in separate counts. The jury returned a verdict in favor of the appellant on count No. 5, and appellees took a non-suit on count No. 7. The jury returned verdicts in favor of the appellees on counts No. 1, 2, 3, 4 and 6 for a total of $1,133, upon which judgments were entered and from which is this appeal.
All counts in the complaint Avere based upon practically the same grounds for a recovery. In count No. 1 it was. alleged: “That at Bald Knob, Arkansas, on or about May 5, 1938, the plaintiff, H. Rouav Company, delivered to the defendant 420 24-qnart crates of strawberries, the property of the plaintiff, being then and there all in first class, prime merchantable order and shipping-condition, loaded and contained in ART car No. 23012, 'and the defendant, in its capacity as common carrier of freight and merchandise for hire, then and there received and accepted said strawberries for transportation, and issued and delivered to the plaintiff its original straight bill of lading- contract, and for a valuable consideration thereafter to be paid, it agreed to carry and transport said strawberries under the provisions of said contract and its duty as a common carrier of freight and merchandise for hire from Bald Knob, Arkansas, to St. Louis, Missouri; that the plaintiff instructed the defendant to divert said car of strawberries from S’t. Louis to Kansas City, Missouri, and that said diversion was made under the provisions of the original bill of lading- contract, the published tariffs, rules, regulations and classifications then in effect.” A copy of the bill of lading was attached as an exhibit and made a part of the complaint. Plaintiff further alleged that the defendant and its connecting common carriers allowed and permitted the strawberries, while in its possession, to become wet, rotten, nested, moulded, and otherwise deteriorated, thereby depreciating and deteriorating the value thereof, all to the plaintiff’s damage in the sum of $426.
In the succeeding counts it was alleged: ‘ ‘ For plaintiff’s second and further cause of action it refers to the first cause of action and makes each and every allegation in paragraph one a part of this, its second cause of action, and in addition thereto alleges . . .” The other allegations were practically the same as in count No. 1, except as to the car number, the origin of the berries, and the date of the bill of lading. The defendant filed an answer denying each and every material allegation in the complaint, and further answering said that the seven separate shipments upon which the seven separate causes of action were based consisted of perishable products, and that the depreciation in value, if any, was a result of the carelessness and negligence of the plaintiff and its agents in the gathering and loading of said strawberries, and in its delay in disposing of them subsequent to such loading, or was the result of such defects as were inherent in the type and quality of the strawberries in question and for which, under the terms of the contract of shipment, the defendant was not liable. Paragraph (b), § 1, of the bill of lading provided:
“No carrier or party in possession of all or any of the property herein described shall be liable for any loss thereon, or damage thereto, or delay caused by . . . the act or default of the shipper or owner, or for natural shrinkage . . . The carrier or party in possession shall not be liable for loss, damage or delay occurring while the property is stopped and held in transit upon the request of the shipper, owner, or party entitled to make such .request, or resulting from a defect or vice in the property.”
The above provision in the contract was specially pleaded as a bar to plaintiff’s right of recovery herein to each of the seven separate shipments constituting’ the seven separate counts in its complaint. The bill of lading further provides in § 2 (a) :
“No carrier is bound to transport said property by any particular train or vessel, or in time for any particular market or otherwise than with reasonable dispatch. . .
The evidence in this case shows that North Little Rock, Arkansas, is a concentration point for refrigerator cars, and in this case all of the refrigerator cars used in the shipment in each count in this case were comparatively new cars. One of these cars was constructed in November, 1936, and the rest in December, 1936. The evidence showed that the cars involved were all ART cars of approved refrigeration type, and are what are termed all-steel refrigerator cars. Each car had a bunker in each end, the dimensions of each bunker being three feet wide, eight feet long, and six and one-half feet deep, the capacity of each bunker being 5,000 pounds of ice. At the time each of these cars was ordered by the appellees it was thoroughly inspected, both inside and outside of the car, including the drain pipes, at North Little Rock, by an experienced inspector. Before sending these cars to the White county strawberry district to be loaded with strawberries, both bunkers of each car were filled to capacity with 10,000 pounds of ice. The evidence showed they were in good condition, and were pre-cooled in order to reduce the temperature of the berries by eliminating field heat. During the time these cars were at Bald Knob, Russell and Ward for loading purposes, the bunkers were re-examined and replenished with ice to capacity. There were regular icing points en route. After leaving the point of origin the cars were examined and re-iced at Poplar Bluff, Missouri. Upon receipt in St. Louis they were again examined and re-iced. Upon their arrival in Kansas City those that needed it were again re-ieed; in fact, part of the cars, on account of delay in unloading, were iced more than one time in Kansas City. All of the cars except the one in count No. 2, as heretofore stated, were unloaded in Kansas City.- The one in eonnt No. 2 was diverted to Sioux City, Iowa. Another regular icing point en route is at St. Joseph, Missouri, where this particular car was again re-iced. It was also re-iced at Sioux City, Iowa. There was no evidence showing that the proper temperature was not maintained in these refrigerator cars, and there was no evidence that any of the ■cars were defective or that the refrigeration equipment was not properly working. According to the evidence, a melting process is necessary in order to create proper "refrigeration, and at each regular icing place en route the appellant’s agents and employees gave these particular cars proper inspection and attention. These cars moved with reasonable dispatch after they had been^ loaded and turned over to the carrier for shipment.
The appellant contends that the appellees were seeking to recover from the appellant under their contractual liability. The appellees, on the other hand, dispute this contention, and say that their suit is based upon the common-law liability of the carrier. As we view the evidence in this case, it is immaterial whether the action is based upon contract or in tort. If the contractual liability is the ground for recovery in this case, we think the appellees have failed to show by substantial evidence that the appellant violated its contract in any of these counts. Assuming, but not deciding, that this action is based in tort, upon the common-law liability of the carrier, we find that the appellant in each of these counts has overcome the prima facie showing of liability placed upon it by effective, convincing evidence showing every step in the inspection, cooling, icing and handling of these respective cars of strawberries from the time the cars were first inspected and iced in North Little Rock preparatory for delivery to the point of origin for the loading of the berries, on through to the ultimate destination and delivery of these cars of berries to the consignee. The law of this subject was announced in the case of Railway Express Agency, Inc., v. H. Rouw Co., 197 Ark. 1142, 127 S. W. 2d 251, where the law was reviewed at some length, and also in the case of Railway Express Agency, Inc., v. H. Rouw Co., 198 Ark. 423, 128 S. W. 2d 989. These cases are controlling here, as there is no essential distinction between them and the case under consideration. Each of these cases cites the case of Railway Express Agency, Inc., v. S. L. Robinson & Co., 184 Ark. 660, 43 S. W. 2d 543, in which this court said:
“We are of the opinion that the prima facie case so made by appellee, which raised a presumption of negligence against the carrier, was completely overcome by-the evidence introduced by the latter. The evidence introduced by the carrier to overcome the prima facie case for negligence against it is very voluminous and’ cannot be set out in detail within the compass of this opinion. We have carefully considered it, however, and shall attempt to set out the substance of it.
“The carrier did not content itself with introducing witnesses as to the general condition of the shipment of strawberries while in its hands, but introduced all persons employed by it who had part in the different transactions during transit. We do not mean that all the operatives of the train were introduced as witnesses, but we do mean that the carrier followed the shipment step by step from the place of shipment to the place of delivery. It was shown by competent evidence that a refrigerator car of the most approved type was furnished the shipper within which to carry the berries. The condition of the car and its material, both as to its equipment and construction, were detailed by the witnesses. It was shown that the carrier had a sufficient number of stations along the route for re-icing the car and that the car was properly inspected and well iced at all these stations.”
The same or similar proof was made in the instant case by numerous witnesses. Attached to the brief is a table giving a complete history of each car involved in the appeal in this case,- from its point of origin to its destination, showing the time of the first icing, the time each car was loaded and delivered to the carrier, the time of each re-icing and the place thereof, the condition of the ice in the bunkers in each car at each of said points, and the amount of ice added at each place en route and at destination. Considerable time was used in loading some of these cars, and after they arrived at their destination there was apparently considerable time used in unloading at least a part of them. The unloading of the car in count No. 1, having begun on the morning of May 7, was completed on the morning of May 10. Of course the appellant would not be responsible for any damage to the strawberries which might have occurred in the' loading* or unloading process. Perishable Tariff No. 9, IOC No. 9 of the National Perishable Freight Committee, in force at the time, was identified and introduced in evidence. It provides:
Rule 65. “No carrier is bound' to transport the property by any particular train or vessel, or in time for any particular market or otherwise than with reasonable dispatch. Agents are not authorized to sign any bill of lading containing* a guarantee to deliver goods at any specified time.”
Rule 130. “Carriers furnishing protective service as provided herein, do not undertake to overcome the inherent tendency of perishable goods to deteriorate or decay, but merely to retard such deterioration or decay in so far as may be accomplished by reasonable protective service of the kind and extent requested by the shippers performed without negligence.”
Rule 135. “. . . the duty of the carrier is to furnish without negligence reasonable protective service of the kind and extent so directed or elected by the shipper and carriers are not liable for any loss or damage that may occur because of the acts of the shipper, or because the directions of the shipper were incomplete, inadequate or ill-conceived.”
Rule 225 (b). “After arrival of car in the Terminal train yard serving the destination and up to the time car is in process of unloading on team tracks, or, until lock or seal has been applied to the car by the consignee, or until car has been placed on private or assigned siding, carrier will, except as provided in paragraph (c) examine bunkers or tanks daily, and when such car requires additional ice during* such period, it will be re-iced to capacity. After the unloading on team tracks has commenced, or after car has been placed under private lock or seal by consignee, additional re-icing will be furnished only on written instructions from the shipper, owner, or consignee.”
Rule 215 (b). “Carriers are not obligated to re-ice cars at loading stations nor at any point between loading stations and first re-icing station. . . .”
It would unduly extend this opinion to quote at length from the 197th Arkansas and the 198th Arkansas, supra. These cases settle the law applicable here. As was stated in the 198th Arkansas, supra, ‘ ‘ The question is whether the carrier’s negligence caused the damage to the strawberries. The shipper makes a prima facie case when he shows that sound berries were delivered for shipment, and that the berries were in a damaged condition upon arrival at their destination. But the carrier is not an insurer against such damage, and it discharges its liability therefor when, and if, it shows that ordinary care was employed by it in the shipment.”
The evidence showed that in every car some of the cups of strawberries were filled too full and the berries were thereby mashed and damaged to some extent. There was also evidence that some of the berries were damaged from diseases inherent in strawberries. The carrier, of course, would not be responsible for these conditions. We fail to find from substantial evidence that the damaged condition of the strawberries in question was brought about or aggravated by any negligence on the part of the carrier. As stated above, it was shown by competent evidence that the carrier followed each of these shipments step by step, from the place of shipment to the place of delivery, showing that these cars were properly handled, inspected and iced, as was done in each of the cases cited above. Therefore, if the damages sought were in tort, the appellant has overcome the prima facie case of negligence. The appellees have not shown by substantial evidence that appellant violated its contract in the handling and transportation of said cars of strawberries. Hence, upon either theory, the appellant was entitled to an instructed verdict in its favor on each count.
The judgments are, therefore, reversed, and, as the causes of action appear to have been fully developed, they will be dismissed. | [
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S. M. Casey, Special Justice.
The appellant, George A. Hurst, has appealed from a judgment of the Washington county circuit court, rendered on May 24, 1940, finding him guilty of gross, unprofessional and unethical conduct as an attorney at law, and canceling his license to practice law in the courts of this state, and barring him from engaging in the practice of law in this state. This order was effective on the 31st day of May, 1940.
The charge of which he was found guilty was the withholding of funds from a client who was entitled to them.
The present proceeding was begun by filing in the circuit court a complaint by the Bar Rules Committee and the prosecuting attorney of that district. In the complaint it was alleged that appellant and one Kelsey Norman, a practicing attorney of Joplin, Missouri, were employed by one Dora Keen in her capacity as guardian of her two minor children by a former marriage, Clarence Perryman and William Perryman, to bring a suit against the J. H. Phipps Lumber Company in the circuit court of Washington county to recover damages for personal injuries sustained by said minors in or about the plant of said lumber company; that the terms of the agreement made with said attorneys were that they should receive a fee for their services of one-half of all sums recovered, and that it was further understood and agreed by said attorneys, as between themselves, that they should share equally in such fee or compensation. An action was brought by said attorneys against the lumber company which resulted in a verdict and judgment in favor of the guardian, Mrs. Keen, in the sum of $1,000; that later said judgment and interest, in the sum of $1,030 with the costs of the suit, ivas paid into the office of the clerk of the circuit court, in October, 1937 — the date alleged in the complaint was October 19, but the evidence shows it was paid October 9; that after the judgment was rendered and before it was paid into court, Kelsey Norman elected to .waive all claim that he had against the recovery for his services, and to donate the same to said guardian for the benefit of said minors, and thereupon, on August 10, 1937, he did execute an assignment for his share of the recovery to Dora Keen, and said assignment being in the form of a letter addressed and mailed by him to her a.t her place of residence, and by a similar letter or notice mailed on'the same day to appellant, George A. Hurst, at Fayetteville, Arkansas; that notwithstanding said assignment by Kelsey Norman and notice given to George A. Hurst, Hurst did on, or about the 15th of April, 1938, collect and receive from the clerk of the circuit court of Washington county the full sum of $515, being one-half of the judgment and interest, and did appropriate the whole thereof to his own use, and has refused to pay to the said Dora Keen, as guardian, the sum of $257.50 so donated and assigned to her by the said Kelsey Norman, although such payment had been requested by both Dora Keen and Kelsey Norman; that the Bar Buies Committee, after a full hearing of said matters, including a state ment by defendant Hurst, as to Ms reasons for withholding and appropriating said funds, did find that said alleged reasons furnish no reasonable justification or excuse for such conduct on his part.
To this complaint the defendant made express denial, and objected to the jurisdiction of the court, because he alleged that the court had adjourned at the regular October, 1939, session to a day in advance of the day it elected to try defendant, and hence could not legally convene prior to that day.
The record is somewhat confusing as to just when and how this case was finally tried. The judgment entered recited at the beginning that it came on to be heard on the 2d day of April, and the docket entries show that the hearing was had on that day, and on April 2, the case was set down for fixing punishment April 16. Then, on April 16, the docket entry shows the defendant filed a motion to continue for further hearing, and this motion was granted. The file mark on this motion, according to the transcript, is May 24.
This last motion was granted, and after several short adjournments the case was taken up May 24, and further evidence was taken, beginning on page 135, and continuing to page 252 of the transcript, or more than was taken at the first hearing, April 2. The court denied the motion for new trial, and judgment was entered, as heretofore noted.
Defendant then filed another motion for new trial, on June 20, which was overruled, and from which this appeal is taken.
Defendant objected strenuously to the trial of this cause on April 2, for the reason that, as he claimed, the record showed that the court had adjourned to April 21. A considerable hearing was had on this matter later, and a nunc pro tunc order entered, and this was brought into record after the appeal was filed, through a writ of certiorari. Much argument is made by the appellant, and much testimony was taken regarding this apparent lapse in the term, but, as we view it from a fair consideration of the evidence of the trial judge and the clerk, the court was adjourned from January 15 to April 2, and while the docket entry apparently showed April 21, this was explained by the judge that this was caused by misreading his writing, and that a comma, which had been made long, had been mistaken for a figure one.
In view of the well-known fact that lawyers as a rule are noted for their bad writing, and we presume that judges would not be exempt from this charge, we think this a reasonable explanation, and since it further appears from the whole record that the appellant was given a full hearing, and allowed to introduce all of his evidence before the final judgment was rendered, or at least before the motion for rehearing was finally determined, this was not prejudicial to his rights.
It would be unfortunate if after all the time, efforts, and expense incurred in this trial by both parties, it should be determined or cast out of court because of a technicality such*as this, especially, as we say, since it was shown that the defendant was allowed a full and complete hearing.
We might observe here before passing to the merits of the case, that much of this evidence was irrelevant and incompetent, some admittedly so, but we have read it all, and as this appeal comes on ele novo, this court considers only such evidence as is competent, yet we haye given appellant the benefit of the doubt, and have considered all of it that he introduced, and disregarded that that was introduced over his objections where it was apparently incompetent.
No useful purpose would be served, and it would extend this opinion unduly to abstract all of it, but 'we have read it carefully and will refer to such portions of it as may be necessary.
Coming now to the merits of the case, it is clear that the decision must depend or rest upon the good faith of the appellant in his claim that the reason that he did not pay the $257.50, which was Norman’s one-half of the fee in the case of Dora Keen, guardian of her minor children, v. Phipps Lumber Company, was that Norman owed him an amount equal to, or in excess of this sum. The fact that Mrs. Keen received only $41.50 as her part after paying the doctors, hospital and nurses fees for her chil dren did not seem to weigh with, or influence appellant as it did the witness Norman, and appellant had no compunctions or qualms of conscience on this score, but justified his conduct in taking the full fee somewhat after the fashion of another in a famous trial, “because it was nominated in the bond,” that is, because his contract called for it.
The argument that the contract with the Keens was made in appellant’s name, and before Norman was called into the case, as we view it, is not material, because he admits that Norman was entitled to one-half of this fee, and it is not denied that Norman participated in the trial of the case.
Now, after the judgment was rendered, but before it was paid, Norman testified that he wrote a letter to appellant, on August 10, 1937, copy of which appears in the record, in which he advised against .an appeal in the cause, and in that letter he said to appellant that in view of the very small verdict rendered, he did not personally feel like accepting any part of the fee, and that his portion of the fee could be turned over to Mrs. Keen, and stated in this letter that he had so written Mrs. Keen.
There is also a copy of the letter that he claimed to have written Mrs. Keen on the same date, August 10,1937, in which he confirms his letter to appellant, and stated that he did not intend to participate in an appeal of the case, and that he was donating to her his share of the fee, and if the case was settled that she could have Mr. Hurst turn over to her his share of the fee.
Mrs. Keen testified that she received the letter that Norman said he wrote her, but that she had lost it, and that she never showed it to any one.
Mr. Norman is corroborated by his stenographer, who read from her notes, that she had taken such letter by dictation and had transcribed it, though she had no personal knowledge that same had been mailed.
Appellant’s contention is that this letter of Norman was written after he had written Norman a letter on July 12, in which he claimed that Norman owed him for some fees' growing out of the relations between Norman and another attorney and himself, and his theory of the ease is that Norman decided to prevent appellant from collecting the amount that he claimed Norman owed him out of this- fee in the Keen case, and had assigned his (Norman’s) interest to the Keens for that purpose.
Norman testified that he did not receive the letter which appellant wrote him, dated July 12, 1937, enclosing the check in the Demo case, for $164.84, until August 12, or 30 days after the date of the letter, and two days after the date of his letter of August 10, that he had written appellant and Mrs. Keen assigning to her his interest in the fee.
Norman is corroborated in this by the check which was introduced, dated July 12, and shown deposited in the bank at Joplin, Missouri, where it was drawn by appellant, and which was marked paid in stencil by the bank, August 12, 1937.
In view of the well-known financial condition of lawyers, as a rule, and their pressing need of any fees that might come to them (and the record here does not disclose that these attorneys were an exception to the rule in this respect) we think it improbable, to say the least, that Norman would have held this check dated July 12, for 30 days before depositing it. Norman said he had written appellant on July 20, and asked him about this fee in the Demo case, and introduced a copy of this letter, and he says it was after July 20, or on August 12, that he received this letter from appellant dated July 12. There is no reason shown why this letter, if written July 12, should not have been received by Norman within two or three days, or at least before July 20, when he wrote appellant requesting payment of this fee in the Demo case. Appellant denied getting the letter of July 20, and also denied getting the letter that Norman said'he wrote and mailed to him on August 10, stating that he had assigned his part of the fee to Mrs. Keen.
We think, however, that the evidence corroborates the theory that appellant did receive the letter that Norman wrote him on August 10, and copy of letter he wrote Mrs. Keen on the same date, assigning her his interest in this fee and that appellant then formed the purpose and intention to claipa that Norman owed him some fees, and on account of that he would have the right to take this whole fee in the Keen case, which he later did, although he waited from October 9,1937, until April 8,1938, nearly six months before he took this money from the clerk, a fact of some significance for the same reason as noted above in referring to improbability that Norman would have held the Demo check for 30 days before cashing it.
A fair consideration of the claim of appellant that Norman owed him fees growing out of the relations between them and a third lawyer, Mikel of Ft. Smith, who testified in the case, and denied appellant’s claim, does not show that appellant had any definite or valid claim for unpaid fees against Norman. The evidence of this, without detailing it, is very meager and unsatisfactory.
There was, as we have said, a great deal of evidence introduced that was incompetent, especially the correspondence between appellant and the witness, Norman, some of which shows a rather sordid situation and condition existing there at that’ time, growing out of personal injury suits, and suits for damages, ranging all the way from suggestions as to election of judges, who might try these cases, and other matters, that, to say the least, did not reflect great credit or contribute to the administration of justice.
In one of the letters introduced by appellant, which he received from Norman, Norman gives his reasons as to why he had settled the Tosh case, thus: “This unfortunate settlement was induced by two compelling reasons, to-wit: Tosh was unable to get any witnesses to prove his case, and he had gone back to work,” either of which we should say was sufficient.
The Law of the Case
This court in several cases prior to the adoption of Amendment No. 28 and the promulgation of rules by this court under the authority of this amendment has sustained the power to disbar an attorney as inherent in all courts to protect the courts and the public, as well as to maintain the honor of the profession, from the early case of Beene v. State, 22 Ark. 149, to Maloney v. State, 182 Ark. 510, 32 S. W. 2d 423.
In the Maloney case, as well as in the Beene case, this court quoted with approval the language of Chief Justice Marshall in the celebrated case relating to the disbarment of Aaron Burr, 9 Wheaton 529, 6 L. Ed. 152.
Without quoting that language again in full, the principle announced was that the profession of an attorney is of great importance to him as an individual, and the prosperity of his whole life might depend on its exercise, and the right to exercise it ought not to be lightly or capriciously taken from him. On the other hand, it is important that the respectability of the bar be maintained, and that its harmony with the bench should be preserved,- and that while the discretion of the court in the first instance should be exercised with great moderation and judgment, yet it must be exercised, and no other tribunal can decide in a case of removal from the bar, with the same means of information as the court itself, and hence a revising, or appellate tribunal will always feel the delicacy of interposing its authority as against the lower court, and will do so only in a plain case.
Now, since the adoption of the rules by this court, and the appointment of the Bar Rules Committee to act under these rules, it becomes the duty of the Bar Rules Committee “to make investigation of all complaints of . professional misconduct that might be brought to its attention, in the form of an affidavit, or in response to any information which any member of the committee may have.” They are required to give the accused attorney an opportunity to explain or refute the charge, and after a hearing, if they think the facts warrant it, it is their duty to cause a complaint to be filed in the court against the attorney, who, after reasonable notice, not less than 20 days, is entitled to a trial before the circuit judge or chancellor. This throws an additional protection around the attorney and thus before he is convicted, he has had the opportunity of a hearing before two tribunals.
Therefore, it seems to us that, in view of the present rules and procedure relating to disbarment, this court on appeal should give even greater weight to the findings of the lower tribunal than was held proper in the cases we have referred to above.
Also the trial court has the added opportunity of observing the demeanor and conduct of the witnesses while testifying*, a fact of great importance in determining the truth in any' given case. Indeed this is always recognized by appellate courts, and is one of the reasons why great weight is given by appellate courts to the findings, of a jury, as well as a court or judge sitting as a jury, where oral testimony is heard.
Trial courts in instructing juries always tell them that they have a right to observe the demeanor and conduct of the witness on the stand in testing his credibility. It is impossible in looking at the written pages to form as correct a conclusion as to the truth or falsity of evidence in a case, where the testimony is in sharp dispute, as where the witness can be seen and heard.
Again it has been held by this court that proceedings for disbarment of an attorney are not criminal but civil in their nature, and as such are governed by the rules applicable to all civil actions, and hence it is required that-the material allegations in such cases be established only by a preponderance of the evidence, and not beyond a reasonable doubt. Wernimont v. State, 101 Ark. 210, 142 S. W. 194, Ann. Cas. 1913D, 1156; Maloney v. State, supra. Of course, if there was evidence of prejudice or feeling shown against a defendant, this court should consider that in passing on the appeal, but in this case the record shows that the trial judge was patient and considerate and that he permitted the defendant to introduce all evidence that he apparently had, and at no time showed any partiality or feeling as we view the record.
It is probably not necessary to say that it is a delicate and not a pleasant duty for the courts to pass upon the conduct of a member of the legal profession. It is made more unpleasant because of the fact that often others than the defendant are greatly embarrassed and suffer much thereby, but this should not weigh or press against the duty of the court in these cases to pronounce such judgment as they believe the facts and law warrant.
However, after mature deliberation, and with the full sense of our responsibility and delicacy, in reviewing the action of the lower court, we are of the opinion that the judgment of disbarment should be modified subject to the following condition: It was not shown that the defendant was guilty of unprofessional conduct of a continuing character, but he was found guilty only of a single offense. The office of an attorney is his property. It is the capital from which his income is derived, and we believe that the ends of justice and the atonement of appellant for the offense committed will be attained by his suspension from the practice of the law for a period of one year from the date that this judgment becomes final in this court, provided, however, that this modification of the judgment of the lower court is subject to the further condition that .appellant will pay to Mrs. Keen, as guardian of her children, the sum of $257.50, the amount of the fee that Norman directed be paid to ber.
"With this modification the judgment is affirmed.
Gtreenhaw, J., disqualified and not participating; Smith, Humphreys and Meharry, JJ., dissent. | [
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Holt, J.
J. B. Goforth died February 8, 1938, leaving the following will (formal parts omitted):
“First, I hereby nominate, constitute and appoint my beloved son, Walter Goforth, to be the Executor of this my last will and testament, without bond, directing my said executor to pay all my just debts and funeral expenses as speedily as possible.
“Second, I devise and bequeath to my son, Walter Goforth, all of the farm now belonging to me, known as the Goforth farm north of the center of the Illinois River, and all that part of said farm on the south side of said Illinois River lying upon the west side of the highway running from Siloam Springs through Lake Francis Park to Cincinnati to his use and for his life only and at his death all of said real property I bequeath to Loren Goforth, son of Walter Goforth.
“Third, I bequeath to my beloved son, Walter Go-forth, all of my personal property of whatsoever kind and wheresoever situated left by me at my death.
“Fourth, I further bequeath to my beloved son, Pryor Goforth, all of the farm known as the Goforth farm hereinbefore described on the Illinois River lying-south of the river and east of the highway to my son, Pryor Goforth.
“Fifth, It is my will and I further bequeath the real property consisting of five acres on South Washington Street where Washington Street joins the highway from Siloam Springs to Lake Francis Park jointly to my sons, Walter Goforth and Pryor Goforth.
"Sixth, It is my will and my executor is authorized to 'sell and dispose of the five-acre tract on South Mount Olive Street, the property lying on the west side of the highway to Lake Francis Park and divide the proceeds therefrom equally among the following named persons: Hattie Nokes, my daughter; Ruth Nokes, granddaughter; Marie Smith, granddaughter; Raymond McCarty, grandson; Louella Crittenden, granddaughter; Perry McCarty, grandson; Sam McCarty, grandson; and Imogene McCarty, granddaughter, share and share alike.
‘ ‘ Seventh,. I further declare and it is my will that in the event any legatee herein shall contest or bring my will into litigation then in that event said legatee shall receive only Five ($5.00) Dollars instead of what they have been bequeathed herein.
"Ninth, It is also my mil and I declare that my daughter, Hattie Nokes, and granddaughter, Ruth Nokes, and the other granddaughters and grandsons set out herein shall receive all the proceeds of the property on South Mount Olive Street without any expense to them, and my executor is charged with the duty of paying whatever expenses there is with reference to this property from other sources and no sums shall be deducted from their pro rata share in said property.”
Walter Goforth, after having qualified as executor, took charge of the estate and on May 29, 1940, filed his final report. In this report he accounts for personal property belonging to the estate, which he took into possession, amounting to a total of $2,287, and sought credit for a total of $1,056 to cover all debts and expenses of administration of the estate, with the exception of a small attorney’s fee which at that time remained unpaid. In this final report appellant also prayed:
“Under the will, all of the personal property of this estate goes to this executor and this executor asks the court to withhold this final order and discharge of the bondsmen until this court ascertains the amount yet to be paid for attorney’s fees and commission due this executor and until the said Pryor Goforth is required to pay into this court two-fifths of the amount of money this executor had paid on the debts of the estate, as set out above, together with two-thirds of the commission allowed this executor and his costs and attorney’s fees for the reason the property willed to the said Pryor Goforth amounts to approximately two-fifths of the value of the estate willed to this executor and Pryor Goforth.”
To this final report appellee demurred as follows: “Comes L. P. Goforth, otherwise known as Pryor Go-forth, and demurs to the final report of W. P. Goforth, as executor of the estate of J. B. Goforth, deceased, in so far as by said report, said executor seeks to charge L. P. Goforth with two-fifths of the amount of money said executor has paid on debts of the estate, as set out in said final report, together with two-thirds of the commissions allowed said executor, and his costs, and attorney’s fees, and prays the court to dismiss said claim and strike the same from said final report.”
Upon a hearing the trial court sustained the demurrer using this language: “And the court sustains the specific demurrer for the reason that as the court construes the will, Pryor Goforth is not required to contribute to the payment of debts and expenses of administration, for the reason that the personal property is more than sufficient to pay said debts and expenses, according to the report filed by Pryor Goforth.” Appellant elected to stand on his final report, which embraced this petition for contribution. Same was dismissed, and this appeal followed.
For reversal, appellant says: “We contend that the learned chancellor erred in sustaining the demurrer and that this case presents only two questions: First: The construction of the will. Second: Should Pryor Goforth be required to contribute to Walter Goforth for the personal property bequeathed to Walter taken to pay debts of the estate and expenses of administration?”
The rule of this court in the construction of wills is stated in Union Trust Company v. Madigan, 183 Ark. 158, 35 S. W. 2d 349, where it is said: ‘ ‘ The paramount principle in the construction of wills is that the general intention of the testator, if not in contravention of public policy or some rule of law, shall govern.”
And in Pearrow v. Vaden, 201 Ark. 1146, 1150, 148 S. W. 2d 320, we said: “The purpose of construction, in any and all cases, is to determine the intention of the testator, and that intention must be derived from the language employed in the will under construction. ’ ’
The parties here concede that the testator made specific bequests in the second, fourth, fifth, sixth and ninth sections of his will, but they disagree as to the effect of the bequest in the third section, appellant insisting that the bequest made under this section is also a specific one, and appellee that it is general in its effect. It is our view that the contention of appellee must be sustained.
The will directs the executor “to pay all my just debts and funeral expenses as speedily as possible.” While there is no direction to pay debts and expenses out of any particular property, the recipient of a specific devise is not required, under the law, to contribute to the payment of these items if there be sufficient personal property undisposed of, in the estate, to pay them. Such contribution could only be required of a devisee where the testator disposed of his entire estate by specific bequests without making any provision for the payment of his debts. The testator here left more than enough personal property with which to pay all debts and expenses of administration.
The rule is well settled that personal property must first be exhausted in the payment of debts and expenses of administration before real estate can be resorted to. In the case of Mayo v. Bank of Marvell, 188 Ark. 330, 65 S. W. 2d 549, this court said: ‘ ‘ This court has many times held that the administrator has no control of his decedent’s lands, nor the rents thereof, when not needed for the payment of debts. Stewart v. Smiley, 46 Ark. 373; Jones v. Jones, 107 Ark. 402, 155 S. W. 117, and many more recent cases.”
In the third section of the will the testator uses this language: “I bequeath to my beloved son, Walter Go-forth, all of my personal property of whatsoever kind and wheresoever situated left by me at my death. ’ ’ As we have said this is clearly a general legacy, or devise, and not a specific one, and in effect is the same as if the testator had used this language, “all the rest and residue of my personal property.”
The late Chief Justice Hart in the case of Holcomb, et al. v. Mullin, 167 Ark. 622, 268 S. W. 32, defines a specific legacy in these words: “A specific legacy or devise is a gift by will of a specific article or part of the testator ’s estate, which is identified and distinguished from all other parts of the same kind, and which may be satisfied only by the delivery of the particular thing. 28 R. C. L. 289, 291; Kenaday v. Sinnott, 179 U. S. 606, 21 S. Ct. 233, 45 L. Ed. 339.”
In 28 R. C. L. 290, the textwriter, on what is required to make a specific legacy, says: ‘ ‘ The hiere enumeration of property in a residuary clause of a will in general terms does not constitute the legacy or devise a specific one. There must be something in connection with the enumeration of property to show that the testator’s intention was to make the devise or legacy a specific one before the courts will so declare it.” And on page 297 we find this language: “The general rule is that an enumeration of specific articles in a residuary clause will not make the bequest specific as to such articles unless they are designated in such a way as to differentiate -them from the residue. A bequest of all of a man’s property is residuary and not a specific legacy, since its import is the same as expressed by the ■words, ‘ rest and residue ’. ’ ’
As indicated the testator in the will before us used the language, “all of my personal property,” which made the bequest a residuary and not a specific legacy, the import of the words being the same as if he had used
In Orr v. Griffith, et al., 188 Ark. 428, 65 S. W. 2d 556, this court said: “It is conceded by appellant that the construction as to the fifth paragraph of the wdll is correct, that the bequest there made is a specific one; but it is contended that the construction as to paragraph six is incorrect and that the bequests there made are likewise specific; and that the legatees mentioned in both paragraphs five and six should be required to bear pro rata the cost of administration and to pay pro rata the claims probated against tbe estate, in accordance with tbe rule announced in Holcomb v. Mullin, 167 Ark. 622, 268 S. W. 32. It will be noticed that the sixth paragraph of the will starts out by saying ‘of the balance of ray personal property consisting,’ enumerating certain stocks, bonds, deposits and insurance. It then continues ‘and all other real or personal property of which I may die seized,’ etc. This is undoubtedly a residuary clause. The ‘residue’ of an estate is that which remains after the payment of all costs, debts, and particular legacies.”
Appellant also contends that Pryor Goforth, appellee, should contribute his pro rata share of the debts and expenses of administration, which appellant paid out of the personal property bequeathed to him, under the provisions of §§ 14564 and ^14565 of Pope’s Digest. We think, however, that these sections can have no application here for the reason, as we have said, the testator left ample personal property to pay all debts and expenses of administration. In fact, he left more than enough personal property for this purpose.
Finding no error the decree is affirmed.
The Chief Justice and Justice Smith dissent. | [
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Humphreys, J.
Appellants brought this suit to compel C. G. Hall, Secretary of the State of Arkansas, to certify, transcribe and include House Bill No. 300 and House Bill No. 637 in the printed acts of the 53d General Assembly of the State .of Arkansas, alleging that the veto of the respective bills by the acting governor was and is void. The acting governor, the Honorable Willis B. Smith, was elected president pro tempore by the senate of which he was a member on the 25th day of January, 1941, and took his oath on the floor of the senate as president pro tempore of that body immediately after his election to that position and presided over the senate during the session whenever the duly elected Lieutenant Governor, the Honorable Bobert Bailey, was absent.
The house bills in question were delivered to the Secretary of State after the adjournment of the General Assembly sine die at noon on March 13, 1941.
These bills were properly passed by the senate and house, and on March 14, 1941, after being duly certified and correctly enrolled, said bills were delivered by the-Secretary of State to the Honorablé Homer M. Adkins, the duly elected, qualified and acting Governor of the State of Arkansas, for executive action and had not been acted upon by the Governor or Lieutenant Governor when the president pro tempore assumed the duties of acting Governor.
The Honorable Willis B. Smith, president of the senate pro tempore, was notified over telephone by both the Governor, Homer M. Adkins, and the Lieutenant Governor, Bobert Bailey, that they and each of them would be absent from the State of Arkansas on March 31, 1941, and April 1, 1941, and, at the time of the notification each of them requested him to act as Governor of the State of Arkansas on those dates or until the return of one of the other of them to the state.
Governor Homer M. Adkins left the state on the night of March 30,1941, for Washington, D. C., to attend to matters pertaining to refunding the bonded indebtedness of Arkansas and did not return until April 4, 1941.
Lieutenant Governor Robert Bailey did not appear at the Governor’s office in Little Rock, Arkansas, on March 31, 1941, and, in response to the request aforesaid the Honorable Willis B. Smith, president pro tempore of the state senate, appeared at the Governor’s office during the morning of March 31, 1941, after being advised by the Attorney General of the State of Arkansas that it was not necessary for him to take an additional oath in order to act as Governor. On that day he acted as Governor and was in full possession of the office, and performed all the duties called to his attention, imposed by law upon the regular Governor. In acting he used the Governor’s secretary and other clerical help in his office, all of whom recognized him as the acting Governor of the State. The record is silent as to where Lieutenant Governor Bailey was on that date except that it is shown that he spent the night of March 31, 1941, at his home in Russellville, Arkansas. On the morning of April 1, 1941, the acting Governor again entered upon the duties of the office, first telephoning to the Lieutenant Governor’s private office and ascertaining that he continued to be absent from the state. He was in the actual possession and control of such office, and of the records, equipment and appurtenances thereof during the entire day with the acquiescence of all the officials in the office and about two o’clock p. m., after dictating the veto messages and stating his objections to House Bill No. 300 and House Bill No. 637 and dictating notices thereof by proclamation, he signed same and attached them to the original bills and delivered them, through a regularly employed secretary in the office, to the office of the Secretary of State not later than 2:30 o’clock p. m. on that date. The message. of the veto of each bill and the proclamation thereof giving his reasons for vetoing them was attached to each bill and filed in the office of the secretary of state. The Secretary of State receipted for the original bills and the proclamations of the veto at the time they were returned •with objections and notices of proclamation. The vetoes and proclamations thereof were in the usual form and conformed to law.
The record reflects that the Lieutenant Governor was in Oklahoma on the forenoon of April 1, returning to Fort Smith about 11:25 o ’clock a. m. on that date, from which point he had gone to Oklahoma earlier in the forenoon; and that he returned to Oklahoma, crossing the state line about 12:50 or 12:55 o’clock p. m. on that date and stayed in- Oklahoma until about four o’clock p. m., at which time he came back into Arkansas and spent the night at his home in Russellville, Arkansas.
The veto of each of the bills by the acting Governor was sustained by the trial court and appellants’ complaint was dismissed over the objection and exception of appellants, from which an appeal has been duly prosecuted to this court.
Prior to the adoption of Amendment No. 6 to the Constitution of 1874 no provision had been made for the election of a Lieutenant Governor, and there had been controversies and some litigation in the state as to who should act as Governor in case the Governor should become disqualified or in his absence from the state. In order to avoid future controversies of this nature the legislature of 1913 proposed Amendment No. 6 to the Constitution of 1874, amending § 17 of art. Y of the Constitution of the State of Arkansas and submitted the same to the people to be voted upon at the general election September 14, 1914. The speaker of the house declared the amendment lost because it had not received a majority of the highest total vote cast in the election, but this court decided in Brickhouse v. Hill, 167 Ark. 513, 268 S. W. 865, decided February 16, 1925, that the initiative and referendum amendment of 1910 was declared to have amended this majoiity requirement so as to require only a majority of those voting on the question where submitted under the initiative and referendum. But on the 12th day of April, 192G, in Combs v. Gray, 170 Ark. 956, 281 S. W. 918, this amendment was declared in force, the court holding that the initiative and referendum of 1910 made no distinction as to how the amendments were submitted.
We deem it -unnecessary to quote the whole amendment because the issues involved on this appeal only require that we quote a part of it. We, therefore, quote a part of § 2, a part of § 4, and all of § 5 :
“Section 2. The executive power shall be vested in a Governor, who shall hold office for two years; a Lieutenant Governor shall be chosen at the same time and for the same term. . . .”
“Section 4. In case of the impeachment of the Governor or his removal from office, death, inability to discharge the powers and duties of the said office, resignation or absence from the state, the powers and duties of the office shall devolve upon the Lieutenant Governor for the residue of the term, or until the disability shall cease. ...”
“Section 5. The Lieutenant Governor shall possess the same qualifications of eligibility for the office as the Governor. He shall be President of the Senate, but shall have only a casting vote therein in case of a tie vote. If during a vacancy of the office of Governor, the Lieutenant Governor shall be impeached, displaced, resign, die or become incapable of performing the duties of his office or be absent from the state, the President of the Senate shall act as Governor until the vacancy be filled or the disability shall cease; and if the President of the Senate for any of the above causes shall become incapable of performing the duties pertaining to the office of Governor, the Speaker of the Assembly shall act as Governor until the vacancy be filled or the disability shall cease.”
Appellants contend and argue that the president pro tempore of the senate is without power and authority to veto bills passed by the general assembly though acting as Governor because they say the power rests to veto bills soley in the Governor. Such authority is conferred upon him by the Constitution of 1874, but not the sole power to do so since the adoption of Amendment No. 6 to the Constitution for it is plainly stated therein that in the absence of the Governor from the state, “the powers and duties of the office shall devolve upon the Lieutenant Governor of the state.” The amendment also plainly states that if the Lieutenant Governor is also absent from the state, “the President of the Senate shall act as the Governor. ’ ’
Our construction of Amendment No. 6 to the Constitution is that all the power and authority vested under the Constitution in the duly elected Governor of this state, in case of his absence from the state, devolves upon the Lieutenant Governor, and in case the Lieutenant Governor is also absent from the state all the duties, power and all authority of the Governor devolves upon the president pro tempore of the senate, and in case of his absence from the state all the duties, power and authority of the Governor devolve upon the Speaker of the assembly. We cannot agree, therefore, with learned counsel for appellants that the power to veto bills is exclusively in the Governor and, perhaps, in the Lieutenant Governor, and that only ministerial duties pertaining to the office of the Governor can be performed by the president pro tempore of the senate or Speaker of the assembly when acting as Governor. The amendment makes no such restriction upon the power or authority of either when acting-as Governor and the court should not read into the amendment such restrictions and limitations ufjon the power and authority conferred upon them. We think the devolvement of the office of Governor, under certain contingencies, is upon: first, the Lieutenant Governor; second, the president pro tempore of the senate; and third, the Speaker of the assembly and necessarily constitutes them cle jure officers when acting as Governor, and that their acts are just as effective and binding as the acts of the Governor himself.
Appellants also contend and argue that the veto of the bills in question is void because the president pro tempore of the senate did not take an additional oath before entering upon his duties as acting Governor and file same in the office of the Secretary of State. The record shows that he took an oath on the floor of the senate to perform his duties as president pro tempore immediately after being elected to that position. His duties embraced the duty to act as Governor in case of the absence of the Governor from the state. Having taken the oath once to perform his duties when acting as Gov ernor it was unnecessary to take another oath to perform such duty. If the argument of appellants is sound in this respect it follows that he should take an additional oath every time he might be called upon to act as Governor during the two-year term of the Governor. The one oath to support the Constitution of the United States, the Constitution of the State of Arkansas and to perform all his duties as president pro tempore of the senate bound his conscience as completely to perform his duties as many oaths would have done. The amendment under which he acted made no requirement for additional oaths.
Appellants also contend and argue that the veto of each of the bills is void because no written proclamation of the intended absence of the Governor and Lieutenant Governor was made and filed in the office of the Secretary of State to the effect that either or both of them would be absent from the state on March 31, 1941, and April 1, 1941. No such proclamation is required by Amendment No. 6 to the Constitution of 1874, nor by the constitution itself, and no such proclamation has ever been filed by any Governor of the state so far as a search of the records in the office of the Secretary of State discloses. After acquiescing in the sufficiency of an oral notification during the entire history of the state by the Governor to one entitled to act during his absence it would be almost revolutionary to declare the law to be that a written proclamation filed in the Secretary of State’s office is a necessary requisite to the validity of the acts of an acting’ Governor.
Appellants also insist and argue-that absence from the state as used in the amendment means a longer time than a part of a day or a few hours. It is our view that “absence from the state” as used in the amendment means out of the state for any period of time. We think one purpose of the amendment was to have someone in the state at all times capable of performing the duties and exercising the powers of the office of Governor. In the case of Montgomery, et al., v. Cleveland, 134 Miss. 132, 98 So. 111, 543, 32 A. L. R. 1151, the Supreme Court of Mississippi decided, according to syllabus one, as follows:
“Under Constitution, 1890, § 131, providing that, ‘when the Governor shall be absent from the state, . . . the Lieutenant Governor shall discharge the duties of said office until the Governor (shall) be able to resume his duties,’ the Governor is absent when he leaves the state, and in such case the functions of the office are vested in the Lieutenant Governor, if in the state and able to perform the duties, during such absence.”
The opinion Ex parte Crump, 10 Okla. Cr. 133, 135 P. 428, 47 L. R. A., N. S., 1036, was referred to as “one which to the minds of the majority of the court is satisfactory in its reasoning and conclusions.” The Mississippi court analyzed the Oklahoma case extensively and bottomed.its opinion largely upon it.
On a motion for rehearing in the Mississippi ease it was said by Judge Holden that: “I adhere to the views expressed in the main opinion; and that when the Governor is out of the state for any length of time I think a vacancy in the office then and there occurs, and it is immaterial as to what length of time he may have been out of the state, or what distance he had gone beyond the borders of the state. He might be in an adjoining state at a ball game or on a visit to Europe, or he may be away for several hours or several months. In either event there is a vacancy in the office according to the language of the Constitution, § 131, which provides:
“ ‘When the Governor shall be absent from the state, . . . the lieutenant governor shall discharge the duties of said office until the Governor be able to resume his duties. ’
“He is not Governor when out of the state, so far as being able to act. It would be violating the language and spirit of this constitutional provision, and would also be venturesome on the part of this court, to hold or attempt to prescribe the length of time the Governor must be out of the state, or the distance he must' be away from the state before a vacancy occurs, which empowers the Lieutenant to act. It would not be safe to adopt any rule, except that, when the Governor is beyond the borders of the state, this fact automatically causes a vacancy in his office, and the Lieutenant Governor, who is made a substitute for the Governor in bis absence, with the powers and duties of the Governor, shall exercise the functions of that office. ’ ’
There is no question in this case that the bills in question were vetoed in accordance with the law by the president pro tempore of the senate during the absence of the Governor and Lieutenant from- the state of Arkansas. It is true that the Lieutenant Governor was absent only for a few hours, but it was during that particular time that the bills were vetoed by the acting Governor of the state.
The vetoes were, 'therefore, valid and the trial court correctly dismissed appellants’ petition to compel the Secretary of State to certify, transcribe and include said bills in the printed acts of the 53rd General Assembly of the state of Arkansas.
No error appearing, the decree is affirmed. | [
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McHaney, J.
Appellee brought this action against appellants to cancel and remove as a cloud on her title to the SW1/^ and N% SE14. of section 11-13 N-ll E, Mississippi county, a certain deed issued to appellant, Smith, by the State Land Commissioner on April 4, 1935. She alleged that she was in possession and had been for fifteen years, and claimed title by a deed from the St. Francis Levee District, dated September 15, 1924, conveying the entire fractional south half of said section and accretions to her mother, Mrs. F. C. Lewis, and that she is the heir of F. C. and Dollie Lewis, now deceased. Title passed from the government to the state under the Swamp Land Grant, was patented to an individual by the state, was forfeited to the state for the non-payment of taxes for the year 1884, were donated by the state to St. Francis Levee District by act 100 of 1893, in which year the levee district had its title confirmed. It is also alleged that the land again forfeited to the state for the 1914 taxes and that she secured a deed from the state November 28, 1934, and that the sale by the state to Smith in 1935 was based on the assumption that the land conveyed to him was an island formed in the bed of the Mississippi river, a navigable stream, and on the authority of act 282 of 1917, governing the sale of lands formed in the beds of navigable rivers of the state as islands, but that the commissioner had no right to make said conveyance, because the land conveyed was not an island, and not subject to the “Island Act.”
Appellants defended by a general denial, except as to the heirship of appellee. Smith admitted he purchased from the state as alleged and that his deed described part of the S]/2 of section 11-13 N-ll E, lying outside of the meander lines of the original survey, and certain paints of section 14, same township and range, 179.37 acres, all described in exhibit “C” to the complaint. They alleged that the tax forfeitures for 1884 and 1914, the donation to the levee district and the confirmation decree were all void for the reason that the land in controversy, during all that time, was a part of the bed and main channel of the Mississippi river, belonging to the state, held in trust for the public, and not subject to taxation.
Trial resulted in a decree for appellee to the whole of the SV2 of said section 11, if the section lines were extended, containing 320 acres, and her title thereto was quieted and confirmed as against appellants and their deeds were .canceled, insofar as the same include lands in said S% of section 11. There is here a direct appeal and a cross-appeal by appellee from the refusal of the court to allow her to claim accretions south of the 320-acre tract decreed to her.
In 1893, the general assembly enacted act 100 by which it donated to the St. Francis Levee District all the lands owned by the state lying within said district, except the 16th section school lands, and all lands therein it might acquire within five years thereafter, by reason of forfeiture and sale to the state for taxes, with certain restrictions. Section 2 of said act provided that said lands shall be exempt from state and county taxes for a period of five years, if not sooner sold by the district, and that, at the expiration of said term, all lands not previously sold by the district, should be assessed in the name of the district for state and county-taxes. In section 3 the levee district was given the same power to confirm the tax sales to lands therein in a court of equity that was then and is now conferred upon individuals who purchase lands at tax sales.
Pursuant to this act, the levee district brought confirmation proceedings and secured confirmation decrees to many tracts of land in said district, including the land in controversy, in 1893. Title to the land here involved remained in the district until 1924, when it was sold to appellee’s mother, from whom she inherited, with this exception: that it forfeited to the state for the taxes of “1914 and was purchased from the state and deed issued to appellee’s mother November 28, 1934. The confirmation decree of 1893 described the lands as ‘ ‘ Fractional south one-half of section 11, township 13 north, range 11 east, 189.14 acres.” The deed from the levee district to appellee’s mother described the land as: “The fractional 'south half of section 11, township 13 north, range 11 east, containing 189 acres, with all accretions thereunto belonging. ” The deed from State Land Commissioner to appellee’s mother described the land as: “All of and all SE^, section 11, township 13 north, range 11 east, 187 acres, forfeited for the year 1914.” The deed from the Commissioner of State Lands to appellant' Smith, dated April 4, 1935, conveyed “all that part of the S% of section 11, township 13 north, range 11 east, lying outside the meander lines of the original survey,” and certain parts of section 14, 179.37 acres. All these deeds were attached as exhibits to the complaint.
One complaint of appellant against the court’s decree is that it awarded to appellee more land than she claimed in her complaint. The allegation was that she owned the SW^ and N% of the SE*4 of section 11, whereas the decree awarded her the whole S% of said section. This allegation of the complaint was evidently an error of the pleader as his muniments of title attached to the complaint as exhibits call for more land. The deed from the levee district calls for the fractional south half “with all accretions thereunto belonging,” and the deed from the state calls for “all of and all SE^” which is all the south half of said section. It is well settled that, in suits in equity, the exhibits control the averments of the complaint. Blasingame v. Lowdermilk, 132 Ark. 542, 201 S. W. 807, or the complaint will be considered as amended to conform to the proof. Davis v. Goodman, 62 Ark. 262, 35 S. W. 228.
Appellants also contend that the title never did pass to the levee district by act 100 of 1893, for two reasons: one, that the land did not forfeit for the taxes of 1884, because the clerk testified his records did not show it; and two, that the land was in the bed of the Mississippi river at the date of said act and belonged to the state not as tax forfeited land, but as the bed of a navigable river.
As to the first proposition, the fact that the records of the clerk did not show the forfeiture for the taxes of 1884 would not be sufficient to overcome the records of the State Land Office which showed the contrary. The confirmation decree of the chancery court in 1893, quieting and confirming the levee district title in it, we think forever settled the question of whether there was a forfeiture and sale to the state for the taxes of 1884. As said by Judge Hart in Avera v. Banks, 168 Ark. 718, 271 S. W. 970, “the decree is regular on its face, and every question with respect to the assessment of the land in controversy, or the nonpayment of taxes, or the regularity of the proceedings of the sheriff and collector, is concluded by it.” Citing Worthen v. Ratcliffe, 42 Ark. 330, and Cocks v. Simmons, 55 Ark. 104, 17 S. W. 594, 29 Am. St. Rep. 28.
As to the second proposition, that the land was in the bed of the river, it appears to us that the fact of assessment, forfeiture and sale to the state for the taxes of 1884, as also the donation and confirmation to the levee district in 1893, are strong and cogent circumstances tending to show, if not conclusively establishing, that the land was in place on said dates and not in the bed of the river. Even conceding that said land, or a portion of it had caved in the river, we can see no good reason why the gift from the state to the levee district did not grant such a title as would ripen into being when the land emerged from its subsidence in the river.
But, even if it be conceded that appellee ?s title based on the levee district deed of 1924 failed, still, the deed from the state in 1934, based on a forfeiture and sale for the taxes of 1914, conveyed a good title. That forfeiture is nowhere attacked because of any irregularity in the forfeiture and sale to the state. The presumption is that the state had a good title. The act donating the state’s land to the levee district provided it should be exempt from state and county taxes for five years, if title remained in it for that period, but thereafter should 'be assessed to the district. It must have been so assessed for the year 1914 and, the tax not having been paid, was forfeited to the state, where it remained until 1934 when it was purchased from the state by appellee’s predecessor, the deed conveying all the S% of section 11.
We are, therefore, of the opinion that appellee acquired title to the whole of said south half and that the court did not err in so holding. And we are also of the opinion that the court correctly limited her title to said south half of section 11, in view of the deeds in her chain of title and all the other facts and circumstances shown in this case. The decree will be affirmed both on appeal and cross-appeal. | [
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McHaney, J.
Appellant was convicted of the crime of larceny for the stealing of two head of cattle, the property of a neighbor, Carl Russom, and sentenced to serve a year in the state penitentiary.
To reverse the judgment and sentence against him, he first says the evidence is not sufficient to establish the charge of stealing said cattle, and that, had he not “been questioned in regard to other things happening in his life, he would not have been convicted. . . .”
Mr. Russom testified that he lost two head of cattle, a red, white face cow. and a red, white face line back heifer, that is, one with a line down its back; that he had thirty head before he lost these two; that he missed them first about December 7, 1940, although he had not seen them since about November 29; that' he went to appellant’s home twice to see about them, and there was no one at home, but later saw appellant at a sales barn and told him his two cattle were missing and appellant told him he would watch out for them and would send him word if he saw them; that later he went to West Plains, Missouri, and found that appellant had sold two head of cattle described as above on December 2, 1940; that the two cattle stolen were branded with his brand and marked with his mark; that he recovered the above described heifer from a Mr. Reddish who had about 75 head of cattle in his bam including said heifer; that he picked her out of the other cattle in said barn and she was marked and branded with his marks and brand.
Appellant admitted that he had sold the two head of cattle in White Plains, but contended that he had bought them with others from a sales barn in Pocahontas, Arkansas, at a public auction sale. This made question of fact for the determination of the jury. By its verdict, the jury evidently did not believe that he bought these two head of cattle at Pocahontas as testi fied to by Mm and corroborated by others. He sold cattle that had Russom’s marks and brand on them and the jury was justified in not accepting his explanation of his possession of them. The rule is well settled that the possession of property recently stolen, if unexplained to the satisfaction of the jury, is sufficient to sustain a conviction of the larceny thereof. Daniels v. State, 168 Ark. 1082, 272 S. W. 833; Woodall and Hickman v. State, 200 Ark. 665, 140 S. W. 2d 424, and cases cited therein.
Another argument made for a reversal is that the state failed to prove the value of the property to be in excess of $10. Aside from the fact that the statute, § 3140 of Pope’s Digest, makes it a felony to steal any kind of cattle, we think the value was sufficiently proven.. Mr. Reddish testified that Russom paid him $27.50 for the heifer when he recovered her and Russom was asked if the heifer was worth $30 and he answered, “Mr. Reddish said he wouldn’t trade her for $50.” This was sufficient to prove value, even if necessary.
Finally appellant complains because of certain questions asked him on cross-examination as to his guilt of other crimes. Most of the questions asked him in this regard were without objection. The court ruled, when objection was made, that such questions were competent only as going to his credibility. Appellant denied he was guilty of the offenses about which he was questioned and no attempt was made to contradict him.' We think the questions were competent for the purpose limited by the trial court. Appellant cites Parnell v. State, 163 Ark. 316, 260 S. W. 30, where it was held error to permit a witness to be interrogated concerning mere accusations or indictments for crime. There are many of such cases as stated in the opinion in that case, some of which, including the Parnell case, are cited in the very recent case of Croft v. State, ante p. 719., 152 S. W. 2d 563, where it was said: “Here, appellant was not interrogated concerning the accusation of another crime or an indictment charging one, nor was any independent testimony offered to the effect that he had been accused of or indicted for the commission of another crime. His cross-examination concluded the inquiry as to the other .crime. In permitting this cross-examination the court admonished the jury that it could be considered only as affecting the credibility of the witness. As thus limited, many cases have held that the cross-examination was proper. A recent case, citing others to the same effect, is that of Phillips v. State, 190 Ark. 1004, 82 S. W. 2d 836.”
As no error appears, the judgment is affirmed. | [
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Humphreys, J.
On July 25, 1940, appellees brought suit in the Pulaski county circuit court, second -division, against appellant to recover $1,885.92, including expenses, for legal services in connection with an application pending 'before the Interstate Commerce Commission, Washington, D. C., in an effort to get said commission to postpone the effective date, June 8, 1940, of an order it had made denying appellant the right to operate as a common carrier by motor vehicle in Mississippi until he could obtain a hearing on a petition he had filed in the United States District Court for the Western District of Arkansas, Fayetteville Division, to review the order made by said commission and during the pendency thereof to suspend the order of the commission. It was alleged in the complaint that appellant left Little Bock for Washington, D. C., on June 28, 1940, and after consultations with the Attorney General and various officials of the motor carriers of the Interstate Commerce Commission, Division 5 of said commission, and with the whole commission, he filed a lengthy petition setting out all the steps which had theretofore been taken before said commission in appellants application to operate in Mississippi as a carrier by motor vehicle including the application appellant had made in the United States court for the "Western District of Arkansas, Fayetteville Division, and his failure to secure the sitting of a three judge court to review the order of said commission and to suspend the order pending a hearing on his petition, and praying that the commission postpone the effective date of the order it had made until he could secure a three judge court to act upon the petition which he had filed in the United States District Court for the Western District of Arkansas, Fayetteville Division. It was further alleged that on account of the legal services they had rendered from June 28 to July 13 before said commission they were entitled to a fee of $100 a day and expenses amounting to $1,885.92 less $200 which appellant had advanced to appellees as a retainer.
Appellant filed an answer and cross-complaint denying each and every material allegation in the complaint and alleging that appellees represented that they could obtain a postponement of the effective date of t]ie order denying him the right to operate as a carrier in Mississippi and guaranteed that by appearing before the Interstate Commerce Commission they could prevail upon it to continue the effective date of the order until he could obtain a' hearing before a three judge court on the petition he had filed in the' United States court for the Western District of Arkansas, Fayetteville Division ; that upon said guaranty he advanced $200 to cover expenses for the senior member of the firm of appellee to go to Washington and secure the results desired by appellant; that appellees not only failed in their effort, but they abandoned a petition they had filed with the Interstate Commerce Commission by failure to introduce any proof to sustain same and prayed that he have judgment against appellees for the $200 which he had advanced for expenses.
Appellees filed an answer to the cross-complaint in which they denied generally all the material allegations therein alleged and admitted that appellant had paid them the sum of - $200.
The main issues joined by the pleadings were whether appellant had employed appellees conditioned upon favorable results or whether the employment was unconditional, and if the employment was unconditional what amount was due appellees on a quantum meruit basis and also whether appellees abandoned the application before the Commission without introducing proof in support of the allegations of the application.
The cause was tried to a jury upon the pleadings and instructions of the court resulting in a verdict and consequent judgment in favor of appellees in the sum of $500 in addition to the $200 which appellant had advanced when the senior member of the firm of appellees went to Washington and from that judgment an appeal has been duly prosecuted to this court.
At the conclusion of the evidence appellant asked for an instructed verdict in his favor on the ground that the verdict and judgment is not supported by any substantial evidence and that according to the undisputed evidence appellees abandoned appellant’s application before the Interstate Commerce Commission without introducing proof in the support thereof. There is a sharp conflict in the evidence as to whether appellees were employed to represent appellant before the Interstate Commerce Commission unconditionally or whether their employment was contingent upon results.
The record reflects that at the time it was agreed for the senior member of appellees’ firm to go to Washington and attempt to get the Interstate Commerce Commission to postpone the effective date of the order denying appellant the right to do business in Mississippi all parties both appellant, his attorney and the appellees had come to the conclusion that there was no remedy for appellant by which he could get a temporary restraining order in the courts. The appellees testified that they informed appellant that the only chance he had to get a postponement of the effective date of the order was to get the Interstate Commerce Commission to review its action and postpone the effective date of the order itself and one of the appellees testified that he told appellant that the chance to get the commission to postpone the order was very remote. We know of no good reason why one who could not get relief from the courts under circumstances such as exist in this record would take a chance of getting relief from the Interstate Commerce Commission and pay for the services of an attorney in an effort to do so. Appellant had idle trucks and idle men on his hands to operate as a carrier in Mississippi and stood to lose a good deal of money unless he could get the Interstate Commerce Commission under all the circumstances to postpone the effective date of its order until he could get a hearing before a three judge court, so we cannot agree with attorney for appellant that appellees undertook a useless work for which they are not entitled to remuneration if they took employment unconditionally to accomplish the purpose. Of course attorneys should not accept employment in an undertaking to do a useless thing and then claim a fee on a quantum meruit basis for the useless work that they performed. Although appellant testified unequivocally that he employed appellees on a contingent basis dependent upon results and expected to pay them a reasonable fee in case they secured a suspension of the effective date of the order yet appellees testified just as positively that their employment was entirely unconditional and that appellant understood that results would be problematical and remote. This issue was submitted to the jury under correct and unambiguous instructions and the verdict of the jury upon the conflicting evidence is binding upon appellant.
Appellant contends not only that appellees did useless and unnecessary work for which they are not entitled to remuneration, but that the amount claimed as well as the amount recovered was unreasonable on a quamtum meruit basis.
Appellees testified that they presented a claim against appellant for the usual fee for appearing before the Interstate Commerce Commission; that $100 a day and expenses was the customary fee for lawyers repre senting clients before the Interstate Commerce Commission. They are corroborated by the testimony of Hons. Gruy Amsler and Edward L. Wright who do considerable practice before the Interstate Commerce Commission and who are familiar with the amount of fees charged for legal services of the character involved in the instant case. They both testified that $100 a day and expenses was a reasonable fee. The issue as to what would constitute a reasonable fee for the character of work done was submitted to the jury under correct instructions and appellant is bound by the verdict.
Appellant also contends for a reversal of the judgment because appellees practically abandoned the petition they had filed before the Interstate Commerce Commission without attempting to sustain the allegations therein by proof. The senior member of appellees ’ firm testified that he filed with the petition the only evidence he could get or had in support of the allegations thereof and that he did not leave Washington until after the petition was denied. He also testified that he filed the petition after consultation with the Attorney Greneral and various officials of the motor carriers of the Interstate Commerce Commission, Division 5 of said commission, and others and that he did a great deal of work in going through the record and preparing his petition and that he never worked harder on any case than he did in the instant case and did all in his power to bring about results favorable to appellant. He also testified that he was out $355 for expenses from the time he left Little Hock until he returned not counting the five or six days he stopped at the Democratic National Convention in Chicago. We think the evidence clearly presented a disputed question of fact as to whether he abandoned appellant’s petition or failed to prosecute it in good faith. Under the facts and circumstances it became a question for determination by the jury as to whether he abandoned the proceedings which had been instituted before the commission without conducting it to a complete termination. That issue was also submitted to the jury under proper instructions and appellant is 'bound by the adverse verdict.
Other arguments are made rather taking appellees to task in their futile efforts to obtain relief for appellant, but the arguments are beside the real issues involved and we deem it unnecessary to set out the arguments and discuss them.
No error appearing, the judgment is affirmed. | [
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Humphreys, J.
This suit was brought by appellant, one of its employees, against appellee, a corporation, to recover damages on account of a personal injury received by him, through the alleged negligent act of his fellow-servant in pushing a keg of spikes or nails toward the wall of appellee’s warehouse instead of pulling same from the wall where appellant and his co-employee were stacking them stair-step fashion four tiers high, causing the top keg thus pushed to fall upon and injure appellant who was at the time behind the- row of kegs next to the wall.
Appellee filed an answer denying the alleged act of negligence and pleading the assumption of the risks by appellant incident to the- work in hand.
The trial of the cause proceeded upon the issues joined until appellant concluded the introduction of his testimony at which juncture appellee moved the court to instruct the jury to return a verdict for it on the ground that appellant’s testimony failed to show any liability on its part for the personal injury complained • of.
The court granted the motion, directed the verdict and dismissed the complaint of appellant, from which is this appeal.
Only three witnesses testified — appellant, Arthur Ramsey, and Charles Ledgess, appellant’s eo-worker or fellow-servant. All three agreed upon the manner in which the kegs were being stacked. The bottom tier was several feet from the wall and the other tiers closer to the wall in stair-step fashion until the top keg rested against the wall; that in adjusting the top tier of kegs appellant worked behind the kegs next to the wall and appellee in front of the kegs so that they could not see each other, the kegs being between them; that the kegs were heavy weighing perhaps two hundred pounds each, and that it took both of them to adjust the top tier of kegs so that they would rest against the wall. Arthur Ramsey and appellant testified that in adjusting one of the kegs near the end of the row appellant told Charles Ledgess to pull the keg toward him, but that instead of doing so, Ledgess pushed the keg toward the wall and caused it to fall upon appellant and injure him; that all three testified that when appellant got up he said to Ledgess, “Why did you push the keg instead of pulling it toward you?”, and he replied that he misunderstood what he said. At the time of the occurrence Arthur Ramsey was standing within about twenty feet of Ledgess and testified that he heard appellant tell Ledgess to pull the keg toward him. Appellant also testified positively that he told Ledgess to pull the keg toward him. At the time Ledgess was assisting appellant in adjusting the keg he was in conversation with Ramsey who had come into the warehouse searching employment. He, Ledgess, was telling Ramsey in response to his inquiry, that the boss would be in shortly, and he would have an opportunity to talk with him. It is true that on cross-examination all three witnesses said that it seemed to them that Ledgess misunderstood what appellant had said to him about pulling the keg.
We think this testimony presented an issue of fact as to whether Ledgess, through inattention' to his business, carelessly and negligently misunderstood the direction given him by appellant. It, of course, was the duty of Ledgess to keep his mind on the business in hand, and if his failure to do so caused him to push the keg instead of pulling it as directed Ms act or conduct constituted actionable negligence on the part of appellee’s servant and the negligence of the servant was attributable to appellee. There is nothing' in the evidence tending to show that Ledgess could not have heard or understood the direction of appellant to pull the keg toward him. According to the testimony of Ramsey, he heard the direction plainly and was standing at some distance from the two men at the time the direction was given. There is nothing in the record to show that Ledgess was hard of hearing or that the direction was not definite and certain. Had the issue been submitted to the jury they could have reasonably found that the reason Ledgess did not understand the direction was because he was giving his attention to the conversation between him and Ramsey rather than to the work in hand.
In the recent case of Missouri Pacific Railroad Co. v. Kagy, 201 Ark. 150, 143 S. W. 2d 1095, this court said: “The rule is that where fair-minded men might differ honestly as to the conclusion to be drawn from the facts, either controverted or uncontroverted, the question should go to the jury, . . .”
We think this rule is applicable here because fair-minded men might differ honestly as to the conclusion to he drawn from the facts detailed above. Fair-minded men may have concluded from the facts that while Ledgess misunderstood the direction given, his misunderstanding was the result of his inattention to his business. The duty rested upon him as a fellow-servant to give his attention to his business so that he might understand directions or requests made by his co-worker.
Appellee contends, however, that the undisputed evidence shows the injury was the result of an accident for which no one is responsible. There is nothing in the testimony showing that the injury resulted from an accident. It resulted from the failure of Ledgess to heed the direction given by appellant to pull the keg.
Appellant also contends for a reversal of the judgment upon the ground that he did not assume the risk incident to the employment. This court ruled in the case of Missouri Pacific Rd. Co. v. Pipkin, 189 Ark. 890, 75 S. W. 2d 801 (quoting syllabus 4), that: “Negligence of a fellow-servant is not an incident of the employment, and the servant does not assume the risks thereof unless they are obvious and patent.”
Appellant could not have anticipated that his fellow-servant, Ledgess, would fail to heed his direction to pull the keg instead of pushing it and therefore his act in doing so was not an incident to the employment which was obvious or patent.
We think under the evidence in this case appellant made a prima facie showing that Charles Ledgess, his fellow-employee, was negligent in shoving the keg over on him instead of pulling it as he was directed to do, provided his failure to pull the keg was due to his inattention to the business in hand.
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Humphreys, J.
L. H. Grimes, as guardian for his minor son, Edward, and on his own behalf as father of Edward, brought suit in the circuit court of Saline county against appellants to recover damages to his son in the sum of $15,000 for injuries received by the son and $3,000 sustained by himself on account of the expenditures for medical service and the loss of the services of his son, which injuries resulted from the alleged negligent operation of appellants'’ automobile. The negligence alleged in the complaint is as follows:
‘‘ That appellants were negligent in the operation of said automobile in that they failed to keep a proper lookout, or to observe where and how they were driving the same, along said highway, and in driving the same too far to the- west side of said highway along which pedestrians regularly traveled, and along which appellee, Edward Grimes, was at the time traveling, and in failing to give any notice or signal by which pedestrians, and particularly appellee, Edward Grimes, might .be warned of their approach, though said appellee, Edward Grimes, was in plain view of appellants.”
It was further alleged in the complaint that, through the negligent operation of the automobile, appellee, Edward Grimes, received painful injuries to his right leg, back and head causing complete deafness in the right ear.
Appellants filed an answer denying the allegations of negligence or that Edward Grimes received any serious injuries on account of the collision with their automobile; and also pleaded contributory negligence as a complete defense to the causes of action.
The causes were submitted to a jury upon the pleadings, testimony introduced by appellees and appellants and instructions of the court, resulting in a verdict and judgment in favor of L. H. Grimes, as guardian of Edward Grimes, in the sum of $3,000, and a verdict in favor of appellants against L. H. Grimes in his own right. '
From the verdict and consequent judgment in favor of L. H. Grimes as guardian of Edward Grimes appellants prayed and perfected an appeal to this court, and L. H. Grimes has prayed and perfected a cross-appeal from the verdict and judgment adverse to him in his own right.
Appellants first contend for a reversal of the judgment against them on the ground that there is no substantial evidence in the record showing negligence on their part.
Appellants were driving south on the right-hand side of highway No. 35 leading from Benton to Sheridan. It was a gravel road about twenty-six feet wide where the catastrophe happened with a shoulder five or- six feet wide. The shoulder extended out to a sloping ditch and toward the west was a .small field frequently referred to as a large yard between the highway and the Albert J. Broadway house where the children in the neighborhood gathered to play football. A pathway was running parallel with the highway on the shoulder which turned across the ditch and ran diagonally into the playground. Fifteen or twenty children were on the playground at or about the time Edward was injured. Edward and three or four little girls about his age left the others and came down the path toward the highway. Edward and Alva Neighbors had crossed the ditch and gotten onto the shoulder of the road and started south when Mr. Broadway called to his girl to come back home. She and the other girls except Alva Neighbors started back leaving Edward and Alva on the shoulder of the road. Alva was walking behind Edward some five or six feet and stopped when Mr. Broadway called his daughter and the other little girls and watched the girls while she was in that position with her back toward the highway. She heard Edward scream and turned her head in his direction and discovered that he was lying on the shoulder supporting himself on his elbows and crying and calling for his ¡mother.
A number of persons gathered immediately about the scene and heard Mrs. Derry, who was driving the car that collided with the boy, in explaining the occurrence say, “I didn’t see the boy at all. I was looking across the field in front of the house and I just didn’t see him.” And.she did not know she had hit him. Three of the witnesses who heard her make the statement were related to him, but a disinterested witness stated that Mrs. Derry made a statement of that kind. The witnesses who appeared on the scene found Edward in a semiconscious condition on the shoulder of the road crying and calling for his mother. The automobile had struck him on the calf of the right leg, on his back and on the back of his head. Edward, who seemed to be a little confused as to just where the road and shoulder merged, as we read his evidence, said that he was standing about three feet from the ditch at the time he was struck and was looking toward a train which was passing over the highway toward the south and also at a dog on the other side of the train and did not see the automobile that struck him. In other words, the effect of his testimony is that he was not facing the highway as the automobile passed and was not going towards the automobile. His testimony is corroborated 'by that of Alva Neighbors as to him proceeding in a southeasterly direction parallel with the highway when she last saw him and also that he was paralleling the highway as he traveled. They were both going in the direction of a path which crossed the highway south of them in order to play at the mill and lumber yard which was across the highway down near a bridge. Their testimony was strongly corroborated by the fact that the witnesses who appeared on the scene found Edward on the shoulder about three feet from the ditch in a semi-conscious condition and by the fact that he was struck in the back. The theory of appellants, and they so testify, is that while they were traveling on the highway toward the south some three or four feet from where the shoulder merged into the road proper the boy appeared from somewhere and struck the side of the right front fender. Appellants and their witnesses who testified said they saw a few children on the shoul der, but that they did not see Edward until he came in contact with their automobile. The record reflects that at that point and in either direction the road was perfectly straight in both directions and nothing was on the side of the road to obstruct their view. If Edward had suddenly run out into the road in front of them or toward the side of the automobile there was nothing to prevent Mrs. Louis Derry from seeing him as he approached the automobile and nothing to prevent the other occupants in the automobile from seeing him. None of the occupants in the automobile claimed to have seen him dart out suddenly in front of or into the side of appellants’ automobile. Their failure to so testify when taken in- connection with the statement of Mrs. Louis Derry that she did not see the boy at all before the contact of their automobile and the fact that he was struck in the back were strong circumstances tending to show that Mrs. Louis Derry was not keeping a lookout as she was driving along the road at that point, but was looking over at the children who were playing football in the Broadway field or yard. At least the jury could have so found and based their finding upon substantial evidence in the case.
Appellants contend, however, that Edward was guilty of contributory negligence, but we find nothing in the evidence tending to show that he was attempting to cross the highway at the point where he was struck or that he was traveling toward the automobile when he was struck. In fact there is a total absence of any evidence tending to show that he was guilty of contributory negligence.
"We have not attempted to set out the testimony of each witness in detail, but have carefully read the record with a view of ascertaining whether there is any substantial evidence in the record tending to show that appellants were guilty of negligence in operating their automobile and whether Edward was doing anything at the time which contributed to his injury. As stated above, we think there is ample evidence from which a jury might have found that appellants were driving their automobile in a negligent manner and failing to keep a proper look out for pedestrians traveling along the highway and we also think there is no evidence tending to show that Edward was guilty of negligence which contributed to his injury.
The court did not err in refusing to instruct a verdict for appellants at the completion of the testimony. Under our view of the testimony it became a question for the jury to determine whether there was liability and the court properly submitted that question to the jury.
Appellants also contend that the judgment is excessive. If Edward had not received any injury except to his leg and back from which he soon recovered the judgment would be excessive, but he was struck in the back of the head and he testified that the day following the examination by the physician there was a burning sensation and a roaring in his right ear and that it grew worse until he entirely lost his hearing in the right ear.
The evidence is quite voluminous pro and eon upon the issue of whether the deafness was due to the lick on the head or whether to other causes. It is very conflicting. We do not think the undisputed evidence in the case shows that his deafness resulted from other causes and we think there is much substantial evidence in the case showing that the deafness in his right ear' was largely due to the injury he received. There was an attempt to connect it with measles and mumps, but there is little or no tangible evidence that it was the result of disease. An attempt was made to connect it with a former automobile accident while Edward was riding in an automobile with his father, but the injury was to his ribs and not to his head. In that wreck a few of his ribs were fractured. There is a little evidence tending to show that he was not as bright as other children and it is argued that if he could have heard as well as other children who did hear he would not have fallen behind in his studies, but this is entirely problematical. His father testified that he attributed the fact that-his boy did not advance as fast .as other students of his age to dumbness, saying that he himself was dumb. It is true there is some evidence tending to show that he had scar tissue in Ms right ear which was the result of disease or former injuries to his head and ear, but the fact remains that he did not become deaf until after the injury and until after the burning sensation and roaring appeared in his ear. We think under all the proof it became a question for the jury and was properly submitted to them.
L. H. Grimes took a cross-appeal from the judgment against him in view of the fact that the parties stipulated that he had expended $24.50 on medical services for his son, Edward, on account of the injury; the verdicts and judgments for and against him are inconsistent. There is nothing in the testimony showing that -L. H. Grimes was guilty of any contributory negligence because he allowed his boy to play with other children in the neighborhood. This court said in the case of Fulbright v. Phipps, 176 Ark. 356, 3 S. W. 2d 49, that: “It is true that the verdict is not consistent, but this is not ground for us to reverse the judgment, as it is supported by very substantial and sufficient testimony. ’ ’
Again L. H. Grimes made no objection and saved no exceptions to the court in instructing the jury as follows: “You may find for either of the plaintiffs or for both of the plaintiffs — in other words, you may find that one is entitled to recover and the other not.”
We think L. H. Grimes waived his right of recovery, or is estopped to assert it here by reason of the fact that he permitted the trial court without objection or exception to instruct the jury as he did.
We are of the opinion that there is substantial evidence in the record from which the jury might have found, as it did, that appellants were guilty of operating an automobile without keeping a proper lookout, and are also of the opinion that $3,000 is not an excessive verdict for the destruction of the hearing in one ear and other injuries, and that the undisputed evidence does not show that Edward was guilty of negligence which contributed to his injuries.
The judgments are affirmed on direct and cross-appeals. | [
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Holt, J.
Appellant, Rex McDougal, and Monroe Yocum were charged in an information with the crime of grand larceny. It was alleged that they stole two Jersey steers, the property of Milner Stevens, of the value of $30.
Fred Wilson, an admitted accomplice, was a witness for the state. He testified that he and the two defendants stole the two steers, transported them in a Ford truck to North Little Rock, and sold them to a dealer there for $30. Other evidence on the part of the State was introduced tending to corroborate Wilson’s testimony connecting appellant McDougal with the offense. At the conclusion of the State’s testimony, both defendants asked for a directed verdict. The request was denied as to appellant McDougal, but granted as to defendant, Monroe Yocum, on the ground that the testimony of Wilson was not sufficiently corroborated to warrant Yocum’s conviction and he was discharged. The trial proceeded as to appellant McDougal. The jury convicted him and assessed his punishment at one year in the state penitentiary.
Appellant seeks reversal on two grounds: (1) That the trial court erred in denying his motion for a directed verdict at the conclusion of the state’s testimony; and (2) that the testimony was not sufficient to sustain the verdict.
1.
The rule is well settled that if the evidence was sufficient to convict appellant then the trial court committed no error in refusing to direct a verdict. In the recent case of Graham and Seaman v. State, 197 Ark. 50, 121 S. W. 2d 892, we said: “It is true that at the end of the testimony for the state appellants asked the court for a directed verdict of not guilty. If, however, the evidence was sufficient to sustain the verdict of the jury, and we hold it was, of course, there was no error in refusing to give this instruction.”
2.
Is the evidence sufficient to sustain the verdict1? It is our view that it is. According to the testimony of Fred Wilson, an admitted accomplice, McDougal and Yocum persuaded him to take part in the stealing of the two Jersey steers, the property of Mr. Stevens. He testified that they took the cattle to North Little Rock in Monroe Yocum’s truck and sold them to Mr. Chronister for $30; that Chronister gave a cheek to McDougal for the purchase price, the check being made out to J. R. Russell; that appellant McDougal cashed the check at the Twin City Bank and divided the money among the three. He also testified that on the night preceding the trial, appellant came to his house and tried to induce him to say that his statement to the* officers implicating Yocum and himself was untrue.
A review of the testimony of other witnesses introduced by the State which we deem unnecessary to detail here convinces us that it tends to corroborate the testimony of the accomplice, Wilson, implicating McDougal, and is sufficient to sustain his conviction by the jury. The rule has long been settled in this state that where the testimony of an accomplice implicates the defendant in the commission of the crime, there must be evidence adduced of a corroborating nature before a conviction may be allowed to stand. However, the rule is equally as well established that the corroborating testimony need only be sufficient to connect the defendant with the commission of the crime and need not be sufficient, standing alone, to convict. The sufficiency of the corroborating evidence is also a question for the jury.
In the case of Smith v. State, 199 Ark. 900, 136 S. W. 2d 673, we said: “In a recent case this court has laid down the rule relative to the sufficiency of the evidence to corroborate the testimony of an accomplice. The rule is made clear in that case that the evidence need only tend to connect the defendant with the commission of the crime and it is not required that the evidence be sufficient of itself to convict. In that case (Shaw v. State, 194 Ark. 272, 108 S. W. 2d 497) this court said: “ ‘. . . It is sufficient to say that this was purely a question for the jury. They believed the testimony of Scott, and there is nothing in the evidence to show that it was physically impossible for the witness to have recognized the appellants as he said he did. The testimony of Scott, independent of that of the accomplices, tended to connect the appellants with the commission of the crime, although it might not have been sufficient of itself to convict them. This satisfied the rule. The sufficiency of the corroborating evidence was a question for the jury 'and, together with the testimony of the accomplices, it is clearly sufficient to support the verdict. Middleton v. State, 162 Ark. 530, 258 S. W. 995; Mullin v. State, 193 Ark. 648, 102 S. W. 2d 82’.”
Finding no error, the judgment is affirmed. | [
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108,
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20,
113,
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92,
69,
80,
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] |
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