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David Newbern, Justice.
The appellant, Tucker, in his capacity as public grain warehouse commissioner, became the receiver, pursuant to Ark. Stat. Ann. § 17-1344 (Supp. 1983), for the appellee, Durham, who was a public grain warehouseman. Appellee Farm Bureau, which had issued its bond covering Durham, was made a party to the receivership proceeding. The only grain in Durham’s warehouse when the receivership was created was a small amount belonging to Durham, so the purpose of the receivership proceeding became to divide the bond proceeds among persons who had claims to grain which should have been in the warehouse.
Tucker, in accordance with Ark. Stat. Ann. § 77-1345 (Supp. 1983), filed a distribution plan with the court. Kenneth Branum, Parker Farms, Inc., and the R.G. Lamb Trust intervened and objected to the proposed plan because they held receipts for grain they had delivered to Durham, but they were not included in the plan for bond money distribution. Each of these depositors had received an advance payment on grain delivered to Durham, and Tucker contended they had thus sold the grain to Durham. The trial court held these depositors were entitled to participate in the bond money. Thus the first issue in this appeal is whether a depositor who takes an advance payment for grain is considered to have sold the grain to the warehouseman and thus removed himself from protection of the warehouseman’s bond. It is not suggested that one who has sold grain to the warehouseman, as opposed to one who has stored it with the warehouseman, is entitled to the protection of the warehouseman’s bond for money which might remain owing on the purchase price.
Tucker’s plan also excluded from participation in the bond money another intervenor named Maddox. Unlike the other intervenors, Maddox had signed a deferred pricing contract by which he explicitly transferred title to Durham of the grain he deposited with Durham. The trial court found that the agreement Maddox had signed had been obtained by fraud. Thus the agreement was declared void, and Maddox was allowed a share of the bond money. The second issue in this appeal has to do with whether the trial court’s action was error because, the appellant contends, fraud upon Maddox was not sufficiently pleaded or proven.
Because we must interpret various statutory provisions our jurisdiction rests upon Arkansas Supreme Court and Court of Appeals Rule 29. 1. c.
1. Sale or No Sale
The Arkansas Public Grain Warehouse Law, Ark. Stat. Ann. §§ 77-1301 through 77-1338 (Repl. 1981 and Supp. 1983), governs transactions between grain producers and warehousemen licensed as public warehousemen by Tucker. The Uniform Commercial Code, Ark. Stat. Ann. §§ 85-1-101 through 85-9-507 (Add. 1961 and Supp. 1983), governs to the extent it is not inconsistent with the Warehouse Law. Ark. Stat. Ann. § 77-1303(b) (Repl. 1981). In his argument Tucker notes that the Warehouse Law’s purpose is to protect those who store grain, and that stored grain is defined in § 77-1302(d) as:
Any grain received in any public grain warehouse located in this state, if same is not purchased and beneficially owned by the public grain warehouseman.
He argues further that because the Warehouse Law does not define “purchase” and “beneficial ownership” we are relegated to the U.C.C. and Black’s Law Dictionary. Nothing cited in either of those sources is specific or very useful in solving the problem.
We need not look outside the Warehouse Law. It, as noted, protects storers of grain, and it has an explicit provision on relinquishment of that protection. Section 77-1340 is as follows:
Ownership of grain shall not change by reason of an owner delivering grain to a public grain warehouseman, and no public grain warehouseman shall sell or encumber any grain within his possession unless the owner of the grain has by written document transferred title of the grain to the warehouseman. Notwithstanding any provision of the Uniform Commercial Code (Act 185 of 1961 (§ 85-1-101 et seq.), as amended) to the contrary, or any other law to the contrary, all sales and encumbrances of grain by public grain warehousemen are void and convey no title unless such sales and encumbrances are supported by a written document executed by the owner specifically conveying title to the grain to the public grain warehouseman.
Tucker argues we should not be guided by this language because its only purpose is to limit the warehouseman in selling stored grain to third parties and voiding such sales when title has not been conferred, in writing, by the producer upon the warehouseman. The Warehouse Law, however, makes it clear that unless transfer of title from the producer to the warehouseman has occurred, the grain is to be regarded as stored rather than sold, so the giving and taking of an advance payment does not remove the storer from the bond’s protection. This position happens to be consistent with Article 2 of the U.C.C. in which “sale” is defined to include passing title from the seller to the buyer for a price. Ark. Stat. Ann. § 85-2-106(1) (Add. 1961).
2. Fraud
In contrast with the other depositors discussed above, Maddox had entered a written deferred pricing contract with Durham. This contract was meant to remove Maddox from protection as a storer of grain. It specifically provided that the title to the grain was transferred to Durham.
Based on testimony and the contract instrument, the trial court found the contract to have been “back dated” and “fraudulently secured.” Testimony showed Maddox’s beans were delivered to Durham and those beans had been disposed of by Durham as of January 25, 1983. Yet Durham induced Maddox on February 3, 1983, to sign the deferred pricing contract. Maddox testified he did not notice the date on the instrument when he signed it. When it was introduced in evidence, the instrument was dated “10-19-82.”
Tucker contends fraud was neither pleaded with particularity sufficient to satisfy Ark. R. Civ. P. 9(b) nor proven by clear and convincing evidence. We are not nearly as concerned about the pleading point as we would be had Tucker shown any prejudice resulting from the alleged lapse. Paragraph 3. of the “objection to plan” filed by Maddox was as follows:
On or about February 3, 1983, Petitioner needed additional money, and went to Durham and drew the sum of $7,000.00. At that time, Petitioner signed a deferred price contract, which did recite he transferred title to the Defendant. However, at that time, it is believed Defendant had already sold, transferred and disposed of his beans, without first obtaining a written document transferring title. That the attempted transfer was void, and because it is void, Petitioner should be permitted to share in the bond proceeds.
The allegation is clear that Durham had disposed of Maddox’s beans before Maddox had given Durham title to them. The conclusion of fraud, which Maddox was not required to plead, Harvey v. Eastman Kodak Co., 271 Ark. 783, 610 S.W.2d 582 (1981), is evident.
The requirement of particularity of pleading fraud did not come into Arkansas law altogether with the advent of Rule 9. It had previously been required, especially when pleaded as an affirmative defense. Evidence of fraud was taken at the trial, and nothing abstracted from the record shows any objection to introduction of that evidence was raised. When evidence of fraud is admitted and the issue is tried without objection, we regard the pleading as amended to conform to the proof. Van Houten v. Better Health Insurance Association of America, 238 Ark. 815, 384 S.W.2d 465 (1964).
Nor are we in doubt about the proof. Exhibits consisting of the contract instrument dated "10-19-82” anda check to Maddox from Durham dated "2-3-83,” which Maddox testified he received on the day the contract was executed, are sufficient to justify the trial court’s finding that the contract was "fraudulently secured.” Maddox testified, again without contradiction, he received an advance payment of $7,000 from Durham when he signed the contract, and that he was induced to sign by this payment. As the beans had already been disposed of by Durham, the evidence showed clearly a misrepresentation by Durham that Durham still had the beans and Maddox was to receive more money later. But for the contract, Maddox would have been as entitled as other storers to participate in the bond proceeds. Obviously Maddox would not have signed the contract had he known Durham had already illegally disposed of his beans.
The trial court’s finding that the contract was fraudulently induced was justified, and it was not error to set the contract aside and allow Maddox to participate in the bond proceeds.
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Per Curiam.
The appellant was convicted of DWI, first offense. He asked the court to suspend his sentence or put him on probation so he would not have to attend an alcohol treatment or education program required by Ark. Stat. Ann. § 75-2509 (Supp. 1983). The court refused his request, finding it was without authority to grant it in view of the mandatory nature of the statute. Our jurisdiction arises from Arkansas Supreme Court and Court of Appeals Rule 29. 1. c.
The appellant recognizes that our decision in Lovell v. State of Arkansas, 283 Ark. 425,678 S.W.2d 318 (1984), makes it clear that the word “shall” as used in Act 549 of 1983 makes its provisions mandatory and that we held in the Lovell case that trial courts have no discretion to use alternatives of probation or suspension pursuant to Chapter 12 of Title 41 of Arkansas Statutes Annotated as they may with respect to many other offenses. The appellant asks us to reconsider our ruling in the Lovell case, but he gives us no reason to do so other than the tradition in our courts of granting probation and suspension and the fact that Act 549 does not specifically say that the sentencing alternatives of Ark. Stat. Ann. § 41-1201 (Repl. 1977) may not be used.
In view of the specificity of the Act, cited in the Lovell case and re-emphasized in the opinion denying rehearing in that case, we decline to overrule our previous decision.
Affirmed. | [
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Wood, J.,
(after stating the facts). The decree was correct. The Pulaski chancery court had no power to confirm and quiet the title in J. J. Bourke to the lands in suit between himself and the unknown heirs of Valentine Melvin, for the all-sufficient reason that Bourke shows affirmatively in his bill, not only that he had no title to quiet, but that the title was in the parties sued. Sec. 2476, Sand. & H. Dig., provides: “If there be no children, or their descendants, father, mother, nor their descendants, or- any paternal or maternal kindred capable of inheriting, the whole shall go to the wife or husband of the intestate.” Under this section, Rebecca A. Melvin, as the widow of Melvin, could only have become the owner in fee, provided there had been no heirs of Melvin in existence, known or unknown. Bourke, as her grantee, only acquired, such title as she had. So, as strange and paradoxical as it may seem, we have here the anomalous spectacle of one asking that a title be confirmed and quieted in him, which he shows to be in another. “Plaintiff says he believes there are unknown heirs of Valentine Melvin, non-residents of this state,” is the language of the bill, and he prays for and obtains a warning order against them. And then, without alleging a single fact that would work a divestiture of their title, he asks that it be confirmed and quieted in him. It should require no argument or citation of authority to show that a decree in favor of the complainant, based on such a complaint, is a sort of juridical monstrosity. The learned chancellor who rendered it in the first instance did so doubtless through inadvertence. He was evidently misled; and it was but to be expected that he should promptly annul what had been done, as he did, when he discovered the real status of the case upon which he had passed.
When judgment subject to collateral attack.
The decree was void, and will be so treated, whether attacked by direct or in a collateral proceeding. Where a bill shows no cause of action against the defendant with reference to the subject matter of the suit, tenders no issue with them, but, on the contrary, shows that there never could be any issue with them, the complaint not even being susceptible of amendment to show an issue, a decree based upon such a bill is a nullity, no matter how attacked. Windsor v. McVeigh, 93 U. S. 274; Munday v. Vail, 34 N. J. L. 418; Newman, Pl. & Pr., 688; Stewart v. Anderson, 70 Tex. 588; McMinn v. Whelan, 27 Cal. 300; Spoors v. Coen, 44 Ohio State, 503; Seamster v. Blackstock, 83 Va. 232; Works, Jurisdiction, p. 42; 1 Black, Judg., sec. 242.
When judgment against unknown heirs is void.
Counsel for appellant have concluded that “if the complaint had nothing in it whatever from which it might be gathered that it was a proceeding to quiet title, the decree might be said to be invalid, for the reason that there would be pending no cause upon which the court acted.” Such is the case here. Merely a prayer to quiet title is-not enough. This is not like the case of Williams v. Renwick, 52 Ark. 160. It is not merely a failure to state a cause of action, but an affirmative showing of no cause of action.
The court has jurisdiction of .the subject-matter of quieting titles, but here there is no colorable presentation of the facts necessary to bring this case within that class of cases. Railway Company v. State, 55 Ark. 200.
As authority for bringing this action, counsel for appellants invoke section 5681, Sand. & H. Dig., which is as follows : “Where, in an action against the heirs of a deceased person as unknown heirs, or against other persons made defendants as unknown owners of any property to be divided or disposed of in the action, it appears by the complaint that the names of such heirs, or any of them, of such other persons are unknown to the plaintiff, a warning order, as directed in the last section, shall be made by the clerk against such unknown heirs or owners.” This section has no application to the case at hand; for, if there- be heirs, the court as above shown would have no power to grant the relief sought, the title in such case necesssarily being in them. Whereas, if there be no heirs, no service could be had, for there would be no one to serve, and the court would be without jurisdiction. Besides, if there were no heirs, there would be no cloud upon the title to remove, and no suit could be brought or would be necessary for that purpose. No authority can be found for bringing such a suit as was brought in the case of Bourke v. The Unknown Heirs of Valentine Melvin.
Other questions are presented, but it is unnecessary to discuss them.
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Riddick, J.,
(after stating the facts.) The question in this case is whether the receiver of the bank has the right to hold the notes in controversy for the payment of the balance due it from the McCarthy & Joyce Company. There is conflict in the testimony as to whether the notes were delivered to the bank for collection, or to be held as collateral security.
The cashier of the bank testified that the notes were delivered as collateral to secure indebtedness of the McCarthy & Joyce Company to the bank. On the other hand, the bookkeeper and secretary of the company, who delivered the notes to the cashier of the bank, testified that they were delivered for collection. He said that the cashier of the bank called at their office, and asked “what notes they had,” saying that the bank examiner would be there shortly, and he wanted to make a good showing to him; that witness thereupon delivered to the cashier the notes in controversy, the face value of which amounted to eleven thousand dollars. “I intended,” he said, “for the bank to collect the notes, and place them to our credit.” Under these circumstances, we conclude that the bank had a lien upon the notes for the payment of the amount due it by the company, without regard to the fact whether there was an express agreement for a lien or not. The law on this subject is well settled, and is thus stated by a recent writer: “A banker has a lien on all securities of his debtor in his hands for the general balance of his account, unless such a lien is inconsistent with the actual or presumed intention of the parties. The lien attaches to, notes and bills and other business paper which the customer has entrusted to the bank for collection, as well as to his general deposit account. * * * And so, if the securities be deposited after the credit was given, the banker has a lien for his general balance of account, unless there be an express contract, or circumstances that show an implied contract, inconsistent with such lien.” 1 Jones, Liens, (2 Hd.), sec. 244. We see nothing in this case inconsistent with such a lien, or showinga different intention on the part of those concerned. The undisputed facts are that the company was owing the bank nearly a hundred thousand dollars. The cashier of the bank reminded the bookkeeper and secretary of the company of this fact, and asked for these notes that he might make a good showing to the bank examiner, who was expected shortly. In response to this request, the secretary delivered the notes; intending, so he says, that the bank should collect them, and place the proceeds to the credit of th^ company. He was an officer and stockholder'in the company, and his authority to deliver the notes is not denied. Taking his statement as true, we think the bank had a lien upon the notes for the payment of the balance due from the company. Kelly v. Phelan, 5 Dill. 228; Reynes v. Dumont, 130 U. S. 392; Bank of Metropolis v. New England Bank, 1 How. 239; 1 Jones on Liens, secs. 241-244.
as to estoppel by elecUo11-
In addition to this, if these notes were placed in the bank by the company to make it appear to the bank examiner that the indebtedness on the part of the company to the bank was well secured, it furnishes another reason why the company should not now be allowed to withdraw the notes without discharging its debt.
It is further contended that the bank, having elected, to claim under the assignment, and to .share in the pro ceeds of the property assigned, is now estopped to assert title to the notes. There is no express reference to these notes in the assignment, though it, in general terms, conveyed “all notes, accounts, evidences of debt, and choses in action of every kind belonging to said company.” This, of course, conveyed any interest that the company had in these particular notes which was the right to redeem them upon paying its debt to the bank. The notes were in the custody of the bank at the time of the assignment, and it in no way affected the right of the bank to hold such notes.
The title to the notes was in no way involved in the application of the bank for the appointment of a receiver to take charge of the assets conveyed by the assignment, for the assignment did not convey, or purport to convey, more than the right to redeem the notes. The receiver of the company knew that the bank held the notes, and was fully informed by the bank of its claim to the notes. The receiver was only authorized to sell the property in his hands, and the appellees recognized this, for they confined their bid to the property in the hands of the receiver. As the receiver was not offering to sell, or the appellees proposing to purchase, any property, except that in the possession of the receiver, the bank, by consenting to the confirmation of such sale, and sharing in the proceeds thereof, was not estopped from asserting its claim to property not in the possession of the receiver, or embraced in his sale. The bank at all times affirmed its right to hold these notes as a partial security against the amounts due it by the company, and, so far as we can see from the evidence, the appellees were in no way misled by the bank or its agents. Appellees made their bid for and received the property in the possession of the receiver. If they expected by this purchase to obtain title to notes held by the bank, and not within the control of-, the court or its receiver, it was a mistake, of law for which the bank was in no way responsible. Our conclusion is that the doctrine of estoppel does not apply in this case.
inc¿usfstent.ot
Neither do we think that the claim of a general lien by the bank is inconsistent with its claim of a lien by express agreement. It asserted the right to hold the notes as security for the payment of the debt of the company, and its answer was drawn so as to cover both a general lien and a lien by special contract.
The judgment of the chancery court is therefore reversed, and the petition of appellees is dismissed.
Battle, J., being disqualified, did not sit in this case. | [
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Bunn, C. J.
This is a bill to foreclose a mortgage on a tract of land in Franklin county, conveyed in said mortgage by James P. Byford and wife, Douisa Byford, to Albert R. Shattuck, as trustee, to secure a debt of $400 and interest, owing to the British & American Mortgage Company. William and Fletcher Peters, in some way not shown, became parties defendant in the outset, probably because they were in possession of the land when the suit was instituted, and they alone answered. In the answer, the defendants, William and Fletcher Peters, state that they purchased the land in question from Byford in December, 1889; that Byford was then occupying the land as his homestead, and owning no other lands; that one of them, Fletcher Peters, immediately took possession, and has ever since been in possession, occupying the land as his homestead; and in reference to the mortgage given, as aforesaid, by Byford to Shattuck, the answer charges that the debt secured thereby is usurious, as is also the mortgage.
Validity of conveyance of homestead.
Effect of the curative act.
The said mortgage was given in December, 1888, to secure a debt of $400 and 10 per cent, interest thereon, and due in five years. A note for the principal and for each annual installment of interest accompanies the mortgage. The wife united with the husband in the granting clause of the mortgage. She also relinquished her dower interest in the usual place, and in the usual manner, and then acknowledged that she had signed the relinquishment of her dower, and the certificate of the officer is in due form. This mortgage was properly executed and acknowledged by the husband and wife, and is a good conveyance of the husband’s land in general, and would have been a good conveyance of his homestead before the passage of the act of March 18, 1887, but is not a good conveyance of the homestead under that act, for, in order to make such a conveyance valid under that act, the wife must join the husband both in the execution of it and the acknowledgment thereof. Following the ruling in Pipkin v. Williams, 57 Ark. 242, this court, in Bank of Harrison v. Gibson, 60 Ark. 269, held that, in order to make valid the conveyance by husband and wife of the husband’s homestead, the wife should join with the husband in the execution of the conveyance, and also should acknowledge that she had executed the same; a mere acknowledgment of the relinquishment of dower right not being a sufficient compliance with the act. This suit having been instituted since the passage of the curative act of April 13, 1893, the mortgage, rendered invalid by the defective execution and acknowledgment as aforesaid, would have become valid, under the provisions of this latter act, but for the intervening rights of William and Fletcher Peters; since, according to the doctrine announced in Sidway v. Lawson, 58 Ark. 117, the curative act cannot effect their rights.
When pleading amended to conformto proof.
The controversy is narrowed down to one between the plaintiff and these alleged purchasers from Byford. The defense set up in the answer is one of usury only, and not that of defective conveyance of Byford’s homestead. The plea of usury was manifestly not sustained by the testimony, since all. that was shown on that subject was that Byford has only in fact received $390, when his note was for $400 and interest at the highest legal rate, and it was shown that the difference between the two amounts consisted of a sum taken out to pay certain expenses incurred by Byford in relation to the transaction. However, the cause was submitted on the pleadings and what purported to be an agreed statement of facts, and, as a part of this agreed statement was the testimony of Fletcher Peters, who testified as to the homestead right of Byford, as well as that of himself as his vendee; and, upon this state of facts, the court found that, at the time the mortgage was executed, the land conveyed was the homestead of Byford, and, since the same had been defectively executed and acknowledged by the wife of Byford, it was void, and so decreed. The relief on this ground was not prayed in the answer, and, furthermore, it may be said to be rather a loose practice in chancery to treat the pleadings as amended to suit the evidence, under the circumstances presented in this case. But the evidence was admitted without objection, under the character of an agreed statement of facts, and the court below seems to have understood that he had the case before him to be decided upon all the facts presented, and we do not see our way clear to disturb the decree.
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Riddick, J.,
(after stating the facts). The decision of this case turns on the question whether the contract sued on was in writing or not. The appellant, Busch, claimed that the contract was in writing, and attached to the bond at the time it was executed. Hart denied this, and based his right to recover on the contention that the work was done under an oral contract in terms different from the written contract set up by Busch. The verdict of the jury in favor of Hart was no doubt based on the finding that the work was done under an oral contract, and that the contract exhibited by Busch was not attached to the bond at the time of its execution, and not the contract between the parties. The bond expressly refers to the fact that Hart and Busch had entered into a contract for the performance of which the bond was given, and contains the following recitals, to-wit: “a copy of which contract is attached hereto, and made a part hereof.” At the trial the contract was exhibited by Busch attached to the bond, and, referring to the time when the bond and contract were delivered to him by Hart, he testified that “the copy of the contract was attached to the bond just as it is now.” Now, if the contract exhibited by Busch was in fact attached to the bond at the time of its execution, and was the contract referred to therein, then a signing of the bond was in legal effect a signing of the contract also. Tonnele v. Hall, 4 N. Y. 144; Gale v. Nixon, 6 Cow. (N. Y.), 448; Mayer v. Adrian, 77 N. C. 88; Fisher v. Kuhn, 54 Miss. 483; 2 Whart. Ev., sec. 872.
The testimony of both Busch and Hamblin tends strongly to show that the contract exhibited by Busch was attached to the bond at the time of its execution. This is further supported by the reference in the bond to a contract attached thereto. We can find nothing in the record to contradict or impeach this testimony. It is true that Hart testifies that his contract with Busch was not reduced to writing, but he nowhere states that the contract exhibited by Busch was not attached to the bond at the time of its execution. On the contrary, when cross-examined on this point, he stated that “the form of a contract attached to the bond shown him might have been attached when he delivered the bond, but that he had never signed it.” It appears from his testimony that his contention that the contract was not in writing was based on the fact that he had never signed the contract itself; but this, we have seen, was a matter of no consequence if he signed the bond with the contract attached, and delivered it to Busch in this condition. He does not deny that the contract exhibited with the bond was attached to it at the time he executed the bond, but only denies that he signed such contract. His assertion that this writing was not the contract is only a legal conclusion he draws from the fact that it was not signed, and is entitled to no weight as evidence.
After carefully considering the transcript, we are forced to the conclusion that the undisputed testimony shows that the contract exhibited with and attached to the bond at the trial was thus attached at the time the bond was delivered to Busch by Hart. This contract having been attached to the bond at the time of its execution, and expressly referred to therein as the contract for the performance of which the bond was given, the parties are bound by its stipulations.
writing!
The fact that the consideration to be paid Hart is not stated'in the bond can make no difference now, for the contract has been executed. This is not a case in which the statute of fraud applies, nor has it been pleaded. When that statute does not apply, a contract to furnish materials and perform work may be in writing, and the price to be paid for the same may be established by parol, when it does not contradict or vary the contract. 1 Greenleaf, Ev. 284a, 285; Eighmie v. Taylor, 98 N. Y. 294; Graffam v. Pierce, 143 Mass. 386; Clifford v. Turrill, 9 Jur. 633. There is no dispute here about the consideration to be paid, and the only dispute is about matters- fully covered by the written contract attached to the bond.
The court correctly instructed the jury as to the legal effect of signing the bond with the contract attached, but the finding and verdict of the jury is without evidence to support it for the amount found against appellant.
The judgment is reversed, and the cause remanded for a new trial.
Hughes, J., dissents. | [
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Bunn, C. J.
These two cases are to be considered together, the difference between them being mostly as to the manner in which they were presented to the court below.
It appears that R. W. Martin purchased the lands involved in both suits from the commissioner of state lands, on the 16th day of June, 1887, and received his deeds for the same on that day and of that date; that said deeds were executed in the name of Paul M. Cobbs, commissioner of state lands, by C. B. Myers, deputy commissioner; and that, on the 22d of July, 1887, Martin filed his petition for the confirmation of the tax-sales by which said lands had been certified to the state for the non-payment of the taxes for 1884, exhibiting his deeds therewith, and gave notice in form as required by statute in such cases, by publication in the Hot Springs Sentinel, a weekly newspaper, then published in the city of Hot Springs, where said lands are situated, by six weekly insertions, to-wit, on July 30, Aug. 6, 13, 20, and 27, and Sept. 3, 1887.
On the 28th of March, 1888, having discovered a defect in the deeds first filed with the petition as afore-, said, in this, that the said deputy commissioner had not been formally appointed as such, the said R. W. Martin filed an amended petition, exhibiting therewith proper deeds from the commissioner in person; and on the 17th of January following, the petition and amended petition coming on for hearing, upon proper finding as to forfeiture, description, and purchase from the state, the Garland circuit court in chancery entered its decree of confirmation, in due form.
It appears, further, that appellant, Fannie A. Hawkins, after the expiration of the term at which said confirmation decree was rendered, to-wit, on the 25th of April, 1.889, filed her petition and amended petition, setting up that she was the owner of certain of said lots, and contesting said confirmation decree, — First, on the ground of sundry alleged irregularities in the assessment, sale, forfeiture, and certification of said lots to the state; secondly, that she had regularly paid all prior taxes due on said lots, but that the tax receipt of the taxes of 1884 had been misplaced and could not be found, that the deed upon which the notice of confirmation was founded, that is to say, the deed from the commissioner of state lands, by his reputed deputy, C. B. Myers, was void, and that all proceedings thereon were consequently void, and that the notice was not published as required by law. This was denominated “an answer and cross-bill” in the original proceedings by Martin for confirmation, but seems to have been treated as a bill of review to set aside the confirmation decree. This constituted what is here case No. 2689.
On the 4th of September, 1890, appellee, Garrett, filed his bill of review, having for its object the annulment of said confirmation decree; also setting up the same grounds as did his co-appellee, Fannie A. Hawkins, exceptúas to the payment of the taxes for 1884. This case is No. 2690.
It further appears that the said Paul M. Cobbs was commissioner during the years 1885 and 1886, and on the 30th October, 1886, was commissioned, in pursuance of a previous election, as commissioner of state lands, for his second term, thus succeeding himself, and that the said C. B. Myers had been, during his first term, his regular appointed and acting deputy, but that by some oversight or inadvertence the commissioner had failed to formally reappoint him as deputy for the second term, but that he had continued to act as such, and, while so acting, executed the deed in question, in the name of the principal.
There was a decree in each case for the petitioner annulling the confirmation decree, mainly on the ground that the deed of the commissioner of state lands to Martin by his said alleged deputy was void, because of the want of authority in said deputy as aforesaid. In the meantime, Martin having died, his widow, Annie F-, was appointed administratrix of his estate, and the causes were revived in her name as such, and in the name of the children and heirs of Martin, and they appealed to this court, and the issues suggested in the court below now come up for review.
When unnecessary to • brings up the evidence.
Conclusiveness of decree of confirmation.
There is a motion pending in the court, at the instance of the appellees, to dismiss the appeals, for the reason that, while the record shows that oral testimony was taken, yet there is no bill of exceptions showing that all the testimony is now presented to this court. When a cause has been determined in the trial court on the weight of evidence, it stands to reason, and accords with all precedents and the decisions of this court, that all the evidence should be presented to the appellate court. This can only be done by bill of exceptions or by writing in nature of agreed statement or deposition, where oral testimony has been used, and in such case the bill of exceptions must be such as to show to the appellate court that it contains all the testimony, dehors the record, adduced in the trial court. But when the finding and judgment of the trial court, as in this case, show that the judgment, is not in accord, or is not consistent with the facts found, the judgment will be reversed, if the error be a reversible one, — that is, material. That question will be determined in determining the various questions which'follow.
The confirmation decree of the court having jurisdiction to render it cuts off all controversy as to the mere irregularities of the original tax-sale and forfeiture, such as mere errors in assessment and in the return made thereof, the advertisement, and the payment in part of the taxes, and subsequent misconduct or mistakes of officers, as all these might.have been the subject of an answer in the confirmation proceedings, and are not such matters as show a want of jurisdiction of the'court to decree confirmation. This leaves but two questions to be settled, — the one as to the deeds of Cobbs by the deputy, and the other as to the' notice,- — these being all that may be considered as jurisdictional, and therefore all that really could affect the confirmation decree,
peütfoneíto fée(Rmended
Ns to the deed: It appears that the petition with the defective deed exhibited therewith, or referred to therein, was filed just before the notice for confirmation was first published, and that an unobjectionable deed was substituted by the way of amendment about eight months afterwards. It appears, also, that Cobbs, in the meantime, having discovered his failure to reappoint his said deputy for his second term, regularly appointed him, reciting that the appointment should relate back and have effect from the commencement of his said second term, and also confirming and ratifying all that his said deputy had done as such in the meantime/
The statute authorizing confirmation proceedings reads as follows (Mansf. Dig., sec. 577): “The purchasers, or the heirs and legal representatives of purchasers, at all sales which have been, or may hereafter be, made, may, when such lands are not made redeemable by any of the laws of this state applicable to such sales, or, if redeemable, n^ay at any time after the expiration of the time allowed for such redemption, publish six weeks in succession, in some newspaper published in this state, a notice calling on all persons who can set up any right to the lands so purchased, in consequence of any informality or illegality connected with such sale, to show cause at the first circuit court which may be held for the county in which such lands are situated, six months after the publication of said notice, why the sale so made should not be confirmed, which notice shall state under what authority the sale took place, and also contain the same description of the lands purchased as that given in the conveyance to the buyer, and, further, shall declare the price at which the land was bought and the nature of the title by which it is held.” The preceding section provides what class of purchasers may enjoy the benefits of this act.
The contention of the appellees is that, as there was, before the notice was given, no valid conveyance from the commissioner of state lands to Martin, so the conveyance mentioned in the latter part of the section quoted above never had any existence, and therefore there could not have been any compliance with the terms of the law in the matter of the description to be set forth in the notice. To maintain this contention, it would, of course, have to be shown'or assumed that the deed in question was not merely voidable, but absolutely null and void, and incapable of being given vitality, so as to make it operative for any purpose. We do not think this contention well founded. In the first place, the defect is notone attributable to the grantee in the deed; and, in the next place, it is shown to be one made by oversight; and, in the third place, it is an attempt purely and solely affecting the state and the grantee, in so far as the question of title is concerned. Under such a state of facts, it would be contrary to all principles of equitable procedure to say that the holder of the defective deed cannot, at any time before decree in equity, have the same corrected, and made to speak the truth, by the party authorized to make it in the first instance.
The conveyance referred to in this statute, from which the description given in the notice must be taken, or to which it must conform, is evidently the conveyance to the state. It is true also that the petitioner should show such a title by purchase direct at tax-sale, or from the state, as will entitle him to the benefits of the act. In attempting to do this, it is sufficient, of course, that he exhibit a good deed with his petition, and in equity, also, that he show himself entitled to a good deed, and has procured it before hearing. Any other rule would'partake of the nature of technicality, — a system now happily discarded.
sufficiency of notice.
The notice was published by six successive weekly insertions, — the first on the 30th of July, the last on the 3d of September, constituting, it is true, a period of time equal to thirty-seven days ; yet, according to the weight of authorities, the notice so published must not be measured by such a restricted rule. The notice must be “published six weeks in succession,” six months before the beginning of the term at which the petition is to be heard. The petition in this case was called up for hearing on the 17th of January, 1889, and during the September term, 1888. The September term of the Garland circuit court began at that time on the 4th Monday of September, and it appears that this was more than six months subsequent to the 10th of September, 1887, giving the longest possible time for the notice to run — six full weeks, or forty-two days, from the first publication, and the six months thereafter before the beginning of the term. Por, indeed, the six months from September 10th had expired before the beginning of the term to which the notice was directed (March term, 1888), but the hearing was doubtless postponed because of the filing at that time of the amended petition. The amended petition was, perhaps, no cause for delay, as even the filing of the original petition might have been delayed until then, but this delay is something of which appellees could not complain.
As to what notice is sufficient, under statutes similar to the one upon which these confirmation proceedings are based, we refer to the following authorities, to-wit: Pennell v. Monroe, 30 Ark. 661; Howard v. Hatch, 29 Barb. 297; Wood v. Knapp, 100 N. Y. 109; Madden v. Cooler, 47 Ill. 359; Alexander v. Messervey, 35 S. C. 409 (14 S. E. 854).
The decree of the Garland circuit court in chancery in each case is inconsistent with the findings of facts, which we find to be correct, and is therefore reversed and remanded, with directions to enter decree accordingly. | [
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Riddick, J.
The facts in this case are similar to those in the case of Pine Bluff Water & Light Company v. Schneider, just decided, (ante, p. 109) except that the plaintiff was guilty of no contributory negligence.
The injury was occasioned by the same explosion caused by the co-operating negligence of Hammert and tbe water and light company. The case is controlled by the rule announced in the recent case of City Electric Railway Co. v. Conery. Conery was injured by the concurring negligence of the railway company and a third party. It was held that both parties whose negligence directly contributed to cause the injury were liable therefor. City Electric Ry. Co. v. Conery, 61 Ark. 381; Atkinson v. Goodrich Transportation Co. 60 Wis. 141; Shearman & Red. Neg. sec. 34. Whittaker’s Smith, Neg., 31, and note. The judgment of the circuit court is therefore affirmed. | [
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Hughes, J.,
(after stating the facts). It has been recently decided in this court that the conveyance by a widow of her right of dower in the lands of her deceased husband, before the assignment of her dower, confers upon the alienee no right which he can enforce at law, but that he may, in equity, have her dower set aside and assigned to him. A widow, before the assignment of her dower, may occupy and hold the mansion house and farm attached free of rent, till her dower is assigned. But, if she abandons the possession, the heir may enter and occupy the premises, subject to her right to have dower assigned. “She may occupy and cultivate the land herself, or allow another to do it for her.” She need not remain on it in person, “for it may be she could only derive a support from the premises by renting them.” McReynolds v. Counts, 9 Grat. 242; Oakley v. Oakley, 30 Ala. 131; Padgett v. Norman, 44 Ark. 490. “But this (quarantine) right to occupy the premises, or to receive the profits for her maintenance, is so far personal to the widow that it cannot be transferred to another; and if, before her dower is assigned, she makes a conveyance of her interest, the heir may recover in ejectment against the alienee.” 2 Scribner, Dower, p. 64; Wallace v. Hall, 19 Ala. 367; Wallis v. Doe, 2 Smedes & M. 220. When Mrs. Ward transferred her interest to Meacham, and abandoned the premises, a right of action in ejectment against Meacham accrued to the appellant.
Limitation to action to decedent’s land'
Having delayed to bring his action until long after o y o o the lapse of seven years, and Meacham and those claiming under him having had adverse possession for over seven years next before the commencement of this suit, the appellant’s right of action was barred by the seven-years statute of limitations before his suit was commenced. Wherefore the judgment is affirmed.
Weaver v. Rush, ante, p. 51. | [
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George Rose Smith, Justice.
This multi-party action for personal injuries and wrongful deaths arose out of a 1981 accident at the International Paper Company’s paper mill in Pine Bluff. Separate crews at the mill permitted two different chemicals to flow into the mill’s sewer system. The chemicals intermingled at some point in the system and reacted to create a poison gas that entered the atmosphere through an open grate sewer covering. At least two employees died from the effects of the gas; others were injured. All the employees were covered by the workers’ compensation law.
This tort action was brought by injured employees and by the personal representatives of two that died. The four defendants are supervisory employees of the company: the mill manager, the pulp mill superintendent, the superintendent of engineering, and the supervisor of safety. None of the defendants was present at the place of the accident or had any active part in the work that caused the chemicals to enter the sewer. The complaint alleged negligence on the part of each defendant in failing to discharge his responsibility to make the premises safe.
Upon proof of the foregoing essential facts the trial court sustained the defendants’ motion for summary judgment, on the ground that as supervisory employees the defendants are protected from personal liability by the same immunity that the statute confers upon the employer itself, the remedies provided by the statute being exclusive. Ark. Stat. Ann. § 81-1304 (Supp. 1983). For reversal the appellants argue that on the facts of this case the supervisory employees should not be immune from liability for their own negligence.
Our cases have not passed upon this problem. Our two most pertinent decisions lie at opposite ends of the spectrum. In Neal v. Oliver, 246 Ark. 377, 438 S.W.2d 313 (1969), relied on by the defendants, the employer was an incorporated laundry owned by Oliver and his wife and son. Oliver himself was the president and general manager. The plaintiff was an employee who had been injured while operating a defective ironing machine. In a tort action against Oliver we held that he was not liable because “he was also the appellant’s employer.”
On the other hand, immunity was denied in King v. Cardin, 229 Ark. 929, 519 S. W.2d 214 (1959), relied on by the plaintiffs. There two fellow employees, a truck driver and a laborer, were working with others on a highway paving project. King, the truck driver, backed up his truck negligently and struck Cardin’s decedent, who was killed. We permitted an action against the truck driver for wrongful death, under the section of the statute providing that an employee’s compensation claim against the employer does not affect his right to sue a “third party.” Section 81-1340 (Repl. 1976). Our reasoning, supported by cases from other jurisdictions: “Under a statute like ours a negligent co-employee is regarded as a third person.”
This case falls between the two extremes. Professor Larson’s own view, expressed without regard to the cases, would unhesitatingly deny liability in this case. He insists that workers’ compensation coverage should be viewed neither as a branch of tort law nor as a system of social insurance. He says, in part: “Almost every major error that can be observed in the development of compensation law, whether judicial or legislative, can be traced either to the importation of tort ideas, or, less frequently, to the assumption that the right to compensation resembles the right to the proceeds of a personal insurance policy.” Larson, Workmen’s Compensation Law, § 1.20 (1984). After pointing out that the “tort-connection fallacy” can at times be harmful to the employee and at times to the employer (ibid.), Larson sums up the problem quite simplistically:
The right to compensation benefits depends on one simple test: Was there a work-connected injury? Negligence, and, for the most part, fault, are not in issue and cannot affect the result. Let the employer’s conduct be flawless in its perfection, and let the employee’s be abysmal in its clumsiness, rashness and ineptitude; if the accident arises out of and in the course of the employment, the employee receives his award. Reverse the positions, with a careless and stupid employer and a wholly innocent employee; the same award issues.
Thus, the test is not the relation of an individual’s personal quality (fault) to an event, but the relationship of an event to an employment. The essence of applying the test is not a matter of assessing blame, but of marking out boundaries.
As our own Neal and King cases, supra, illustrate, the courts have not uniformly adopted Larson’s reasoning nor uniformly reached his recommended results. Nevertheless, with respect to the liability of supervisory employees the great majority of the decisions are in harmony with Larson’s conclusions. Their reasoning has usually been that since an employer is immune under the statutes from a negligent failure to provide employees with a safe place to work, the same immunity protects supervisory employees when their general duties involve the overseeing and discharging of that same responsibility. Typical recent decisions include Vaughn v. Jernigan, 144 Ga. App. 745, 242 S.E.2d 482 (1978); Kerrigan v. Errett, 256 N.W.2d 394 (Iowa 1977); Athas v. Hill, 458 A. 2d 859(Md. Spec. App. 1983); Dawley v. Thisius, 231 N.W.2d 555 (Minn. 1975); Greco v. Farago, 477 A. 2d 98 (R.I. 1984); Blumhardtr v. Hartung, 283 N.W.2d 229 (S.D. 1979); and Laffin v. Chemical Supply Co., 77 Wis. 2d 353, 253 N.W.2d 51 (1977).
A Missouri court gave a persuasive practical justification for the majority view in State ex rel. Badami v. Gaertner, 630 S.W.2d 175 (Mo. App. 1982):
Under present day industrial operations, to impose upon executive officers or supervisory personnel personal liability for an accident arising from a condition at a place of employment which a jury may find to be unsafe would almost mandate that the employer provide indemnity to such employees. That would effectively destroy the immunity provisions of the workmen’s compensation law.
We are solidly in agreement with the majority view. As we all know, the purpose of workers’ compensation statutes was to change the common law by shifting the burden of all work-related injuries from individual employers and em ployees to the consuming public. In that effort the matter of fault, as Larson points out, is ordinarily immaterial. Employers were compelled to give up the common-law defenses of contributory negligence, fellow servant, and assumption of risk. Employees were compelled to give up the chance of recovering unlimited damages in fault-related cases in return for a certain recovery in all work-related cases. The plaintiffs here are attempting to return to the common-law system based on fault, when it is to their advantage to do so, but at the same time to retain the assured benefits of workers’ compehsation regardless of fault. The invalidity of their position is too plain to require further discussion.
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Battle, J.
Three creditors of David B. Looney, to-wit, Fleetwood Morris, R. M. Jetton, and J. P. Falconer, brought three separate actions against him before a justice of the peace of Sebastian county, each one suing for himself, and causing an order of attachment to be issued in his case. A. P. Jetton was duly appointed to serve process in the action instituted by R. M. Jetton. A mare and other property of the defendant were attached, the mare being first attached in the suit instituted by R. M. Jetton, and thereafter in the other two actions. After this the attaching creditors met to divide the property among themselves, some witnesses say, for the purpose of saving costs, and to hold subject to the attachments, and another says,, for the purpose of paying the debts of the defendant to themselves, the brother of the defendant (who had possession of the property at the time it was attached) assenting. In the division the mare was delivered to Falconer, who carried her to Franklin county, and sold her to Franklin Tobey on a credit. Thereafter, A. P. Jetton, who served the order of attachment sued out by R. M. Jet-ton, demanded the mare of Tobey, and, he refusing to comply with the demand, brought this action against him for her possession in Franklin county. The property sued for was delivered to the plaintiff. In the meantime David B. Looney, having been absent, re turned, and compromised and paid his indebtedness to Morris and R. M. Jetton; and the three actions against Looney were dismissed, the attachments were discharged, and the mare was returned to him (Looney) by A. P. Jetton, who had previously gained possession of her by the suit against Tobey. The dismissal of the action of Jetton against Looney and the discharge of the attachment therein were subsequent to the institution of the suit against Tobey. There does not appear to have been any payment of the indebtedness of Looney to Falconer.
In the trial of the issues in the action against Tobey, the foregoing facts were shown by the evidence. It was further shown that Tobey had no notice of any defect in the title of Falconer to the mare at the time he purchased her. Upon this evidence the court instructed the jury as follows: “The plaintiff claims possession of the property by reason, of the fact that he had levied upon the same by virtue of a writ of attachment against David Looney in favor of Marion Jetton. "If plaintiff was appointed by the justice of the peace to serve the writ of attachment in the Jetton case, and the mare was delivered- to Falconer by the plaintiff in this case, or Marion Jetton and Falconer brought the mare from Sebastian to Franklin county, and Falconer sold the mare.to Tobey with notice, to Tobey of the- situation of the property, then plaintiff can recover, unless Falconer obtained the mare under a compromise with George Looney, -and George Looney had authority from David Looney,, expressed or implied from the circumstances, to make, the compromise in the Falconer-case,, and delivered the mare to him. in settlement of Falconer’s claim, in which event plaintiff is not entitled to - recover. If J. P. Falconer obtained possession of the mare, as explained in the above instruction, either in lawful, compromise. with George Looney, and he was Looney’s agent, or otherwise under agreement with plaintiff or Marion Jetton, and conveyed the mare from Sebastian to Franklin county, and sold her to Tobey for cash or on a credit, and at the time of sale Tobey had no notice or knowledge of the condition of the title of the property, and bought believing he was getting a good title, defendant Tobey is entitled to recover.”
Title conveyed by sale.
The jury returned a verdict in favor of the defendant. A judgment was rendered accordingly, and the plaintiff appealed.
The jury were virtually told by the instructions of the court that if Tobey purchased the property in controversy in good faith, without any notice of any defect in- the title of his vendor, he was entitled to recover, notwithstanding the person from whom he purchased had and was entitled to nothing more than possession-. That is not true.
' A general rule of the law of personal property is that no man can sell that which he has not and is not authorized by the owner to transfer, or confer a better title than that he has. An honest purchaser under a defective title cannot hold against the true proprietor. ‘‘No one can transfer to another a better title than he has himself, is a maxim,” says Chancellor Kent, ‘‘alike of the common and civil, law, and a sale, ex vi termini, imports nothing more than that the bona fide purchaser succeeds to the rights of the vendor.” To this rule, however, there are exceptions.- Among them are enumerated the following: Transfers of money, bank bills, checks, and notes payable to bearer or transferable by delivery in the ordinary course of business to a person taking them bona fide and paying value for them: (Fawcett v. Osborn, 42 Ill. 411), bona fide purchases from fraudulent buyers, or others having a voidable or defeasible title; and, in Fng’land, sales in market overt, an exception which does not prevail in this country.
Mr. Freeman, in his valuable notes to Williams v. Merle, 25 Am. Dec. 611, says: “Most of the exceptions to the general rule that a bona fide purchaser gets no title if the vendor is not the owner arise from the fact that the real owner has voluntarily clothed such vendor with the apparent ownership or authority to sell. The nature and extent of the exceptions of this class are very clearly stated in the learned opinion of Mr. Senator Verplanck, in Saltus v. Everett, 20 Wend. 278. After some remarks on transfers of notes, bills, etc., he says: “After a careful examination of all the Fnglish cases and those of this state that have been cited or referred to, I come to this general conclusion, that the title of property in things movable can pass from the owner only by his own consent and voluntary act, or by operation of law; but that the honest purchaser, who buys for a valuable consideration in the course of trade, without notice of any adverse claim, or any circumstances which might lead a prudent ma?j to suspect such adverse claim, will be protected in his tú tie against the original owner in those cases, and in those., only, where such owner has,, by his own direct, voluntary act, conferred upon the person from whom the bona fide vendee derives title the apparent right of property as owner, or of disposal as an agent. I find two distinct classes of cases under this head, and no more: (1) The first is when the owner, with the intention of sale, has in any way parted with the actual property of his goods, with his own consent, though under such circumstances of fraud or error as would make that consent revocable, rescind the sale, and authorize the recovery of the goods as- against such vendee. But if the property passes into the hands of honest purchasers, the first owner must bear the loss. Thus, to take an instance from our own Reports, where goods were obtained by a sale on credit, under a .forged recommendation and guaranty, and then sold to a bona fide purchaser in the customary course of trade, the second buyer was protected in his possession against the defrauded original owner. Mowrey v. Walsh, 8 Cow. 243. * * * * (2) The other class of cases in which the owner loses the right of following and reclaiming his property is where he has, by his own voluntary act or consent, given to another such evidence of the right of selling his goods as, according to the custom of trade, or the common understanding of the world, usually accompanies the authority of disposal; or, to use the language of Lord Bllenborough, when the owner ‘has given the external indicia of the right of disposing of his property.’ Here it is well settled that, however the possessor of such external indicia may abuse the confidence of his piúncipal, a sale to.a fair purchaser divests the first title, and the authority to sell so conferred, whether real or apparent, is good against him who gave it.”
wheninnoentitle?ots'
The mere possession of personal property, without other evidence of title, or authority from the owner to sell, will not enable the possessor to confer a better title than he actually has. As said by Chief Justice Brick ell in Leigh v. Mobile & Ohio R. Co. 58 Ala. 178, ‘‘possession is prima facie evidence of the ownership of all species of personal property. It is but prima facie, and whoever deals alone on the faith of it must accept it as such, and in subordination to the paramount title, which would prevail over it, if the possession was not changed by the transaction into which he enters. If this be not true, a felon acquiring possession by theft could, by a sale to an innocent purchaser, divest the true owner of his property. A naked bailee, intrusted with possession, could dispose of goods to the prejudice of his principal. A case does not fall within the exception unless the owner confers on the vendor other evidence of ownership, or of authority to dispose of the goods, than mere possession.” As an example, take the case of Simpson v. Shackelford, 49 Ark. 63. The owner in that case conditionally sold and delivered a corn mill, with the understanding that the title would remain in him until the purchase money was paid. The vendee sold to, another without any notice of any defect in his title, and delivered possession. The purchase money of the- first sale was not paid, and the original vendor sued for the propr erty, and recovered it; the court holding that the second vendee, though a bona fide purchaser, acquired no. title as against him. McMahon v. Sloan, 12 Penn. St. 229; Andrew v. Dieterich, 14 Wend. 31; Covill v. Hill, 4 Denio, 323.
who is not a bona fide purchaser,
fughtofofficer to ‘bring’ replevin,
If, in this case, Falconer did not acquire title to the mare in controversy by purchase from Looney, or an agent authorized to dispose of her in payment of his debts, he was a mere custodian of her at the time he sold her to Tobey, and held her subject to the right of the special constable to take possession. He could have acquired no other right from, A. P. Jetton in his official capacity; and, consequently, if this was all the claim he had, transferred no title by the sale to Tobey.
Another fact that defeats Tobey’s right to the claims • , of a bona fide purchaser is, he purchased on- a. credit, and never paid the purchase money.
A. P. Jetton, as special constable, acquired a special property and right to the possession of the property when he seized under the order of attachment, and had the right to. institute this-action. He-was liable to David B. Looney for her when the attachments were discharged, if Looney was then, her owner,, and, of course,, was entitled to her possession for the purpose of discharging that Qbliga;tiou.
One.of the reasons assigned why the verdict of this jury in this case should be set aside is the alleged misconduct of an interested party and two jurors during the progress of the trial. While it is not necessary to the disposal of this appeal to pass upon this assignment of error, or to ascertain whether it be based on fact, it may not be amiss to say, without reference to it, that the treating, feeding, or entertaining of jurors by the parties or their counsel during the progress- of a trial in a cause in which they have been selected as a jury,'whatever the motive may be, is highly improper, and deserves severe condemnation. For such conduct by successful parties, verdicts have been set aside, and new trials granted. 2 Thompson, on Trials, sec. 2564, and cases cited. No one in whose behalf such an influence has been exerted on jurors ought to be entitled to the enforcement of a verdict rendered in his favor under such circumstances. The purity and- integrity of jury trials should be preserved, so far as it can be lawfully done.
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Riddick, J.,
(after stating the facts). We need not discuss the instructions given by the learned judge to the jury in this case. In our opinion, he was justified in holding, as a matter of law, that'the letter of W. A. Crossett & Co. to Williamson was an offer to surrender the place for the year 1893. The appellees, by that letter, stated to Williamson, in substance, that they were unable to furnish hands and teams to work the place which they had rented from him for that year, and advised him that, as it was early in the season, he could, rent it out to some one else, and lose nothing. This could mean nothing else than an offer to surrender the premises to him. Williamson did not reply to this letter, but soon afterwards took charge of the place, and controlled it for the remainder of the year, without any notice to appellees that he was managing the place on their account, or that he expected them to make good any deficiency in the rents. This conduct on his part amounted to an acceptance of the offer to surrender made by Crossett & Co.
The evidence conclusively shows that this was the understanding of the parties at the time Williamson took possession. He himself says that, at the time he received this letter from Crossett & Co., he supposed that they were “totally insolvent.” Upon arriving at the place, he stated to Counts, a tenant who had rented a portion of the place, that Crossett & Co. “had failed, and turned him back the place.” He thus induced Counts to take up the note he had executed to Crossett & Co., and to execute a new note direct to him for the rent of a portion of the land. This proves that he was not managing the place for the account of Crossett & Co., and that he considered that they had no further rights in the premises. When the tenant offers to surrender his lease, and the offer is accepted by the landlord, the tenant is not liable for rents accruing afterwards. The facts of this case show that Williamson had no right of action against Crossett & Co. for rents accruing after he took possession. Talbot v. Whipple, 14 Allen, 180; 2 Wood, Landlord & Tenant (4 Ed.), sec. 494.
We have not overlooked the case of Meyer v. Smith, 33 Ark. 627, cited by counsel for appellant. It was held in that case that when the tenant abandons the premises, refuses to pay rent, and repudiates the tenancy before the expiration of the lease, the landlord may take possession, and rent for the benefit of whom it may concern, and hold the tenant liable for any portion of the rent unpaid at the end of the term. There was no offer to surrender made in that case by the tenant, and nothing to show th^t the landlord had accepted a surrender of the lease by the tenant, as there is in this case. It was said in that case that the tenants “refused to respond to all letters concerning the rents, withdrew from the occupancy, and left the house open and unprotected;” that “they never acknowledged any liability for rent after a short occupation to serve their business purpose, but acted in such a manner as to indicate beyond doubt their fixed purpose to repudiate the tenancy.” It was held that the landlord, by taking possession under those circumstances, did' not, as a matter of law, accept the surrender of the tenant’s lease. There are cases in other states opposed to the rule announced in Meyer v. Smith. As supporting it see State v. McClay, 1 Har. (Del.) 520; Breuckmann v. Twibill, 89 Pa. St. 58. Opposed to it, see Schuisler v. Ames, 16 Ala. 73; Rice v. Dudley, 65 Ala. 68; Hachett v. Richards, 13 N. Y. 140.
But the facts here are different. There is no repudiation of the tenancy here. On the contrary, there is an express acknowledgment of the tenancy in the letter of Crossett to Williamson, and an offer to surrender. “I write to inform you,” he says, “that it will be impossible for us to furnish hands and teams to work your place which we have a lease on for this year.” He admits the contract and the liability, but states that, by reason of business reverses, they will be unable to comply with the contract, and, in effect, offers to surrender the place to appellants. By taking charge of the place soon after receiving this letter, and controlling it for the remainder of the year, without further notice to Crossett & Co., appellants accepted the offer to surrender. Their holding was not for Crossett & Co., but for themselves, and the rights and liabilities of Crossett & Co. as to rents thereafter accruing were at an end. Hall v. Burgess, 5 B. & C. 332.
The judgment of the circuit court is therefore affirmed.
BatteE, J., dissented. | [
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Hughes,
J. This is an appeal from a judgment against the railway company for damages for killing a twelve-year old son of the appellee, while attempting to cross the railroad track in front of a train, which was backing at the time it struck the boy, with no one on the end of the train next to the deceased to keep a lookout.
The boy was attempting to cross at a crossing obstructed by a train of the appellant company. The view from the backing train, that struck him, to a point beyond where he was killed, was open and unobstructed. The fireman and engineer of the train that killed him testified that they did not see the boy until after he was struck.
The jury must have inferred that the employees of the railway might have seen him before, if they had kept a constant lookout, as required by the act of April 8th, 1891, and in time to have prevented striking him, and, under the circumstances and testimony in the case, this was a question for the jury. We would not disturb the finding as to this, if there was no question of contributory negligence in the case.
The court gave, of its own motion, several instructions, to which no objections were made by defendant. The court refused to declare the law as set out in the fourth, fifth, and sixth instructions as asked by the defendant, but gave the same in a modified form. That part of the instructions in parenthesis, italicized, were the modifications made to defendant’s instructions, over defendant’s objections, in which form they were given by the court. ‘ ‘4. If the jury find, from the evidence, that the deceased came upon the track so close to the backing engine and tender that it would have been impossible for those in charge of the engine to have prevented his being run over or struck (had they been keeping a lookout for persons on the track), you will find for the defendant.”
“5. You are instructed that contributory negligence is a complete defense to actions of this character, and if you find, from the evidence, that the deceased, Samuel Leathers,- was guilty of negligence in being on or near the track, and that, without such negligence on his part, the accident would not have happened, then you will find for the defendant, even though you should find that the defendant’s employees failed to keep a proper lookout, or were guilty of negligence in any other particular charged in the complaint, unless you further find that the defendant’s employees became aware of the negligence of deceased in time to have avoided injuring him, and failed to exercise such care, (or that they failed to keep a lookout for persons on the track when, by keeping such a lookout, the injury might have been avoided)."
“6. You are instructed that it is negligence for one at a railroad crossing to go upon the railroad track without first looking up and down the track, and listening for any approaching train or engine. And a failure to so look and listen will prevent a recovery from the railway company for an injury occasioned thereby, unless the employees of the railway company became aware of the negligence of the injured party in time to have avoided injuring him by the exercise of reasonable care, and failed to exercise such care, (or if he might have been discovered by keeping a lookout, and they failed to keep such lookout)."
The jury returned a verdict in favor of plaintiff for $350.00. Defendant filed a motion for a new trial, which was overruled. Exceptions were saved, and defendant appealed.
These instructions were erroneous. The fourth was inconsistent in itself. Each one of them ignored the doctrine of contributory negligence, which we hold still applies to cases like this, notwithstanding the act of April the 8th, 1891, which provides :
“Sec. 1. That it shall be the duty of all persons running trains in this state, upon any • railroad, to keep a constant lookout for persons and property upon the track of any and all railroads, and if any person or property shall be killed or injured by the neglect of any employees of any railroad to keep such lookout, the company owning and operating any such railroad shall be liable and responsible to the person injured for all damages resulting from neglect to keep such lookout, and the burden of proof shall devolve upon such railroad to establish the fact that this duty has been performed.” Acts of 1891, page 213.
This act has been construed by this court in an opinion delivered by Mr. Justice Wood, at the present term of this court, in the case of Johnson v. Stewart, ante, p. 164. We adhere to the ruling in that case respecting the effect of that statute upon the doctrine of contributory negligence. In our opinion, it makes the failure to keep a constant lookout by the employees of a railroad company negligence, and puts the burden upon the railroad company to establish the fact that it has kept such lookout. This is the extent of the change made in the law by this statute, which, in our opinion, does not, in such cases as.this, abrogate the doctrine of contributory negligence. It has been repeatedly held by this court that “one who is injured by mere negligence of another cannot recover at law or equity any compensation for his injury, if he, by his own or his agent’s ordinary negligence or wilful wrong, contributed to produce the injury of which he complains, so that, but for his concurring and co-operating fault, the injury would not have happened to him, except when the direct cause of the injury is the omission of the other party, after becoming aware of the injured party’s negligence, to use a proper degree of care to avoid the consequences of such negligence.” L. R. & Ft. S. Ry. Co. v. Cavenesse, 48 Ark. 124, and cases cited. This is a doctrine which, according to the great weight of authority, seems founded in reason and justice, and which, in our opinion, the act referred to was not intended to and does not abrogate.
If it had been the intention of the legislature that passed this act to abolish the right to interpose the defense of contributory negligence in such a case, it could, should, and doubtless would, have said so in unambiguous terms. As said by Judge Wood in Johnson v. Stewart, supra, “where the negligence of the plaintiff contributes proximately to cause the injury of which he complains, the defendant is not liable,” unless the defendant, after becoming aware of the plaintiff’s negligence, could, by the use of proper care, have avoided the consequences of such negligence.
Before the passage of this act, it was the duty of railway employees to keep a lookout at crossings, as repeatedly held by this court, and it was never thought that this fact would exempt a party injured by a railway at a crossing from the consequences of his own negligence, which contributed to the injury.
The company claimed that the deceased was himself guilty of negligence contributing to his injury, and this question should have been submitted to the jury. On the facts as shown by the record, we would not disturb the verdict. But, for the error indicated, the judgment is reversed, and the cause is remanded for a new trial.
Battle, J. I do not concur with the court as to the interpretation of the act of the General Assembly,entitled, “An act to better protect persons and property upon railroads in this state,” approved April 8, 1891.
Previous to the enactment of this act it was held by this court that “a person who goes upon a railroad track without license or invitation of the company owning the road is a naked trespasser,” and the railroad company owes him no duty until his presence there is discovered; that, after he. is seen upon the track by the men in charge of a train running upon the road, they may act upon the presumption that he will step aside in time to avoid a collision, unless it is obvious, from his condition or circumstances beyond his control, that he cannot extricate himself from the danger menacing him; that the sole duty which the corporation owes him is not wantonly or with reckless carelessness to run over him after his situation is perceived; that its liability must be measured by the conduct of its employees after they become aware of his presence upon the track, and not by their negligence in failing to discover him; and that if, before they become aware of his presence, the train runs over and injures or kills him, no damage can be recovered by the company, because he was guilty of contributory negligence in being on the track without leave or invitation. (St. Louis, &c. Railway v. Monday, 49 Ark. 257; Sibley v. Ratliffe, 50 Ark. 477.) It also held in Memphis & L. R. Railway v. Kerr, 52 Ark. 162, that “the extent of a railroad company’s duty to the owner of stock which has strayed upon its track is that the engineer in charge of the train at the time shall use ordinary or reasonable care, after he discovers the stock, to avoid injuring it; and it is not negligence for a railroad company to fail to keep a lookout for stock.” No damages, of course, were recoverable of the railroad company for killing stock by trains before its discovery upon the track.
To avoid the force and effect of these decisions the act of April 8th, 1891, was passed. It is as follows :
“Whereas, in this state the railroad tracks are mostly exposed and uninclosed, and persons and live stock are often upon the tracks, and are in danger "of being killed, and are injured and killed upon the track, when, by a proper outlook and care on the part of those running trains, such injury could be avoided; and
“Whereas, the supreme court has recently decided that it is not the duty, under existing laws, of the railroad companies in this state to keep an outlook for trespassers on their tracks, whereby those who run the trains are led to neglect the precaution to keep a lookout in running the trains, and thereby great damages to persons and property are occasioned to the good poople of this state, therefore,
“Be it enacted by the General Assembly of the State of Arkansas :
“Section 1. That it is and shall be the duty of all persons running trains in this state upon any railroad to keep a constant lookout for persons and property upon the track of any and all railroads, and if any person or property shall be killed or injured by the neglect of any employees of any railroad to keep such lookout, the company owning and operating any such railroad shall be liable and responsible to the person injured for all damages resulting from neglect to keep such outlook, and the burden of proof shall devolve upon such railroad to establish the fact that this duty has been performed.”
Under this act it is the duty of railroad companies to keep a constant watch for persons upon their tracks. For what purpose ? To avoid killing or injuring them. The imposition of the duty to keep a constant lookout indicates clearly the intention of the act to require railroads to use the means prescribed by law to avoid injuring them after they discover them upon their track. This was their duty before the act of April 8th became a law. The former, without the latter, would be entirely unnecessary, and accomplish nothing.
The act makes no change in the duties of railroads after discovering persons upon their tracks. Their duties in this respect are thus defined in St. Louis, I. M. & S. Railway v. Wilkerson, 46 Ark. 523: “If the employees of a railroad company in charge of its train see a man walking upon its track at a distance ahead sufficient to enable him to get out of the way before the train reaches him, and are not aware that he is deaf or insane, or from some other cause insensible of the danger, or unable to get out of the way, they have a right to rely on human experience, and to presume that he will act upon the principles of common sense and the motive of self-preservation common to mankind in general, and will get out of the way, and to go on, without checking the speed of the train, until they see he is not likely to get out of the way, when it would become their duty to give extra alarm by bell or whistle, and if that is not heeded, and it becomes apparent that he will not get out of the way, then, as a last resort, to check its speed, or, stop the train, if possible, in time to avoid disaster. If, however, the man seen upon the track is known to be, or from his appearance, gives them good reason to believe that he is insane or badly intoxicated, or otherwise insensible of danger, or unable to avoid it, they have no right to presume that he will get out of the -way, but should act upon the hypothesis that he might not or would not, and should use a proper degree of care to avoid injuring or killing him.” See also St. L., I. M. & S. Railway v. Monday, 49 Ark. 263.
But what are the consequences of the failure of a railroad company to keep a constant lookout ? The act says that, if any person shall be killed or injured on account of such failure, it “shall be liable and responsible to the person injured for all damages resulting from neglect to keep such outlook.” Does it mean to say that the railroad company shall be responsible only for a failure to observe proper watchfulness, and not for a neglect to use the proper precautions to avoid injuring a person on the track after he would have been discovered by a constant lookout? Damages do not result from the mere neglect to keep a lookout, but from the failure to use the means to avoid a collision with the person injured which should have been used after he would have been discovered on the track, had the proper lookout been kept, and not then if the discovery would or could not have been made in time to avoid the injury in the manner prescribed by law. Hence, the act necessarily means that, if a constant lookout is not kept by persons running trains upon any railroad in this state, the company owning and operating the road shall be responsible for all damages from injuries to persons upon its track by its trains which could have been reasonably avoided had a constant lookout been kept. If this is not its intention and effect, it has failed to accomplish the end for which it was obviously enacted.
But it may be said that the effect of this construction would relieve persons injured on railroad tracks of the consequences of contributory negligence. This may be true to some extent. The act recognizes the fact that persons often go upon the tracks of railroads “without leave or license,” and because they do so, and for their protection on account thereof, the act was enacted. The preamble, in assigning the reasons for enacting it, recites that, “Whereas, in this state, the railroad tracks are mostly exposed and uninclosed, and persons and live stock are often upon the tracks, and are in danger of being killed, and are injured and killed upon the track, when, by a proper outlook and care on the part of those ruining trains, such injury could be avoided, * * * * therefore, be it enacted,” etc. For this reason it was held, at one time, in this state that it was the duty of an engineer upon a railroad train “to keep a constant and careful lookout and watch for stock which might be on the track,” and that although stock be wrongfully on the railroad track, and was not seen by the engineer, and was injured, “yet if, by the exercise of ordinary care and watchfulness, he might have seen it in time to have averted the danger,” the railroad company was liable for the injury that resulted from the accident. L. R. & Ft. S. Railway v. Finley, 37 Ark. 562; L. R. & Ft S. Railway v. Holland, 40 id. 336. This rule is substantially the act in question, extended to and protecting stock and persons alike, so far as applicable. The history of the law upon this subject in this state, and the reasons assigned for both the act and rule, it seems to me, clearly show that the act was intended to make the rule the law in this state for the protection of persons and stock alike, so far as appropriate.
Johnson v. Stewart, ante, p. 164, is cited in the opinion of the court. What is said in that opinion in reference to this act of April 8th, 1891, was an obiter dictum, and, while entitled to much respect and consideration, is not controlling in this case. In one respect it might be cited to sustain the view I have taken. It is said in that opinion: “Prior to the decision of this court in Memphis & L. R. Railway v. Kerr, 52 Ark. 162, and the act of 1891, it was the duty of railroads to ‘use all reasonable efforts to avoid harming an animal after it was discovered or might by proper watchfulness have been discovered on or near the track.” L. R. & Ft. S. Ry Co. v. Holland, 40 Ark. 336; Same v. Finley, 37 id. 562. The act of 1891, so far as domestic animals were concerned, only had the effect to declare the law as it was before the decision of Kerr v. Railway, supra, overruling former cases.” Why it does not adopt the same rule as to persons is not easily explained. But this and all said about the act of 1891 was an obiter dictum. I so thought at the time the opinion was read, and for that reason filed no dissent.
The other cases cited or referred to in the opinion of the court state what the law was at a time before the 2d day of April, 1891, and do not undertake to construe the act of that date. As to them, it is sufficient to say that a valid statute repeals all laws in force at the time it takes effect, which are inconsistent with it. | [
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Hughes, J.,
(after stating the facts). There was no error in the judgment of the circuit court in overruling the demurrer to the indictment. It sufficiently charges the crime of forgery. It is not necessary to allege the mode in which the offense was committed, further than it is stated in this indictment; and it is not essential that the indictment should state that the forgery was committed by signing the name of another without his authority, in so many words. The charge that the defendant “did unlawfully, wilfully, knowingly, and feloniously and fraudulently make, write, forge, and counterfeit a certain deed and acknowledgment thereof, in words and figures, as follows, to-wit” [setting out a copy of the deed alleged to have been forged], necessarily imports that it was done without authority, and sufficiently states the manner of its execution. 2 Bishop’s Cr. Pro., sec. 437. It is not necessary to set out the particular acts in which the forgery consisted. State v. Maas, 37 La. An. 292; People v. Van Alstine, 57 Mich. 69; People v. Marion, 28 Mich. 255. And this is according to the weight df authority. But it is said in People v. Marion, 28 Mich. 255, that the omitting to do so is a practice not to be commended, as an instrument may be forged in various ways, and fairness to the accused would seem to require it. The case of Com. v. Williams, 13 Bush (Ky.), 267, holds that it is necessary to do it. But this seems to be against the weight of authority. Where the prosecutor undertakes to set out in what the forgery consisted, he is bound to state it truly, so as not to mislead the defendant, and to prove it as stated. People v. Marion, 28 Mich. 255.
indictment held not duplex.
when intent to forge presumed.
We are of the opinion that the acknowledgment was only a part of the deed, and that the indictment in charging forgery of the deed and of the acknowledgment charges but one offense.
One of the errors assigned in the motion for a new ° trial is “that the court’s charge on the question of intent was erroneous, and there was no evidence to support the intent alleged in the indictment,”-which is that Bennett made the deed with the intent to defraud Burns, his heirs and estate. The counsel for the defendant contend, with much earnestness and plausibility, that, inasmuch as the evidence was to the effect that Bennett forged the deed for the sole purpose of use as evidence for the defendant on the trial of Watkins, charged with taking timber from the land of another, the presumption of intent to defraud Burns, his estate and heirs, was fully rebutted, and that the defendant was not guilty of forgery, within the meaning of the law.
Bishop, in his New Criminal Law (vol. 2, sec. 5978), says : “We have seen that forgery is an attempt to cheat. And an attempt, within the ordinary doctrine, exists only where the wrongdoer’s intention is specific,— to do the particular criminal act. Whence it might be inferred that there can be forgery only where there is a specific intent to effect the particular fraud which the false writing is adapted to accomplish. But we are about to see that the adjudged law is not exactly so. In the ordinary language of the books, there must be, in the mind of the wrongdoer, an intent to defraud a particular person or persons ; though no one need in fact be cheated. Yet the intent is not necessarily, in truth, exactly this ; it is rather that the instrument forged shall be used as good. Consequently, if the forger means, for instance, to take up the bill of exchange or promissory note when it becomes due, or even if he does take it up, so as to prevent any injury falling upon any person; ***** or if a party forges a deposition to be used in court, stating merely what is true, to enforce a just claim, — he commits the offence, the law inferring conclusively the intent, to defraud. And from the intent to pass as good the law draws the conclusion of the intent to defraud whatever person may be defrauded. Ordinarily there are two persons who may legally be defrauded, — the one whose name is forged, and the one to whom the forged instrument is to be passed ; therefore the indictment may lay the intent to be to defraud either, and it will be sustained by proof of an intent to pass as good, though there is shown no intent to defraud the particular person.” (See the authorities cited to support the doctrine of these sections. They are numerous.) There must be a possibility of fraud, but that is sufficient. The making alone of the false writing, with the evil intent, is sufficient. No fraud need be actually perpetrated. 2 Bishop, New Cr. Law, secs. 599, 602; Com. v. Henry, 118 Mass. 460; State v. Kimball, 50 Maine, 409. “Where the intent alleged is to defraud the person whose name is forged, it should be presumed from the forgery, without further proof.” 2 Bishop, Cr. Pro., sec. 427; Henderson v. State, 14 Tex. 503; Rounds v. State, 78 Me. 48.
The deed in this case, as appears from the evidence, was forged with an evil intent, was designed and intended to be used as good, and as material evidence on the trial of Watkins upon a criminal charge, and was so used, and procured the acquittal of Watkins. It purports to be the warranty deed of John T. Burns, and it requires no argument to show that, had it been genuine, it might have made the estate or heirs of Burns liable, if the warranty should be broken, or assets descend to the heirs. It is shown that he left an estate, .and a brother him surviving. We make no question that the proof of these facts is sufficient to sustain the charge of forgery. 1 Wharton, Cr. Raw, sec. 743; 3 Greenleaf, Ev., secs. 18, 103; Billings v. State, 107 Ind. 54; West v. State, 22 N. J. L., 212; United States v. Shellmire, Baldw. (C. C.), 370.
“The courts are not entirely agreed as to how far the law will presume, in criminal cases, that a man intends to accomplish results which are the material and probable consequences of acts which he does knowingly and intentionally. On the one hand, some courts have laid down the rule broadly that the law will presume such intention, and have acted upon the rule so laid down, with no intimation that there might be exceptional cases in which the rule would not apply.” Note to People v. Flack, 11 L. R. A., 810, 811, under head “Presumption as to Natural Consequences of Acts.” “The New York courts Hold that the rule that a party intends the ordinary and probable consequences of his acts is only a presumption, which may be rebutted by competent evidence, and is for the jury.” Id. 811. “But even in that state it has been stated that, whether it be denominated a presumption of law or a presumption of fact, an intent to kill would be necessarily inferred from a voluntary and wilful act, which has a direct tendency to destroy another’s life, and which in fact does so.” People v. Majone, 1 N. Y. Cr. R. 89.
When variance between indictment and evidence fatal.
An intent to defraud must necessarily be inferred by the jury, in a prosecution for forgery, where the evidence shows it to have been committed with the design that the instrument forged should be used as good, and it is also shown that there was a possibility that some person might be injured thereby, or that person’s estate might be thereby injured or made liable. An estate is a “person,” in contemplation of law.
The second ground of the motion for a new trial is “that there was a variance between the deed offered in evidence and the deed set out in the indictment.”
The deed admitted in evidence, in setting out the consideration, has it thus: “The sum of five hundred and fifty dollars $550^ dollars, to us paid by J. N. Wad-kins.” The deed set out in the indictment has it thus: “Five hundred and fifty dollars ($550.00) to us paid by J. N. Watkins.” In describing the lands, as to one piece, the deed offered in evidence has it “the north half,” while the deed set out in the indictment has.it “north half,” omitting the word “the” before “north half.” In the blank form for relinquishment of dower in the deed offered in evidence, in setting out the consideration, the word is crossed as indicated, while in the deed set out in the indictment it is not, but appears without the cross marks, thus, “sum.” Again, the deed offered in evidence concludes: “Witness my hands and seals this 22 day of August, 1892,” while the deed set out in the indictment concludes: “Witness my hand and seal this 22nd day of August, 1892.”
It is the opinion of the court that “Wadkins” and “Watkins” are idem sonans,” and that there is no material variance in the using of “d” in one deed, and “t” in the other, in setting out the name of the grantee, and we deem it unnecessary to cite authorities as to this.
It is the opinion of a majority of the court that, as the indictment professes to set out an exact copy of the deed charged to have been forged, the other numerous variances between it and the deed offered in evidence, taken altogether, are material, and that, in contemplationof law, the two deeds are not the same. The words and figures which are a part of the deed set out in the indictment are said to be descriptive of the deed charged to have been forged, and a defendant could not have been convicted on such a charge by producing in evidence a deed not having these words and figures in it. McDonnell v. State, 58 Ark. 242, and cases cited. If the deed had been set out according to its purport, it might have been proved by the one offered in evidence; but, as the indictment professes to set it out in words and figures, it was necessary to prove it by an exact copy. Com. v. Parmenter, 5 Pick. 279; State v. Morton, 27 Vt. 310; Rex v. Powell, 2 East, P. C. 976.
We do not deem it important to discuss the instructions given or refused, as the opinion sufficiently, we think, states the court’s views of the question of law involved. We will state, however, that, while the instructions for the state probably contain no reversible error, we think they should have embodied the idea that if the jury found from the evidence that the deed was made to be used as good, and that there was possibility of another’s being made liable or injured thereby, a presumption of fraud necessarily arose from the proof of these facts.
pre®nCce°pf |rrana jury
Admissibility ara'nspirator/
The third ground of the motion for new trial is “that N. P. Lamb was present in the grand jury room while they were examining this charge.” The evidence shows that Mr. Lamb was neither prosecuting attorney, nor deputy prosecuting attorney, and that he was not requested by the prosecuting attorney to be present in the grand jury room, but that he consulted the prosecuting attorney before going into the room, and it seems that he went by the consent of the prosecuting attorney. He testified that he examined the witnesses, and that he said nothing to influence the grand jury in their determination. It is not contended that he was present while the grand jury were deliberating or voting on the charge. Section 2058 of Sandels & Hill’s Digest provides that “no person except the prosecuting attorney and the witnesses under examination are permitted to be present while the grand jury are examining a charge, and no person whatever shall be present while the grand jury are deliberating or voting on a charge.” The importance of this provision cannot be overestimated, when we consider that the “secrecy of the grand jury room, and the privity and impartiality of that inquest,” may prevent the presentment of any one “through envy, hatred, or malice.” Rothschild v. State, 7 Tex. App. 519. But Mr. Lamb, while present in the grand jury room examining the witnesses, by the consent of the prosecuting attorney, was acting in his stead; and we are of the opinion that, as he was not present when the grand jury were deliberating or voting on the charge, his presence, in the capacity in which he was acting, is not cause for quashing the indictment, especially as it is shown that nothing was said by him to influence the finding of the grand jury.
The seventh ground of the motion for a new trial is “that the court erred in permitting Weaver and Blalock to testify as to acts and declarations of Watkins in appellant’s absence, the same not being in furtherance of any common design.” That “Watkins procured Weaver to obtain for him two blank forms for a deed” was competent evidence, being the act of a co-conspirator in the furtherance of the common design, having occurred after the conspiracy was formed, and before it was ended. But what Watkins told Weaver later in the same day (i. e., that the appellant “had promised to make a deed which would clear him”) was incompetent; the appellant not being present- when the conversation occurred, and it not being in furtherance of the common design. The conversation between Watkins and Blalock, in the absence of the defendant, in which the former told the latter that appellant had proposed to make a deed which would arrange the timber trouble, was inadmissible, not having been something done or said in furtherance of the common design to forge the deed. 1 Greenleaf, E}v. Ill; 3 id. 94.
When remarks of counsel prejudicial.
The tenth ground of the motion for a new trial is, in substance, that in his argument before the jury the counsel for the state -made improper and prejudicial remarks. The remarks of Mr. Lamb, of counsel for the state, in making his argument to the jury, were as follows: “The only relief this county can get from men who will commit forgery, who will go to Harrisburg and commit perjury, and who will commit subornation of perjury, is to send such men as Polk Bennett to the penitentiary. The defendant knows he has committed forgery, and that he committed perjury in swearing that Burns had signed the deed, and that he has committed subornation of perjury.” To which remarks the defendant at the time objected, whereupon Attorney Lamb said: “I will say, then, he swore a falsehood at Harrisburg.” To which the defendant objected. His objection was overruled, and he excepted. The defendant was not on trial for perjury or subornation of per jury, and we think the remarks were improper, and might have been prejudicial to the defendant. Whether they are grounds for reversal in this case, we need not decide. Vaughan v. State, 58 Ark. 353; Holder v. State, 58 Ark. 473.
taggectof^ a1>sence-
The eleventh ground of the motion for a new trial is ‘‘that the taking of a part of the testimony during the appellant’s necessary absence entitled him to a new trial.” The record shows that appellant, by the permission of the court, retired to the water closet for about fifteen minutes ; that he was suffering with flux at the time, which made his retirement and absence for the time necessary; that there was no refusal upon his part to be confronted with the witnesses, as in Gore v. State, 52 Ark. 285; that his retirement and absence were made necessary by his physical condition, and were voluntary only because necessary. In a prosécution for felony, the accused must be present in person whenever any substantive step is taken in his case. It is a constitutional right of his to be confronted with the witnesses. In this case, while the defendant was absent, several witnesses (at least three) were examined. The examination of witnesses is an important and substantive step in a criminal prosecution, and it is not required that defendant should show prejudice on account of his absence. Sneed v. State, 5 Ark. 431; Cole v. State, 10 Ark. 318; Bearden v. State, 44 Ark. 331; Mabry v. State, 50 Ark. 492. It was error in this case to proceed, as the court did in the trial of this case, while the defendant was necessarily absent by permission of the court.
We have found it unnecessary to refer to the grounds for new trial in appellant’s motion, which are based on the court’s refusal to grant motion for postponement of the trial, or those tending to that end.
For the errors indicated, the judgment is reversed, and the cause is remanded for a new trial. | [
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Bunn, C. J.
This is a suit for damages for personal injuries done by driving into and against plaintiff’s vehicle, overturning the same, and throwing him out, -and severely' wounding and bruising him. The defendant Evans, and one John Breese, were both in the single-horse buggy of defendant, and both somewhat, if not very much, intoxicated at the time; Breese actually holding the reins and driving. The contention of appellant is mainly to the effect that the court erred in giving instruction “B” on its own motion, having reference to the responsibility of one or both of the men in the buggy for the injury. We are of the opinion that said instruction was erroneous, but that the evidence fully sustained the verdict, — that, in fact, it should not have been otherwise, — and therefore the judgment is affirmed. | [
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Bunn, C. J.
This is an indictment for grand larceny, tried in the White county circuit court. The trial resulted in a verdict for petit larceny, and defendant appeals.
The grounds upon which the verdict and judgment are asked to be set aside are: (1) That the same is contrary to the evidence ; (2) that the court erred in refusing to give instruction No. 5 asked by the defendant ; (3) because the court admitted, over the objection of defendant, the testimony of Hamilton and Roberts, to the effect that the defendant did identify or could have identified the stolen property by the description thereof previously given them by the owner.
There was evidence to sustain the verdict.- How much, or how strong it was, it is improper for us now to say. There was no reversible error in refusing to give the instruction asked by defendant to the effect that, in order to convict, the evidence must exclude every other reasonable hypothesis than that of the defendant’s guilt. It is true that this case is one of circumstantial evidence, and the rule sought to be invoked is applicable to and proper in such cases ; yet this court has held, in effect, that the usual instruction on the subject of the reasonable doubt covers the ground of the instruction refused, in so far as to make its refusal not reversible error. Green v. State, 38 Ark. 304.
Admissibility of hearsay evidence.
The witnesses Hamilton and Roberts, who were in search of the stolen property, on the trial testified, in answer to a direct question of the prosecuting attorney, that they could have identified the meat they found in defendant’s smoke house as the meat of the alleged owner by the description he (May) had previously given them of it.
In view of the fact that the owner, May, was present, and testified as to his ownership of the meat, and as to its description, and especially in view of the fact that the testimony as to the identity and ownership of the meat was very conflicting, it was rather unfair to interject into the evidence what the owner said as to the identity of the meat in private conversation with the other witnesses, in the absence of defendant, or, rather, that witnesses identified the meat as that of the prosecuting witness as his own by the description he gave them of it. This was hearsay testimony, and had the tendency of bolstering up and giving undue weight to the testimony of the alleged owner, May.
For this error the judgment is reversed, and the cause remanded, with instructions to grant a new trial, and to proceed not inconsistently herewith. | [
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Riddick, J.,
(after stating the facts). This is an appeal by the sureties upon a forfeited bail bond from a judgment rendered against‘them upon such bond. Several reasons are urged by counsel why such judgment should be reversed, but we are of opinion that none of them are tenable.
The statutes of this state concerning bail bonds ^ ... evince an unmistakable intention on the part of the legislature to dispense with all merely technical defenses by the obligors in such bonds, and to compel the courts to consider only those defenses that affect the substantial rights of the parties. Sand. & H. Dig., sec. 2017.
This bond is in the usual form. It appears from it that Hancock was in custody, charged with the offense of an assault with intent to kill, and that the bail undertook that he should appear in the circuit court of the Watson district of Desha county to answer said charge, and that he should at all times render himself amenable to the orders of said court in the prosecution of said charge, and in default thereof that the bail should pay the State of Arkansas one thousand dollars. This being so, we hold that the act of the sheriff in sending said bond direct to the clerk of the Desha circuit court instead of filing the same with the clerk of the Jefferson circuit court, that it might be copied in the transcript, was an irregularity merely, and would not justify us in reversing the judgment upon the bond, for it did not in any way affect the substantial rights of appellants. The order for a change of venue and the filing of the transcript in the Desha circuit court at Dumas gave that court jurisdiction to try the charge against Hancock, notwithstanding the bond was omitted from the transcript. Beasley v. State, 53 Ark. 67. As the court had jurisdiction to try the charge against Hancock, and as he had given bond to appear in that court, it follows that, upon his failure to appear, the court had jurisdiction to declare the bond forfeited, and to try the action upon the forfeited bail bond, for the statute provides that such action shall be in the court in which the defendant was required to appear for trial. Sand. & H. Dig., sec. 2033.
tauebauityt0
to. w.hetliail bond not dlschar«red*
It is also said that the sheriff had no authority to take the bond. The court had previously fixed the amount of bail by an indorsement upon the indictment that bail be received in the sum of one thousand dollars. When the change of venue was granted, it was ordered that the defendant give bond for his appearance in the court to which the venue was changed, and that the bond be approved by the sheriff. As no further order was made changing the amount of bail, the sheriff was bound by the order fixing the bail at one thousand dollars. The admission to bail and the amount of the same were determined by the court, and the only act of the sheriff was the approval of the bond, which was done in obedience to the order of the court. Under these circumstances, the sheriff had the right to take the bail. Sand. & H. Dig., secs. 2014, 2015 and 2016; Pinson v. State, 28 Ark. 397.
Neither was'it a valid defense to this action show that Hancock, prior to the forfeiture, had been arrested, tried, and found guilty of another offense in another court, and that, after being placed in the custody of the sheriff, he had escaped. He was not in custody at the time the bond was declared forfeited, and the performance of the condition of the bond was not made impossible by this act of the state in arresting him for another offense. The appellants executed this bond with knowledge that the principal might commit another offense, and be ordered into custody for such offense. The fact that he was placed in the custody of the sheriff, and so remained a short time, did not deprive them of the right to surrender him in discharge of their liability on such bond, for, even had he remained in custody, they could still have surrendered him by a proper proceeding-. We do not say that in such a case it would have been no defense to show that he was in custody at the time the bail was declared forfeited. What we hold is that the fact that he was taken in custody for a short time on a different charge does not, of itself, operate to discharg-e the bail, when it is shown that he was at large at the time the forfeiture was taken. If the law was different, a person under a heavy bond on a charge of murder, or other felony, mig-htgointo another county or circuit and purposely commit some misdemeanor, in order that his subsequent arrest might discharge the sureties on his former bond. If the officers having him in custody for the second offense were ignorant of the first arrest and bail, they would, so soon as he paid his fine, or served a term in jail, allow him to go at large, and, if the effect of this second arrest and imprisonment discharg-ed the sureties on his first bail bond, he might by this way escape punishment for the first offense. For these reasons, we conclude that a person who is on bail for one offense may be arrested for another offense without discharging his bail. If he be committed to jail for the second offense, and escape, his bondsmen may, in a case such as this, still be held liable, if they fail to comply with the conditions of their bond. Wheeler v. State, 38 Tex. 173; West v. Colquitt, 71 Ga. 559; S. C. 51 Am. Rep. 277; State v. Merrihew, 47 Iowa 112; S. C. 29 Am. Rep. 464; Brown v. People, 26 Ill. 28; Mix v. People, Ib. 32; 2 Am. & Eng. Enc. Law 26, and cases cited.
There were other objections to the rulings of the circuit court urged by counsel, but we are of opinion that no error affecting the substantial rights of appellants is shown. The judgment is therefore affirmed. | [
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Battle, J.
F. M. Garvin commenced an action against I. N. Uinton on a note executed to him by the defendant for $240, and ten per cent, per annum interest from date until paid. The note was dated May 2, 1892, and was due two years after date, provided the interest, as evidenced by coupons, was paid annually. In the event the interest was not promptly paid when due, the principal of the note and all interest accrued thereon were then to become payable at the election of the legal holder of the note.
The defendant answered, and denied that the note had ever been delivered to the plaintiff, the payee, and alleged that it was without consideration, and was usurious and void.
On a trial of the issues in the action, there was a verdict for the defendant, and a judgment against plaintiff for costs, from which he has appealed to this court.
The following facts were proved in the trial: Some time in December, 1887, appellee procured a loan of $405 from appellant, for which he executed to the lender his note for $450, and a mortgage to secure the same. Two or three annual payments of interest were made. About the latter part of May, 1892, appellant and appellee agreed that the note for $450 should be purged' of all usury, and that $25 for an attorney’s fee should be deducted from the amount remaining unpaid, and two new notes for the remainder and ten per cent, per annum interest thereon, due and payable two years after date, should be executed by the appellee to the appellant, together with a mortgage to secure the payment. In compliance with this agreement, the appellee executed the note sued on, and another for $200; it having been represented by appellant’s agent, and believed by him, that the amount of these notes was the sum of the $450 and ten per cent, interest thereon remaining unpaid after it had been purged of all usury, and the $25 had been deducted.
The appellee testified that he delivered the two notes to John W. Andrews, the agent of the appellant, to be delivered to DeRoos Bailey, to be held by him until appellee should deliver to Bailey a mortgage signed and acknowledged by himself and wife, to secure the same, when they were to be exchanged for the note for $450 and the first mortgage; but the appellee failed to execute the mortgage to secure the new notes, because they were for a larger amount than was due according to the compromise.
Andrews testified that the two notes were delivered to him as the agent of the appellant, and that there was no understanding that they should be delivered to Bailey, but that it was agreed that appellee would, within ten days, deliver to Bailey a mortgage, signed and ackowledged by himself and wife, securing the two notes, to be exchanged for the old notes and mortgage; that appellant decided to accept the new notes in payment of the old, although the mortgage to be delivered should never be executed, and delivered the old note and mortgage to Bailey, who was the attorney of the appellee.
Bailey testified that it was agreed, by and between the agent of appellant and appellee, that the new notes were to be delivered to Andrews, as appellant’s agent, and that appellee would deliver to him a mortgage to secure them, to be exchanged for the old note and mortgage, which were to be delivered to and held by him until the new mortgage was received, when the exchange was to be made; that this was to be done within ten days; that the old note and mortgage were delivered to him soon after the agreement, but the new mortgage never was; and that he was the attorney of the appellee in the adjustment and litigation of this indebtedness.
Upon this evidence the following instructions were given to the jury by the judge
“Gentlemen of the jury : This is a suit brought by the plaintiff against the defendant on a promissory note. The defendant admits the execution of the note, and pleads usury and no consideration. The burden is on the defendant. Before you will be authorised to find for the defendant, you must find that he has established one of these pleas by a preponderance of the testimony.
“(1) If you believe that these notes were executed in consideration of the cancellation or return to the defendant of certain notes and mortgages executed by this defendant to the plaintiff, and that said notes and mortgage which were to be returned were usurious, you will be authorised to find for defendant.
“(2) I further instruct you that if you find that the notes sued on were in lieu of certain notes and mortgage given by this defendant to the plaintiff, and said original notes and mortgage were to be returned to this defendant upon the execution of a new mortgage by this defendant to secure the payment of said new notes, and that these new notes were executed by the defendant, with the understanding from the plaintiff, or his agent, that all of the usurious part of the old notes had been eliminated, and that the new notes were drawn for an amount equivalent to the old notes, less the usury, and that the defendant ascertained, soon after the signing of said notes, that all the usurious part of the old notes had not been taken out, but that a part of the same had been put in the new notes, this would excuse the defendant for not complying with his agreement in executing the mortgage and lifting the old note and mortgage, and you will be authorized to find for the defendant.”
of contract-
usurious conTisible-
In the instructions of the court, the new notes were treated as duly executed, and the only questions submitted to the jury were, were they without consideration? and were they usurious? ■ According to the preponderance of the evidence, they were delivered to the appellant, and nothing remained to carry into effect the compromise, except the execution of the mortgage. Appellant performed his part of the agreement as to the exchange of writings, and thereby became entitled to hold the new notes, and to the mortgage to secure them, provided the notes were not affected by usury, or void for fraud. The fact that appellee refused to execute the mortgage did not affect his right to the notes. It was to be a security for the payment of the notes, and for the exclusive benefit of the appellant, and he had the right to waive it, which he did.
It is ordained by the constitution of this state that all contracts for a greater rate of interest than ten per cent, per annum shall be void as to principal and interest. The express contract being void, no implied obligation can arise from it. It cannot be divided into separate and distinct contracts, so that one obligation shall be given for the money actually loaned, and another for the excessive interest. Each obligation is a part of the same contract, and both are void. Neither can a promise to pay any part of a usurious debt, for the same reason, be enforced without consent, so long as the original contract which supports it remains unrevoked. The taint of usury in the old contract infects the new promise. This is not true of usurious contracts to pay a pre-existing valid debt. That debt is not destroyed by the usury. It may be recovered on the strength of the contract which created it. But, where the contract on which it depends in the beginning for existence is usurious, there was never anything to give it life, and to support an action for its enforcement. But if the debt be for money loaned, and actually received by the debtor, there is an equitable and moral duty to pay it, which, while the law will give it no effect, may be made the cons^era^ori a new promise. The parties can cancel and destroy the old contract, purge the consideration of usury, and make it the basis of a new obligation, and thereby bind the borrower, in law and equity, to pay the money actually received, and a legal rate of interest. Hammond v. Hopping, 13 Wend. 505, 511; Early v. Mahon, 19 Johns. 147; Miller v. Hull, 4 Denio, 104; Phillips v. Columbus City Building Association, 53 Iowa, 719.
bySnew p?om-d lse‘
. As to intent in usury.
To constitute usury in this state, there must be an intention to take or receive more than ten per cent, per annum interest. But need there be a concurrence of intent of both parties, — that is to say, on the part of the borrower to pay, and of the lender to receive, — to constitute usury? Many authorities hold that “it is not enough that the borrower intended to make a usurious agreement, but the intention to take the usury must have been in the full contemplation of the parties, —not of one party, but of both, — to the transaction. There must be an aggregatio mentium.” Price v. Campbell, 2 Call, 110; Smith v. Beach, 3 Day, 268; Smythe v. Allen, 67 Miss. 146; Morton v. Thurber, 85 N. Y. 550; Guggenheimer v. Geiszler, 81 N. Y. 293; Tyler on Usury, p. 103. While others say that if the lender knowingly contracts for an illegal rate of interest, the contract is usurious, although the borrower is ignorant of the facts. First National Bank v. Plankington, 27 Wis. 177; Lukens v. Hazlett, 37 Minn. 441; Wright v. Elliott, 1 Stew. (Ala.), 391; Craig v. Pleiss, 26 Pa. St. 271.
In Price v. Campbell, supra, the court, taking the former view of the question, says that usury “presupposes the consent of both borrower and lender to this effect; and without it there is no usurious contract, whatever may be the hopes, wishes, or expectations of either party.”
In Lukens v. Hazlett, supra, the court takes the other view, and Mr. Justice Mitchell, speaking for it, says: “There are some loose statements in the text books, and perhaps some judicial authority,, to the effect that, to render a contract usurious, both parties must be cognizant of the fact constituting usury, and must have a common purpose to evade the law. But it seems to us that it would be contrary both to the language and policy of the usury law to hold any such doctrine, as thus broadly stated. These laws are enacted to protect the weak and necessitous from oppression. The borrower is not farticefs criminis with the lender, whatever his knowledge or intention may be. The lender alone is the violator of the law, and against him alone are its penalties enacted. It would indeed be strange if the only party who could violate the law had intentionally done so, and could escape its penalty because, by some device or deception, he had so deceived the borrower as to conceal from him the fact that he was taking usury.”
We have not been able to find any case in which the question has been presented to, or determined by, this court. We find many expressions, in cases decided, as to what is necessary to constitute usury, but nothing decisive of the question.
We have a statute upon the subject which seems to have been enacted to settle the question in this state. It provides: “All bonds, bills, notes, assurances, conveyances, and all other contracts or securities whatever, whereupon or whereby there shall be reserved, taken or secured, or agreed to be taken or reserved, any greater sum or greater value for the loan or forbearance of any money, goods, things in action, or any other valuable thing, than is prescribed by this act shall be void.” Sand. & H. Dig., sec. 5085.
Similar statutes have been in force and construed in other states. In Craig v. Pleiss, 26 Pa. Stat, 273, the court, in speaking of a statute in some respects like ours, says: i'This idea of a corrupt contract which expressly stipulates for more than six per cent, is derived from the English statutes which were never in force here. The statute of 37 Henry VIII, c. 9, which fixed the rate of interest in England at ten per cent.; the statute of 21 Jac. I, c. 17, which reduced it to eight per cent.; the statute of 12 Car. II, c. 13, which reduced it to six per cent., and the statute of 12 Anne, c. 16, which reduced it to five per cent, — all use the expression ‘corrupt bargain, loan, or exchange,’ in defining the offense, and the adjudications under these statutes are often quoted here, without adverting to the fact that our statute contains no such expression. ‘No person shall directly or indirectly, for any bonds or contracts to be made after the publication of this act, take for the loan or use of money, or any other commodities, above the value of six pounds for the forbearance of one hundred pounds on the value thereof, for one year, and so proportionably for a greater or lesser sum.’ And then comes the definition of the offense, — ‘if any person or persons whatsoever do or shall receive or take more than six pounds per cent, per annum or any such bond or contract as aforesaid, upon conviction thereof,’ &c. There is not a word here about corrupt bargains or contracts. Any bonds or contracts may be the subject of usurious payments. The offence consists not in bargaining for more than six per cent., but in taking it on any bond or contract. * * * The imagined necessity, then, of a corrupt bargain to complete the offence of usury, favored as it no doubt has been by loose expressions of judges,’ is wholly without foundation in our statute.”
In Wright v. Elliott, 1 Stew. (Ala.), 393, the court, in construing an Alabama statute, says : ‘‘The words of the statute are, ‘No person or persons shall, upon any contract whatsoever, take directly or indirectly for the loan of any money, wares, merchandise, etc., more than'the rate of eight dollars for the forbearance of one hundred dollars, etc. It is true that' in this case there was no contract between the parties by which the defendants agreed to pay the plaintiff more than legal interest; but it is equally true there was a contract between the parties, and that in that contract the plaintiff did take more than eight per cent. Can it be possible that the circumstance of his having circumvented the defendant, by inducing him to believe that the note was drawn for the amount due on the executions, when it was for a much greater, and thus adding fraud to injury, shall operate to his advantage? Nor it will be recollected that under the plea of usury the defendant can testify; not so when he pleads fraud. Certainly it cannot. To permit him to do so would be subversive of a fundamental principle of the common law, ‘that no man shall take advantage.of his own wrong.’ ”
According to those decisions there need not be, under our statute, a mutual agreement to give and receive unlawful interest to constitute usury. If it be actually “reserved, taken, or secured, or agreed to be taken or reserved,” the contract is void for usury. As it may be reserved, taken, or secured by contract without the knowledge of both parties, a concurrence of the intent of both of them is not an essential element of usury, under the statute.
Effect of reserving* usury by mistake.
There must be an intent to take unlawful interest, £0 constitute usury. There can be no usury when the amount taken in the contract for interest in excess of ten per cent, per annum was reserved through a mistake or ignorance of the fact that it was in' such excess. If the lender, by mistake of fact, by error in calculation, or by inadvertance in the insertion of a date, contracts to receive an illegal rate of interest, “such mistake, error or inadvertance will not stamp the taint of usury on such engagement, nor cause to be visited upon him, who did not knowingly and intentionally disregard the law in this behalf, the highly penal consequences of an usurious offense.” Moody v. Hawkins, 25 Ark. 191; German Bank v. DeShon, 41 Ark. 331.
In the case before us the parties undertook to rescind the old note and mortgage, and agreed that appellee should execute to the appellant two notes for the money actually loaned, and ten per cent, per annum interest thereon from the day it was received, less the payments made, and $25 for attorney’s fees, and a mortgage to secure the notes. Appellant undertook to ascertain what the principal of the notes should be, and they were executed for the amounts he represented to be due according to the agreement. Upon what basis he made his calculation to ascertain this amount does not appear. The evidence as to the payments made on the old note is unsatisfactory. Appellee says that he made two or three payments of interest. How much or when is not stated. According to the evidence, appellant could well have taken the two notes without knowingly and intentionally reserving or securing thereby unlawful interest. If he did so, the notes were not void, except as to the excessive interest; and he was entitled to recover the amount lawfully due.
The instructions given by the court to the jury are not in harmony with this opinion; and are therefore erroneous. Reversed and remanded. | [
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Riddick, J.,
(after stating the facts.) We agree with counsel for appellee that this case comes within the rule laid down in Railway Co. v. Cullen, 54 Ark. 431, and again in Railway Co. v. Tippett, 56 Ark. 459. The question for the trial court was whether, assuming the testimony and all the inferences legitimately deducible from it as true,- the jury would be justified in finding a verdict for plaintiff. Patterson’s Railway Accident Law, sec. 175. He answered this question in the negative, and directed a verdict for defendant, and we concur in his ruling. “A traveler approaching a railroad track, crossing a highway,” says Mr. Wood, ‘‘is bound to exercise ordinary prudence — such prudence as is fairly commensurate with the nature of the risk. If he can see for a long distance up and down the track, he is bound to look to see whether a train is approaching; and if the track can only be seen for a short distance, he is bound to look and listen for an approaching train; and when, by the exercise of these senses, he might have avoided the injury, no recovery can be had.” 2 Wood, Railways, (Minor’s Ed.) 1518; Railway Co. v. Cullen, 54 Ark. 431; Railway Co. v. Tippett, 56 id. 459.
We do not hold that in every case where a traveler fails to look and listen, and is injured by a train while crossing a railway track, the case should be taken from the jury. It is only where it appears from the evidence that he might have seen had he looked, or might have heard had he listened, that his failure to look and listen will necessarily constitute negligence. Smedis v. Railway Co., 88 N. Y. 13; 2 Wood, Railroads, 1527. Then, too, there are cases where the employees in charge of the train fail to use due care after discovering the danger of the traveler. But there is nothing in the evidence here to show that the employees of the company in charge of the train had' any reason to believe that appellant would expose himself to injury by stepping before the train. The appellant was struck just as he started to go upon the track, which shows that the employees of the company had no time to anticipate his action in this regard.
The appellant testified that the noise made by the escaping steam from an engine on the side track prevented him from hearing the approaching train, but it furnished no excuse for his failure to look to see whether a train was approaching. He knew that on account of the noise of the steam he could not hear, and there was all the more reason why he should have looked for a train before attempting to step on the track. The train was approaching in full view, and, had he looked to the west along the track, he would have seen it in time to have avoided the injury. His failure to look under such circumstances was negligence directly contributing to his injury, and he cannot recover. As the evidence was not legally sufficient to sustain a verdict for the plain tiff, the court properly directed a verdict for defendant. Catlett v. Railway Co., 57 Ark. 461.
The judgment is affirmed. | [
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Riddick, J.,
(after stating the facts). We are of opinion that the judgment of the circuit court is right, and it must be affirmed. Appellant, Maledon, with other parties, stockholders in the Port Smith Rvaporating Company, executed a promissory note to Leflore for money loaned by him to said company. This note, under our statute, was in effect a joint and several obligation, and plaintiff had the right to sue one or all the makers thereof. Sand. & H. Dig., secs. 4186 and 5634.
Appellant states that he signed the note under the belief that it was. necessary for him and the other directors to sign the same in order to bind the company, and that he did not expect to bind himself individually. His name appears signed to the note as one of the obligors for the payment of the amount named therein. Upon the faith of this obligation, Leflore parted with his money for the use of a corporation of which appellant was a stockholder and director. Appellant does not pretend that he was misled or induced by Leflore to sign said note, and the fact that he was mistaken concerning the legal effect of signing the note is of no avail against the action in this case. A written contract cannot be varied or affected in that way. Ritchie v. Frazer, 50 Ark. 393.
Leflore did not have possession of the mortgaged property, and the contention that appellant is discharged by the failure of Leflore to foreclose his mortgage, and by other laches, cannot be sustained on the facts of this case, for, at most, he is guilty of only the passive conduct of not suing. Grisard v. Hinson, 50 Ark. 230. Appellant, as one of the obligors in the note, had the right to pay the note and foreclose the mortgage for his own benefit, and he cannot complain because Leflore elected to proceed against him without resorting to the mortgage. Grisard v. Hinson, supra.
Inability of surety on note.
The fact that Clendening, the president of the Evaporating Company, was a .member of the firm of attorneys employed by Leflore to collect his debt did not make Leflore responsible for the oflficial conduct of said Clendening in the management of the property of said company. When counsel for appellant offered to show that Clendening had mismanaged and wasted the property of said company, they were asked by the circuit judge whether they intended to connect Leflore with such mismanagement, or to show that Clendening had possession of the property as his agent, to which inquiry counsel responded, “No.” As they did not propose to show that Leflore was in any way responsible for the management of the property of the Evaporating Company, by its president, the conduct of the president in that regard was a matter entirely outside of the case, and the evidence was properly excluded.
It is also contended that the court erred in refusing to allow appellant to show that the board of directors of the company had never authorized the president to borrow the money for which the note was executed, but this contention cannot be sustained. In the first place, there is no such allegation in the answer; bu¿t, if such a defense had been made, it would not have been tenable, for the reason that a surety is, as a general rule, liable on a note executed by him as such, although his principal has no capacity or authority to make such contract. The rule has been frequently applied in cases where the principal was an infant or married woman, and we see mo reason why it should not apply where the note is executed by a corporate principal, without proper authority. Gardner v. Barnett, 36 Ark. 479; Davis v. Statts, 43 Ind. 103; Taylor v. Dansby, 42 Mich. 82; 2 Randolph’s Commercial Paper, sec. 915, and cases cited.
There were other objections to rulings of the trial court urged by counsel, but our conclusion is that the evidence did not show any defense to the action of plaintiff, either at law or equity, or any disputed fact to be considered by a jury, and the court properly directed a verdict for plaintiff.
The judgment is affirmed. | [
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Wood, J.,
(after stating the facts). The findings of fact are comprehensive and accurate. We do not discuss the evidence upon which these findings are based for the reason that objection is urged here, not to the findings of fact, but to the legal conclusions drawn from them.
1. Appellants asked the court to declare the law to be “that the insurance contract sued on herein is a contract of indemnity, and that no liability is incurred thereon until the insured suffers a loss, and that the loss in this case would be an actual payment of the judgment rendered in favor of Callie Meredith.” The contract speaks for itself. It is couched in unequivocal language. The insurer binds himself to pay “all damages with which the insured might be legally charged, or required to pay, or for which it might become legally liable. ” This is plainly a contract to pay liabilities. But if it could be said that the meaning were left in doubt on account of any ambiguity in the language of the contract, the proof leaves no doubt that it was the intention to require the insurance company to pay to the street railway company the damages for which it (railway company) should become liable. The insured insisted upon a contract to pay liabilities, and the insurer consented to make it that way, embracing this special feature by way of interlineation in writing upon a printed form of contract. After it was so written, the general agents, in a letter to the insured, in which they enclosed the contract, mentioned this special feature, saying: “We think, with this amendment to the policy, you have the best insurance issued.” This is not simply a contract of indemnity. It is more. It is also a contract to pay liabilities. The difference between a contract of indemnity and one to pay legal liabilities is that upon the former an action cannot be brought and a recovery had, until the liability is discharged; whereas upon the latter the cause of action is complete when the liability attaches. Locke v. Homer, 131 Mass. 93, and authorities cited; Jones v. Childs, 8 Nev. 121; Carson, etc., Ass’n v. Miller, 16 Nev. 327-32; Smith v. Railway Co., 18 Wis. 17; Thompson v. Taylor, 30 Wis. 68; Rector, etc., of Trinity Church v. Higgins, 48 N. Y. 532; and numerous other cases cited in appellees’ brief. Also Maloney v. Nelson (N. Y.), 39 N. E. Rep. 82; Solary v. Webster (Fla.), 17 So. 646; Gilbert v. Wiman, 1 N. Y. 550, cited in brief of appellants.
The measure of damages is the amount of the accrued liability. Wicker v. Hoppock, 6 Wall. 94; Churchill v. Hunt, 3 Denio, 321; Pierce v. Plumb, 74 Ill. 326.
Mrs. Meredith had recovered a judgment against the City Electric Street Railway Company from which the company had not appealed. This judgment was a legal liability against the street railway company, for which, under its contract with the insurance company, the railway company was entitled to recover.
Powers of insurance
2. Appellants insist that Parker & Co. had no authority to deliver the policy without collecting the premium. This is not the law. “A general agent of an insurance company, whose business it is to solicit applications for insurance, and receive first premiums, has the right to waive the condition requiring payment in money, and to accept the promissory note of the applicant, or of a third' party in lieu thereof, or to undertake to make the payment to the company himself; and, when the cash payment is actually waived in either of these modes, the contract binds the company, notwithstanding the recital in the policy that it is not binding until the first premium is paid in cash.” This excerpt, quoted by counsel for appellees from Miss. Valley Ins. Co. v. Neyland, 9 Bush, 430, is according to the consensus of modern authority. Southern Life Ins. Co. v. Booker, 9 Heisk. 606; Miller v. Life Ins. Co., 12 Wall. 285; Boehen v. Ins. Co., 35 N. Y. 131; Ins. Co. v. Colt, 20 Wall. 560; Goit v. Ins. Co., 25 Barb. 189; Sheldon v. Ins. Co., 26 N. Y. 460; Wood v. Ins. Co., 32 N. Y. 619; Bragdon v. Ins. Co., 42 Me. 262; Trustees, etc., v. Ins. Co., 18 Barb. 69; May, Ins., sec. 134, and other cases cited by counsel for appellees.
The policy under consideration contained no provision requiring payment of the premium in cash as a condition precedent to the delivery of the policy and its taking effect. The court, however, evidently treated the matter as though such a condition existed, but found that it had been waived. The proof showed that Parker & Co. were general state agents, and had authority to make terms for insurance, to countersign and deliver policies, and collect premiums; and that they sometimes collected when the policy was delivered, sometimes at the end of the month, and sometimes took notes. They carried a general account with the company, and on the 10th of each month sent to it what was due upon a general balance. The policy having been delivered unconditionally, without a payment of the premium in cash, the court’s finding that such payment had been waived, in view of this proof, and the law as announced, sufra, was clearly correct. The delivery of the policy without condition, and without exacting payment of the premium in cash, raised the presumption that a short credit was intended. Behler v. Ins. Co., 68 Ind. 347, and numerous cases there cited; Miller v. Life Ins. Co., 12 Wall. 303 Little v. Ins. Co., 38 Ohio State, 110.
Effect of cancellation of policy.
3. The issuance and delivery of the policy to the assured for a valuable consideration agreed upon and expressed therein, and the acceptance of the policy by the assured, put said policy in force. See authorities already cited. By the express terms of the policy, the insurance company was liable to the street railway company for all damages occasioned by injury to its passengers for which it (street railway) was liable, from the 9th of December, 1892, until its policy was cancelled. The policy was not cancelled by the insurance company until the 23d day of January, 1893. The liability sued on had supervened in the meantime. While the insurance company had the right to cancel the policy for the non-payment of the premium, as per the contract between the parties, it had no power to make this cancellation relate back and avoid the policy ab initio. Had it not cancelled the policy, but continued same in force one year, the assured would have been liable to the insurer for the entire premium. If the entire premium had been paid, and no liability had accrued between the time of the execution of the policy and the time of cancellation, the insurer might have cancelled the policy, under certain conditions therein contained, by refunding the premium less the fro rata portion thereof for the time the policy was in force. If, in the meantime, a liability had accrued, cancellation without the assent of assured could only take place by refunding the premium, less the pro rata for the time the policy had been in force, and also by the payment of intervening liabilities. Now, in the present case, while the premium had not in fact been paid, credit had been extended, and, before any demand had been made for the payment of the premium, the liability accrued. The insurer also a short time thereafter cancelled the policy, thus electing not to insist upon the payment of the premium. The liability of the insurance company to the street railway company at the time of the cancellation of the policy, and at the institution of this suit, exceeded the entire amount of the premium. Under such circumstance, the most that the insurance company could demand would be to have the amount of premium which had been earned while the policy was in force deducted from the amount of its liability to the assured. This the court did, and its judgment is correct.
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Riddick, J.,
(after stating the facts.) It is contended by counsel for appellant that the court erred in its charge to the jury. The first paragraph of the charge, if considered by itself, would be subject to criticism, for it might be construed to mean that the water and light company was to use such care as under all circumstances to discover gas escaping from its pipes, and that a failure to do so would constitute negligence. But, upon the question whether the jury has been misled by one or more specific instructions, all the instructions must be read together. A consideration of the entire charge in this case leads to the conclusion that the court did not intend to convey such meaning, and that it is not reasonable to believe that the jury could have been misled by it. A gas company must use due and reasonable care in the inspection of its pipes, and must repair defects in the same, whether caused by its own fault or not. When the defect or break in the pipe is caused, not by the negligence of the gas company, but by the act of a third party, and when the company has used due care in inspecting its pipes to discover defects therein, it is allowed a reasonable time, after notice of such defect, in which to make repairs. But if it has notice of a break in its pipes from which gas may escape and accumulate, and injure persons or property, it must, as soon as practicable by the use of due promptitude and diligence, secure its gas, either by cutting off the flow or repairing the break, so as to guard against such injurious consequences. To accomplish this end, the company must use a degree of care commensurate to the danger which it is its duty to avoid. If it fails to exercise this degree of care, and injury results from such negligence, the company is liable, if the person injured is free from fault contributing to the injury. Chisholm v. Atlantic Gas Light Co. 57 Ga. 28; Mississinewa Mining Co. v. Patton, 129 Ind. 472, S. C. 28 Am. St. Rep. 203; Emerson v. Lowell Gas Light Co. 3 Allen (Mass.), 410; Hunt v. Lowell Gas Light Co. 8 Allen, 169, S. C. 85 Am. Dec. 697; Holly v. Boston Gas Light Co. 8 Gray (Mass.), 123, S. C. 69 Am. Dec. 233; 8 Am. & Eng. Enc. Law, 1273; Whittaker’s Smith, Neg. 234; Bartlett v. Boston Gas Light Co. 122 Mass. 210; 2 Shear. & Red. Neg. (4th. Ed.) sec. .692.
The evidence tends to show that, previous to the explosion, the appellant company had notice that its pipes had been broken or injured by plowing in the street, and that gas was escaping. If it did not know this, the jury were at least justified in finding that it might have known it by due cafe in inspecting its line, which would amount to the same thing. If it had notice of the defect in the pipe, it should have taken precautions, by cutting off the gas or repairing the break in the pipe, to avoid injuries being caused by the escaping gas. Whether it was guilty of carelessness in this respect was a question for the jury, whose finding on this point has evidence to support it, and must stand. Chisholm v. Atlanta Gas Light Co. 57 Ga. 28; Butcher v. Providence Gas Co. 12 R. I. 149; Atkinson v. Goodrich Trans. Co., 60 Wis. 141.
The next question presented is whether the plaintiff was himself guilty of negligence contributing to the injury complained of. It is settled law that the master is responsible for injury occasioned by the act of his servant or employee while acting within the scope of his employment. 1 Shear. & Red. Neg. (4th. Ed.) 141; Whittaker’s Smith, Neg. p. 153.
The appellant contends that the appellee must in this case be held responsible for the act of Hammert in putting a lighted match to the gas, and causing the explosion. Hammert was the employee of Schneider. It was his duty to work in the storeroom into which the gas, which had accumulated under the store, began to force its way. The entrance of this gas would necessarily interfere with the work that he was engaged in on behalf of Schneider. It would not be unreasonable to hold that, in order to prevent such interruption of his work, he had the implied authority to discover and stop the escape of gas into the room in which he was at work. It is not necessary to show that he had authority to look for the defect in the pipe with a lighted match. If the act of attempting to discover the defect in the pipe, in order that the escape of gas might be stopped, was one within the scope of his authority, and that act was done in a way so negligent that it caused or contributed to the injury complained of, it is then of no avail to show that the master did not consent to or approve of the negligence. Ochsenbien v. Shapley, 85 N. Y. 214; Whittaker’s Smith, Neg. 157; Philadelphia, etc., R. Co. v. Derby, 14 How. (U. S.) 468.
A servant may do an act expressly forbidden by his employer, and yet, if it be within the scope of his authority, the employer may be liable for a resulting injury. This rule is constantly enforced in the cases against railroads, electric light and gas companies, and it applies to private persons who employ servants to transact their business. Garrentzen v. Duenckle, 50 Mo. 104; Ochsenbein v. Shapley, 85 N. Y. 214; Evans v. Davidson, 53 Md. 245; S. C. 36 Am. Rep. 400; Simonton v. Loring, 68 Maine, 164; Whittaker’s Smith, Neg. 157; 14 Am. & Eng. Enc. Law, 810; 1 Shear. & Red. Neg. sec. 155.
But we are not called on to determine whether, if this was the act of Hammert alone, it would come within the scope of his authority, or whether Schneider would be bound by it; for the evidence conclusively shows that Strauss, in whose charge the store was left by Schneider, assented to and approved of the act of Hammert which led to the explosion. Strauss, so far as the control and protection of the store was concerned, stood in the place of Schneider, and his acts in this regard must be considered the acts of Schneider. He was called as a witness by Schneider, and he testified that, when the gas began to enter the room, Hammert complained of the smell, and said that he would light a match and look for the leak; that he (Strauss) knew-that there was gas escaping in the room, and that Hammert was trying to find. it; that he made no objection, but thought that it was a good thing, and was willing for him to do so. Prom this testimony there can be no doubt that Strauss consented to and approved of the conduct of Hammert, and that, if Hammert was guilty of negligence, Strauss was also.
It can be no excuse to show that Strauss was only seventeen years of age, for this fact was known to Schneider when he left him in control of the store. If he left an immature youth in charge, he, and not the gas company, is to blame.
We should not hold, under the facts of this case, so far as they appear, that it was negligence j>er se for Hammert to use a match in trying to discover the place from which the gas escaped, for that would depend upon whether he had notice that the gas was escaping in large quantities or not. If he had notice that it was present in large quantities, it was gross carelessness for him to apply a lighted match to it. But if the quantity was small, or if there was nothing to cause a man of ordinary prudence, placed in the same situation, to believe that there was danger of an explosion, it would not be negligent to light the match. Such a question is one for the jury to determine. Chisholm v. Atlanta Gas Light Co. 57 Ga. 28; Butcher v. Providence Gas Co. 12 R. I. 149; Lanigan v. N. Y. Gas Light Co. 71 N. Y. 29.
But the appellee alleged, and the jury found, that Hammert was guilty of negligence. There was evidence to support that allegation and finding; but, had there been no proof, the appellee would be bound by his own allegation, and we must treat that fact as established. The case, then, stands that Strauss, who had charge of the store for Schneider, was present, and permitted Hammert, another employee of Schneider, to negligently use a lighted match in endeavoring to locate the place from which gas escaped. This negligent act of Hammert produced an explosion, which otherwise might not have occurred, and directly contributed to the injury of which Schneider complains in this action. Our conclusion is that, under these facts, -the judgment against the appellant cannot be sustained.
Note. — As to liability for negligence in the escape and explosion of gas, see note to Ohio Gas Fuel Co. v. Andrews (Ohio) 29 L. R. A. 337 — [Rep.
It is therefore reversed, and remanded for further proceedings. | [
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Per Curiam.
Petitioner was found guilty by a jury of aggravated robbery and sentenced to a term of ten years imprisonment in the Arkansas Department of Correction. The Court of Appeals affirmed. Pride v. State, CACR 83-190 (June 6, 1984). Petitioner now seeks to proceed in circuit court pursuant to Criminal Procedure Rule 37.
After the State had rested its case, the trial judge told the jury:
Ladies and gentlemen of the jury, we are going to follow a little different procedure than we normally do because it is getting fairly close to the noon hour and I’ve been pressed into last minute service to make a speech before the Kiwanis Club today at noon and I know they can’t wait to hear all of these words of wisdom flowing from me and you can imagine about how long I have had to get prepared for that, so what we’re going to do is, I’m going to give you the instructions and tell you the law in the case and the attorneys will then make their closing arguments and I will put you then in noon recess and then when you get back from recess, you can go right on into the jury room and begin your deliberations.
Petitioner alleges that these remarks conveyed the impression that the trial was of small consequence and that the judge had made up his mind on the guilt or innocence of the accused. He contends that counsel should have objected and requested a cautionary instruction to negate the prejudicial effect.
We cannot agree with petitioner’s assessment of the effect of the court’s words. The court simply informed the j ury that there would be a slight departure from the usual procedure. The judge’s comments indicated only that he was concerned with being late for his speech; there is nothing to show that the comments were, or could reasonably have been, construed as a comment on the significance of petitioner’s trial or his guilt or innocence.
Petitioner next contends that counsel should have objected to the court’s failure to include an instruction on the lesser included offenses of robbery and theft. The court found on appeal that the facts warranted a conviction for aggravated robbery. As there was sufficient evidence to find petitioner guilty of aggravated robbery, counsel was not remiss in failing to request other instructions. See Smith v. State, 277 Ark. 403, 642 S.W.2d 299 (1982).
Petitioner also argues that there was insufficient evidence that he was armed with a deadly weapon and that the trial court abused its discretion in failing to reduce the finding of the jury and impose a lesser sentence. Attacks on the sufficiency of the evidence are direct attacks on judgment which must be made at trial and on the record on appeal. McCroskey v. State, 278 Ark. 156, 644 S.W.2d 271 (1983). Rule 37 was not designed as another opportunity to challenge the weight of the evidence. Rule 37.1.
Petitioner also makes the conclusory allegation that the ten year sentence was cruel and unusual punishment, but the claim is one which should have been made at trial. Issues not raised in accordance with the controlling rules of procedure are waived. Neal v. State, 270 Ark. 442, 605 S. W.2d 421 (1980).
Petitioner alludes to “extrajudical communications” between and among jurors and nonjurors which denied him a fair trial and faults counsel for not bringing the communications to the court’s attention. He does not, however, describe the nature of the communications or state their extent. Counsel is presumed effective. Travis v. State, 283 Ark. 478, 678 S.W.2d 341 (1984). The burden of overcoming that presumption rests on the petitioner who must establish with factual support for his allegations that counsel’s conduct undermined the adversarial process and resulted in prejudice sufficient to deny him a fair trial. Strickland v. Washington, _U.S__, 104 S. Ct. 2052 (1984). Petitioner asks for permission to inquire of the jury in an apparent attempt to find grounds for the allegation so that he can amend this petition. In the light of petitioner’s failure to provide factual support for the allegation that there were extrajudicial communications, we find no grounds pursuant to Unif. Rules of Evid. 606, Ark. Stat. Ann. § 28-1001 (Repl. 1977), for questioning the jury.
Petition denied. | [
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Steele Hays, Justice.
Geneva Mayer brings this appeal from a life sentence imposed upon a conviction of first degree murder of her eight month old daughter, Amy Gail Mayer. The child’s frozen body was discovered in a remote, wooded area on December 14, 1982. Three assignments of error are raised. We affirm the judgment.
After the jury was seated, but before any witness was called to testify, the defense prospectively objected to the production of any evidence tending to prove the death of Amy Gail Mayer, on the ground that the information fails to allege her death. Appellant submits the information fails to mention murder or that death had been caused by the accused and, thus, the information charged only child abuse or abandonment.
Admittedly, the wording of the information fails to state that appellant caused the death of Amy Gail Mayer.A part of the information reads:
The said accused on the 13th day of December, 1982, did unlawfully: with the premeditated and deliberated purpose of causing the death of her eight month old child, Amy Gail Mayer, abandon the said child with the purpose of causing the death of said child. Same being a class Y felony.
Even so, there was never any doubt that murder, and not child abuse or neglect, was the charge and that being so, the accused was not misled nor her defense impaired. It is enough if the information sufficiently informs the defen-, dant of the charge or charges so that a defense can be prepared. Beard v. State, 269 Ark. 16, 598 S.W.2d 72 (1980). Here, it was the appellant who led officers to the lifeless body of her daughter soon after her disappearance. The information filed against her on December 17,1982 refers to murder in the first degree at one point and to the death of Amy Gail Mayer at another. Moreover, at plea and arraignment on December 20, 1982, the appellant and defense counsel were told the charge was first degree murder. Several days later appellant filed a motion for discovery which mentioned the charge against her as being first degree murder. Clearly, there was no misconception by the defense as to the specific charge being brought. We find no error in the ruling of the trial court on this point.
Appellant next contends the trial court was biased against her and she was thereby denied a fair trial. The argument mingles references to procedural and evidentiary rulings by the trial court. One instruction cited is the denial of a motion to recuse based upon the fact that during a bail hearing, the trial judge asked whether other charges might be filed against the defendant. While we have examined each point, we see no reason to deal with this argument item by item. In some instances there was not even an objection, in others, the ruling addressed the sound discretion of the trial judge. Suffice it to say we find no basis to conclude that the trial judge showed prejudice against the appellant. His inquiry about other charges was in connection with a hearing to determine whether a $25,000 bail was adequate, and was prompted no doubt because of news reports alluding to an investigation of an earlier fire in which two children of appellant died. We regard the inquiry by the trial court as to the possibility of other charges as entirely appropriate to the purpose of the hearing and it follows that no bias may be inferred from such a question.
The final point challenges the sufficiency of the evidence. The proof, while circumstantial, meets the test of substantiality. Evidence is said to be substantial if the jury could have reached its conclusion without having to resort to speculation or conjecture. Osborne v. State, 278 Ark. 45, 643 S.W.2d 251 (1982); Cassell v. State, 273 Ark. 59, 616 S.W.2d 485 (1981).
Geneva Mayer maintained throughout the case that her daughter was kidnapped. She said she and the child were at home alone on the afternoon of December 12, 1982. In the late afternoon, she went to the back yard for firewood. Returning to the house with an arm load of wood, she was grabbed from behind, her arm pinned behind her back. Two men wrestled her into a bedroom, tied her hands and feet with telephone wire and left her on the bed. As they were leaving, she heard one of the men say, “Get the baby.” Geneva Mayer managed to free her feet and reach a neighbor’s house, her hands still tied behind her.
There was testimony pro and con concerning one’s ability to tie his own hands behind his back, whether Mrs. Mayer demonstrated the degree of anguish expected in such cases, whether the arm load of wood showed evidence of being dropped or simply laid on the ground, and whether the amount of wood already in the house necessitated getting more wood.
Refuting Mrs. Mayer’s assertions that she had not left home prior to the attack, the state produced testimony that a car closely resembling the Mayer vehicle was seen in the early afternoon on that day on a road leading to the area where the infant was found. There was testimony from a hunter who saw a car of similar markings on a deadend road near where the child was found. The time was around 5:00 p.m. The driver was a woman.
The most telling evidence came from the appellant herself. Under her account of the kidnapping, she had no basis for knowing where her baby might be, yet she was able to lead officers to the exact, distant location, attributing this extraordinary perception to a dream or vision. We think it was for the jury to determine whether her knowledge was due to a divination of some kind, or to a more plausible explanation. We think the proof was sufficient. Chaviers v. State, 267 Ark. 7, 588 S.W.2d 434 (1979).
Finally, under A.R.Cr.P. Rule 36.24, and our Rule 11(f), we find the treatment of other objections of appellant’s which were overruled, as well as rulings adverse to appellant, do not constitute reversible error.
The judgment is affirmed. | [
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Bunn, C. J.
The facts in this case are that appellee had purchased the SB J of SB k oí section 34, township 10 north, range 32 west, from the Bittle Rock & Rort Smith Railway Company for the sum of $120, and given his note therefor, less $30 cash, and taken bond for title, conditioned in the usual way. The $90 were to be paid in three equal annual instalments, and deed to be made when all the instalments were paid.
On December 17, 1888, plaintiff Stevens borrowed of defendant Hynes, as cashier of the Crawford county bank, $100, and executed his promissory note to him for $120, of that date, due November 1, 1889, and to secure the payment of same assigned said bond for title or contract of sale to him.
On December 17, 1889, plaintiff Stevens paid off said note, and demanded his bond for title, and the same was refused by the defendant, acting for said bank, claiming that the bank owned a note'(called the “Hays note”) of plaintiff for $125, with accrued interest. After some negotiations it was finally agreed between them that defendant’s bank should loan plaintiff $100 for one year at 10 per cent, interest, plaintiff to pay the accrued interest on the $125, and the land contract or title bond should remain as security for all the indebtedness of plaintiff to said bank, and an extension of one year to be given on the' $100 and the $125. Defendant then paid over to plaintiff the $100, less $12.50, on the accrued interest on the $125,’ took plaintiff’s note for $110.50, payable November 15, 1890, and dated December 2, 1889. (The $100 and interest at 10 per cent, from date until maturity, and the interest on said interest for that time made the $110.50, the note to draw interest only from maturity.) Subsequently a further extension of one year was given on the two notes, and in consideration thereof plaintiff gave defendant two notes, each for $20. The $110.50 note* the $125 note, and the two $20 notes all remained unpaid at the time of the institution of this suit. This was a bill in equity to compel defendant to surrender title bond, on. the ground that the debts for which it was held were usurious.
On bill and answer and testimony of plaintiff with exhibits, the court found that there was no usury in the $110.50 nor in the $125 note, but that the deed, which in the meantime had been executed and delivered to defendant on the bond for title by the railroad company, was in fact a mortgage, and that some of the debts for which it was held for security were usurious, and therefore the same was void as a mortgage, and was only held in trust for plaintiff by defendant. Decree in behalf of defendant for the $110.50 note and the $125 note, and that defendant’s lien be discharged ; that the legal title vest in plaintiff, he having paid the full amount of the purchase money, and that defendants deliver up said deed to plaintiff. Defendant took exceptions, and appealed to this court.
The only question before us is whether or not the court below erred in holding the deed as a mortgage in the hands of defendant to secure the claims against plaintiff was usurious as to certain of the said secured debts, not mentioned in the decree, but presumably the two $20 notes, and therefore void. The two $20 notes are admitted to be usurious, if they are to be taken with the other indebtedness, but no claim is made on their account, and it is contended that they were made long subsequent to the agreement by which the title bond, and, consequently, the deed, was agreed to be held as security for the indebtedness of plaintiff to defendant, and, under the rule on that subject, could not taint said indebtedness, so secured, with usury. The contention of defendant was correct, and the court erred in not so holding-, and in decreeing- the deed void as a security as aforesaid.
.The decree is therefore reversed, and the cause is remanded, with directions to foreclose the deed (properly held to be a mortgag-e), and out of the proceeds pay off the amount decreed in favor of the defendant and the costs, if same are not paid in a reasonable time. | [
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Riddick, J.,
(after stating the facts). There are only two questions in this case. The first is, did Mrs. Nichol have power to convey by mortgage the lands involved in this case? We think this question was answered in the negative by the case of Williams v. Nichol, 47 Ark. 254. The land mortgaged was purchased with the proceeds of a legacy left by the will of Willoughby Williams, deceased, to John H. Williams, to be held in trust and the interest and profits therefrom paid to Mrs. Nichol free from the control of her husband. It was held in Williams v. Nichol, supra, that Mrs. Nichol was entitled only to the interest on the money bequeathed to her use. The money, under an order of court, was subsequently invested in land, and the land conveyed to a trustee, to be held in trust for the uses and purposes mentioned in the will of Willoughby Williams. The land then took the place of the money, and Mrs. Nichol had only the right to use and dispose of the rents and profits arising therefrom. The chancellor properly held that after the death of Mrs. Nichol the mortgage was of no effect. Williams v. Nichol, supra; Rife v. Geyer, 59 Pa. St. 393; Wells v. McCall, 64 Pa. St. 207; Perry on Trusts, (4th Ed.), sec. 386a.
Inability of married woman on her contracts.
The second question is, did the court err in rendering judgment against the estate of Mrs. Nichol for the amount of the note executed by her? The complaint alleged that the consideration for the note was money loaned to Mrs. Nichol. As this allegation was not denied, we must take it as true; and the question presented is whether a married woman, under our law, has the right to borrow money for her own use and benefit, and whether or not she becomes personally liable for the payment of a note executed for such money.
It has been frequently held by this court that a married woman may make a contract for the benefit of herself or her separate estate, and that such contract will be enforced against her separate property. Stowell v. Grider, 48 Ark. 220; Collins v. Underwood, 33 Ark. 265; Stillwell v. Adams, 29 Ark. 346. This was the law before the passage of the statutes enabling married women to acquire and hold property in their own right, free from the control of their husbands, and without the aid of a court of equity. The promissory note of a married woman, given for money borrowed by her before the passage of the enabling statutes, would have been enforced in equity against her separate estate. Dobbin v. Hubbard, 17 Ark. 189; Miller v. Brown, 47 Mo. 506; Boatmen's Savings Bank v. Collins, 75 Mo. 281; Williams v. Urmston, 35 Ohio St. 296, S. C. 35 Am. Rep. 611; Davis v. First Nat. Bank of Cheyenne, 5 Neb. 242, S. C. 25 Am. Rep. 484; 2 Kent, 151; Lawson, Rights & Rem. sec. 749. Such a contract, before the enabling statutes were passed, created no personal liability against her, for the reason that the separate property of married women before the passage of such laws was altogether a creation of a court of equity.
By the common law she could make no contracts. The contracts of a married woman were void at law, and were not recognized by courts of law. Inasmuch as her creditors had no means, at law, of compelling the payment of her debts, the courts of equity, which had created her separate estate, took upon themselves to enforce her promises, not as personal liabilities, but by laying hold of her separate property, as the only means by which they could be satisfied. Owens v. Dickenson, Craig & P. 48, 54; Pike v. Fitzgibbon, L. R. 17 Ch. D. 454; 3 Pom. Eq. sec. 1122, and cases cited. If the married woman had no separate estate, her creditors were without a remedy, for the proceedings to enforce her promises made in reference to her separate estate were not against her personally, but against her separate estate. It was a peculiar remedy, formulated by courts of equity to enforce promises which at law were void. Ex parte Jones, L. R. 12 Ch. D. 484; 3 Pom. Eq. sec. 1122; and note.
While the law stood in this condition, our constitution was adopted, and statutes were enacted providing that property owned by a married woman at the time of her marriage, or acquired afterwards, should be and remain her sole and separate property; allowing her to bargain, sell, assign, and transfer such property, and to engage in trade or business on her own account; providing that no bargain or contract made by her in respect to her sole and separate property, business, or services shall be binding on her husband, or render him or his property in anyway liable therefor, but that she may alone sue or be sued in the courts of this state on account of said separate property, business, or services; and further providing that any judgment against her may be enforced by execution against .her sole and separate estate or property to the same extent and in the same manner as if she were sole. Sand. & H. Dig. secs. 4945-4951.
The object and effect of these statutes was to make a radical change in the law as regards the rights and powers of married women. Every married woman of this state who acquired property after the passage of these laws became at once the owner of a separate estate. It is no longer an equitable estate, to be recognized alone by courts of equity; but it is, by virtue of the statute, a legal estate, recognized by courts of law as well as of equity. These laws do not give the wife power to contract generally. Her note given as surety for the debt of another would not bind her, or be enforced against her property. But they do give her power to contract in reference to her services, her separate estate, and in respect to a separate business carried on by her. The statute not only authorizes her to make such contracts, but expressly provides that she may alone sue or be sued in the courts of this state on account of such “property, business, or services.” Sand. & H. Dig. sec. 4946. It has been twice held by this court that under this statute the contracts of a married woman in relation to her separate business create a personal liability against her. Hickey v. Thompson, 52 Ark. 238; Trieber v. Stover, 30 Ark. 727.
It follows, upon the same reasons, that a contract in reference to her separate property creates also a personal liability; for the statute includes such contracts,— as much so as it does those concerning her separate business. “The right to contract,” said Justice Scholfield in Haight v. McVeagh, “is indispensable to the acquisition of earnings, and to the unrestricted possession, control, and enjoyment of property.” Haight v. McVeagh, 69 Ill. 628; Hickey v. Thompson, supra. The purpose of the> statute was to permit married women to acquire and hold property without the intervention of a trustee or a court of equity. .In order that she may be free to acquire property, it permits her to make contracts binding upon herself ^n regard to such property; and it provides that her husband shall not be liable upon such contracts, but that she alone may be sued thereon. So we think that, if this was a contract in reference to the separate property of Mrs. Nichol, it created a personal liability against her,- and the judgment was proper. Imprisonment for debt having been abolished, the only effect of a personal judgment against a married woman is to render her property liable for its satisfaction.
Was this a contract in regard to the separate property of Mrs. Nichol ? It is contended that Mrs. Nichol at the time she borrowed this money had no separate estate, and therefore it was not such a contract. If a married woman who owns separate property binds that property to pay for other property which she buys, such property becomes a part of her separate estate. “If she has no separate estate,” says Mr. Kelly, in his work on Contracts of Married Women, “there has been considerable conflict on the question whether or not she can purchase on á credit, so as to create a separate estate; yet the true doctrine appears to be that a married woman can purchase on credit, and the purchase will be her separate estate.” Kelly, Contracts of Married Women, p. 160. In a Michigan case the defendant, a -married woman, was sued for the price of furniture purchased by her. Among other defenses, it was contended that the contract did not concern her separate property, and was therefore not within the statute. In an opinion delivered by Mr. Justice Cooley, he said: “The contract is for the acquisition of sole property; and the title to it, or at least a right in relation to it, vests when the contract is made. There is, therefore, no straining of terms in saying that the contract has relation to her sole property. The statutes on this subject establish a new system. * * * The rule which they establish is one of general capacity to own property, and to make valid contracts, binding in law and in equity, in relation to it; and I discover nothing in the statute which so limits that capacity as to prevent her making the first acquisition, any more than any subsequent one, on credit.” Tillman v. Shackleton, 15 Mich. 456. In the case of Wilder v. Ritchie., 117 Mass. 382, it was held that a married woman may bind herself by' agreements for the acquisition of property to her separate use, and that no distinction could be made between money and other personal property. In Building & Loan Association v. Jones, 32 S. C. 313, the Supreme Court of South Carolina held that, when a married woman borrows money, it becomes at once a part of her separate estate, and that her contract to repay it is a contract with reference to her separate estate, which' may be enforced against her.
Our conclusion is that a married woman has, under our law, the right to purchase personal property, or borrow money for her separate use, and that the property purchased or money borrowed becomes her separate property. Her contract to pay for the same is a contract in reference to her separate property, and creates a personal obligation, valid in law and in equity, and this without regard to whether she owned any additional property or not. Hays v. Jordan, 85 Ga. 741, S. C. 9 Law. Rep. Ann. 373; Arthur v. Caverly, 98 Mich. 82; Russel v. Bank, 29 Mich. 671; Johnson v. Sutherland, 29 Mich. 579; Gaynor v. Blewett, 86 Wis. 401; Haydock Carriage Co. v. Pier, 74 Wis. 585; Houghton v. Milburn, 54 Wis. 564; Conway v. Smith, 13 Wis. 125; Haight v. McVeagh, 69 Ill. 625; Cookson v. Toole, 59 Ill. 515; Orr v. Bornstein, 124 Pa. St. 311; Hibernia Savings Ins. Co. v. Luhn, 34 S. C. 184. To hold otherwise would be to say that, although the statute gives a married woman the right to acquire and hold property, yet, if she undertakes to acquire it by contract, the law will treat such contract as of no validity. Under that view of the statutes, a married woman who had no separate estate could make no valid contract for the acquisition of property, however desirable and beneficial the ownership of it might be to her. If she was a seamstress, and needed a sewing machine, or a music teacher, and needed a piano, she could make no contract for a purchase upon credit. If she borrowed money with which to purchase property, her note given for the money would be void. This was her condition before the passage of the enabling acts. Such a construction, it seems to us, would, to a large extent, nullify the statutes which were intended to emancipate married women from many of the trammels of the common law, and permit them to contract for, acquire, and hold property.
We have not overlooked. the case of Walker v. Jessup, 43 Ark. 167, and other cases by this court, holding that a married woman cannot make an executory contract for the purchase or conveyance of land binding upon her or her heirs. There may be reasons why the executory contracts of a married woman in respect to real estate should not be enforced against her. That question is not before us, and we do not overrule those cases. But, so far as the former decisions of this court may have intimated that the contracts of a married woman in respect to her separate property, and for its benefit, though valid and binding upon her in equity, create no personal obligation on her part, and can only be enforced by a proceeding in a court of equity against her separate property, the same are overruled.
The decree of the chancellor is affirmed. Motion for rehearing overruled. | [
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Riddick, J.,
(after stating the facts). The lots claimed by appellant to be exempt from taxation belong- to the school district of Port Smith, and the question before us is whether such land is exempt from taxation. The constitution of the state declares that laws exempting property from taxation, except as therein provided, shall be void. Const. 1874, art. 16, sec. 6; L. R. & Ft. S. Railway v. Worthen, 46 Ark. 312. It further provides that the following property shall be exempt from taxation: “Public property used exclusively for public purposes; churches used as such; cemeteries used exclusively as such; school buildings and apparatus; libraries and grounds used exclusively for school purposes; and buildings and grounds and materials used exclusively for public charity.” Const. 1874, art. 16, sec. 5. This provision defining what public property is exempt from taxation does not refer to property owned by the state, for the presumption is that the state does not intend to tax its own property; but it refers to property owned by the public corporations or organizations of the state, such as counties, cities, towns, and school districts. The question before us is not whether this land is presumptively exempt from taxation, for, under the provision of the constitution above referred to, there is no room for such a contention. Under that provision all property not expressly exempted by the constitution is subject to taxation, except property of the state or general government. In order therefore to justify us in holding that this property is exempt, there must be found in the constitution itself provision for its exemption. Const., art. 16, sec. 6; L. R. & Ft. S. Railway v. Worthen, supra.
It is first said that this is public property, but it will be noticed that all public property is not exempt from taxation, but only that public property which is used exclusively for public purposes. It is conceded that this land is public property, but the question of its exemption from taxation is not determined alone by its character as public property, but also by the nature of its use. This land is not used for school grounds, nor is there any intention to erect upon it buildings of any kind for the use of schools, but it was purchased and is now held only for the purpose of sale or for rent. It was purchased by the board of directors of the school district of Fort Smith as an investment and for profit, under the authority conferred by the act of April 1, 1891. The proceeds arising therefrom, when sold or rented, are to be used for the benefit of the public schools of said district, yet this does not justify us in holding that the land itself is now used exclusively for public purposes, within the meaning of our constitution. It is true that in a certain sense all land belonging to the public must be used for public purposes, for whether it be held for sale or rent or used as a park or pleasure ground, or in some other way, in contemplation of law its control and use must be regulated by considerations of benefit to the public community to which it belongs. But it is obvious that this is not the sense in which the constitution speaks of exempting “public property used exclusively for public purposes.” It seems clear that the intention was to exempt only that public property which in itself directly subserved some public purpose by actual use, as distinguished from property belonging to the public but not used by it, and from which a benefit accrues to the public, not by the immediate use thereof by the public, but indirectly through selling or renting the same to private parties. To illustrate : Some of these lots have buildings upon them, and are rented to different tenants. One may be rented to a grocer, another to a butcher, and another to a saloon keeper. Although the object and effect of renting the property in such cases may be a benefit to the public, yet we cannot say that such property is used exclusively for public purposes. To do so would be to confound the use of the property with the incidental benefit to the public derived from rents paid by the party who uses it for his own private purposes. Neither the use of the property for the sale of groceries by a grocer, of meat by a butcher, nor for the sale of liquor by a saloon-keeper, is the use of it for a public purpose, or for the purpose of benefiting the public. The purpose for which these tenants use this property is their own private gain, and the fact that they pay rents to the public does not change the purpose of this use from a private to a public one. The case of Brodie v. Fitzgerald, 57 Ark. 445, bears directly on this point. It was held in that case that, although the rents and revenues derived from certain land were devoted solely to public charity, yet such land was not exempt from taxation, under the provision in the constitution exempting from taxation buildings, grounds, and materials used exclusively for public charity.
If the intention of the makers of the constitution was to exempt public property the use of which inures to the benefit of the public in some way, then the effect is to exempt all public property, for such property can be used lawfully only for the public benefit, and this seems to be the conclusion reached by counsel for appellant. But all public property is not exempt. All property belonging to the public must be used for the benefit of the public, but our constitution distinguishes and sets apart as exempt from taxation only that public property which is itself used exclusively for public purposes. If a school district purchases land not to be used for school grounds, or for some other public purpose, but as an investment of its funds, and for the purpose of sale or rent, then it must take such lands with the burden which the law imposes even upon public property not used exclusively for public purposes. It must pay taxes upon such lands, as other land owners do. If the burden becomes too heavy, it can get rid of it by selling the land; for so long as the money arising from such sale is kept as a fund to be used in defraying the expenses of the public schools of the city, it will be exempt from taxation, such a use of the fund being exclusively for a public purpose. Cincinnati College v. State, 19 Ohio, 110.
It is necessary that a school district should have a school building and grounds. If such property was taxed and sold for the non-payment of taxes, the public would have to pay other taxes in order to replace the same, for it is absolutely essential that a school district should own a school house. For that reason school buildings and grounds are exempt from taxation. But it is not essential that a school district should hold land for the purpose of sale or rent, and as an investment for profit. When land is thus held by a school district, it is deemed to be held by such corporation in “its commercial capacity as a private corporation,” and the reasons for exempting such property from taxation are slight as compared with those which exist in favor of exempting buildings and grounds actually and exclusively used for public purposes. Considerations of this kind probably led the makers of our constitution not to exempt such property from taxation. Cooley, Taxation (2d Ed.), 173; City of Louisville v. Commonwealth, 1 Duvall, 295; S. C. 85 Am. Dec. 624; Brodie v. Fitzgerald, 57 Ark. 445; West Hartford v. Water Commissioners, 44 Conn. 360; State v. Assessors, 35 La. An. 668; Cincinnati College v. State, 19 Ohio, 110.
It is further said that a school district is one of the governmental agencies of the state, that property belonging to it is property of the state, and as such not subject to taxation; but such contention, as applied to the facts of this case, is not tenable. A school district is a creature of the state, and the general assembly enacts the laws under which the property of such a district is acquired and used. But the property of a school district is not the property of the state, any more than the property of a city or county is the property of the state. Pearson v. State, 56 Ark. 153; Cooley, Const. Lim. 290, 291. The title of this property is not in the state, but in the school district of the city of Fort Smith, and it does not come within the meaning of sec. 2, art. 14, Const. 1874, which has reference to property held by the state in trust for schools and colleges, and to the public school fund of the state, of which this property is not a part.
As the decision of this case turns on the construetion of our own constitution, we have not felt it necessary to discuss the cases from other states cited by counsel in their printed argument, and to which we have given that consideration they well deserve.
Our conclusion is that the circuit court correctly ruled that lands of the school district of Fort Smith, purchased and held by such district solely for sale or rent, and for the sake of profit, are not, within the meaning of the constitution, used exclusively for public purposes, and are subject to taxation.
Judgment affirmed.
Bunn, C. J., dissents. | [
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Hughes, J.,
(after stating the facts). The motion for a new trial not having been filed in time, and having been stricken out by the court, the only question presented for our determination in the caséis, was it competent for the court to render judgment on the defendant’s bond against the securities in this action ? The contention of the appellants is that no judgment could be rendered on their bond against them for any amount, save the damages sustained by the plaintiff by being kept out of possession of the property after the notice was served on Billingsly to quit and deliver possession to the plaintiff. To maintain this contention, the appellant relies upon the act of February 8, 1883, which provides for the recovery only of damages by plaintiff for being kept out of possession, but the later act of February 5, 1891, is in conflict with this, and must prevail.
By the act of February 5, 1891, it is provided that, “if, upon the trial of any action under this act, the finding or verdict is for the plaintiff, the court or jury trying the same shall assess the amount to be recovered by the plaintiff for the rent due and withheld at the time of commencement of the suit and up to the time of rendering judgment, or the value of the use and occupation, or of the rents and profits thereof during the time the defendant has unlawfully detained possession, as the case may be, and damages for withholding the same, or the damages to which said plaintiff may be entitled on account of the forcible entry and detainer of said premises,” etc. Sand. & H. Dig., secs. 3458, 3459, (part of same act) provides that * * * * in all cases where judgment is rendered either against the plaintiff or defendant, for any amount of recovery, judgment shall also be rendered against his sureties in the bond given under the provisions of this act.” The condition of the bond required by statute of the defendant to retain possession of the property, as prescribed by act of February 5, 1891, is that, if the plaintiff recover in the action, he will deliver possession of the premises to the plaintiff, and satisfy any judgment the court may -render against him in the action. (Sand. & H. Dig., sec. 3452). This can mean only that, besides delivering* possession of the premises, the defendant will pay any damages that may be assessed against him, and these may include rents that were due and unpaid at the time of the commencement of the suit, and up to the time of rendering judgment, or the value of the use and occupation, or of the rents and profits thereof, during the time the defendant has unlawfully detained possession, as the case may be, and damages for withholding the same, or the damages to which the plaintiff may be entitled on account of the forcible entry and detainer of said possession, as provided by section 3458, Sand. & H. Dig. The condition of the bond given in this case by the defendant to retain possession of the property is : “Now, if the said H. C. Billingsly shall deliver to the plaintiff the possession of the premises aforesaid, together with the costs and damages awarded to the plaintiff, if so decreed by the court, then this bond shall be void ; otherwise to be and remain in full force and effect. It is a mere play upon words to say that these bonds do not mean the same thing, though differing in phraseology. They both mean that the defendant, if judgment be rendered against him, shall pay the amount of the judgment, all the damages by reason of the defendant’s failure to pay rents, as well before the institution of the suit as after, down to the rendition of the judgment; for they are all damages.
“Damage. — A pecuniary compensation or indemnity, which may be recovered in the courts by any person who has suffered loss, detriment, or injury, whether to his person, property, or rights, through the unlawful act or omission or negligence of another.” Black, Daw Dictionary, p. 316, tit. “Damage.”
The counsel for appellants maintain that there is a distinction made by the statute between a recovery for rent and a recovery for damages; one bein'g for the unlawful withholding, and the other for rent due by contract. Yet it is plain that they are only damages arising from different wrongs suffered; that is, from the withholding of the premises after demand, and from withholding rents to the time of commencement of the suit. Though arising from different wrongs, they are nevertheless damages, and are unquestionably recoverable in the same action.
A bond to “deliver to the plaintiff possession of the premises with the costs and damages awarded to the plaintiff, if so decreed by the court,” certainly, by fair and reasonable construction, provides for the payment of all damages of whatever kind, or from whatever cause accruing, that may be awarded by the court. “It is so nominated in the bond.”
The bond given in this case conforms to the requirement of the act of March 2, 1875, as amended by act December 13, 1875, and differs from the one required by act of February 5, 1891, in phraseology, but not in legal effect. The parties who executed this bond are presumed to have known that the law provided that, if judgment were rendered for any amount against the defendant in the action, judgment should be rendered for the same amount against the sureties on the bond; and that judgment might be rendered in the action for rents past due when the suit was brought, as well as for damages for the unlawful withholding of the property after demand therefor made, and for other damages sustained by the plaintiff by reason of said unlawful withholding of the possession of the premises. The act of 1891 amended the law as it existed before then, so as to allow the recovery of damages for failure by the defendant to' pay. back rents that accrued prior to the demand for possession. We are of the opinion that the bond in this case was a substantial compliance with the requirement of the act of 5th February, 1891 (sec. 3452, Sand. & H. Dig.); and that it was proper in this action to give judgments for back rents, and to render judgment for the same against the sureties on the bond, if the pleadings and proof in the case warranted.
All questions as to the evidence and instructions having been waived by the failure of the appellants to file a motion for new trial in time to have it made a part of the record in this case, there is nothing more left for determination. The error of entering judgment for a sum greater than the amount named in the- bond of the appellants was cured by a remittitur of the excess. The judgment is affirmed. | [
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Bunn, C. J.
This is an action of unlawful detainer, instituted by appellant, D. Davis, against the appellees, Francis Goodman, Marion Parker, and George Parker, to recover the possession of the southwest quarter of section eleven (11), in township four (4) north, of range five (5) east, in St. Francis county; the complaint alleging ownership in the plaintiff, tenancy and possession under him by defendants of a house on said land for the years 1887 and 1888, and a holding over without right after the termination of said tenancy, and after due notice given in writing and demand of possession by plaintiff. Prayer for possession of the premises.
The answer denied occupation of the premises, to-wit, the house mentioned in the complaint as the tenants of plaintiff in the years 1887 and 1888; denied that defendants were ever in possession of, or detained, unlawfully and without authority, the premises in the year 1889 or at any other time; and also denied that plaintiff was damaged in any sum whatever.
The writ of possession was issued by the clerk, on bond being given by the plaintiff, and required the sheriff to take possession of the whole quarter section, without reference to the house thereon, and deliver the same to the plaintiff; and the sheriff was also required thereby to summon the defendants to appear. During the pendency of the action, the deaths of both Marion and George Parker were suggested and admitted, and J. S. Fitch was appointed administrator ad litem, to defend for them, and the action progressed accordingly. The cause was tried by the court sitting as a jury, and upon the facts the court found for the defendant Goodman, and, as she claimed no damages, it rendered judgment upon its said findings as follows, to-wit: “It is by the court considered, ordered, and adjudged that the defendant, Francis Goodman, do have and recover such possession of the premises, to-wit: southwest quarter of section 11, township 4 north, of range 5 east, except twenty-four acres in south field, as she had at the institution of this suit; and that Francis Goodman recover of plaintiff her costs; etc., not, however, to include any costs incurred on account of the deceased Parkers and Fitch, the administrator ad litem.
Form of judgment in unlawful detainer.
The error complained of by appellant is in the form of the judgment. The action being for a house on the quarter section of land, and not for the quarter section itself, he contends that the court erred in its judgment in extending the scope thereof to all the land of the quarter section, less the 24 acres adjudged to them, instead of confining the judgment to the house, since that was all the complaint and answer put in issue. It is not altogether certain what the language pf appellant’s complaint means, in respect to the description of the property involved. It may mean the house only, and yet there are just as strong, if not stronger, reasons to say it means the whole quarter section, since in the outset plaintiff claims to be the owner of the whole quarter section, and prays to be put in possession of the “premises” - quite an indefinite word, and dependent for its meaning on some going before. Apd the house is only mentioned in the complaint in that portion which charges the unlawful possession of defendants.
Furthermore, the plaintiff had possession given him by virtue of the writ issued by the clerk in the first instance, and his giving bond as the statute provides. That writ of possession calls for the whole quarter section, and is not confined in its scope to the house, and, as we have seen, the complaint is so inexplicitly worded as that the clerk may well be excused for wording the writ as he did. It does not seem altogether consistent for the plaintiff to raise an objection to the judgment, which entered into the writ he sued out and holds under.
alded beby evldence-
no°bílsedn landbelow'
But, according to a uniform holding of this court,
the trial court’s findings and judgment will not reversed, when they are in conformity to the evidence in the case, notwithstanding the pleadings fall short of the facts in evidence, for in such case the pleadings will be considered as amended to suit the facts.
We see no real, substantial defect in the judgment except, perhaps, it left the descriptions of the somewhat uncertain and indefinite, in this, that it gave to Goodman such possession as she had at the institution of this suit. And this defect would have doubtless been corrected by the court on motion, or a mere suggestion of plaintiff. This was not made by him, and we conclude that the defect does not materially affect him, and that he chose to waive it by not having it corrected at the proper time.
Upon the whole case, we think there was no substantial error in the proceedings of the court.
The judgment is therefore affirmed. | [
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John I. Purtle, Justice.
The Arkansas Board of Dispensing Opticians was created by Act 589 of 1981 (Ark. Stat. Ann. §§ 72-2102 — 72-2123 [Supp. 1983]). Among the Board’s duties are the registration and licensure of dis pensing opticians. Applicants for registration or licensure are normally required to successfully complete an examination of their professional skills. However, section nine of the Act (Ark. Stat. Ann. § 72-2109) is a “grandfather clause” which allows the registration or licensure, without examination, of dispensing opticians who meet certain requirements. Under section nine, the requirements for obtaining a certificate of registry are somewhat different from the requirements for obtaining a certificate of licensure.
Appellants applied to the Board for certificates of licensure under section nine. The applications were denied. Appellants appealed to the full Board which, after interviews with appellants, again denied the applications. The Board stated that it was denying the applications because appellants had not “been providing direct retail ophthalmic dispensing services as [their] primary mode of employment or business.” Appellants appealed to the circuit court, which affirmed the decision of the Board. This appeal followed.
The Board’s decision must be reversed because there is no requirement that an applicant for licensure must have “been providing direct retail ophthalmic dispensing services as his primary mode of employment or business. . .” That language is taken from subsection (a) of section nine, which sets out the requirements to be met by applicants for certificates of registry. It has no application to applicants for certificates of licensure. The requirements for applicants for certificates of licensure are set out in subsection (b) of section nine. An applicant under subsection (b) need only show, in addition to requirements not in dispute here, that he has “been providing ophthalmic dispensing services to the public. . . for a minimum period of five (5) years immediately prior to the effective date of [the] Act.” Appellants met their burden of proof when they demonstrated that they have been providing such services for the requisite period of time.
Contrary to the Board’s argument, neither this court nor the Board has the authority to add a “full time,” “primary mode of employment,” or “retail” requirement to subsection (b). When a statute is plain and unambiguous, we must give it effect as it reads. In such cases, we are primarily concerned with what the document says, not with what its drafters may have intended. Bishop v. Linkway Stores, Inc., 280 Ark. 106, 655 S.W.2d 426 (1983); City of Little Rock v. Arkansas Corp. Commission, 209 Ark. 18, 189 S.W.2d 382 (1945). If the General Assembly did intend to say something different in subsection (b), it has the authority to amend the Act. Unless and until the General Assembly does amend the Act, our duty is to apply it as it reads.
Reversed. | [
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Bunn, C. J.
This is an action of replevin, broug-ht by appellees ag-ainst appellants for the recovery of one thousand sawed red-oak wagon tongues, and other lumber. Judgment for plaintiffs as to the wagon tongues, and for defendants as for the other lumber, and defendants appealed. The plaintiffs failing to take a cross-appeal, the other lumber is no longer in the controversy.
On' the 30th of January, 1893, appellees, creditors of one Charles Lynn, the owner and operator of a steam saw-mill located six miles from Weiner, a station on the Cotton Belt railroad in Poinsett county, purchased of him in settlement of their debt, as far as might be, one thousand red-oak wagon tongues and other lumber, said tongues being then in one pile on the yard of said sawmill (which contained all the wagon tongues then owned by said Lynn), for the fixed price of $240, Lynn agreeing to haul and deliver the same at Weiner for appellees, the purchasers. A bill of sale was duly signed and delivered to appellees by Lynn on the same day and bearing date of that day. About the last of September of that year, Lynn employed appellants to haul the wagon tongues to Weiner for him, and on their arrival there he notified appellees of the same, with the request that they should come to Weiner and receive them. On the 11th of November, Lynn sold the wagon tongues to appellants, receiving credit on an antecedent debt he owed them. One of appellees, after this, came for the tongues, but they were then in possession of appellants, who refused to give them up, and this suit was thereupon instituted.
The contentions of appellants are: First, that there was never any delivery of the wagon tongues to appellees by Lynn, and that the sale was, therefore, never in fact completed, but that the delivery was to have been made subsequently to the day of sale, and was never in fact made; second that there was no ascertainment of the number of tongues at the time of the sale, but that, according to its terms, that was left to be ascertained at Weiner when they should be delivered; and finally, that the pile on the mill yard contained in fact 1,151 wagon tongues instead of 1,000, as found by actual count at Weiner.
In order to enjoy the full benefit of their contentions, appellants endeavored to show that they were innocent purchasers from Lynn. We think, however, that the testimony is against them in this effort, and shows that they were affected with the knowledge of the sale from Lynn to appellees,— if not with full knowledge, as sought to be shown, yet with knowledge to put them on the inquiry, so that they are not innocent purchasers ; and the jury might well have so concluded in making up their verdict.
We think there was evidence going to show that the understanding between Lynn and appellees was to the effect that the sale was then and there final and complete, and that the hauling and delivery at Weiner was a separate contract, although they were acts that Lynn should perform as part of the consideration going from him in making the sale ; and we also think that there is evidence to the effect that there was a sufficient ascertainment of the number of tongues on the day of sale to make the sale complete, and the jury in both instances were justified in finding as they did.
The court seems to have presented the case fairly to the jury in its instructions. The judgment is therefore affirmed.
Battle, J., absent. | [
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Riddick, J.,
(after stating the facts). The first contention is that the attachment was not lawfully issued. The attachment having been granted on the ground that the defendant was a non-resident, and the claim of plaintiff set out in the third paragraph being for unliquidated damages, it is contended for that reason that the court could not lawfully sustain the attachment or order a sale of the property. Our statute provides that an attachment “shall not be granted on the ground that the defendant or defendants or any of them is a foreign corporation or non-resident of this state for any claim other than a debt or demand arising upon contracts.” Sand. & H. Dig., sec. 325. This restriction of the right to attach to debts and demands arising upon contract is for the purpose of excluding actions for torts and actions where “the contract relations between the parties do not furnish a basis upon which the measure of liability may be ascertained.” 1 Wade, Attachment, sec. 12. The action in this case was founded upon a demand against the- defendant for refusing to perform a contract which he had made with the plaintiff. This demand arose out of, and the measure of damages in the action depended upon, and was controlled by, the contract. The word “demand” is broader than the word “debt;” and although the damages claimed were unliquidated, still we are of the opinion that the claim was “a demand arising upon contract,” within the meaning of the statute. Jones v. Buzzard, 2 Ark. 415; Lenox v. Howland, 3 Caines, 323; New Haven &c. Co. v. Fowler, 28 Conn. 103.
It is further said that the damages allowed are ° excessive. But the question was peculiarily within the province of the jury to determine. There was evidence to support the verdict, and the case is not one that would justify us in disturbing the judgment of the circuit court on that point.
Judgment affirmed. | [
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Battle, J.
Ben L. Carpénter was indicted in the Ashley circuit court for murder in the first degree; was tried, after a change of venue, in Drew county; and was convicted of the crime of which he was accused. He now brings the record of his trial and conviction to this court, and asks for a reversal of the judgment against him, and for a new trial.
The indictment was filed in open court by the grand jury on the 19th of January, 1892. The defendant was tried and convicted in August, 1893. The judgment of conviction was reversed by this court on appeal [58 Ark. 233], and the cause was remanded for a new trial. After this, on the 24th of September, 1895, the defendant filed a motion to set aside the indictment because the commissioners who selected the grand and alternate grand jurors for the January term, 1892, of the Ashley circuit court (at which term this indictment was filed), stated in their indorsement on the same that the lists were for the February term, 1892, when they should have said that they were for the January term, 1892. The motion was denied.
On the 24th of September, 1895, the defendant filed a plea in which he alleged that, in a former trial of the issues in this prosecution, he had been convicted by a jury of the charge alleged in the indictment, but they failed to specify the degree of homicide of which they found him guilty in their verdict, and that a judgment was rendered upon this verdict, which judgment was afterwards reversed by this court on appeal, and a new trial was granted, and that, therefore, he had been put in jeopardy for the same offense charged in the indictment, and should be discharged. The trial court held that the plea was insufficient.
On the 26th of September, 1895, he filed a motion for a continuance, in which he alleged that he could not safely go to trial, because of the absence of James Coulter and Lee Turner, and that he expected to prove by Coulter that he was at the place of killing on the evening it occurred, and saw a pistol lying on the mantel, which pistol Hugh Estelle said Hannibal had when he was killed; and that he expected to prove by Turner that he had examined the gun which 'the defendant had on the day of the homicide; that it was an old, muzzle-loading gun; that it had been loaded, a long time; that he tried and could not “discharge” it, and “drew the load with a gun wiper.” The motion was denied.
The court thereupon proceeded with the trial of the defendant for the offense charged against‘him in the indictment.
The facts, as stated by witnesses in the trial, are substantially as follows: W. O. Carpenter, the brother of appellant, rented a field on Pine Prairie, in Ashley county, in this state, for the year 1891, and planted it in peas and corn. H. L. Hannibal lived near this field, and had adjoining it a small cow pen. After the crop of corn had matured and was gathered, W. O. Carpenter saw Hugh Estelle, a boy who was living with Hannibal, bringing some stock out of the field. Carpenter remonstrated with him, and requested him to tell Hannibal not to put his stock in there again. He also discovered that a gap leading from the cow pen into the field had been made by Estelle and Hannibal for stock to pass in and out. He closed the gap, and then put his own mules in the field. This was on Saturday morning, September 26, 1891.
On Sunday morning following, W. O. Carpenter, going into the field, discovered that the gap had been reopened. One story is that he called Hannibal, who was then sitting on the gallery of the house near by, to him, and remonstrated with him in reference to the gap and putting his stock in the field, and that an angry altercation ensued, and Hannibal, going into the field where Carpenter was, refused to permit him to repair the fence, cursed him, and drove him away. Another story is that Carpenter went to Hannibal’s house, and cursed him, and said that he did not want him to put his mules in the field any more; if he did, he would kill him; and that Hannibal offered to pay damages, and Carpenter refused to accept them; and that Hannibal was sitting on the fence while this conversation continued.
On the same morning, after seeing Hannibal, he visited his brother, Ben B. Carpenter, and a justice of the peace, and asked the latter what he should do for the protection of his property. The justice informed him that a renter had the right to the possession of the rented land for the full period of his lease, and said, “If it was my field, I would put up the gap, at all hazards.” He then went to T. J. Wells, and got a pistol; and then to John Wheat’s, and borrowed a breech-loading double-barreled shotgun, and three or four brass shells, from him. He then returned home, ate his supper, and then returned to his brother Ben’s, About ten o’clock in the night following-, some one went to the house of Wilson Hunnicutt, and borrowed of him eighteen buckshot and a headlight, and said he “wanted to go a fire-hunting.” Hunnicutt says that he knew him well, and that he was Ben B. Carpenter, but W. O, and Ben B. Carpenter swear that it was W. O. Carpenter.
Jesse George testified as follows: “I saw Ben Carpenter at his house Sunday morning after 01. Carpenter (W. O. Carpenter) had been there. He told me that he would rather 01. would get somebody else to go with him down to Hannibal’s, for if Hannibal hurt or killed 01. he would have to kill Hannibal; that 01. w-ould be so slow he would have to kill Hannibal.”
On Monday morning- following (the 28th of September, 1891), B, B, Carpenter went to W. O. Carpenter’s, carrying with him a double barreled shotgun, and ate breakfast. After breakfast, early in the morning, the two brothers (Ben with his gun, and W. O. with a shotgun and pistol) went to the field on Pine Prairie which W. O. Carpenter had rented, as before stated, and which was near to the residence of W. O. Carpenter. When they entered the field, W. O. went to the gap. About this time, Hannibal came out of the door of his house with a bucket, intending to draw water from a well about 100 yards distant. Seeing W„0. at the gap, he handed the bucket to the boy, Hugh Bstelle, and went back into the house. One story was, he came out again with something in his hand which looked like a pistol; that he immediately went to the gap to prevent Carpenter from repairing the fence;' that Carpenter expressed a determination to repair it, and, as he did so, Hannibal threatened to kill him, and turned his back, and exhibited a pistol in his hip pocket, and moved his hand as if he would draw it, when W. O. Carpenter shot him; that Hannibal attempted to shoot, and W. O. Carpenter shot again, killing him; and that Ben L. Carpenter was 25 or 30 yards distant from the gap, and took no part in the shooting.
Another story told by the witnesses for the state was that, when the deceased saw W. O. Carpenter at the gap, he went back to the door, and pushed it open, and without entering, said to his wife that he was going out there and tell Carpenter not to put up the fence, that he would put it up after breakfast; that he went to the gap, but carried with him no weapon, not even a pocket knife; that he had a pistol, but left that in the house; that he was standing with his left hand on a little tree by the fence talking to W. O. Carpenter, when Ben L. Carpenter, who was standing near by, shot him in the left side with a shotgun, when he turned around, and Ben L. shot him the second time with the same gun; that the deceased fell, and W. O. Carpenter then shot him twice in the face with a pistol; and that the Carpenters then ran off, yelling.
Immediately after the killing a pistol was found on the ground near the deceased, but witnesses for the state testified that the pistol was at the time of the shooting on the mantel piece in the house of the deceased; that when the gun was fired, the wife of the deceased ran back, got it, and carried it to where he was, and, seeing him lying on the ground dead, threw it down.
A witness in behalf of the defendant testified that, on the Sunday preceding the killing, the deceased endeavored to borrow a Winchester rifle, and to procure cartridges, and expressed the purpose to put his stock in Carpenter’s field, or kill him.
In the progress of the trial the testimony of Mrs. Sallie Hannibal, the widow of the deceased, taken and reduced to writing before an examining court, was read as evidence in behalf of the state, she being dead at the time of the trial. In that testimony she stated that she did not see Ben Iy. Carpenter until he shot, when he was about ten feet above the gap, close to the fence. Afterwards she testified before a grand jury as to the same matter. A member of this jury, Ben Burgess, was introduced as a witness in behalf of the defendant, and was asked the following questions: “Were you a member of the grand jury that indicted defendant? If so, did you hear Sallie Hannibal testify before that body ? If so, what did she say as to where Ben Iy. Carpenter stood at the time the shooting was done?” And the court refused to allow him to answer them. But he was permitted to testify that she said, on the day of the killing, that Ben shot the deceased with a shotgun while he was leaning on the fence at the gap, and that Ben was about fifteen feet east of the gap. Another witness was allowed to testify that she said that “she was in bed when the first gun fired; and just as she was putting her dress over her head, the second gun fired, and as she went on the gallery the pistol fired,” and that she said in this connection that “Ben Carpenter (defendant) hollowed out in the field.” And the court gave the defendant permission to read, as evidence, the testimony of Mrs. Hannibal before the grand jury which returned the indictment against the defendant, as written by its clerk, which testimony so written was then in court, and he refused to read it. To the refusal of the court to permit Burgess to answer the questions propounded to him, the defendant excepted, and made it one of his causes for a new trial.
The following instructions were given to the jury by the court on its motion :
“First: The court instructs the jury that murder is the unlawful killing of a human being in the peace of the state, with malice aforethought, either express or implied.
“Second. The manner of the killing is not material, further than it may show the disposition of mind, or the intent, with which the act was committed.
“Third. Express malice is 'that deliberate intention of mind unlawfully to take away the life of a human being, which is manifested by external circumstances capable of proof.
“Fourth. Malice shall be implied when no considerable provocation appears, or when all the circumstances of the killing manifest an abandoned and wicked disposition.
“Fifth. You are instructed that justifiable homicide is the killing of a human being in necessary self-defense, or in defense of habitation, person, or property, against one who manifestly intends or endeavors by violence or surprise to commit a known felony; and if you believe from the evidence that the defendant shot deceased twice with a shotgun, and that said shots killed deceased, while deceased was standing talking to his brother, and not to save his own life, or to protect his person from receiving great bodily harm, nor in defense of his habitation, person, or property, you will find defendant guilty of murder, as charged in the indictment.
“Sixth. All murder which shall be perpetrated by means of poison, or by lying in wait, or by any other kind of wilful, deliberate, malicious, and premeditated killing, or which shall be committed in the perpetration of, or in the attempt to perpetrate, arson, rape, robbery, burglary, or larceny, shall be murder in the first degree. All other murder shall be deemed murder in the second degree.
“Seventh. The jury are the sole judges of the evidence and the credibility of the witnesses. In determining as to the weight that should be given to the testimony of any witness, they may take into consideration his manner of testifying, his means of information, his interest, if any, in the cause pending, his prejudices, and his motives; and if from these you should believe that any witness has sworn falsely, wilfully, to any material fact, you may disregard the whole or any part of the evidence of such witness.
“Eighth. The court instructs the jury that a reasonable doubt is not a captious, imaginary, or possible doubt, but must be such a doubt as a reasonable man would have in matters of deepest concern to himself, and must arise out of the evidence in the cause.
“Ninth. You are instructed that if you believe from the evidence that the defendant was present and participated in the killing of H. J. Hannibal, by shooting him with a shotgun, as charged in the indictment, and that said shooting was done in furtherance of a previous design and understanding between himself and his brother to kill said Hannibal, and that, as a result of such design and understanding, H. J. Hannibal was killed, you will find him guilty, although it may not be shown that the shot or shots fired by defendant, if any were shot by him, actually caused the death of the deceased.
“Tenth. Manslaughter is the unlawful killing of a human being without malice, expressed or implied, and without deliberation. Manslaughter must be voluntary, upon a sudden heat of passion, caused by a provocation apparently sufficient to make-the passion irresistible.” To the giving of the fifth, eighth, and ninth of which the defendant at the time excepted.
And the defendant requested, and the court gave, the following instructions:
“Hirst. The jury are instructed that justifiable liomicide is the killing of a human being in necessary self-defense, or in defense of habitation, person, or property, against one who manifestly intends or endeavors, by violence or surprise, to commit a known felony; and, if the killing in this case is shown by the evidence to.be justifiable or excusable, the defendant shall be acquitted and discharged.
/ “Second. A felony is a crime punishable by death /or imprisonment in the state penitentiary; and, if the /• jury believe from the evidence that Hannibal attempted, by force, to drive W. O. Carpenter from his field, and if, in so doing, drew a pistol with intent to shoot, and attempted to shoot and kill W, O. Carpenter, this was a felony on the part of Hannibal.
“Twelfth. The jury are instructed that it is incumbent on the state to prove every material allegation contained in the indictment, beyond a reasonable doubt, and it is a material allegation that Ben I/. Carpenter shot and killed the deceased with a shotgun; and if, from all the evidence, you have a reasonable doubt whether or not Ben L. Carpenter shot and killed the deceased with a shotgun, and if, from all* the eyidence, you have a reasonable doubt whether or not Ben h. Carpenter shot and killed Hannibal with a shotgun, or whether he came to his death by shots fired§jby W. O. Carpenter, then the defendant is entitled to the benefit of such doubt, and you will acquit him.
“Thirteenth. The jury are instructed that if, upon the whole of the evidence in the case, they have a reasonable doub.t as to the guilt or innocence of the defendant, they will give the defendant the benefit of the doubt, and acquit him.”
And the defendant asked, and the. court* refused to give, the following :
“Third. If the jury believe from the evidence that W. O. Carpenter had rented the pasture field for the year 1891, then for the whole of that year the field was the property of W. O. Carpenter, and for that time he might lawfully protect the same as fully as if he owned it in fee simple.
“Fourth. If the jury believe that W. O. Carpenter, being in the lawful possession of the pasture field, had reasonable grounds to believe that it was necessary to kill Hannibal to protect himself from great bodily harm at the hands of Hannibal, and if, acting under such belief, he shot and killed him, then he was justifiable.
“Fifth. The jury are instructed that a person on his own premises' is not bound to retreat, but has the right to use such force as is reasonably necessary to repel a forcible entry thereon.
“Sixth. If the jury believe that W. O. Carpenter was on his own premises, and that Hannibal threatened him, while he was putting up his fence, to kill him if he did so, and that he had at the time reasonable grounds to believe, and did believe, that Hannibal intended to take his life, or do him great bodily harm, then he was not obliged to retreat, nor consider whether he could safely retreat, but was entitled to stand his ground, and meet any attack made on him with a deadly weapon; and if, under all the circumstances, he, at the moment, believed, and had reasonable grounds to believe, that it was necessary to save his own life, or to protect himself from great bodily injury, he had the right to kill Hannibal.
“Seventh. If you believe that Hannibal had made slip gaps in W. O. Carpenter’s fence, and on Sunday before the killing, Hannibal, by his manner, threats, and acts, led W. O. Carpenter to believe that he intended forcibly to take, hold, and use his pasture against his will, and forcibly to prevent him from repairing his fence, then he had the right to prepare himself and hold his property against any violence which might be offered; and if you further believe from the evidence that, on the morning of the killing, W. O. Carpenter armed himself with a shotgun and pistol, and the defendant, Ben B. Carpenter, armed himself with a shotgun, and they together went to repair W. O. Carpenter’s fence, and Hannibal, seeing W. O. Carpenter repairing his fence, armed himself with a pistol, and went to where Carpenter was repairing the fence, to forcibly prevent him from doing so, and made such overt acts that, from his manner, threats, and words, the defendant, Ben B. Carpenter, had reasonable grounds to believe that W. O. Carpenter was in immediate danger of death or great bodily harm at the hands of Hannibal, and W. O. Carpenter, or the defendant, Ben B., one or both, shot and killed Hannibal to avert such impending danger, then defendant was justifiable, and you will acquit him; and if you have a reasonable doubt on this proposition, you will give the defendant the benefit of the doubt, and acquit him.
“Highth. If the jury believe that W. O. Carpenter had the right to go to his field for the purpose of putting up a gap in his fence, and that he had a right to arm himself for the purpose of protecting himself from violence at the hands of Hannibal while so repairing it, then you are instructed that defendant, Ben B. Carpenter, also had a legal right to arm himself, and go with his brother to the pasture field, for the purpose of protecting his brother from death or great bodily harm at the hands of Hannibal, while so repairing the fence.
“Ninth. The jury are instructed that W. O. Carpenter had the legal right to arm himself, and defend his property against a forcible trespass. The defendant, B. L. Carpenter, had the legal right to arm himself, go with his brother, and, if necessary, assist him against such forcible trespass; and if you believe from the evidence that the two brothers armed themselves, and went to repair W. O. Carpenter’s fence, and that he shot and killed Hannibal in resisting a forcible trespass made by Hannibal, then defendant, Ben Iy. Carpenter, is no wise responsible for said killing; and if you have a reasonable .doubt upon this question, you will give the defendant the benefit of such doubt, and acquit him.
“Tenth. If the jury believe that Hannibal was a violent and dangerous man, then, in considering the guilt or innocence of defendant, they may take such bad character as a circumstance tending to show who was the aggressor in the encounter which resulted in the death of Hannibal.
“Eleventh. If the jury have a reasonable doubt, from all the evidence in the whole case, whether or not W. O. Carpenter, at the time of the killing (if you believe from the evidence that W. O. Carpenter did all the shooting), had reasonable grounds to believe, and did believe, that he was in danger of death or great bodily harm at the hands of Hannibal, then the defendant, Ben Iy. Carpenter, is entitled to the benefit of the doubt, and you will acquit him.”
tionVfV°anda" on3ary'
In addition to what we have stated, other grounds for setting aside the verdict were stated in a motion for a new trial, which do not appear elsewhere in the record, and consequently will not be noticed in this opinion.
First. The trial court committed no error in refusing to set aside the indictment against appellant account of the formation of the grand jury which found it.
The statutes of this state require circuit courts to appoint three commissioners, at every term, to select grand jurors to serve at the term next succeeding their selection, and make it their duty to enclose and seal a list of the jurors so selected, arid indorse it “List of Grand Jurors,” designating for what term of the court they are to serve, and deliver the same to the judge in open court. The judge is then required to place it in the custody of the clerk (after administering to him and his deputies certain oaths), whose duty it is then made to keep the same enclosed and sealed until thirty days before the next term, and then'make out a fair copy of it, and deliver it (the copy) to the sheriff, or his deputy, who is then required to summon the persons named therein to attend on the first day of said term for the purpose of serving as grand jurors. In compliance with these statutes, three commissioners were appointed by the Ashley circuit court, at its August term in 1891, to select grand jurors to serve at its next term, which was to commence on the third . Monday in January following'. They selected them, and made a list of their names, and indorsed it as the list of grand jurors selected for the February term, 1892, when there was no such term. The persons selected were summoned to attend the court on the first day of its January term, and were present on that day, and sixteen of them were selected, impaneled, and sworn as grand jurors for that term. There was no error in this proceeding. They were unquestionably selected to serve at the term succeeding their selection. The designating that term as the February, instead of the January, term was an obvious mistake. The intention was apparent and unmistakable.
When objection to grand jury waived.
Sufficiency of plea of former conviction.
Denial of continuance not error.
If there had been any error in the impaneling the grand jury, the appellant was too late in taking advantage of it. He had waived it by pleading to the indictment. Dixon v. State, 29 Ark. 165; Wright v. State, 42 id. 94; Straughan v. State, 16 id. 41; Miller v. State, 40 id. 488.
Second. The plea of former jeopardy was properly overruled. The jury found the appellant guilty as charged in the indictment. There was no intention to acquit. But the verdict of the jury was defective because it failed to state the degree of unlawful homicide of which the appellant was found guilty. No legal judgment could be rendered upon it. Neither party sought to have the jury so amend it as to make it specify the degree of homicide. A judgment of death was rendered on it against the defendant, and he appealed, and the judgment was reversed, and the cause was remanded for a new trial. Under these circumstances, the former trial and conviction are no bar to a second trial on the same indictment. Johnson v. State, 29 Ark. 31; Allen v. State, 26 Ark. 333; State v. Redman, 17 Iowa, 329; Turner v. State, 40 Ala. 21; Waller v. State, id. 325; Kendall v. State, 65 Ala. 492; 1 Bishop, New Cr. L., sec. 998, and cases cited.
Third. The denial of the continuance that was asked for by appellant was not prejudicial. What he expected to prove by James Coulter was sworn to by as many as two witnesses in behalf of the state, and three witnesses testified to what he expected to prove by Lee Turner, which was not contradicted.
fo, ]“iPn¿shlBg
instruction as to justifiaMe fc°raicide-
Fourth. We do not think that the court erred in refusing to allow Ben Burgess to testify as to what Mrs. Hannibal said in her testimony before the grand jury as to the place where appellant “stood at the time the shooting was done.” No foundation was laid for it by asking Mrs. Hannibal, when she testified, as to whether she had ever made such statements. Griffith v. State, 37 Ark. 324; Ayers v. Watson, 132 U. S. 394; Mattox v. U. S., 156 U. S., 237. If the evidence was competent, no prejudicial error was committed in the refusal to admit it. She was contradicted in that respect by her own statements to different persons, as shown by the testimony of the witnesses; and the court gave appellant permission to read her testimony before the grand jury, as taken down by its clerk, for the purpose of impeachment, and, without giving any reason for refusing to accept the offer, he failed or refused to read it as evidence. We do not see that he has any room to complain of the refusal of the court to admit the testimony of Burgess.
Fifth. The determination of the questions presented by the instructions given and refused by the court involves, to some extent, a consideration of the following sections of Sandels & Hill’s Digest:
“Section 1670. Justifiable homicide is the killing of a human being in necessary self-defense; or in defense of habitation, person or property, against one who manifestly intends, or endeavors, by violence or surprise, to commit a felony.
“Sec. 1671. If the homicide with which any person shall be charged shall appear upon the trial to be justifiable or excusable, such person shall be fully acquitted and discharged.
“Sec. 1672- An attempt to commit murder, rape, robbery, burglary, or any other aggravated felony, although not herein specifically named, upon either the person or property of any person shall be justification of homicide.
“Sec. 1676. In ordinary cases of one person killing another in self-defense, it must appear that the danger was so urgent and pressing that, in order to save his own life, or to prevent his receiving great bodily injury, the killing of the other was necessary, and it must appear also that the person killed was the assailant, or that the slayer had really and in good faith endeavored to decline any further contest before the mortal blow or injury was given.”
These statutes, so far as they extend, are a re-enactment of the common law. They make homicides in self-defense excusable, and justify those committed by the slayer in defense of “person, habitation, or property, against one who manifestly intends and endeavors, by violence or surprise, to commit a known felony, such as murder, robbery, arson, burglary, and the like, upon either,” as at common law. As construed by this court, they uphold, protect, and enforce the right to slay an assailant in self-defense, to the same extent it existed at the time of their enactment. To construe them properly, it is necessary to ascertain what the common law upon the same subject was at the time they took effect.
At common law, and under the statutes of this state, no one, in resisting an assault made upon him in the course of a sudden brawl or quarrel, or upon a sudden rencounter, or in a combat on a sudden quarrel, or from anger suddenly aroused at the time it is made, or in a mutual combat, is justified or excused in taking the life of the assailant, unless he is so endangered by such assault as to make it necessary to kill the assailant to save his own life, or to prevent a great bodily injury, and he employed all the means in his power, consistent with his safety, to avoid the danger and avert the necessity of killing. He cannot provoke an attack, bring on the combat, and then slay his assailant, and claim exemption from the consequences of killing his adversary, on the ground of self-defense. He cannot invite or voluntarily bring upon himself an attack with the view of resisting it, and, when he has done so, slay his assailant, and then shield himself on the assumption that he was defending himself. He cannot take advantage of a necessity produced by his own unlawful or wrongful act. After having provoked or invited the attack, or brought on the combat, he canpot be excused or justified in killing his assailant for the purpose of saving his own life, dr preventing a great bodily injury, until he has in good faith withdrawn from the combat, as far as he can, and done all in his power to avoid the danger and avert the necessity of killing. If he has done so, and the other pursues him, and the taking of life becomes necessary to save life or prevent a great bodily injury, he is excusable. Palmore v. State, 29 Ark. 248; McPherson v. State, 29 Ark. 225; Levells v. State, 32 Ark. 585; Stanton v. State, 13 Ark. 317; Dolan v. State, 40 Ark. 454; Fitzpatrick v. State, 37 Ark. 238; Duncan v. State, 49 Ark. 543; Johnson v. State, 58 Ark. 57; Smith v. State, 59 Ark. 132.
But the rule is different where a man is assaulted with a murderous intent. He is then under no obligation to retreat, but may stand his ground, and, if need be, kill his adversary.
In East’s Pleas of the Crown, the author says: “A man may repel force by force in defense of his person, habitation, or property, against one who manifestly intends and endeavors, by violence or surprise, to commit a known felony, such as murder, rape, robbery, arson, burglary, and the like, upon either. In these -cases he is not obliged to retreat, but may pursue his adversary until he has secured himself from all danger, -and if he killed him- in so doing it is called justifiable self-defense; as, on the other hand, the killing by such felon of any person so lawfully defending himself will be murder. But a bare fear of any of these offenses, however well grounded, as that another lies in wait to take away the party’s life, unaccompanied with any overt act indicative of such an intention, will not warrant him in killing that other by way of prevention. There must be an actual danger at the time.” 1 Bast’s Pleas of the Crown, p. 271. See, to the same effect, 4 Blackstone’s Com., p. 180; Foster’s Crown Law, p. 273; and 1 Bishop’s New Cr. Law, sec. 850.
According to the common law, it is the duty of every one, seeing any felony attempted, by force to prevent it, if need be, by the extinguishment of the felon’s, existence. This is. a public duty, and the discharge of it is regarded as promotive of justice. Any one who-fails to discharge it is guilty of an indictable misdemeanor, called misprision of felony. And, as a result of this doctrine, Mr.( Bishop says: ‘‘If a man murderously attacked by another flies instead of resisting, he commits, substantially this offense of misprision of felony; even though we should admit that in strict law he will be excused, because acting from the commendable motive of saving life.” 1 Bishop, New Criminal Law, sec. 851-849; Pond v. People, 8 Mich. 150. See, also, Bostic v. State, 94 Ala. 45; Weaver v. State, 53 Am. Rep. 389; Gray v. Combs, 7 J. J. Marsh. 478; 4 Blackstone’s Com. 180; 1 Hale’s P. C. 480; Clark’s Cr. Law, 137; 1 Wharton’s Cr. L. (10 Ed.), sec. 495.
It is evident, therefore, that sections 1670 and 1672' of Sandels & Hill’s Digest are enactments of no new laws, but are an affirmance of the common law then in force. They declare no new right or duty, and provide that only homicides committed in the exercise or discharge of the common law right or duty to defend the habitation, person, or property against one who mani festly intends or endeavors, by violence or surprise, to commit a known felony, or to prevent attempted felonies, such as murder, rape, robbery, burglary, or other aggravated felony, shall be justifiable, and leave the common law as to the extent, the circumstances, and the manner in or under which the right or duty may be exercised or discharged, still in force.
It follows, then, that any one, under the laws of this state, may repel force by force in defense of person, habitation, or property against any one who manifestly intends and endeavors by violence or surprise to commit a known felony upon either; and that he need not, retreat, in such cases, but may stand his ground, and, if need be, kill his adversary. It is also true that any person, for the prevention of murder, rape, robbery, burglary, or any other aggravated felony, may, under our statutes, if necessary, kill another attempting to perpetrate such felonies. But these rights are not without limitations. “A bare fear,” says the statute, “of those offences, to prevent which the homicide is alleged to have been committed, shall not be sufficient to justify the killing. It must appear that the circumstances were sufficient to excite the fears of a reasonable person, and that the party killing really acted under their influence, and not in a spirit of revenge.” (Sec. 1675). The circumstances must be such as to impress the mind of the slayer, without fault or carelessness on his part, with the reasonable belief that the necessity for killing to prevent the felony was immediate and impending, and the danger imminent. Knowing the other’s design, the slayer had no right to seek a conflict, but must wait until the other does something at the time indicating a present intention of carrying his design into effect. While the slayer can stand his ground, and refuse to retreat, he should do what he can to avoid the necessity of killing, and at the same time exercise this right, and prevent the threatened felony. In no case will he be justified in taking the life of the aggressor, when, by arresting or disabling him, or otherwise, he can prevent the felony, or when the danger, in the reasonable belief of the assailed, has ceaséd to be immediate and impending. There must be an immediate necessity for the killing, for the statute says, “Every person who shall unnecessarily kill another while resisting an attempt by such other person to commit any felony, or to do any unlawful act, or after such attempt has failed, shall be guilty of murder or manslaughter, according to circumstances,” Sec. 1649. See Pond v. People, 8 Mich. 150; 1 East, P. C. 272; 1 Wharton, Cr. Law, (9th Ed.), secs. 495-501, and cases cited; 1 Bishop’s New Cr. Law, secs. 843, 846, 869, and cases cited.
But the right to defend property against one who manifestly intends or endeavors, by violence or surprise, to commit a known felony, to the extent of slaying the aggressor, does not include the right to defend it, to the same extent, where there is no intention to commit a felony. A man may use force to defend his real or personal property in his actual possession against one who endeavors to dispossess him without right, taking care that the force used does not exceed what reasonably appears to be necessary for the purpose of defense and prevention. But, in the absence of an attempt to commit a felony, he cannot defend his property, except his habitation, to the extent of killing the aggressor for the purpose of preventing a trespass; and if he should do so, he would be guilty of a felonious homicide. Life is too valuable' to be sacrificed solely for the protection of property.- Rather than slay the aggressor to prevent a mere trespass, when no felony is attempted, he should yield, and appeal to the courts for redress. Ordinarily, the killing allowed in the defense of property is solely for the prevention of a felony. “If,” as Clark on Crimi nal Law says, “a man attacks me, and tries to take my property by force, he attempts a robbery, and I may kill him to prevent the felony. The justification does not rest on my right to defend my property. If a man attempts to set fire to my dwelling house by surprise, and I can only prevent it by killing him, I may do so; but the reason is because I may and must prevent the felony, and not because, if I do not kill him, I will lose my property. If the house were uninhabited, and therefore not the subject of arson (at common law), I would have no right to kill him, though my loss of property would be as great.” People v. Flanagan, 60 Cal. 2; State v. Vance, 17 Iowa, 138; Davison v. People, 90 Ill. 221; 1 Bishop’s New Crim. Law, secs. 857, 861, 875; Clark on Cr. Law, p. 144.
Instruction as to reasonable doubt approved.
As to a conspiracy.
Tested by what we have stated the law to be, did the trial court commit any reversible error in giving or refusing instructions to the jury ?
There is no reversible error in the instruction given by the court on its own motion, numbered “fifth,” and objected to by the appellant. The jury could not have found him guilty under that instruction, except upon a state of facts, which, if true, proved him guilty of a deliberate murder. If they convicted him under it, they found him guilty of deliberately killing the deceased while he was standing talking to the brother of appellant, and making no effort to do violence to any one.
The eighth instruction given by the court on its own motion, and objected to by the appellant, was a definition of a reasonable doubt, and, while it is not as full and complete as it might be, contains no reversible error.
The ninth instruction given by the court on its own motion, and objected to by the appellant, was obviously given to modify the instruction given at the request of the appellant, and numbered “twelfth,” in which the court told the jury that if they had “a reasonable doubt whether or not Ben L. Carpenter shot and killed Hannibal with a shotgun, or whether he came to his death by shots fired by W. O. Carpenter,” then the defendant was entitled to the benefit of such doubt, and to acquit him. In the ninth they were told that if “defendant was present and participated in the killing of H. J. Hannibal, by shooting him with a shotgun, as charged in the indictment, and that said shooting was done in furtherance of a previous design and understanding between himself and his brother to kill said Hannibal, and that, as a result of such design and understanding, H. J. Hannibal was killed, you will find him guilty, although it may not be shown that the shot or shots fired by defendant, if any were shot by him, actually caused the death of the deceased.” Taking this in connection with the instructions defining justifiable homicide and the different degrees of unlawful homicide, and the verdict of the jury finding him guilty of murder in the first degree, we see no reason to conclude that it was misleading or prejudicial.
As to the rig-lrt to resist a trespass.
Instruction should not single out evidence.
So much of the instructions asked by the appellant and refused by the court, and numbered third, fourth, fifth, sixth, seventh, eighth, and ninth, as is applicable to appellant, was based on the theory that W. O. Carpenter, being in the possession of his field, had the right to resist a trespass upon the same by Hannibal to the extent of taking his life, and that his brother, the appellant, could lawfully assist him in such resistance, and were properly refused.
The instruction numbered “tenth,” which the appellant asked and the court refused to give, was as to the effect the jury might give to the bad character 'of the deceased. It was not within the province of the court to select one fact, and tell or suggest to the jury what effect they might give to it. The jury should consider all the evidence, and base their verdict upon their conclusions from it as a whole. The prayer was properly denied.
The first half of the other instruction which was refused was covered by instructions given, and the other half, as to self-defense, was incorrect.
Sixth. There was sufficient evidence to sustain the verdict of the jury. While the conviction of murder in the first degree is not entirely satisfactory, we are without authority to interfere with it.
Judgment affirmed.
Wood,. J., did not sit in this case. | [
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Battle, J.
The evidence adduced in the trial of the appellant in the circuit court failed to show that he sold and gave away, and caused to be sold and given away, and kept for sale and to be given away, and allowed to be kept for sale and to be given away, in the Baird Saloon building, in the town of Paragould, in the county of Greene and State of Arkansas, ardent, vinous, malt, fermented, and intoxicating liquors, and thereby failed to prove that he was guilty of the offense charged against him. Having alleged that the liquors were sold and given away, and were kept for sale and to be given away, in the Baird Saloon building, it devolved upon the state to prove it in order to convict. Proof of sale and gift, and keeping for sale and gift, in any other place would not be sufficient. Shover v. State, 10 Ark. 259; State v. Anderson, 30 Ark. 131.
Reversed and remanded. | [
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Riddick, J.
(after stating the facts.) The agreed statement of facts shows that the land claimed by Wilson as a homestead is “in the incorporated town of Brinkley." It was thus situated at the time he established his homestead upon it, the limits of the town having been extended so as to include this land a year or two before it was purchased by him. Our constitution provides that “the homestead in any city, town or village * * * * shall consist of not exceeding one acre of land, * * * provided the same shall not exceed in value the sum of two thousand five hundred dollars,” etc. Sec. 5, art. 9, Const. 1874. The right of one who establishes his home in a city or town of this state to claim such homestead as exempt from execution depends upon this section of our constitution, and, as it provides that such homestead shall not exceed one acre of land, he cannot lawfully claim a greater amount. There are decisions in other states which seem to support the ruling made by the learned circuit judge in this case, but they were made under statutes not exactly synonymous with our law. Although homestead laws should receive a liberal construction, to effect the beneficent purposes for which they are intended, yet the courts should not override the plain letter of the law. Under the facts of this case, we think that appellee is entitled to a homestead limited in extent to one acre of land.
We do not hold that the fact that one dwells within the limits of a municipal corporation will in all cases prevent him from holding as exempt a homestead of more than one acre. A case may be supposed where the corporate limits of a town or city have been extended beyond the actual extent of such urban community, so as to include territory altogether rural. On the other hand, there may be towns that have overgrown their corporate limits, so that one may dwell within the town, and still be outside the corporate limits. In such cases it may be that the courts would look to the facts to determine whether the homestead claimed was located in town or country, and not be altogether controlled by the corporate limits. But we are not called on to determine that question here, for the agreed statement of facts says that the homestead of Wilson is in the town of Brinkley, and there is nothing to show to the contrary. The fact that a homestead had not been divided into lots, and is used for farm purposes only, may be considered by the court in determining whether it is within a town, within the meaning of the constitution; but, when once determined that it is located in a city, town or village, then the fact that it has not been divided into lots can be of no effect.
The homestead in this case is of small value, and there may be some inequality in the law; but, if so, this defect cannot be remedied by the.courts. The judgment is reversed, and the cause remanded for further proceedings. | [
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Bunn, C. J.
Appellant, Rector, employed appellees as attorneys to institute and prosecute all the suits he .might bring to recover a large number of lots and parcels of land in and near the city of Hot Springs, which had been set apart to others by what are known as the “Hot. Springs Commissioners.” The attorneys were to be paid as set forth in the following contract, to-wit: “Agreed between the undersigned, Henry M. Rector, of the first part, and F. W. Compton and U. M. Rose, of the second part, that said Compton and Rose shall attend to all cases to be brought by Rector, claiming any lands in or near Hot Springs as against persons claiming under adjudications recently made by the Hot Springs commissioners; and for their legal services, they are to be paid as follows: (1) One thousand dollars to be paid by said Rector within one year from this date. (2) Said Rose and Compton shall receive one-fourth in value of all lands recovered in said suits, or its equivalent in money. If Rector shall desire to pay such value in money, then he and Compton and Rose shall each appoint one appraiser, and the two appraisers thus appointed shall select a third, and the decision of a majority of them shall be binding as to such value, which may be paid by said Rector to Compton and Rose at any time within sixty days after said appraisment shall have been made.”
The one thousand dollars was paid as agreed, and the controversy arises as to what really is the amount of the remaining portion of the fee. The suits were prosecuted to a successful termination for Rector in the United States circuit court for the Eastern district of Arkansas, but the defendants took an appeal to the Supreme Court of the United States, and by consent the property involved was placed in the hands of a receiver, who collected the rents, in part, and reported the same at the final termination of the litigation. It also appears that the defendants in those suits, when they were finally decided,.paid to the said attorneys certain of the rents due. It is not so stated in the record, except in the most general terms, and yet the suits, being in the nature of proceedings in ejectment, for the adjudication of the title, carried the accrued rents, as we infer, only the amount being left to be ascertained, and this perhaps was done on the evidence in the main case. Of this, however, the record does not speak definitely. The parties, by agreement, and with the approval of the United States Court, have so arranged the matter as that the only thing before this court is the proper construction of the contract; and this* is made the more necessary by the death of Compton.
Unfortunately, we are not aided by any authorities to which we have been cited by either of the parties, and are unable, of oúrselves, to find any directly in point.
It is evident that the deferred part of the fee was not only conditioned upon the success of the prosecution of the suits, but was also not due until the final termination of those suits. When that event should occur, Rector was to pay in property specifically, or in cash according to its value, and in either case, one-fourth of the land gained. He elected to perform his contract by giving the one-fourth of the land specifically. This of course necessitated his making a deed to that portion to the appellees. Presumably, this deed was in the usual form of deeds of conveyance of lands, for there is nothing in the contract to indicate that it was or should be otherwise. If this be true, the previously accrued rents, — that is, the rents which had accrued previous to the final judgment in the suits, — belonged to appellant; for, without some specific words to that effect in the deed, or in a separate written instrument, we do not think the grantee can claim rents previous to the date of his vestiture of title, either equitable or legal, for a deed in the usual form has no retroactive effect ordinarily, if ever.
Again, whatever may have been the effect of ejectment proceedings in the earlier times of our jurisprudence, it has long been a universal rule that in such suits the recovery of the corftis of the estate and the accrued rents involve only one proceeding. This being true, and the general rule being that a suit for the recovery of land, and for the recovery of the accrued rents and profits thereof, involves only one litigation, if a fee is stipulated in the contract, it covers the services in the whole case. See section 2583, Sand. & H. Dig. By the terms of the contract, at the favorable termination of the suits, the parties were to cause the recovered lands to be valued by appraisers, and Rector, if he should so choose, might fulfill the obligation by paying to the attorneys one-fourth of the value of the lands thus ascertained, in money; or he might set apart to them one-fourth of the land in value specifically. It could hardly be contended that, in making this appraisement, these appraisers should take into consideration, as part of the land, the past accrued unpaid rents. The evident meaning of the contract in this respect is that the land, as it should then be, should be valued by the appraisers, and, according to this valuation, the fee could be paid.
The case is not without difficulty both as to the proper construction to be given to the contract, and also as to the real equities of the matter, but we are not to judge except upon the meaning of the language of the contract, in the light of xthe circumstances surrounding as appears from the record. The appellees are entitled to their one-fourth of the rents and profits since the date of the termination of the suits, by the decision of the Supreme Court of the United States, but not those accrued before that time.
Reversed and remanded, to be proceeded with in accordance with this opinion. | [
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Riddick, J.,
(after stating the facts.) It is admitted by Bromwell, the assured, that he did not comply with the provisions of the “iron-safe clause” in his policy. That clause required the assured to keep a set of books showing the changes taking place from time to time in the stock of goods insured. The reason of it is apparent, for without such books the amount of merchandise on hand at time of the fire could not be told. Similar provisions have been frequently held valid by this court. Southern Ins. Co. v. Parker, 61 Ark. 207, 32 S. W. 509; Western Assurance Co. v. Altheimer, 58 Ark. 575; Pelican Ins. Co. v. Wilkerson, 53 Ark. 353.
Contradicting policy by parol evidence.
Waiver of condition of policy.
As an excuse for failing to comply with this requirement of his policy, Bromwell testified that before the policy was issued the agent of the company told him that it was unnecessary to keep such books. But it was not competent thus to contradict the material stipulations of the policy by evidence of the parol declarations of the parties made at the time or before the policy was issued. The rule that “parol contemporaneous evidence is inadmissible to contradict or vary the terms of a valid written instrument” applies to contracts of insurance as well as to other written or printed contracts. Robinson v. Insurance Co., 51 Ark. 441; Southern Ins. Co. v. White, 58 Ark. 281; Weston v. Emes, 1 Taunton, 115; Mobile Life Ins. Co. v. Pruett, 74 Ala. 497; Thompson v. Ins. Co., 104 U. S. 259; Insurance Co. v. Mowry, 96 U. S. 547; 1 Wood on Fire Ins. 10; 1 Greenleaf on Ev. sec. 275.
It is contended by counsel for appellee that this provision of the policy was waived by the declaration of the agent, made before the policy was issued, and that the company cannot now assert it, but'we think that this contention is not sound. The case of Sprott v. N. O. Ins. Ass., 53 Ark. 215, cited by counsel, does not support such contention, for there the written application for insurance, upon which the policy was issued, notified the insurer where the books would be kept. That was not an attempt to contradict the terms of the policy by evidence of parol contemporaneous statements, but by a writing which could be treated as a part of the contract. It is true there are many cases which hold that requirements as to notice and proof of loss may be waived. There are also many cases holding that an insurance company may, under certain circumstances, be estopped from taking advantage of a forfeiture or breach of a condition in the policy. “Any unequivocal and positive act of the company recognizing the policy as valid after a knowledge of its breach, or any act that puts the insured to unreasonable expense or trouble in the justifiable belief that the company still regards the policy as valid, will estop the company from taking advantage of the forfeiture.” Richards on Ins. sec. 64; Wood on Fire Ins. 1161; Insurance Co. v. Brodie, 52 Ark. 11; German Ins. Co. v. Gibson, 53 Ark. 494. There are a large number of cases resting upon this rule, some of which have been cited by counsel, but there is a broad distinction between those cases and the one at bar. In those cases the acts of the agent or company which were treated as a waiver or were held to constitute an estoppel took place at the time of or after the breach of the condition, but the declarations of the agent relied on here to create an estoppel or waiver by the company took place not only before the breach of the condition occurred, but before the policy was issued. An estoppel can seldom arise, except when the representation relates to a matter of fact existing at the time or previously. Acts which waive a forfeiture must, of necessity, follow, or at least accompany, the acts which would otherwise constitute the forfeiture, for there cannot be a waiver of a forfeiture until a forfeiture exists.
A company or its agents may, by acts clearly recognizing a policy as valid after notice of the facts, waive a breach of a condition in a policy already existing, but it cannot well be contended that an agent could, by his acts or declarations, waive the stipulations of a policy not then in existence. Bernard v. Life Insurance Association 32 N. Y., Supp. 223; Insurance Co. v. Mowry, 96 U. S. 547; Bigelow on Estoppel, (5 ed.) 574; Thompson v. Insurance Co. 104 U. S. 259; Mobile Life Ins. Co. v. Pruett, 74 Ala. 497.
This doctrine o£ estoppel and waiver has no application when the declaration of the agent relates to the rights depending upon contracts yet to be made, to which the person complaining is to be a party, for in such a case he has it in his power to protect himself by proper stipulations in the contract when reduced to writing. Insurance Co. v. Mowry, 96 U. S. 547; Bigelow on Estoppel (5th ed.) 574.
The case last cited arose upon a life insurance policy. The agent had agreed that the insured should be notified by the company when each premium fell due. No such provision was put in the policy, but, by an express condition of the policy, the company was released from liability upo'n the failure of the insured to pay the premium when it matured.. It was contended that the company could not insist upon this condition on account of the promise of the agent and the failure of the company to give the notice before the premium became due. “But,” said the court, “to this position there is an obvious and complete answer. All previous verbal arrangements were merged in the written agreement. The understanding of the parties as to the amount of the insurance, the conditions upon which it should be payable, and the premium to be paid, was then expressed for the purpose of avoiding any controversy or question respecting them. The entire engagement of the parties, with all the conditions upon which its fulfillment could be claimed, must be conclusively presumed to be there stated. If, by inadvertence or mistake, provisions other than those intended were inserted, or stipulated provisions were omitted, the parties could have recourse for a correction of the agreement to a court of equity, which is competent to give all needful relief in such cases. But, until thus corrected, the policy must be taken as expressing the final understand ing of the assured and of the insurance company.” Insurance Co. v. Mowry, supra.
The above extract from the opinion of the United States Supreme Court asserts only well known rules of law which must apply in this case. If the agent of the insurance company .agreed with appellee that he need not keep books, he should have refused to accept a policy in which it was expressly stipulated that he should keep books. If, through mistake, he accepted a policy which did not express the contract made with the agent, he should have applied to a court of equity to have the contract reformed. Having brought his action at law upon the policy, and prosecuted it to judgment, he has elected to treat it as expressing the true cbntract between himself and the company, and he cannot now recede from it or contradict it. Washburn v. Great Northern Ins. Co., 114 Mass. 175. We must, therefore,in considering this case, disregard entirely the testimony of oral contemporaneous declarations which contradict the provisions of the policy, and we conclude that the judgment of the circuit court is without evidence to support it.
The appellee undertook that he would keep a set of books showing a complete record of his business. He failed to do so, and, by the terms of his contract, he cannot recover. The judgment is reversed, and the cause remanded for further proceedings.
BaTTEE, J., dissented. | [
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Wood, J.,
(after stating the facts). The amended complaint showed no cause of action against appellants on the bond. The statute giving to the owner of any male animal kept for the propagation of species a lien upon the female animal which has been served by the male, for the sum contracted for such service, nowhere provides for the filing of a bond as a prerequisite for the enforcement of such lien. On the contrary, where the owner files with a justice a written statement, duly verified, setting forth the amount of his claim, his cause of action, and a description of the animal upon which he has a lien, it is the duty of the justice to issue an order to the constable to take the animal and hold it subject to the order of the court, without requiring the filing of a bond. Sand. & H. Dig. secs. 4811-12. The bond was unauthorized, without consideration, and void. The judgment of the court against appellants on this bond was coram non judice, and void. Williams v. Skipwith, 34 Ark. 529. It is not contended, and is nowhere shown, that appellant Edwards had anything to do with taking the mare from appellee, except the mere signing the attachment bond. As to him therefore the judgment is reversed, and the cause dismissed.
As to appellant Walker, although somewhat loosely and defectively stated, the allegations of the amended complaint, if sustained by the proof, would justify a verdict and judgment against him as for a trespass or tort. In other words, the complaint shows that upon the application of Walker a writ of attachment was issued by the justice, under which appellee’s mare was seized and taken from his possession, and afterwards, by order of the court, sold, and alleges that said mare was worth seventy-five dollars, and that appellee was damaged in the loss of the use of his mare, and in expense incurred in defending the attachment, in the sum of twenty-five dollars, and that his whole damage was one hundred dollars. There was evidence to support the verdict. The jury might have found from the testimony of appellee that the mare, at the time she was taken from him, was worth seventy-five dollars. The mare was sold under the attachment proceedings for forty dollars and fifty cents. The appellee got the benefit of this amount in a credit on his mortgage, and in satisfaction of a judgment against him. It was near sixteen months from the time the mare was taken from appellee till the rendition of the judgment in this case in the lower court. It was in evidence that the use of the mare was worth four or five dollars per month to appellee. Subtracting the forty dollars and fifty cents which the mare brought at the sale, from the seventy-five which the jury might have found her to be worth, leaves thirty-four dollars and fifty cents, and the interest which the jury might have given appellee would more than make the difference between this and the thirty-six dollars, the amount of their verdict.
pef®0t3®|^’ rttacfment.
The fact that appellee was present at the sale, and consented that the residue of the amount for which the mare sold, after the satisfaction of the judgment and cost against him., should be applied on a mortgage to his creditor, did not estop him from maintaining this suit against appellant Walker for damages caused by him in the illegal seizure and sale of the máre. The title of the purchaser at the sale under the attachment was in no manner brought in question by this proceeding. The court therefore was correct in refusing an instruction which told the jury, in substance, that, if they found the above to be the fact, they should find for the defendants.
Other questions were raised in the motion for new trial, but have not been insisted upon here, and it is unnecessary to discuss them.
The proof justified the jury in concluding that appellee’s mare was taken and sold under an illegal attachment sued out by appellant Walker. Therefore the judgment as to him is affirmed. | [
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Hughes, J.,
(after stating the facts). There was no error in the refusal by the court to admit the evidence of the declarations of W. J. Bell as to his ownership of the land in controversy that were made before he conveyed the land to Alice Bell, his wife. Such as were made afterwards, while Bell was in possession of the land, were properly admitted by the court.
Appellant contends that a conveyance of land by the husband to the wife is void, that he is incapable of making a valid conveyance to her; but in this he is mistaken. A conveyance of real estate by a husband to the wife is not void, but valid in equity, but may be avoided by creditors of the husband for fraud.
Competency of husband and wife as witnesses.
When wife estopped to claim property in husband’s
There was no error in the ruling by the court upon the admissibility of the testimony of W. J. Bell. The instructions given by the court were correct.
The instruction numbered 8, refused by the court, should have been given, as it announces the law correctly, as laid down in Driggs & Co.'s Bank v. Norwood, 50 Ark. 46, in which case it is said in the syllabus, which correctly states the principle decided in the case, that “ where a husband collected his wife’s money and used it as his own, without objection on her part, for a period of more than ten years, and obtained credit on the faith of its being his own, she could not afterwards assert her claim to such money, or its proceeds, against the husband’s creditors. Her assent to the husband’s use of the money would in such case be presumed, in the absence of proof to the contrary.” There is no error in the court’s refusal of the other instructions. ‘‘A wife who gives her husband unlimited control of her property and money, and permits him to invest it in his own business for a series of years, is not, in case of his insolvency, permitted to shield his property from the just claims of persons who, in good faith, have given the husband credit, in reliance upon his ownership. In such a case a conveyance by the husband to the wife is fraudulent and void as to creditors.” Riley v. Vaughan, 116 Mo. 169; Bennett v. Bennett, 37 W. Va. 396.
It is true that “a husband in failing circumstances, who owes a debt to his wife, may prefer her as a creditor to the exclusion of others, and a transfer of property to her in good faith for this purpose, without fraud on his part, or, if with such fraud, without participation therein by her, must be upheld.” But if she permits her husband to take her money, and invest it in land in his own name, and to deal with it as his own, and obtain credit upon the strength of his apparent ownership of it, up to the time of his failure in business, she will not be allowed then to claim it against his creditors, having permitted him to represent it to be his own, and upon the apparent ownership of which he had obtained his credit and standing in business. Besson v. Eveland, 26 N. J. Eq. 471; Sexton v. Wheaton, 8 Wheat. 229.
For error in refusing said instruction numbered 8, the judgment is reversed, and the cause is remanded for a new trial, without prejudice to the rights of the appellees to claim their homestead in the lands in controversy. | [
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Bunn, C. J.
The appellant was indicted, tried and convicted in the Arkansas circuit court of the crime of murder in the first degree, at its November term, 1895, and appealed to this court.
The testimony as to the facts and occurrences immediately connected with the homicide shows that the defendant, some time in the forenoon of the 29th day of June, 1891, in a field near the farm house of W. P. Porter, in Arkansas county, shot and killed Martha Phillips, his wife, in the manner and under the circumstances detailed by the witnesses present, as follows. Porter, the owner of the plantation, testified substantially as follows: “On the morning of the 29th day of June, 1891, I was engaged in mending a plow used by one of my hands on the farm, Joshua Fitzpatrick, by name, who was present; and while leaning over the plow, engaged in mending it, my attention was attracted by the defendant, Jordan Phillips, speaking and saying to his wife, who was twenty or thirty feet from him: ‘Aren’t you going home to take care of them children? Cut out!’ And as I looked up, I saw defendant standing near me with a rifle in his hand. Defendant raised the gun and fired, and Martha Phillips fell. The defendant then stepped off a few yards, re-loaded his gun, and went off through the field in the direction of where his wife and Tom Pike, another hired hand of mine, had been working.” Witness went up to Martha Phillips, and found her quivering and in the throes of death, and sent Fitzpatrick for Dr. Kelly, who came, but not before the woman had died, she having in fact died instantly, having been shot in the fleshy part of the left arm and into the left side.
Joshua Fitzpatrick testified, in substance, as follows, to-wit: He had broken his plow, and taken it to a point in the field near the house, and put up his team, and he and Mr. Porter were mending the plow. The deceased came up, and said to Mr. Porter, “Can Jordan [the defendant] make me go home?” And the defendant then said to her, “You go home. Get out of here,” and then fired, and deceased fell, and defendant, after reloading his gun, went off in the direction of where deceased and one Tom Pike had beén at work. Witness was then sent for Dr. Kelly.
The defendant, testifying for himself, said, in substance, as to the occurrences: On the morning of the killing, his youngest child — an infant — had fits or spasms, and he started out again to get his wife to return home with him; went to the house of one of his sisters, and was there informed that his wife had hired to Mr. Porter, and was then working on his farm, to which place he then went, and as he passed along the road by the field he saw her and Tom Pike working together in the field, and, as he went towards them, deceased walked in the direction of Mr. Porter, and in that direction he went also, arriving there about the time his wife did. Defendant testified that he then said to her: “Mama, the baby is sick. Won’t you go home and take care of it?” and that, in response to this, she said, “I told you last night I was not going home with you, and I will make Tom Pike kill you.” Continuing, the defendant said: “The remembrance of the wrongs I had ever suffered at' her hands came upon me at once, and in a fit of anger rendering my passions uncontrollable, I fired my gun and killed her. I brought my gun with me that morning, fearing I would meet Tom Pike, and that he would undertake to kill me, as my wife had threatened she would have him do.” He further denied having written the testamentary letter.
These were all the witnesses who saw the killing, and all agree that defendant and his wife reached the fatal spot about the same time, and approached at right angles, and Porter says defendant could easily have shot deceased before reaching him. The testimony of defendant tended to show that the wrongs spoken of by him, as suffered by him at his wife’s hands, consisted of her desertion of him, leaving three little children, one an infant at the breast, for him to take care of, and (according to his own statement) living in adultery with Tom Pike, and heartlessly refusing to return home and care for the youngest child, even in its sickness. It will be seen that the manner in which defendant demeaned himself towards his wife at the fatal meeting was quite different according to his testimony and according to that of Porter and Fitzpatrick. The evidence shows that the relations between the defendant and his wife had been most unhappy for several months before the killing, and that she was not really living with him at the time of the killing, but had hired to Porter, to work on his farm for the time being, and that she and defendant had frequent separations before the killing.
Admissibility of evidence in homicide cases.
The tenth, eleventh and twelfth grounds of motion for a new trial are merely formal. The first, second, third, fourth, eighth, and ninth grounds are to the effect (first and second) that the testimony of A. H. Shelton; (third and fourth) that the testimony of W. W. Hinson; and (eighth and ninth) that the testimony of Buck Butterworth was inadmissible because the same is irrelevant, improper, too remote, indefinite, and otherwise objectionable. The testimony of Shelton was to the effect that, about six weeks or two months next before the killing, he saw defendant whipping his wife with a strap, in his (defendant’s) front yard, having her tied to a tree for that purpose; that before that he heard defendant making threats that he would beat his wife to death, since she would hot stay at home, and if she would not stay at home, and, at the time of the whipping, defendant told witness he whipped her because she would not stay at home. Witness said further that Martha Phillips was, at the time of the whipping, living with defendant. The testimony of Hinson was to the effect that he lived about a mile from defendant’s place; that, about two months before the killing, defendant and his wife came to his (witness’) house, and while there, but not in the hearing of his wife, defendant said to witness that, if he (witness) would withdraw his support from his wife, he would make her go home with him; and that he (witness) told him that the law did not give him any such right. Witness further stated that, about six weeks or two months before the killing, the deceased had exhibited to him certain bruises on her arms and body, and related her statements in regard thereto, but on motion of defendant all her statements were excluded. Witness, further testifying, described the character of the bruises, and then said, also, that he had written a contract in the spring of 1891 between defendant and Amanda Phillips (who testified that she was a former wife of defendant) for the purpose of preventing them being prosecuted for living together as husband and wife. The testimony of Buck Butterworth is to the effect that defendant told him, about one month before the killing, that he would make his wife come back home to him, or beat her to death. We do not think that any of this testimony is irrelevant, improper, too remote, or indefinite. It all tends to show the relations existing between defendant and deceased during the period covered by it, and also the animus of defendant towards the deceased. We do not think it is improper, and certainly not indefinite. It is not too remote, for it relates to matters occurring or existing not exceeding two months before the killing-, and from that on down to the killing. When taken in connection with the testimony of defendant himself, and others, and viewed in the light of surrounding circumstances, all this testimony goes to show the intent with which the homicide was committed. In Carroll v. State, 45 Ark. 539, (quoting from the syllabus), this court, in effect, said: “On the trial of a party for the murder of the wife, evidence of his recent acts of personal violence upon her, coupled with oaths, is admissible to show the state of his feelings towards her and the manner in which they lived.”
Admissibility show inteilt-
whentakmg ^efudiciak
nottake-
Equally untenable is the defendant’s fifth objection, to the effect that the court below erred in admitting in evidence the paper in the nature of a testamentary disposition of defendant’s worldly goods, purporting to have been written the day of the killing, proved to have been in the handwriting of the defendant, and found the day after the killing, in his house, by the posse who were in close pursuit of him. This paper contained a reference to the intended killing of his wife, and threw light on his intent, unquestionably.
The sixth objection is that, by inadvertence or otherwise, a paper (a motion by the defendant in the case, a long time before, for a continuance for the absence of a witness, and reciting what he could prove by her if present), had got into the hands of the jury, and was in their possession in their consultation room, and that this was error. That is true; but, immediately on the court being informed of the inadvertence, by its order the paper was taken from the jury. That they should have had possession of it was, of course, improper, but not reversible error. Palmore v. State, 29 Ark. 248.
The thirteenth objection is to the effect that the court erred in denying the request of the jury to permit them to have the testamentary letter while they had the motion for continuance, so that they could compare the handwriting and signature of the former with the signature of the latter. The possession of the motion for continuance by the jury was admittedly improper, and certainly that impropriety could not have been remedied by giving the jury the other paper for the purpose of comparison.
Necessity o£ motion for new trial.
The seventh objection is that the court refused to discharge the jury in the midst of their deliberations on the case, on motion of defendant, because, as he said, and offered then and there to show, one Bass, a member of the jury, before being selected as such, had been heard to say, in effect, that defendant ought to be hung, and that if he was on the jury he would hang him, and all this the defendant had only heard at the time of making the motion. Whatever there might have been in this motion, it should have been renewed as part of the motion for new trial, and the offer to make proof also renewed, as a ground to set aside the verdict. Only the fact of the motion having been made and overruled before verdict is embodied in the motion for a new trial. The statute is certainly not favorable to this contention. Sand. & H. Dig. sec. 4259. Nor are the decisions of this court. Meyer v. State, 19 Ark. 156; Casat v. State, 40 Ark. 511.
Upon the whole case, since the evidence clearly sustains the charge, we see no reversible error, and the judgment will therefore be affirmed. | [
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Wood, J.
1. The plaintiff sued upon a fire insur- . r r auce policy, for the loss of certain hotel furniture. The defense was based upon alleged noncompliance with the terms of the policy, which provided “that if the subject of the insurance be personal property, and be or become encumbered by a chattel mortgage,” the policy should be void. The property covered by the policy was mortgaged after the issuance of the policy. But the plaintiff contends that the policy was only suspended during the continuance of the mortgage, and was revived by the discharge of the mortgage before the loss occurred. There was proof, though meagre, to support the finding that the mortgage was cancelled before the fire, although the record was not satisfied until after. The satisfaction of the record was not essential to the removal of the incumbrance. If the mortgage was paid off and cancelled, it was sufficient. May, Ins., sec. 292; Hawkes v. Dodge County Mut. Ins. Co., 11 Wis. 188; Smith v. Ins. Co., 60 Vt. 682; Merrill v. Agr. Ins. Co., 73 N. Y. 452.
when policy forfeited.
But the proposition that the incumbrance, while it existed, only suspended the policy, contravenes the unambiguous terms of the contract, which the parties themselves have made. The language of the clause quoted supra,in its plain, ordinary, and popular sense,indicates a total extinction of the policy if the property be incumbered, and not a suspended animation thereof, subject to be revived upon payment of the mortgage debt. Courts, by interpretation, cannot ingraft upon insurance contracts, any more than upon any other, a meaning totally foreign to that which the plain terms employed by the parties themselves convey. It is undoubtedly true that where the contract, on account of any ambiguity in the language used, is reasonably susceptible of different constructions, that construction should be adopted most favorable to the insured. Imperial Fire Ins. Co. v. Coos Co., 151 U. S. 452; 1 May, Ins., sec. 175, 176, and authorities cited.
Power of insurance the^]“eSt0 cond'tloIls‘
The insurer has the right to contract against any possible risk of loss or embarrassment incident to incumbering the property insured. If it be said that, where the mortgage is paid off, there is no longer an incumbrance and increase of risk, still as to whether or not the mortgage had been paid off would be the question, and one that often could not be settled without expensive litigation. The insured mortgagor might enter into collusion with the mortgagee to defraud the insurance company after the loss occurred by claiming that the mortgage had been paid off and discharged, when in fact it had not. Unfortunately, all men are not honest. Without some such provision in the policy, the unscrupulous would have an inviting opportunity, after a loss, to divide the spoils, at the expense of the insurer. Doubtless some such considerations as these prompted the clause in the policy under consideration. The clause is reasonable and clear, and the parties had the right to thus contract. The opinion in Imperial Fire Ins. Co. v. Coos Co., supra, and the numerous authorities there reviewed, leave no doubt of the correctness of our ruling. Contra, counsel cite, May on Fire Insurance, at page 589, sec. 294, where he says: “An incumbrance in violation of the policy only suspends it, and, if paid before the loss, the policy revives;” and the learned author cites Kimball v. Monarch Ins. Co., 70 Iowa, 513. An'examination of that case will show that, after the mortgage had been paid off, the insured assigned the policy, and the company indorsed upon it its assent to the assignment. This was tantamount to the issuance of a new policy. It was a waiver of forfeiture. So the case cited does not support the text.
2. It is also contended by the appellee that, if there was a forfeiture, it was waived by an agreement of plaintiff with John L. Mills, clerk of the local agent, to the effect that the assured should see the mortgagee, and have the mortgage canceled, and that the policy should remain in force. And appellee says that said agreement on his part was performed before the loss occurred. Such an agreement, if made by one having authority, would be a waiver of the forfeiture. Pratt v. Ins. Co., 55 N. Y. 505. Since counsel for appellant’s have not questioned here the sufficiency of the evidence to prove such an agreement, we will treat the verdict as conclusive on that point. Appellant questions only the authority of the clerk of the local agent to make such agreement. The testimony as to the authority of the agent and his clerk is related by Jno. R. Mills as follows : “R. H. M. Mills is my father, and I am a clerk in his office. I never make any agreement about insurance, other than the conditions in the policy. The only contract we have is the policy. I am not a partner with my father, but only a clerk. I merely sell the policies, and receive the premiums. My brother and I merely do the office work for my father. I have no authority from the German-American Insurance Company. My father has never appointed me sub-agent for them. I have no power, from the agent or otherwise, to alter any of the terms of the printed contracts, nor to make any changes in a policy of insurance. I have no power to sign policies, but they are all signed by my father. I solicit insurance, and fill up blank policies for my father’s signature. I filled up this one. This policy is signed by my father, who is the only person authorised to sign it. I am simply a soliciting agent and clerk, without any authority to modify the contract embodied in the policy.”
The policy provides that “no agent shall have power to waive any provision or condition of this policy, ekcept such as by the terms of this policy may be the subject of agreement indorsed hereon or added hereto; and as to such provisions or conditions no agent shall have such power or be deemed or held to have waived such provisions or conditions, unless such waiver, if any, shall be written upon, or attached hereto; nor shall any privilege or permission affecting the insurance under this policy exist or be claimed by the insured, unless so written or attached.”
Under the express terms of the policy, the placing of a mortgage upon the property ipso facto avoided the policy. The forfeiture thus created could only be waived by one who had authority to do so, and authority, too, as high as that by which the contract was made in the first instance. Hamilton v. Aurora Fire Ins. Co., 15 Mo. App. 59.
There is a marked distinction between a waiver of conditions made before and those made after the issuance of a policy. But an agent who has been furnished by his principal with blank applications, and with policies duly signed by its officers, and who has been authorized to take risks, and to issue policies by simply signing his name, to collect premiums, and to cancel policies, — all without consulting his principal, — would certainly be empowered to waive the condition as to incumbrance either before or after the issuance of the policy. And he could waive the forfeiture by parol, nothwithstanding the limitations upon his power in this respect contained in the policy. Ins. Co. v. Brodie, 52 Ark. 11, and authorities cited; Grubbs v. Ins. Co., 108 N. C. 472; S. C. 23, Am. St. Rep. 62 and authorities cited; Fireman's Fund Ins. Co. v. Norwood, 69 Fed. Rep. 71; Burlington Ins. Co. v. Kennerly, 60 Ark. 532.
If R. H. M. Mills, the local agent, possessed this power, there is nothing in the record to show that he exercised it himself, or that he assented to its exercise by his son. If he could delegate such powér to his subordinate, the undisputed proof shows that he has not done so. The work of Jno. U. Mills, as he shows, was clerical and special. There was nothing in the nature of his employment, or in the manner of the discharge of his duties, from which authority to waive a forfeiture could'be inferred. Nor does it appear that the defendant company, or its local agent, held him out to the public as possessing such power.
The court’s first instruction was correct. The second was not supported by the evidence.
Reversed and remanded. | [
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Bunn, C. J.
This is a bill to foreclose a mortgage on certain real estate, given by appellees to appellant, as trustees for the benefit of the British & American Mortgage & Loan Company, Limited. The answer of defendants alleged that the beneficiary, a foreign corporation, had failed to comply with the constitution and laws of this state, by never having had a known place of business therein, or any agent upon whom process might be served; that the debt secured by said mortgage is in fact usurious, and therefore void; that the land conveyed therein was the homestead of said Charles H. Lyons, owned by him, and occupied by him and his wife as such, when said mortgage was attempted to be executed, and that the same was not executed and acknowledged by the said Sarah E\ Lyons, as the law requires, and that this defect renders the same null and void; that, notwithstanding it is in fact null and void, yet it is a cloud upon defendant’s title, — and the prayer is that this be taken as an answer and cross bill, and that said cloud upon title be removed. Decree for defendants, and plaintiff appealed.
The mortgage and notes were exhibited with the complaint, and depositions of all witnesses, except J. B. Moore and John Nickols, seem to be regularly filed and made part of the record; but the evidence of said Moore and Nickols, adduced on the part of the defendants, does not appear to have been brought on the record by bill of exceptions, or any order of court directing the same to be taken down in open court, filed and treated as depositions, or in any manner made a part of the record.
Subsequent to the docketing of the cause, and the filing of the abstract and briefs by appellant, appellee moved this court to strike from the record all that part of the transcript included in pages 22 to 53, inclusive, purporting to be a statement of the evidence in the cause, on the ground that the same is not included in any bill of exceptions, or otherwise authenticated as part of the record. This motion and the cause are heard together.
The decree of,the.court below is as follows, to-wit: “Whereupon this cause is submitted to the court upon the pleadings, proofs, and exhibits, and the court, having the same under consideration, and being well and sufficiently advised in the premises, doth find that, on the 19th day of December, 1888, the defendants, Chas. H. Lyons and Sarah F. Lyons, his wife, executed and delivered to the plaintiff, Albert R. Shattuck, as trustee, for the British & American Mortgage & Loan Company, Limited, the notes and mortgage mentioned in the cbmplaint, said mortgage being now of record at pages 404 to 409 of Deed Book 2 in the recorder’s office at Ozark in Franklin county, and which conveys or attempts to convey the southwest quarter of the northwest quarter, and the northeast quarter of the northwest quarter, and the southeast quarter of the northwest quarter of section 34,. in township 10 north, of range 28 west in the Ozark district of Franklin county, Arkansas; that, at the date of the execution or attempted execution of said mortgage, said defendant, Charles H. Lyons, wa!b a resident of the state of Arkansas, and the head of a family; that he and his said wife, Sarah F. Lyons, were then occupying said lands as the homestead of the said Charles H. Lyons; that he was then the owner thereof; that said land did not exceed in area 160 acres, nor $2,500 in value; that said mortgage was not executed and acknowledged by said Sarah F. Lyons, as required by law in cases of alienation of the homestead; and that said conveyance is of no validity, but void, and constitutes a cloud upon defendants’ title, the defendants being still in possession of the land. It is therefore considered, adjudged, and decreed that the mortgage aforesaid to plaintiff, Albert R. Shattuck and British & American Mortgage Company, be, and the same is, declared invalid, void, and of no effect, and that the same be, and is hereby, cancelled and removed as a cloud from the title of defendants, and that their title be quieted, and that they have and recover of and from said plaintiff all their costs herein expended, for which they may have execution as at law.”
ex^.p]f0usis0f unnecessary-
£om<?stea°d cared'
It thus appears that, in its findings and decree, the court below ignored all the issues made by the complaint and answer, except that relating to the conveyance of the homestead; and since, to raise each and all of the issues, the answer set up affirmative matter necessary to be proved to overcome the prima facie case made by the complaint and exhibits thereto, the presumption is that its findings and decree as to the other issues were for the plaintiff, and the only issue left for our consideration in the one disposed of by the court below, — the conveyance of the homestead. Upon this issue the findings and decree of the court are based solely upon the complaint and exhibits thereto and the answer of the defendants; the facts, in effect, being uncontroverted. In other words, the issue was determined upon the record, and the question for us to determine is whether or not there be error in the rulings of the court below, upon its own finding of facts; no bill of exceptions or motion for new trial being necessary. Union County v. Smith, 34 Ark. 684; Williams v. State, 47 ib. 230; Smith v. Hollis, 46 ib. 21; Badgett v. Jordan, 32 ib. 159; Ward v. Carlton, 26 ib. 662; Worthington v. Welch, 27 ib. 464; Douglass v. Flynn, 43 ib. 403,—all cited by appellant’s counsel.
It appears, from an inspection of the mortgage, that it was executed and delivered after the passage of the act entitled “An act to render more effectual the constitutional exemption of homesteads,” approved March 18, 1887, by which the conveyance of the husband’s homestead was declared to be invalid unless the wife joined in the execution of the same. But it appears also that this mortgage was executed and delivered before the passage of the curative act of 1893, which declared, in effect, that all defective conveyances and acknowledgments of conveyances of homesteads made since the passage of the act of 1887, where the same would be good to convey the homestead before the act of 1887, should be as valid as if said act of 1887 had never been passed. The mortgage involved in this case was executed by the husband, his wife joining' in the conveyance clause, also in the clause relinquishing dower,, and acknowledging that she had relinquished her dower,, the certificate being in due form; and this would have been a good conveyance of the husband’s homestead prior to the act of 1887. It follows that the court below erred in declaring the mortgage null and void.
The decree is therefore reversed, and the cause is remanded, with directions to enter a decree of foreclosure. | [
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Battle, J.
This was an action to recover a penalty under the following statute: “If he [county treasurer] should neglect or refuse to pay any warrant drawn on him by order of the county court of his county, having in his hands money applicable thereto, he shall forfeit and pay to the holder of such warrant fourfold the amount thereof. Such forfeiture may be recovered by action in the name of the party aggrieved against such treasurer and his securities, and he shall be deemed guilty of a misdemeanor in office, and on conviction thereof shall be removed from office.” Sand. & H. Dig., sec. 993-4.
On the 2nd day of October, 1893, $3,469.82, belonging to the general fund for county purposes, were in the hands of D. T. Dale, as the treasurer of Clark county. On the same day, the Clark county court, consisting of the county judge and justices of the peace, made appropriations aggregating $13,900 for the current year, to be paid out of the general fund; among other items there being $600 for keeping paupers. On the 6th of October, 1893, W. E). Payne received from the county clerk of Clark county a warrant on the treasurer for $209, issued in pursuance of an order of the county-court, and payable out of the fund for keeping paupers, the appropriation for such fund being then unexhausted; and on the same day presented it to Dale, in his official capacity, and requested him to pay it; and' he replied that there was no money in the treasury for that purpose, and refused to pay the same, there then being in his hands $824.87 belonging to the general fund. Payne thereupon brought this action against Dale and the sureties on his official bond, to recover the penalty allowed by the statute, and recovered judgment for the same, and the defendants appealed.
The evidence adduced at the trial was sufficient to prove the facts we have stated. Appellant contends that, notwithstanding these facts, appellee was not entitled to recover the penalty, because he had exchanged the warrant, which he received from the county clerk and presented to the treasurer, for smaller warrants, and, by reason thereof, was not the holder of it at the commencement of this action. But that is no defense. The warrant belonged to him when it was presented to the treasurer for payment. There was then money in the treasury belonging to the general fund of the county, sufficient to pay the same. It was payable out of that fund. The treasurer refused to pay it, and the penalty thereupon accrued. The holder of the warrant at that time became entitled to the penalty, and it could not have accrued to any one else. The subsequent exchange of the warrant for others did not set aside the penalty, nor transfer it in the exchange. It was no part of the warrant, and hence did not pass with it.
Judgment affirmed. | [
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Bunn, C. J.
On the 6th of March, 1894, appellees, the plaintiffs in the court below, filed their complaint against the appellants in the Hempstead circuit court, and on the 10th of April, 1894, defendants filed their answer. Judgment for plaintiff, and defendant moved for a new hearing. The same was overruled, and they tendered their bill of exceptions, and take an appeal. This is an action on a policy of fire insurance issued to plaintiffs by the Aetna Insurance Company. The Union Guaranty Company executed the bond to the State of Arkansas for the benefit of holders of policies in said insurance company; and, as such bondsman, was made defendant in the suit.
The policy contained a stipulation to the effect that, on giving five days’ notice to the holders, and tendering the payment of the unearned premiums, said insurance company had a right to cancel said policy, and it was shown that Knighton, the agent of the company with whom the dealings were had, was authorized to cancel the policy according to its terms. The property insured (a storehouse and goods in the town of Fulton, Hemp-stead county, Arkansas) was destroyed by fire. Previous to the fire the agent, Knighton, wrote to appellees to return the policy for cancellation, coupling the request with the promise (as testified by Rosenberg, one of the appellees) that, if appellees would return the policy for cancellation, he would insure the property in another good company.
There was evidence tending to show that, while the company through its said agent had the right to cancel the policy on giving the five days’ notice, yet this notice was not given, and the agent really intended to exercise the power of cancellation, not according to the strict letter of the policy, but rather in conformity to the voluntary surrender of it for that purpose by the holders. Indeed, it does not appear that the agent ever actually cancelled the policy, or did anything to that effect; even failing to open letters of appellees to him which accompanied the returned policy. It thus appears in evidence that not only may the appellees have reasonably expected that the policy would not be cancelled until their property should be insured in another company, and thus be at all times covered by insurance, but that the insurance in the other company .was the condition upon which the cancellation should be made. Furthermore, if such was the condition upon which alone the cancellation could have been made by the company’s agent, under the particular circumstances, it was also the only condition upon which the five days’ notice could have been legitimately considered as waived, if it was waived at all.
There was evidence supporting the findings of the court to the foregoing effect, and the judgment is therefore affirmed. | [
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Per Curiam.
The petitioners were found in contempt of court on January 15, 1985 by Judge Van B. Taylor of the Yell County Chancery Court. A petition for writ of certiorari was filed asking this court to order the record of the proceedings below forwarded for the purpose of determining whether the evidence supports the verdict rendered.
The petition for writ of certiorari is no longer the remedy for review of a finding of contempt; appeal is the remedy. Frolic Footwear, Inc. v. State, 284 Ark. 487, 683 S.W.2d 611 (1985). Accordingly, this matter is remanded to the trial court to determine a proper bond pending an appeal, provided the petitioners desire to appeal.
Remanded. | [
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David Newbern, Justice.
This case arose from a collision of two pickup trucks at an intersection of two unpaved country roads. The question presented is whether the court should have given instructions based on the statutory rules of the road despite evidence that one of the roads was on private property. As we must determine the applicability of certain statutes, our jurisdiction arises from Arkansas Supreme Court and Court of Appeals Rule 29.1. c.
The plaintiff Glover was coming from the defendant Dixon’s right hand side. He asked the court to instruct, in accordance with Arkansas Model Jury Instruction 904, that the vehicle on the left must yield the right-of-way when two vehicles approach an intersection at the same time. The instruction is based on Ark. Stat. Ann. § 75-621(b) (Repl. 1979) which says,
When two vehicles enter an intersection from different highways at the same time the driver of the vehicle on the left shall yield the right-of-way to the vehicle on the right.
Glover also asked the court to instruct the jury in the specific terms of the statute and in accordance with AMI 903.
The AMI 904 instruction and the statute use the terms “intersection” and "highways.” In refusing the instructions the court said, in part,
. . . the court believes, based on the testimony, that this * was an intersection of a county road some two lanes wide with maintained ditches and a private road belonging to the timber company barely wide enough for two cars to pass. . . .
The facts as to the relative widths and state of maintenance of the two roads were disputed. There was evidence that the road on which the plaintiff travelled was on privately owned land, but there was no evidence taken on whether it was a private road.
Ark. Stat. Ann. § 75-412(b) (Repl. 1979) defines “private road” as one “in private ownership and used for vehicular travel by the owner and those having express or implied permission from the owner but not by others.” Ark. Stat. Ann. § 75-412(a) (Repl. 1979) defines a "highway” as being “open to the use of the public, as a matter of right, for purposes of vehicular traffic.”
An “intersection” is defined as a place at which two “highways” come together. Ark. Stat. Ann. § 75-413 (Repl. 1979).
As we said in Louisiana & A. Ry. v. O’Steen, 194 Ark. 1125, 110 S.W.2d 488 (1938), an instruction is not objectionable if the objection assumes facts in dispute. Nothing in the record before the trial court or before this court could be viewed as conclusive on the issue whether the public had the right to use the road on which the plaintiff entered the alleged intersection. If the road on which the plaintiff travelled fit the definition of a “highway,” the instructions sought would have been appropriate. The evidence that the road was on private property was insufficient to reach the conclusion that the instructions should not have been given. .The jury should have been allowed to decide whether the road travelled by the plaintiff was a “highway.”
Reversed and remanded for a new trial. | [
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John I. Purtle, Justice.
This is an appeal from a summary judgment rendered by the trial court against the appellant on his complaint for damages allegedly resulting from medical malpractice by appellee L. T. Gates, M.D. The judgment was granted upon the submission of affidavits and a counteraffidavit. We agree with the appellant that summary judgment should not have been granted under the circumstances of this case.
The appellant was involved in an airplane crash on July 6, 1980. He did not consult a physician until July 13, 1980. On that date he went to the Crittenden Memorial Hospital in West Memphis, Arkansas, for the purpose of obtaining medical attention and treatment. Dr. L. T. Gates was the physician who examined the appellant and took a statement of appellant’s medical history. Some family members were present at the time of this examination. Dr. Gates determined that appellant had been drinking alcohol and decided that he was drunk. In his affidavit in support of the motion for summary judgment, Dr. Gates stated that in this case he could not differentiate between symptoms related to appellant’s head injury and symptoms related to alcohol. He recommended that appellant be admitted and observed. The family, according to Dr. Gates, prevailed upon him to transfer the appellant to another hospital. Appellant’s affidavit states that Dr. Gates decided he was drunk and refused treatment for that reason. Appellant then entered Forrest Memorial Hospital where his problem was at least partially diagnosed. He was later sent by ambulance to the Veterans Hospital in Memphis, Tennessee. The Veterans Hospital diagnosed his problem as a subarachnoid hemorrhage and an anterior cerebral aneurysm. He subsequently underwent surgery as part of the treatment for his injuries. A second affidavit in support of the motion for summary judgment was executed by Dr. McPhail. The appellant’s affidavit also denied the truthfulness of the affidavits executed by Drs. Gates and McPhail.
Although appellant enumerates several points for reversal all of them essentially challenge the sufficiency of the affidavits or allege that appellant’s affidavit was sufficient to overcome the affidavits in support of the motion for summary judgment.
The matter to be decided by this court is whether the appellees’ affidavits entitled them to summary judgment in spite of the counter affidavit submitted by the appellant. It is a well established rule of law that a summary judgment, being an extreme remedy, is only proper when the pleadings and proof show that no genuine issue of a material fact exists and the moving party is as a matter of law entitled to judgment. Talley v. MFA Mutual Ins. Co., 273 Ark. 269,620 S.W.2d 260 (1981). In medical malpractiace suits it is necessary in some cases to have expert medical testimony. In other cases it is not necessary because the results of the treatment, or failure to treat, are of such character as to warrant inferences of negligence from the testimony of laymen, or such knowledge that is within the experience of the jurors themselves. Lanier v. Trammell, 207 Ark. 372, 180 S.W.2d 818 (1944). It was the duty of the appellees to show that no genuine issue of fact could possibly be made without expert testimony. Graham v. Sisco, 248 Ark. 6, 449 S.W.2d 949 (1970). In Lanier we held that when the applicable standard of care is not a matter of common knowledge the jury must have the assistance of expert witnesses in coming to a conclusion of the issue of negligence.
Each affidavit on behalf of the appellees stated that medical and scientific matters relating to this case are not commonly known and must be proved by medical experts. Each affiant stated that he was a specialist in general medicine. Neither physician stated the nature and extent of appellant’s complaints at the time he was examined by them. Neither affidavit contains any specifics of what would be a proper diagnostic procedure in cases such as this. The affidavits also contained allegations generally denying that Dr. Gates was negligent. Conclusory allegations are insufficient to support the motion for summary judgment in this case. Neither physician made diagnostic findings or gave the standard of care, skill, and learning ordinarily used by physicians in such practice in West Memphis, Arkansas.
The appellant’s affidavit is generally hearsay. Although other witnesses may have been able to execute an affidavit reciting these facts, as to the appellant they were hearsay. We disregard appellant’s affidavit in reaching the decision in this case.
In summary judgment matters we look to ARCP Rule 56(e), which requires that proof offered to meet a properly supported motion for summary judgment must set forth specific facts showing that there is a genuine issue for trial. The facts stated in the affidavit must be admissible in evidence. Affidavits of general denial are insufficient to support a motion for summary judgment. Stevens v. Barnard, 512 F.2d 876 (10th Cir. 1975).
We are of the opinion that the affidavits by the two physicians in this case amount to general denials of negligence and are therefore not sufficient to sustain the motion for summary judgment.
Reversed. | [
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Riddick, J.,
(after stating the facts). The general assembly of 1895 passed a special act to prevent the sale or giving away of intoxicating liquors within five miles of the Dardanelle school house in Dardanelle, Yell county, which act was approved April 9th, 1895. The contention of. appellant is that section 4851, Sand. & H. Dig., gives manufacturers of vinous, ardent, malt, or fermented liquors the right to sell liquors in original packages of not less than five gallons without license, and that this right of such manufacturers to sell was not affected by the special act above mentioned. We are of opinion that this contention cannot be sustained. The act in question makes it “unlawful for any person to sell or give away any vinous, spirituous, or intoxicating liquors * * * within five miles of Dardanelle public school building.” It contains an exception in favor of wines for sacramental purposes, and also provides that the provisions of the act shall not extend to Pope county, but it makes no exception in favor of the manufacturers of liquors, and the courts can make none.
The judgment is affirmed. | [
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Wood, J.,
(after stating the facts). This court has repeatedly held that an administrator has no power to bind the estate he represents by his individual contracts. The last announcement upon the subject was in an opinion delivered by Judge Riddick,.at the present term, in Tucker v. Grace, 61 Ark. 410, where he said: “An attorney employed by the administrator of an estate has no claim against the estate, although his services may have inured to the benefit of the estate. He must look for compensation to the administrator who employed him.” It was there also said to be the “proper practice, where the administrator refuses to pay for such services, for the attorney to bring suit against him individually,' and not in his representative capacity.” Tucker v. Grace, 61 Ark. 410, and authorities there cited.
In Turners. Tapscott, 30 Ark. 312, the learned judge, in drawing the distinction “between contracts for services which should be charged against an estate as costs of administration and such as render the administrator liable,” held that the fees of an attorney who, under contract with the administrator, rendered services beneficial to the estate, were a proper charge against the estate; for, said Judge Walker, “if fees, under such circumstances, are to be held as a personal charge upon the administrator, no counsel would be employed, and the estate would be wasted.” In Yarborough v. Ward, 34 Ark. 208, Judge Eakin commenting upon the language of the judge in Turner v. Tapscott, supra, said : “The court sanctions by implication the practice of presenting the claim to the probate court, not for allowance and classification, but for the purpose of obtaining an order on the administrator to pay the same as expenses of administration, leaving only the surplus of assets to go to the claims properly allowed against the estate.” Continuing, says Judge Bakin: “It is certainly the duty of the administrator to pay such claims, and, if he does so, he will be allowed a credit on settlement. Should he refuse, it is certainly within the scope of the general powers of the probate court, in its control over the conduct of the administrator, to order him to do so upon proper application in the case, and to enforce its order. The remedy of the party may in this case, as in many others, be cumulative.” It was unnecessary in either of the above cases for the court to approve, either expressly or by implication, the practice for creditors of the administrator to come into the probate court to establish their claims against him. The point was not before the court in either case. We cannot agree with the learned judge that the rule as above announced in Yarborough v. Ward is a wholesome one. Whatever merit of expedience or convenience such a practice may seem to possess, it is not sanctioned by the weight of authority, and confers a jurisdiction not given by our constitution or statutes. If the administrator is individually liable, the only authorized procedure is for those who have contracted with him to go into the proper forum at law or equity, as the nature of their claim and the remedies to be applied may suggest, and there have the amount of his liability determined. We are not called upon to determine into which court appellant should have gone to have his claim adjudicated. The following authorities, however, may afford some useful suggestions on that subject: Ferrin v. Myrick, 41 N. Y. 315; 2 Woerner, sec. 758; Clapp v. Clapp, 44 Hun, 451. But the probate court has no' power to render and enforce a judgment against the administrator for an individual liability.
Mr. Woerner says : “Although it may be the duty of the court, in passing upon the administration account, to determine the reasonableness of payments for such services, and allow or reject the credits taken therefor, it has not the power, unless expressly granted by statute, to adjudicate upon the claims of such persons against the administrator. Their remedy, if he refuse to pay, is in another court.” 1 Woerner, Adm’n, sec. 152; 2 id. sec. 356. Also the following: Ferrin v. Myrick, 41 N. Y. 315, and authorities cited; Rice, American Probate Law, 442; Kowing v. Moran, 5 Dem. Sur. 59.
So much of the opinions in Turner v. Tapscott and Yarborough v. Ward, supra, susceptible of being construed as approving any other rule, is overruled.
It follows that the circuit court had no jurisdiction to render the judgment in this case, and the same is therefor reversed, and the cause is remanded without prejudice. | [
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Bunn, C. J.
This is an action for damages for personal injuries, by appellee against the appellant companies. Damages laid at $10,000, and judgment in the trial court for $5,000, from which defendent companies appeal to this court.
The appellee boarded one of the passenger cars of the Little Rock & Port Smith Railroad at Knoxville, and got off at Piney Station, three miles from Knoxville. In alighting from the car she was seriously hurt. It was alleged that her injuries were occasioned by the servants of the railroad company in not stopping the train a sufficient time for her to alight; and in attempting to do so, as the train was beginning to move out after a brief stoppage at Piney, she was injured as aforesaid. There is evidence sufficient to sustain the verdict of the jury, and there does not appear to be any reversible error in the instructions, which, upon the whole, presented the case fairly to the jury, and the judgment is therefore affirmed as to the cause of action and the amount of damages.
There is, however, another question in the case, — a question of misjoinder of parties defendant. The complaint alleges a joint ownership, operation, and control of the railroad by both the defendants — the Little Rock & Fort Smith, and the Missouri Pacific Railroad Com pañíes, — and consequently a joint liability; and the judgment was against both accordingly. On this part of the case, the evidence is as follows: In its answer, the Little- Rock & Port Smith Company alleges that it alone is liable for any damages that may be adjudged in the case, and that its co-defendant was not the owner of the road at the time, and had no control over it, and nothing to do with it, nor any interest in it. The Missouri Pacific answers the same, denying all responsibility in the matter.
On trial, the conductor of the train involved in the charge testifies as follows : “Q. Who is operating this road ? A. The Missouri Pacific. Q. The Missouri Pacific is what it is called ? A. To the best of my knowledge.” The ticket about which the plaintiff had testified being handed to the witness by plaintiff’s counsel, hesaid: “Q. Is this one of the tickets? A. Yessir, that is one of the tickets. Q. That is a passenger ticket ? A. Yes sir. Q. That is by the Missouri Pacific Railway ? A. It is operated by the Missouri Pacific and Iron Mountain. This is not a ticket for that day though. This is the 24th of September. Some other conductor let that ticket go by.” This admission by the Little Rock & Port Smith Railway Company, and disclaimer by the Missouri Pacific Railway Company, and the testimony of the conductor, constitute all the evidence in the case, touching the question of joinder or misjoinder of the parties. There is no evidence of joint ownership, joint operation, and control of the road by the two defendant companies, and therefore no proof of joint liability. There is a liability, but not a joint liability. It is a liability of the one or the other of the two companies. A more explicit and definite showing of the exact relations existing between the two might or might not influence our determination of the question, and make it otherwise than what it is; but, unless such proof is made, we cannot assent to judgment of joint liability, but must confine it to the one or the other, relieving the one or the other. The testimony of the conductor, and the manner in which he answered the questions propounded to him, and the data from which he •evidently derived his knowledge of the subject, all go to show that he knew little or nothing as to the parties owning and operating the road, and that little only from inference, and at the same time most indefinitely. His testimony we do not think sufficient to justify a verdict and judgment against the Missouri Pacific Railway Company. We think, therefore, that the judgment against the latter company should be reversed, and the same is accordingly done. But, as the Little Rock & Port Smith Railway Company admits its liabilities for whatever damages that may be adjudged in the matter, as to it the judgment is affirmed. Reversed and remanded as to Missouri Pacific Railway Company. | [
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Wood, J.
This suit was to enjoin appellee from the practice of medicine and surgery in the city of Texarkana and vicinity, under a contract which, omitting unnecessary parts, is as follows: “I agree to move my office and establish myself in the said Medical and Surgical Institute at once, and remain in active connection and practice therewith in any and every thing that pertains to my profession, so long as I remain or continue to reside in Texarkana or the immediate vicinity. I also agree that I will withdraw and retire from the practice of my profession during the month of January, 1892, and, to the extent of my ability, use every reasonable effort and honorable means to introduce and establish the said doctors, H. R. Webster, M. D., and C. A. Reed, M. D., or either of them, as my successor among my clientage. I also agree to recommend them for appointment as ex aminers for the life insurance companies for whom I am now acting as medical examiner. In short, I have decided to permanently withdraw and retire from the practice of medicine in Texarkana and vicinity, and it is my intention and desire to introduce and establish the above named doctors, Webster and Reed, as my successors to my practice and good will among my clientage; and, to that end, I have promised and agreed that I will use all lawful and honorable means and efforts at my command. Now, upon the faithful performance of all the stipulations and agreements above recited, this bond and obligation shall become null and void;(otherwise to remain in full force and effect.
[Signed.] D. S. Williams.”
The bond referred to as part of the contract was in the sum of $1,000. The consideration for the above contract, as specified therein, was two hundred and fifty dollars paid by the said Drs. Webster and Reed to the said Dr. D. S. Williams, “for his good will, influence and retirement from practice.” This contract was entered into on the 3d day of October, 1891. After-wards,, on the 20th day of February, 1892, the parties agreed in writing to extend the time for the retirement to commence from January, 1892, till 1st day of July, 1892.
Appellants allege that appellee, in violation of this contract, has re-entered, after retirement for a time, upon the practice of medicine and surgery in the city of Texarkana and vicinity, and they contend that his contract bound him to-retire permanently. Appellee, on the other hand, while admitting the execution of the contract, and that it required him to retire for a time, yet contends that it did not bind him to retire permanently, but only for a reasonable length of time, and “that it was understood and agreed that he should resume practice in January,.1893, should he desire, and that he (appellee) had fully complied with the terms of his contract by having retired from the practice for a year.
Validity of contract in restraint of trade.
The first question is: Did the contract bind appellee to retire permanently from the practice of medicine and surgery in Texarkana and vicinity? Second. If such was the contract, was it against public policy, unreasonable, and therefore void?
1. We find the following clause in the contract: “In short, I have decided to permanently withdraw and retire from the practice of medicine in Texarkana and vicinity, and it is my intention to introduce and establish the above named Drs. Webster and Reed as my successors to my practice and good will among my clientage.” Appellants both testified that appellee “agreed to permanently retire from the practice in Texarkana and vicinity.” Another witness testified that he had heard appellee say, soon after the contract was made, that he (appellee) “had contracted to permanently retire from the practice.” Appellee testified that it “was understood and agreed that he should only retire from the practice for six or twelve months; that he did not agree to retire permanently from the practice in Texarkana and vicinity.” The clause of the contract quoted supra, in connection with the testimony of appellants and the other witness on their behalf, makes a decided preponderance in favor of their contention.
2. Was the contract void? Contracts in restraint of trade are either general or partial. Where the contract is unlimited as to space, it is general; where it is limited as to space, it is partial, although it may be unlimited as to time. Clark, Cont. p. 447. Contracts in partial restraint of trade, if they are reasonable and founded upon a legal consideration, will be enforced. Clark, Cont. p. 454; Metcalf on Cont. p. 232; Bish. Cont. sec. 516; Mandeville v. Harman, 7 Atl. 37; Whart. Cont. sec. 431; Chitty on Cont. 984; Smith on Cont. 206-7; Mitchel v. Reynolds, 1 P. Wms. 181; Taylor v. Blanchard, 90 Am. Dec. 203; Dunlof v. Gregory, 61 Am. Dec. 746.
The question as to whether such contracts are reasonable or not is one of law, and the true test to be applied by the court in determining this question is “to consider whether the restraint is such only as to afford a fair protection to the interest of the party in favor of whom it is given, and not so large as to interfere with the interest of the public.” Brewer v. Marshall, 19 N. J. Eq. 547; Horner v. Graves, 7 Bing. 735; Mallan v. May, 11 M. & W. 653; Chitty, Cont. p. 985, and note; 2 Keener, Cont. 827; Beard v. Dennis, 63 Am. Dec. 380.
In passing on the reasonableness of a contract in restraint of trade, the court should have due regard for its subject-matter, and the situation of the parties, the limitations as to space, and all the circumstances which will enable the court to determine what is a proper protection for the covenantee in such a contract. Clark, Cont. 452; Badische etc. Fabrik v. Schott, [1892] 3 Ch. Div. 447.
The Supreme Court of New Jersey, in Mandeville v. Harman, in refusing an injunction upon a contract between two physicians, similar to the one under consideration, said that contracts so extensive in duration were of doubtful validity, for the reason that professional skill, experience and reputation were things which could not be bought or sold; were not, in other words, a right, property, or interest called the “good will” of a trade or business, but were so purely personal that, when the person ceased to exist, they also ceased, and that, after the death of the person, such things could have neither an intrinsic nor market value. The court, however, while strongly intimating that such contracts were void, did not so decide; but simply refused the application upon the ground that the “complainant was not in a position to ask for a preliminary injunction when the right on which he founded his claim was as a matter of law unsettled.” This is the only case we have been able to find which expresses even a doubt as to the validity of a contract of the kind under consideration, and it could hardly be considered an authority for such a position; since it put its ruling, not upon the ground that the contract was void, but that it had not been determined in that state that such contracts were good. On the contrary, we find numerous authorities, English and American, which maintain the validity of such contracts, and enforce same by injunction. The supreme court of Rhode Island, for instance, in an exactly similar case in principle, after reviewing the English cases, said: “The reason is as valid in the case of a profession as of a trade, for whether, technically speaking, there be any good will attending a profession or not, the professional practice itself would probably sell for more with the restraining contract, if the restraint were unlimited in duration, than it would if the restraint were for the life of the promisee or covenantee only. If the complainant here wished to retire from his practice, and sell it, he could probably sell it for more, if he could secure the purchaser from competition with the defendant forever, than he could, if he could only secure him from such competition during his own life.” French v. Parker, 16 R. I. 219, and cases cited.
One of the most recent deliverances upon this question is from the Supreme Court of Indiana, where, in speaking of a contract similar to the one at bar, the court said: “It is conceded by the appellee that the express stipulation of the contract required him to retire from the practice at Spencer. But he thinks a good-faith retirement for a year and a half was a sufficient compliance with that stipulation. * * * * The plain meaning and import of that is that the appellee agrees not to engage in practice in that field without limitation as to time. The want of such definite limitation is no objection to such a contract. * * * The stipulation here means that the appellee will not practice his profession in the territory named. Such contracts have been uniformly enforced by injunction.” Beatty v. Coble, 41 C. L. J. 494. In this latter case the stipulation was: “I hereby agree that I will retire from the practice of medicine and surgery at Spencer, Indiana.” Nothing said about a permanent retirement. But in the case at bar there is a recital that the appellee has made up his mind to “permanently withdraw and retire from the practice of medicine in Texarkana and vicinity.” So the case in hand is even stronger in support of the doctrine announced than the Indiana case. See numerous authorities cited in note to Beatty v. Coble, supra; also the following: 1 Wharton, Cont. sec. 433, note 2; Linn v. Sigsbee, 67 Ill. 75; Dwight v. Hamilton, 113 Mass. 175; 2 Benj. Sales, sec. 679, 691; 2 Add. Cont. p. 1153, note u; Bunn v. Guy, 4 East, 190; Greenhood, Pub. Pol. p. 713, 723-38; McClurg's Appeal, 58 Pa. St. 51; Ewing v. Johnson, 34 How. Pr. 202; Hubbard v. Miller, 27 Mich. 15; Holmes v. Martin, 10 Ga. 503; Harkinson's Appeal, 78 Pa. St. 196; Angier v. Webber, 14 Allen, 211. Some of the above cases also settle the proposition that the adequacy of consideration will not be inquired into when it appears that there was a valuable or legal consideration. No question of fraud or mistake is involved.
Adequacy of consideration.
It follows that the contract in this case was reasonable, and that complainant’s bill was sufficient to entitle them to a perpetual injunction. Reversed and remanded, with directions to enter a decree in accordance with this opinion. | [
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Bunn, C. J.
This is an indictment for carrying a pistol as a weapon, containing two counts. Motion by the defendant to compel the state to elect upon which count it would prosecute, and motion sustained. The state declined to elect; took exceptions. Judgment for defendant, and state appeals.
The indictment reads as follows : “The grand jury of Garland county, in the name and by the authority of the State of Arkansas, accuse Pres Bailey of the crime of carrying a pistol as a weapon, committed as follows : The said Pres Bailey in the county and state aforesaid, on the 22d day of April, 1895, unlawfully did carry, as a weapon, such a pistol as is not used in the army or navy of the United States, against the peace and dignity of the State of Arkansas.” Second count: “And the grand jury aforesaid, in the name and by the authority aforesaid, on their oath, do further present that the said Pres Bailey, in the county and state aforesaid, on the 22d day of April, 1895, unlawfully did carry such a pistol as is used in the army or navy of the United States, said pistol not being then and there carried by the said Pres Bailey uncovered and in his hand (this being the same offense as that charged in the first count of the indictment), against the peace and dignity of the State of Arkansas.”
Notwithstanding the seeming inconsistency between the charges in the first count that the pistol was not such as is used in the army or navy of the United States, and that in the second count that the pistol was such as is used in the army or navy, the offenses in the two counts are one and the same, as stated in the second count, and for this reason the motion to elect should not have been sustained. State v. Rapley, 60 Ark. 13; Howard v. State, 34 id. 433.
Besides the second count of the indictment was of itself demurrable, and should have been so held, on the demurrer interposed, leaving only the first count valid, for the reason that the pistol was not alleged to have been carried as a weapon in this count.
For the errors named the judgment is reversed, and the cause remanded for further proceedings not inconsistent herewith. | [
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George Rose Smith, Justice.
This is a suit by Randall K. Lynch, now age 25, for personal injuries and property damage sustained when his pickup truck was struck by a Missouri-Pacific train at a crossing in Smackover. At the end of the trial the judge directed a verdict for the defendant, on the ground that Lynch had executed a valid release of his claim. The only question on appeal is whether there was any issue of fact concerning the validity of the release. Our jurisdiction, rests on Rule 29 (1) (o).
The accident happened on a Thursday morning in September, 1981. As Lynch was crossing the track his truck was struck by a train coming from his right at 20 to 25 miles an hour. Lynch was knocked temporarily unconscious and was taken to a hospital. His principal injury was a torn ligament that caused a shoulder separation — a painful injury. He was released that morning to go home, with instructions to return that night for surgery the next morning. The operation, with a general anesthetic, was performed on Friday morning. Lynch remained in the hospital another night and went home Saturday.
On Monday the accident was being investigated by a Missouri-Pacific claim agent, Dennis Lane. Taking a court reporter with him, Lane went to Lynch’s home to obtain a statement, finding Lynch at home alone. The interview was taken down and transcribed by the reporter. Lynch was apologetic about the accident. He said that at the crossing he had looked to his left to see who was at work at the building where he was employed as an electrician. He did not look to his right. “I usually look, but that morning I guess I just took it for granted because I had went across it so many times.” He did not see the train. “Like I said, it was my fault all the way. If I had looked it would have never happened.” Near the end of the interview he said:
But, you know, people have said well, you know, you ought to try to sue the railroad. Here is the way I look at it. It was my fault all the way, and I couldn’t live with myself if I tried to do something like that. . . .And there is no way whatsoever, way, form or fashion that I would do that.
The claim agent testified that after the statement was concluded and the reporter had stopped taking it down, he asked Lynch if he was interested in making a settlement. The agent’s offer of $500 was accepted and paid, without any dickering. Mrs. Lynch had come in; she signed the release along with her husband. At Lane’s request they each wrote on the release, in longhand, “I have read this and understand it,” and signed that also. The $500 check was deposited a couple of days later.
At the trial Lynch testified differently, saying that the train’s whistle was not blown and that he had looked to his right, but his vision was obscured by vegetation. As to the release, he testified that he remembered letting a Missouri-Pacific agent into his house, but he remembered nothing else about the interview. He admitted that, as shown by the reporter’s transcript, he had correctly given the date of his birth, his Social Security number, the dates of his children’s birth and other information. He admitted the genuineness of his wife’s signature and his own.
There is no proof that Lane was guilty of misrepresentation or undue influence, as alleged in the complaint. The only question is whether there is substantial evidence that would have supported a verdict finding, in the language of a case relied on by the appellant, that when Lynch signed the release “his physical or mental condition was such that. . .[he] was incapable of appreciating the character of the instrument and the consequences of executing it.” St. Louis, I.M. & S. Ry. v. Bearden, 107 Ark. 363, 155 S.W. 499 (1913).
We find no such evidence. Lane testified that Lynch did not appear to be drowsy, in pain, or uncomfortable. The court reporter said he seemed normal. The transcribed interview, comprising 19 typewritten pages, shows that Lynch understood the interview and took full responsibility for the accident. There is no medical or other testimony that Lynch was incapable of transacting business that day, despite his injured shoulder. His doctor did testify that a general anesthetic may cause a temporary loss of memory, but the interview shows that Lynch had no such loss at the time. He had taken a pain medicine containing codeine, but there is no testimony that it incapacitated him. The $500 consideration was not grossly inadequate if Lynch was wholly or mostly at fault. Moreover, inadequacy of consideration alone is not ordinarily a sufficient basis for avoiding a release. Harmon v. Harrison, 201 Ark. 988, 147 S.W.2d 739 (1941).
The question is not whether Lynch told the truth when he disclaimed any recollection of the settlement. That is immaterial. If the release was valid when executed, as the undisputed proof shows that it was, its validity could not be affected by Lynch’s later loss of memory. Otherwise even the most solemn written instrument would not be safe from an attack based simply upon a loss of memory.
Affirmed. | [
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Riddick, J.,
(after stating the facts.) We agree with counsel for appellee that the sale of the land in controversy to the state for nonpayment of taxes was void, because of an insufficient description thereof in the tax proceedings upon which the sale was based. The land was described upon the tax books as follows: “Texarkana Water Co., west part S. W. S. W. sec. 20, T. 15, range 28, 30 acres; valuation, $30,000.” The valuation and acreage of the land described is the same as that of the land owned by the Texarkana Water Company, and the intention, no doubt, was to describe the land of such company. But the land owned by the water company was not in the shape of a parallelogram; and, if we could construe the description to mean a tract of land in the shape of a parallelogram taken off of the west side of the forty-acre tract of which it is said to be a part, it would take only a portion of the land of the water company, and include land of others upon which taxes have been paid. If the land of the company lay in the shape of such a parallelogram, the description might be sufficient; but, as it does not, the case on this point is controlled by the case of Schattler v. Cassinelli, 56 Ark. 177. The circumstances in this case, as in that, show that there was no intention to sell a tract of land in shape of a parallelogram.
Effect of purchase oí saíebj oawaer.
If we treat the description in the tax proceeding as meaning a tract of thirty acres belonging to the company in the west part of the S. W. of S. W. of said section 20, the description is still incorrect, for all of appellant’s, tract of land does not lie in the west part of said S. W.. of S. W. of sec. 20. A portion of it lies in the east half: of said forty-acre tract. For these reasons, the description was insufficient to identify the land, and the state acquired no title by virtue of the tax sale. Schattler v. Cassinelli, 56 Ark. 175; Hershey v. Thompson, 50 Ark. 484; Cooper v. Lee, 59 id. 460; Tatum v. Croom, 60 Ark. 489; Olsen v. Bagley, 37 Pac. Rep. 739.
The tax sale to the state being void, it follows that the lien held by the state upon the land for taxes was not in any way affected by this void sale. Did the appellant secure a release of the taxes by the subsequent purchase of the land from the state ? It is a rule of law, well established, that one cannot acquire title by a purchase of his own land at a tax sale. To permit him to do so would enable him to take advantage of, and reap a benefit from, his own neglect of legal duty. He should pay the taxes. If he neglects to do so, and his lands are offered at public sale for the payment of such taxes, he can gain no advantage by becoming a bidder at such sale. The money that he pays for the land is simply treated as a payment upon the taxes that he should have paid before the sale. Jacks v. Dyer, 31 Ark. 334; Guynn v. McCauley, 32 id. 97; Pleasants v. Scott, 21 id. 370; Oswald v. Wolf, 129 Ill. 200; Black on Tax Titles (2d Ed.), secs. 273 and 274. It seems that the reason of the rule extends to this case. It was the duty of appellant company to pay the taxes upon its land. It failed to do so, and the land was sold to the state in payment of the taxes. This sale was void. The state gained nothing by it, and the lien for taxes still remained upon the land. It would be against public policy to allow appellant to defeat this lien, which existed to the extent of nearly two thousand dollars, by a payment of $37.50 to the state land commissioner in purchase of his land. The state had no title, but only a lien for taxes; and neither the state land commissioner nor any other officer of. the state had power to release appellants from such lien for less than the full amount of the taxes due upon the land. Appellant cannot be allowed to avoid the payment of taxes due on its land by permitting such land to sell at a tax sale that it knows is void, and afterwards purchasing the same from the state land commissioner.
Mode oí selling- forfeited town lots.
As to penalty and costs in tax sales.
This would be true even if it be conceded that this land came within the statute authorising the commissioner to sell lands forfeited to the state for the nonpayment of taxes at one dollar and a quarter per acre. But that provision has reference to lands other than lots in towns and cities. Lots in towns and cities that have been forfeited to the state' for non-payment of taxes are subject to sale for the taxes, penalty and costs charged against said lots; Sec. 4245, Mansf. Dig. The act of Feb. 24th, 1885, directed the commissioner of state lands to sell at public sale any town lots forfeited to the state prior td.that act; but it does not change the above section as' to lots in cities of the first class, nor as to town lots forfeited to the state subsequent to the date of that act. The land of appellant lies within the corporate limits of the city of Texarkana, and is a city lot, within the meaning of the section above referred to; the word, ‘‘lot” in that section including any parcel or piece of land lying in a town or city.
Por this reason, even had the tax sale been valid, the appellant could not hold the land under its purchase from the commissioner of state lands, and refuse to pay the taxes, penalty and costs charged against it, for the commissioner had no authority to sell the land for less than the taxes, penalty, and costs. His action in that regard was without authority of law, and was caused, no doubt, by a mistake as to the location of the lands.
We conclude that the state is in no way estopped from enforcing her lien for taxes- against the land in question.
In addition to the taxes, the court, in its decree, charged against the land of appellant the penalty and costs of the tax sale and interest upon the taxes from •the time the same was due. As the description of the land extended upon the tax books was insufficient, the land should not be charged with this penalty. Appellant is not to blame for failing to pay taxes upon land which was not correctly described upon the books of the tax collector. Neither was it the fault of the appellant that the tax sale was vo'id, and the costs of this void sale should not be charged against the land. Taxes are n°f “debts,” within the ordinary meaning of the term, and bear no interest other'than the penalty fixed by the statute; and this penalty cannot attach when the' description of the land is insufficient to identify it., Shaw v. Peckett, 26 Vt. 482; Cave v. Houston, 65 Tex. 619; Cooley on Taxation, (2 Ed.) 17; Black on Tax Titles, sec. 151.
■coveraWe0*
To the extent of the penalty, interest and costs, charged against the land of appellant, the decree must be modified; in other respects, it is affirmed. The cause is remanded, with an order that the decree be modified and entered in accordance with this opinion.
Bunn, C. J. dissents.
This section seems to have been omitted from Sand. & H. Digest. | [
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Per Curiam.
Petitioner Ronald McDonald pleaded guilty on February 18, 1982, to aggravated robbery. On March 6, 1985, he filed a petition for writ of error coram nobis which the trial court denied. Petitioner filed a timely notice of appeal; but upon being advised by an attorney that a petition for writ of certiorari was the proper means to challenge the denial of a petition for writ of error coram nobis, he also filed the petition now before us.
Petitioner’s so-called petition for writ of error coram nobis raised grounds to vacate his guilty plea which are covered by A.R.Cr.P. Rule 37. Petitioner states in the error coram nobis petition that it was filed instead of a Rule 37 petition because Rule 37 was no longer available to him, apparently because more than three years had passed since his guilty plea was entered. Rule 37.2(c).
Obviously a petition for writ of error coram nobis cannot be used as a substitute for a Rule 37 petition. Since no grounds were alleged which would entitle petitioner to any relief under a petition for writ of error coram nobis, the petition for writ of certiorari is denied.
Petition denied. | [
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David Newbern, Justice.
This appeal is from a decision denying a writ of habeas corpus. It involves interpretation of statutes pertaining to the writ, thus our jurisdiction arises from Arkansas Supreme Court and Court of Appeals Rule 29 1. c.
In his habeas corpus petition to the circuit court, George alleged he was being held pursuant to an illegal sentence. In an “appendix” to his petition these facts were stated. While on probation after conviction for burglary in Texas, George received permission to visit his brother in Desha County, Arkansas. While in Arkansas he was convicted of second degree murder. He was given a fifteen-year sentence in 1981. While free on an appeal bond he was advised by the sheriff to go to the Desha County courthouse for a hearing on a violation of his Texas probation requirements. The Desha County circuit judge said he was releasing George and turning him over to the sheriff of Anderson County, Texas. He was then sentenced in Texas to five years confinement for his probation violation. He was subsequently paroled in Texas. He returned to Desha County to visit his brother and was arrested and committed to the Arkansas Department of Corrections based on the commitment order issued upon his Arkansas conviction which had since been affirmed.
The circuit judge denied the petition because it failed “to state a ground for relief under the Arkansas habeas corpus law.” The order denying the petition was entered before the state responded, and no hearing was held.
In his appeal to this court, George raises questions whether the Desha County circuit court had lost its jurisdiction to commit him because of his having been released to Texas authorities.
1. Denial of Hearing
From the order he entered, it appears the circuit judge denied the petition because he found nothing in it alleging a basis for habeas corpus. The appellant contends he should nonetheless have been given a hearing. The appellant has cited no authority for this position, and we do not find his unsupported argument convincing. While our statutory habeas corpus scheme contemplates a hearing in the event a writ is issued, we find nothing requiring a hearing be given any petitioner regardless of the content of the petition. See Ark. Stat. Ann. §§ 34-1701, et seq. (Repl. 1962).
2. Illegal Sentence
The central question is whether the petition stated any facts showing that the sentence and the commitment became illegal, assuming the circuit court of Desha County had “released” the petitioner to Texas authorities.. In terms of Ark. Stat. Ann. § 54-1705 (Repl. 1962), the question is whether there is a showing of probable cause that the petitioner is being detained unlawfully. One is held without lawful authority when it is shown the commitment is invalid on its face or the court lacked jurisdiction. Stover v. Hamilton, 270 Ark. 510, 604 S.W.2d 954 (1980); Mitchell v. State, 233 Ark. 578, 546 S.W.2d 201 (1961); Rowland v. Rogers, 199 Ark. 1041, 157 S.W.2d 246 (1940). The same fundamental question would be reached if we applied the second sub-part of Ark. Stat. Ann. § 54-1733 (Repl. 1962) which says a prisoner can be discharged “[wjhere, though the original imprisonment was lawful, yet, by some act, omission or event which has taken place afterward, the party has become entitled to his discharge.”
For his contention that the Desha County circuit court lost its jurisdiction and thus committed him illegally, the appellant cites Shields v. Beto, 570 F. 2d 1005 (5th Cir. 1967). There the petitioner was released on a furlough from a Texas prison, having served one year of a cumulative forty-year sentence. Instead of taking the furlough, the petitioner waived extradition and was sent to Louisiana where he served a sentence and was ultimately paroled and then released from parole. Some twenty years later the petitioner was convicted on a bad check charge in Texas. He was sentenced to two years imprisonment to which were added the thirty-nine years left unserved on his previous Texas sentence. The federal Court of Appeals held,
. . .that the extraditing of Shields to Louisiana authorities and the release by Texas of the prisoner before expiration of his sentence constituted a waiver of jurisdiction over Shields, especially where the surrendering sovereign (Texas) showed no interest in the return of the prisoner, either by agreement between the sovereigns, by detainer, or any other affirmative action taken by it following his release in Louisiana. [370 F.2d at 1006]
In the Shields Case the court distinguished Thompson v. Bannan, 298 F. 2d 611 (6th Cir. 1962), where it was held that release or surrender of a convict who had not yet begun his sentence did not incapacitate the surrendering state from committing the petitioner thereafter. While the statement that “a prisoner may not be required to serve his sentence in installments,” White v. Pearlman, 42 F. 2d 788 (10th Cir. 1930), has a nice ring to it, the distinction between surrender to another jurisdiction of a person awaiting incarceration and surrender of one who has begun serving a sentence is troublesome if it is to be the basis for saying whether jurisdiction is waived. While the court in Shields v. Beto did not discuss or even intimate an estoppel theory, it would have been appropriate to have done so. The passage of a long period of time with no evidence of an attempt at extradition or other effort to reassert itself makes it seem patently unfair to tack thirty-nine years of a very stale forty-year sentence on a new two-year sentence.
George might have been successful in resisting extradition to Arkansas. But that is not the question here, as he voluntarily reentered Arkansas knowing he had not served his Arkansas sentence. See also Grieco v. Langtois, 181 A. 2d 230 (R.I.1962). Cf. State v. Knapp, 599 P. 2d 855 (Ariz. App. 1979).
While one effect of the Arkansas commitment may be to place George in violation of his Texas parole obligations, that is not a consideration in determining whether the Desha County circuit court had the power to commit him. U.S. v. Marrin, 227 F. 314 (E.D. Pa. 1915).
While this opinion makes much ado over the issues raised and yet holds the petitioner was not entitled to a hearing, we are convinced, and our further holding is, that had every allegation in the petition been proven the petitioner would not have been entitled to the writ.
Affirmed. | [
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Robert H. Dudley, Justice.
The underlying issue in this case is whether the legislature, the quorum court, or the circuit judge has the authority to set the salary for circuit court probation officers. Act 591 of 1981 (not codified because it is categorized as local legislation) provides that the salaries of the probation officers of Pulaski County shall not be less than $15,000 nor more than $20,000 and that the. salaries of deputy probation officers shall not be less than $13,000 nor more than $18,000, with the exact amount to be set by the circuit judge. The act specifies that the salaries shall be paid by Pulaski County. Appellee Circuit Judge Floyd Lofton, of the first division of the sixth circuit, set the amounts of the salaries for the first division of the sixth circuit at $20,000 and $18,000. The Quorum Court of Pulaski County appropriated only $17,800 and $16,457 for the two employees. The Circuit Judge informed the County Judge by letter that the salaries of $20,000 and $18,000 were necessary and essential expenses for the administration of justice. The County Judge refused to approve disbursement of county funds in excess of the appropriation by the Quorum Court. The Circuit Judge then sought a writ of mandamus to compel the County Judge, Treasurer and Quorum Court to pay the higher salaries. The circuit court, by a judge on assignment, issued the writ of mandamus. We reverse. Jurisdiction to interpret the Constitution of Ark ansas, to determine the constitutionality of state law and to hear the appeal of a mandamus action directed to county officials is in the Court. Rule 29 (l)(a), (c), and (f).
The county officials argue that the writ of mandamus should be dissolved because Amendment 55 to the Constitution of Arkansas implies that the quorum court should set the salaries of circuit court employees. The argument is without merit. Traditionally quorum courts have been held to have jurisdiction only over local matters, and a circuit court and its employees are not a local matter. Campbell, County Judge v. Arkansas State Hospital, 228 Ark. 205, 306 S.W.2d 313 (1957). Amendment 55 does not cause us to modify this body of law. The Amendment provides that the quorum court may exercise only “local legislative authority.” Section 1 (a). In addition, our earlier cases have set out additional reasons the quorum court is without discretion to set the expenses of state courts.
In Burrow, County Judge v. Batchelor, 193 Ark. 229, 98 S.W.2d 946 (1936), the county court refused to pay the salaries for the court reporter and grand jury stenographer in the amounts set by the legislature, and we authorized the circuit court to impound county funds to pay the salaries. In the material part of the opinion, we wrote:
These claims are a part of the necessary expenses of the operation of the county government and take precedence over all permissive expenditures. They are provided by statute so that courts and other such agencies may function. They are imposed by law and must be paid as long as there is money within the general fund to pay them. If this were not so, county government must stop. It is not discretionary with the county court to allow them. The county court must allow them, and, if it fails to do so, the circuit court may compel him to perform this ministerial act. This court ruled in the case of Polk County v. Mena Star Co., 175 Ark. 76, 298 S.W. 1002, in speaking of all necessary expenses imposed by law, that the county court has no control or discretion over them except, perhaps, the amount to be allowed for the services. In the instant case, the amount to be allowed is fixed by law. If the law were otherwise, county courts might obstruct the necessary and orderly administration of the affairs of the county. In view of the supervisory power of the circuit court over inferior tribunals, it did not exceed its authority in impounding the fund in the hands of the treasurer until the proceeding in mandamus might be adjudicated.
In Crawford County v. City of Van Buren, 201 Ark. 798, 146 S.W.2d 914 (1941), it was claimed that a legislative enactment requiring the quorum court to appropriate money for municipal court purposes was unconstitutional. In upholding the statute, we wrote:
We do not think, however, that these sections of the Constitution operate to deprive the general assembly of the power to impose duties upon counties and to require counties to pay therefor. Our cases are to the contrary. For instance, in the case of Polk County v. Mena Star Co., 175 Ark. 76, 298 S.W. 1002, there is an enumeration of various items of expenses imposed upon counties by legislative enactment. In the case of Burrow, County Judge v. Batchelor, 193 Ark. 229, 98 S.W.2d 946, there was involved an act of the general assembly requiring all counties to pay salaries of circuit court and grand jury stenographers. This act was upheld, . . .
In Campbell v. Arkansas State Hospital, 228 Ark. 205, 306 S.W.2d 313 (1957), we held that a county was required to pay expenses for mental tests of defendants, when ordered to so do by a circuit court and we stated:
“Act 77, § 6, Ark. Acts of 1879, Pope’s Digest § 2527, now codified as Ark. Stat. (1947) § 17-409, has been considered and discussed in many cases. In Polk County v. Mena Star Co., supra, it was pointed out that ‘***this court, many years ago, determined and held that there were two classes of obligations dealt with in this section of the statutes (Ark. Stat. (1947), § 17-409); first, those that are imposed on the counties by law and about which the county court is substantially without discretion; *** items 1 to 4 inclusive, being in the first class ***’It is interesting to note that the first item (Ark. Stat. (1947) § 17-409, sub-par. Sixth — 1.) provides: ‘ 1. To defray the lawful expenses of the several courts of record of the county or district and the lawful expenses of criminal proceedings in magistrate’s courts, ***’
“From this plain language and the many decisions analyzed in reaching the conclusion herein set forth, it seems fundamental that the County Court is responsible for the expenses of the courts in our judicial system.
* * *
“Here we have an item having to do with expenses of the Circuit Courts, *** It is inconceivable that the framers of our Constitution could have intended to stretch the plain language of Art. 7, § 28, so as to vest the County Court, an office requiring no special knowledge of the law, with exclusive jurisdiction to completely thwart the operation of our criminal courts in granting an accused certain rights, by refusing to pay expenses of that court. The Circuit Court, a State Office, was hereby discharging a duty imposed on it by the legislative branch, namely, granting a mental examination to one accused of a crime who has raised the defense of insanity. In view of the myriad of cases and the longstanding operation of Ark. Stat. (1947) § 17-409 (1879 Act) there can be no question but that the County Court and the Quorum Court, its appropriating agency, must pay the expenses of the courts of record within their boundaries.”
The quorum court is without discretion to establish the amount of the salaries of circuit court employees.
The county officials alternatively argue that Act 591 of 1981 is constitutionally invalid. The argument is correct. The Constitution of the State of Arkansas provides for three separate but equal branches of government. Article 4, Sections 1 and 2. Under our constitutional doctrine, the legislative branch is to fix salaries. Beaumont, Judge v. Adkisson, Judge, 267 Ark. 511, 593 S.W.2d 11 (1980). While the General Assembly may not delegate its legislative authority, it may by providing guidelines, delegate “the power to determine certain facts, or the happening of a certain contingency, on which the operation of the statute is by its terms made to depend.” Walden v. Hart, 243 Ark. 650, 420 S.W.2d 868 (1967). This rule was stated in Hooker v. Parkin, 235 Ark. 218, 225, 357 S.W.2d 534, 539, (1962) as .follows:
The Legislature cannot delegate its power to make a law, but it can make a law to delegate a power to determine some fact or state of things upon which the law makes, or intends to make, its own action depend. To deny this would be to stop the wheels of government. There are many things upon which wise and useful legislation must depend which cannot be known to the lawmaking power, and must therefore be a subject of inquiry and determination outside the halls of legislation.
The statute at issue does not provide for grades or steps based upon training, education, experience, or other fact or thing to be used in the salary determination. The statute vests unbridled discretion in the judge and contravenes the separation of powers doctrine.
The Circuit Judge argues that, even if the statute is unconstitutional, he has the inherent authority to set the salaries. The argument assumes that there is no earlier act which validly sets the salaries of these employees.
The separation of powers doctrine necessarily implies that a court has the constitutional authority to order these acts done which are necessary and essential for the court to operate. However, that constitutional authority does not extend past ordering acts which are necessary and essential for the court to operate. Turner, Ex Parte, 40 Ark. 549 (1883).
The only evidence on the point is a rote phrase contained in a letter from the circuit judge to the quorum court stating that the amounts which he set were necessary and essential. This one conclusory phrase is not substantial evidence of absolute necessity. It is not sufficient to empower the circuit judge to exercise the constitutional authority to require these acts done which are necessary and essential for a court to operate.
The writ of mandamus directing the county officials to pay salaries in the amounts fixed by the circuit judge is dissolved because the statute is unconstitutional, and there is no substantial evidence showing that two probation officers are absolutely essential to the operation of the court.
Writ dissolved.
Hickman, J., concurs.
Purtle, J., dissents. | [
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David Newbern, Justice.
Davis and Earnest, Inc., hereafter referred to as “Davis,” claims a materialman’s lien on property owned by the Duncans. The notice required by Ark. Stat. Ann. § 51-608.1 (Supp. 1983) to be given by the materialman to the owner prior to supplying material, and ordinarily necessary to perfection of the lien, was not given. Davis claimed, and the trial court held, that the notice was not required because the transaction or transactions fell within an exception to the notice requirement. The exception is created by Ark. Stat. Ann. '§ 51-608.5 (Supp. 1983) in the case of a “direct sale” by the materialman to the property owner.
The question on this appeal is whether the determination that the statutory exception to the notice requirement applied was clearly erroneous, i.e., clearly against the preponderance of the evidence. As we are required to interpret the statute, our jurisdiction arises under Arkansas Supreme Court and Court of Appeals Rule 29 1. c.
The statute, § 51-608.5, provides that the notice requirement of § 51-608.1 does not apply if there is a direct sale by the materialman to the property owner. It further provides that “[a] sale shall be a direct sale only if the owner or his authorized agent personally orders such materials from the lien claimant.”
The chancellor’s findings were that the notice was not required because the Duncans had dealt personally and directly with Davis. The judgment says Davis “. . .by virtue of its direct contact with the defendants, has availed itself of the statutory exception to the requirement for notice. ...” However, the primary position of Davis in this appeal is that the Duncans made their builder, Leard Burks, their “authorized agent” and thus entitled Davis to the exception to the notice requirement. As there was no finding on the agency point by the trial court, we assume Davis is asking us to say the chancellor reached the correct result for the wrong reasons and should be affirmed notwithstanding the reason given.
We will first explore whether the findings of the chancellor were clearly against the preponderance of the evidence and then whether the record supports Davis’s “authorized agent” theory.
1. Direct Dealing
The Duncans hired Burks to build a house in Hot Spring County while they continued to reside in Ohio, making occasional visits to Arkansas.
The evidence of direct dealing between Davis and the Duncans cited by Davis was that the Duncans went to the store several times and picked out some items to be used in the construction of their home. Davis contends that the Duncans “ordered” the items, but the very exhibit to which they point to support the contention is just a list made by a Davis employee of items such as a bathtub, sink and windows. It contains no prices or delivery specifications. The only name on the paper is “L. Burks,” the builder.
There was also testimony that on the occasion of selecting the materials Mr. Duncan left his business card with a Davis employee, saying to let Burks have whatever was needed and to call him in the event of a problem and that “money is no problem.”
By contrast, the Duncans’ Exhibit 3 consists of twelve invoices totaling $11,992.31, the amount of the lien sought. On each of the invoices, the customer’s name is shown to be Leard Burks. All but one show delivery to Leard Burks or a carpenter on the job, and the one exception does not show who the recipient was.
A Davis employee testified he gave the statutory lien notice form to Burks to be signed by the Duncans but that it was not returned. Mr. Duncan testified he had refused to sign the form.
The trial court’s finding that Davis dealt directly with the Duncans is clearly against the preponderance of the evidence. All of the documents show Burks was their customer. The mere act of picking out items to be supplied to Burks is no evidence that the Duncans placed an order with Davis. Had Davis thought it was dealing directly with the Duncans surely the Duncans rather than Burks would have been billed for the materials, but that was not the case. We find the clear preponderance of the evidence shows Burks was Davis’s customer, having been engaged to build a house for the Duncans as an ordinary contractor. If Davis planned to assert a lien on the property, it should have complied with the clear statutory notice requirement by obtaining a signed notice form.
2. Authorized Agent
The testimony of a Davis employee that Mr. Duncan told him to let Burks have whatever was needed is some evidence showing an agency existed. However, in view of the already recited overwhelming evidence that Davis regarded Burks as its customer and not as agent for the Duncans, we are disinclined to go beyond the trial court’s findings on this record to say the notice requirement did not apply.
The statutory notice requirement and exception scheme enacted in 1979 is apparently in some measure a codification of the earlier common law. In Malone v. Holly Grove Lumber Co., 148 Ark. 242, 229 S.W. 716 (1921), the question whether a builder was an agent of the property owner for purposes of the materialman’s lien arose. There we were dealing with the ten-day notice requirement contained in § 51-608. We said the notice requirement does not apply if the owner himself purchased the material. We upheld the chancellor’s determination that purchases had been made by a builder as agent for the owner and thus the purchases were by the owner and the notice was not required. We said,
. . .[t]he fact that the material was charged to, shipped to, and received by, appellant [the property owner] and the testimony that an invoice and monthly statement were sent to appellant are strong corroborative circumstances that it was sold directly to said appellant on the order of [the builder]. . . .[148 Ark. at 246, 229 S.W. at 717]
In this case, none of those factors were present. Quite the contrary is shown by the record.
Conclusion
We find the evidence of agency, when compared with evidence that Burks was an independent contractor and the customer of Davis, insufficient for the exercise of our de novo review power to reach a factual determination different from that of the chancellor but in support of the result he reached.
We hold the chancellor’s finding that Davis dealt directly with the Duncans is clearly erroneous, i.e., clearly against the preponderance of the evidence. Ark. R. Civ. P. 52(a), City of Little Rock v. Breeding, 273 Ark. 437, 619 S.W.2d 664(1981).
Reversed. | [
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John I. Purtle, Justice.
This is the second time we have reviewed this case. In Cannco Contractors, Inc. v. Livingston, 282 Ark. 438, 669 S.W.2d 457 (1984), we remanded the matter to the trial court for redetermination of ownership of certain lands. This is an appeal from the trial court’s second decision. The appellants argue that the chancellor did not comply with our first decision in the case and that the trial court should have granted summary j udgment. The chancellor applied the law in accordance with our mandate and correctly refused to grant summary judgment.
We reversed in part and affirmed in part on the first appeal. The reversal related only to abandonment and damages. We held that the railroad had abandoned the property and that nothing in the record supported an award for $300 damages. These two things were all that we reversed. All other holdings were affirmed and are binding upon the parties and the courts.
When the case was returned the parties submitted the same briefs and arguments which were used in this court to the trial court. Each party moved for a summary judgment and the court denied both motions. No additional testimony or evidence was offered before the trial court. In accordance with his interpretation of our opinion and mandate the trial judge considered the facts and evidence and awarded ownership of the abandoned railroad property to different parties.
This appeal relates to lands designated on Exhibit 17 as tracts “A” and “C.” Both tracts were parts of a grant to the railroad made in 1902. The Streetts deeded the property to the railroad with the restriction of “so long as it shall be used for railroad purposes.” Other lands were deeded to the railroad in fee and these lands are not here in question. We held on the first appeal that the railroad abandoned this right of way when it sold the land to the Livingstons in 1980. When the grantee abandoned the property the title reverted to the Streetts or their assigns. Cannco purchased tract “A” from the Streetts after the railroad deeded it to the Livingstons. Tract “C” was not deeded to anyone except Mopac and it was proper for the court to confirm title in tract “C” in the heirs of Streett and tract “A” in Cannco as it derived its title from the Streett heirs. Since Cannco was given title to tract “Á” it was proper for the court to disallow the $300 it had found Cannco owed the Livingstons.
The decree of the trial court is affirmed in all matters.
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Hughes, J.,
(after stating the facts). It will be seen from the evidence in this case that, at the time this cause was tried, the Ouita Coal Company had a lease on the coal mines to which the railway company condemned the right of way, and that the lease had twelve years to run. It will be observed also that the value of the land taken was only thirty dollars, and that the damages above this amount were for alleged injury to the mines. The lessees were not made parties to the proceeding, though they ought to have been. It will also be perceived that the evidence was directed to the damage done to the leasehold estate, as well as to the reversion, and that the jury gave damages in the largest possible amount that could have been given for the damages to the entire estate. This was error. No damages to the leasehold estate should have been allowed to be shown, or awarded to the appellees in this action. They are not entitled to recover for damages to the leasehold estate, but only for damages to the reversion, after the determination of that estate. The instruction given by the court is erroneous, being calculated to mislead the jury, and to leave it in doubt whether the court meant that they were at liberty to give the appellees damages for the injury to the whole estate, including the leasehold, or for injury to the reversion only. It is easy to perceive that there would be a great difference in the amount of damages, for an injury to the reversion and the leasehold and reversion.
Admissibility of opmexp^t?011’
There was error also- in admitting the testimony of West, which was only the opinion of a non-expert, whose testimony shows that he was guessing merely at what he testified to, and that his opinion was based upon hearsay, and that he really knew nothing about what he was testifying.
For the errors indicated, the judgment is reversed, and cause is remanded for a new trial. | [
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Bunn, C. J.
This is a suit for damages for killing a sow and five pigs, begun in a justice’s court, appealed to the circuit court of Craighead county, and there resulting in judgment for plaintiff, Selman, in the sum of $20, the amount claimed, less the amount of $7 already paid plaintiff; from which defendant railway company appeals to this court.
The controversy is somewhat out of the usual order; no question of the right to recover being involved, but solely the question of the binding force of a settlement of the claim having been made before the institution of this suit. In July, 1892, the hogs in question were killed by one of appellant’s trains, and in a negotiation for settlement between appellee, Selman, the owner of the hogs, and the stock claim agent of appellant, the latter offered to pay the former the sum of seven dollars in full settlement, on the offer of the former to take the sum of ten dollars, which had been declined by said agent. After this the agent received notice that one of the trains of his company had in August killed two cows of Selman, which were valued at twenty dollars by the owner. This was in September, 1892, and immediately the agent, under the impression that the cows were the property of appellee, Selman, made out and sent to him the following receipt or voucher, notifying him that if he would sign the same, and return to him, he would send him a check for the $37.00 therein mentioned, to-wit:
“$37.00. St. Louis Southwestern Railway. Received of the St. Louis Southwestern claim agent draft No. 2844, for thirty-seven dollars, for amount in full for settlement of claim of W. L. Selman for one black and white sow, and five pigs killed July 3rd, 1892, (marked); 1 black and white cow, four years old, killed Aug. 23rd, 1892, (branded); 1 yellow and white cow, four years old, killed Aug. 23rd, 1892, — killed at or near mile post 137 about 1¿ miles north of Obear, on or about the 3rd day of July and 23rd day of Aug., 1892. This receipt is in full demands against said railway company for damages and claim, and I hereby warrant that I am the owner of said stock, and entitled to receive said money and receipt for same.”
Indorsed (on the outside of fold):
“July 3rd, 1892, 1 black and white sow and five pigs................................ $ 7.00.
Aug. 23rd, 1892, 1 black and white cow.. 15.00.
Aug. 23rd, 1892, 1 yellow and white cow.. 15.00.”
This receipt or voucher was received, signed in his own name, and so returned to said agent, who at once forwarded the check for the $37 to appellee, and he received and cashed it.
Subsequently it was ascertained that the cows did not belong to appellee, but to one Salman; and defendant’s attorney notified appellee of the mistake, and demanded a repayment of $30 of the amount, — that being the value of the two cows, as named in the receipt or voucher. Appellee refused to refund this amount, but offered to refund $17; thus retaining $20 for the hogs, which he claimed to be their value. The attorney declined to accept this amount, and sued Selman in a justice’s court, and obtained judgment for the $30 claimed, which was paid by Selman. Selman then sued for the killing of his hogs, laying his damages at $20, with the result stated, and the railway company appealed.
The testimony of the plaintiff in the case is to the effect that Selman was the owner of the hogs; that they were killed as stated; that they were worth $20, and that plaintiff had agreed to accept $10 in payment for them, and that the claim agent had declined to pay that sum, but had offered to pay $7; that afterwards the receipt or voucher was signed, and the check received by him and cashed; that he knew at the time of signing the receipt, and receiving and cashing the check, that he did not have any cows killed; that the claim agent called on him, and asked him to refund thirty dollars of the amount so paid him; and that in response he advised him that he was looking after his own interest, and not that of his (the agent’s), and would return $17 of the money, — and other facts stated above.
Daniel Haynes, the claim agent, testified substantially to the same state of facts as Selman, and, in addition thereto, that the itemized indorsement on the voucher was on the outer fold, and Selman could not have helped but observe it.
The case was tried by the court, sitting as a jury, and the court refused to declare the law as asked by the defendant. Defendant excepted to this refusal to declare the law. Thereupon the court, after finding the facts substantially as recited above, made this declaration of law, to-wit: “Plaintiff had no legal right to the check, nor to take out of it $20 for his hogs, for defendant had not agreed to pay $20 for his hogs, or that they were worth that much; and plaintiff was liable to the company for the full amount of the check $37. On the other hand, defendant had no right to arbitrarily assess the value of the hogs at $7, for plaintiff had not agreed to take that sum for them. If defendant had tendered plaintiff a check and voucher for $7, in full for his hogs, and he had accepted and signed same, he would be bound thereby, and barred of any further recovery, but the fact that he took a check for $37, and signed a voucher for that amount, does not signify that he intended or agreed to accept $7 in pay for his hogs, though there was a memorandum or statement in or upon the voucher fixing the value of the hogs at $7, because at the time he disclaimed any such intention by proposing to keep $20 as pay for the hogs, and has ever since insisted. Hence there has been no mutual agreement or settlement of the matter between the parties which is binding upon them, and their rights in the matter remain subject to adjudication and determination here. The finding will be for the plaintiff, and the value of the hogs assessed at $20. As defendant has entered a plea of payment, it would perhaps be proper, under the plea, to allow a credit of the $7 already in the hands of the plaintiff by reason of the check, leaving a balance of $13 for plaintiff. Judgment accordingly.”
The declaration of law to the effect that defendant, in tendering the receipt or voucher to the plaintiff to sign and return the same containing the value of the hogs killed, arbitrarily fixed the value of the same is misleading. Defendant could not bind plaintiff by such valuation, and plaintiff was free to accept it as a proposition of settlement, for that was all that it was. The plaintiff saw fit to accept the proposition by signing and returning the receipt to that effect, and by receiving and cashing the check. What other arrangments he afterward determined upon, of himself, does not matter.
There does not appear to have been in the settlement of this matter any fraud, intimidation, overreaching, or concealment on the part of defendant’s agent, arid, indeed, none such is charged against him; therefore, our consideration is directed solely to the proposition whether or not, under the state of case made out, the settlement between plaintiff and the defendant’s agent is final and conclusive on both the parties, or is still open for adjudication, as held by the court below in its declaration of law. In this respect this case is governed by the principle announced in Springfield & Memphis R. Co. v. Allen, 46 Ark. 219, in which this court said: “It is certainly true that a receipt is only prima facie evidence of what it imports, and may be explained or contradicted by the party signing it; and if that were all of this case, it would be apparent that Allen’s action was not barred by the receipt he signed. But here was a claim, or several claims, the justice of which was denied, and the amounts due upon them were in dispute. The debtor, in effect, said to the creditor : “I will pay you a certain sum on your disputed claims, provided you will take it in satisfaction of the whole.” While the offer stood in this form, there was but one of two courses open to the creditor, — either to decline the offer, or accept it with conditions attached. It was competent for him to receive the amount in discharge of his debt, and the receipt that he executed is presumptive evidence that he did so. A settlement and receipt in full of an unliquidated demand, when made with complete knowledge of all the circumstances, is a bar to a subsequent action upon the demand. The bar does not rest upon the written receipt, but upon the acceptance of the sum paid and received, the writing being only one of the modes of showing the intention of the parties.
After the voluntary adjustment of a matter in dispute, the contest is ended, and the disputed question cannot again be raised by the parties. Compromises avoid litigation, and are encouraged by the law; and, when legally made, they are binding, and are not disturbed by the courts.”
The declaration of law by the court below, and the judgment in accordance therewith, were erroneous, and the judgment is reversed, and the cause remanded. | [
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Wood, J.,
(after stating the facts). Replevin was not the remedy for appellee, under the proof in this case. Titsworth v. Frauenthal, 52 Ark. 254; Hart v. Morton, 44 Ark. 447; McKennon v. May, 39 Ark. 442; Person v. Wright, 35 Ark. 169; Ward v. Worthington, 33 Ark. 830.
Appellant was in the lawful possession of the crop, and had the right to retain same until it was divided, and replevin was not the remedy to enforce a division. Nor could appellant be required to surrender possession of the whole upon the payment to him of what his share or interest was worth. However, under the state of case presented by the proof, the appellee had equities which a court of chancery might well enforce. The cause is therefore reversed, with leave to amend the pleadings, and transfer to equity, if desired, and to have the cause disposed of according to the equity practice. | [
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Wood. J.
The appellant was convicted of, the larceny of two heifers. There was proof on behalf of the state to the effect that the heifers were the property of one Wood, and that appellant had taken same and sold them, appropriating the proceeds to his own use; and the state endeavored to show that appellant knew that the property belonged to another when he sold same. The appellant, on the other hand, contended that he sold the heifers in good faith, believing them to be his own; and he introduced proof tending to show that he had bought the heifers from one Conner, who claimed to own the same.
The court gave the following instruction, to which appellant excepted: “(3) You are further instructed that if you believe, from a preponderance of the evidence, that the defendant took the cattle under the honest belief that he was the owner of them by virtue of having bought them from another person, and if you believe that said defendant acted honestly and in good faith in the matter, then you would be authorized to find him not guilty, although you may believe that the seller was not the owner ; and it would be for you to say, from all the facts and circumstances proved in the case, as to whether he acted honestly and in good faith in the transaction.”
The court correctly charged the jury as to the material allegations of the indictment, one of them being ‘‘that the defendant took the property with the felonious intent to deprive the owner of the use of it,” and the court also correctly charged the jury that these allegations must be established ‘‘beyond a reasonable doubt.” But; the above instruction is in conflict with these. “Preponderance” and “reasonable doubt” are not synonymous terms. It.is sufficient if the proof in the whole case raises a reasonable doubt as to whether the. defendant took the cattle with a felonious intent. The state would not be justified in a conviction upon a preponderance of the evidence. Yet this instruction tells the jury “that, if they believe from a preponderance of the evidence that the defendant took the cattle under the honest belief that he was the owner,” they should acquit. The converse would be, “If you do not believe from a preponderance of the evidence” that defendant took the cattle under the honest belief that he was the owner, etc., you should convict. The instruction makes the question of intent, which is the very essence of the crime charg'ed, depend upon the preponderance of the evidence to establish it, whereas it must be established by the state beyond a reasonable doubt. It must not be forgotten that in criminal cases, under the plea of not guilty, every element in the crime is controverted, and the state must affirmatively prove guilt.
“It would,” says Mr. Bishop, “be a wide departure from the humanity of the criminal law to compel a jury, by a technical rule, to convict one of whose gmilt, upon the whole evidence, they had a reasonable doubt. And it would reverse the presumption of innocence to hold a defendant guilty unless, taking the burden on himself, he could affirmatively prove himself innocent. All evidence should be viewed in its entirety, not in detached parts. The whole of an alleged crime must be proved, just as the whole of it must have been committed. In reason, therefore, this whole and indivisible thing, the burden of proof, must be borne by the government throughout the trial.” 1 Bish. Cr. Pro., sec. 1051.
It is only in those cases where the defendant either absolutely, or for the purposes of the trial, admits all the allegations of the indictment, but sets up some special matter of defense, as license, pardon, autrefois acquit or convict, insanity, etc., that the burden is on him to maintain his defense by a' preponderance. McArthur v. State, 59 Ark. 431; 1 Bish. Cr. Pro., sec. 1049; Whar. Cr. Ev. (8 Ed.), sec. 720.
The defendant asked the following among other instructions: “You are instructed that if you believe from the evidence that the defendant purchased the heifers mentioned in the indictment from one Conner in good faith, believing Conner to be the owner of them, or if you have a reasonable doubt as to whether his purchase from Conner was in good faith, believing him to be the owner, you will find the defendant not guilty.” This was the law.
The refusal to give this, and the giving of the third, sufra, was error, for which the judgment is reversed, and the cause remanded for a new trial. | [
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Hughes, J.,
(after stating the facts.) It appears from the record in this case that the only error complained of by appellants is that the court allowed appellee to prove a good character by witness McKennon and others. There is nowhere . in the record any testimony which reflects upon either the truth, honesty, or morality of appellee, J. S. Armstrong; and since he was the plaintiff in the trial below, and was presumed in law to have a good character, until it was attacked or impeached, and since there was no evidence of bad character, and nothing before the court or jury which put his character in issue, was it error to allow witness McKennon and others to testify as to his good character? The law credited him with having a good reputation, until that reputation was assailed. Evidence of character is not admissible in civil suits to rebut imputations of fraud or misconduct. Boardman v. Woodman, 47 N. H. 136, and cases cited. Such evidence is in general confined to criminal prosecutions involving the question of moral turpitude. The case of Ruan v. Perry, 3 Caines, 120, cited by counsel for appellee to the contrary is exploded by later authorities. Gough v. St. John, 16 Wendell, 646, and cases cited. In the case last cited it is said: “But where a civil action is brought for an injury to property, though the injury was legally criminal, and involved moral turpitude, in so much that, on an indictment, character would be obviously receivable, there is no authoritative case save Ruan v. Perry, which favors its admissibility.” The case of Simpson v. Westenberger, 28 Kas. 756, is directly in point, and holds that, in a case like the one at bar, evidence of good character is not admissible. This is a civil action, and the character of the appellee was not put in issue in the action, and the defendant relied solely upon the facts shown in evidence to support his contention. We are of the opinion that the admission of this evidence was improper, the character of the appellee not having been put in issue or impeached. Pratt v. Andrews, 4 N. Y. 493.
When error not prejudicial.
But, while it was error to admit this evidence, and while there is evidence from which the jury might have found fraud upon the part of N. B. Armstrong, there is no proof that the appellee, J. S. Armstrong, participated in his fraud. On the other hand, the evidence shows that J. S. Armstrong bought the goods, accounts, etc., in controversy, in good faith, to realize a just debt owing to him by N. Ey. Armstrong; that he .paid a fair price, and that the goods were insufficient to pay his debt; and that he delivered up the notes of N. Ey. Armstrong, and credited him on his account against him, — in other words, paid for the goods and choses in action, and took immediate possession and control of them. We dó not believe the jury could have found otherwise than they did, had the evidence as to appellee’s good character not been admitted. We are therefore of the opinion that, though it was error to admit this in evidence, its admission was not prejudicial, and therefore not reversible error.
The judgment is affirmed. | [
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Wood, J.,
(after stating the facts). Appellees, Gage & Co., were entitled to five days’ notice of cancellation. Recognizing this, the insurance company instructed its agent “to cancel" the policy, not that the policy was cancelled; showing that the cancellation of the policy was to be effected by their agent in the future. The letter of the agent, Johnston, to the holders of the policy, in which he says, speaking of the policy: “I want it mailed to Dawson, that he may take cancellation receipt, and forward to me; as soon as cancelled, I will refund to you your y5ro rata of premium paid,” — shows that the agent understood that the policy would not be cancelled until it had reached the assured, Williams. Tikewise his letter to Dawson, where he says: “I have this day written them to mail it to you at once by first mail, and I suppose it will reach you by Monday or Tuesday. When it does, please get Dr. Williams’ receipt for cancellation, and mail to me by first mail.” Gage also .understood that the policy-would not be cancelled until it reached Williams. Indeed, the letters of the agent are not susceptible of any other construction. Dawson, the agent at Haynes, to whom the policy was mailed, did not receive it until after the loss; and, of course, he could not have delivered it to Williams before he received it. We conclude that the undisputed facts show that the policy was not can-celled before the fire. Griffey v. N. Y. Cent. Ins. Co., 100 N. Y. 417.
The insurance agent, Johnston, seems to have reached this conclusion, for he promised in his letter to Gage & Co. to refund the fro rata premium paid by them “as soon as the policy was cancelled,” and his effort to refund was not until after the fire.
Notice to the assured and the refunding of fro rata premium for the unexpired term are usually conditions precedent to the cancellation of insurance policies, and, being for the benefit of the assured, may be waived by him. Kirby v. Ins. Co., 13 Lea, 340. But, having found that there was no cancellation previous to the fire, the question of waiver of the conditions does not arise.
The judgment is correct, though the instructions in some respects are erroneous.
Affirm. | [
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Hughes, J.,
(after stating the facts.) Without setting out the evidence in detail, we deem it sufficient to say that we have carefully read and examined it, as set out in the bill of exceptions in the case, and think that the preponderance of it sustains the finding of the chancellor that the note given by Roe and Kiser to Felker, and the mortgage given by Kiser to Roe, were usurious and void; it having been shown by parol evidence that, though the note was given to bear interest at the rate of ten per cent, (which is the highest lawful conventional rate of interest in this state), yet there was, at the time *the contract for the loan was made and the note was given, a verbal agreement that Kiser and Roe should pay twenty per cent, interest per annum upon the money forborne to them by Felker, and that this agreement was understood and entered into by both Kiser and Roe. This certainly made this contract and agreement usurious and void.
Paroi evideuce admittedtoprove
This is a case where the contract and agreement . . was illegal, — prohibited by law, — and its terms rested partly in parol and partly in writing. It is objected that parol evidence could not be heard to contradict or, vary the terms of the written contract, which was for ten per cent, interest per annum only. It is a well settled and recognized general rule that parol evidence cannot be admitted to contradict or vary the terms of a written agreement. But this rule is not without exceptions. This rule assumes that the instrument has a legal existence, and is valid. Testimony to show it to b^e void is always pertinent. Illegality of an agreement may be shown, to avoid a writing purporting to evidence it. See 2 Phillips, Ev., p. 684, n. 500, and authorities there cited, and n. 495, p. 673, and cases cited; Wilhite v. Roberts, 3 Dana, 175.
“In an action on a note the defendant may show a distinct parol agreement, made at the time the note was given, to pay usury upon the demand secured by the note, and thus avoid it.” Hammond v. Hopping, 13 Wend. 510, 511; Lear v. Yarnel, 3 A. K. Marshall (Ky.), 420.
The written contract cannot have the effect, in such cases, of merging the parol contract, “for it is only in virtue of its superior obligation that a written contract has the effect of extinguishing the verbal contract upon which it is founded.” Lear v. Yarnel, 3 A. K. Marshall (Ky.), 421; Allen v. Hawks, 13 Pick. 79; Levy v. Brown, 11 Ark. 16. In Levy v. Brown, supra, this court said: “With respect to the admissibility of parol evidence to prove the contract, there can be no doubt; for it is well settled that any matter which shows that a security is void on the ground of its being usurious may be averred and proved, however contrary it may be to the terms of the security,”'(quoting from the Kentucky case). The court further said: “An agreement to pay more than legal interest for money loaned on note, such agreement being made at the time of the loan, is usurious, and renders the note void, though the note on its face be for the amount lent, with the legal interest only.” But if the parol agreement to pay the illegal interest be made after the time of the loan, it would not make the note usurious. Merrills v. Law, 9 Cow. 65.
Right of surety paying principal's usurious debt.
The next question is, did the court err in rendering a personal judgment against Kiser, and declaring a lien in favor of the plaintiff Roe upon the forty-acre tract of land described in the mortgage from Burrestetta to Nance, and ordering the same sold to satisfy the judgment? The claim of Roe to have this decree was based upon the fact that he had become the surety of Kiser on the note of Kiser to Pelker to settle the note given by Nance to Felker, and had taken a mortgage from Kiser to secure him against the payment of the note Kiser had given to Felker with Roe as security, and that he (Roe) had paid said note, and was entitled to enforce the security which Felker had held against Nance, and which had been paid off by the note of Kiser and Roe. The note given by Kiser and Roe to Felker and the mortgage by Kiser to Roe were usurious and void. There was no legal obligation upon either Kiser or Roe to pay the note they had given Felker, and the evidence does not show that Kiser requested Roe to pay the same, but tends to show that he did it voluntarily, knowing that it was usurious and void. This he had no right to do, and thus make Kiser liable to pay the note which he was not legally bound to pay. Had Kiser requested Roe to pay this note, a different question would be presented. As Roe’s right to relief against Kiser depended upon the unlawful transaction in making the usurious agreement by himself and Kiser with Felker, he was not entitled to any relief. He could have no right upon this unlawful and prohibited agreement, and he had no right that he did not seek to trace through and base upon this transaction.
In Trible v. Nichols, 53 Ark. 273, this court, through Chief Justice Cockrill, said: “The general rule is well established that one who, at the request of another, pays off an incumbrance upon the latter’s land, is entitled to be subrogated to the security; and it is also a settled rule that when a valid security is cancelled by means of a subsequent agreement and security which is void for usury, the original security is not invalidated, but equity will revive and enforce it.” But “one who seeks protection under the equitable doctrine of subrogation must come into court with clean hands. It is not applied to relieve one of the consequences of his own wrongful or illegal act. When, therefore, the claim to subrogation grows out of an agreement which is void by reason of usury, it furnishes no basis for the equitable doctrine.”
So much of the decree of the circuit court in chancery as holds the note given by Kiser to Roe void for usury is affirmed. But so much of it as declared a lien in favor of Roe upon the forty-acre tract described in the mortgage from Burrestetta to Nance, and the personal judgment against Kiser, is reversed, and the bill is dismissed for the want of equity.
Bunn, C. J., dissents. | [
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Wood, J.,
(after stating the facts.) The only question we find it necessary to discuss is presented by the cqurt’s refusing to give the following asked by the appellant: “No. 2. The jury are instructed that while it is the duty of a railroad company, to the owner of stock which may have come upon its track without negligence on the part of the owner, that the employees in charge of its trains shall keep a lookout for the purposes of discovering said stock, and, after discovery, that said employees use all proper and available means to prevent the striking of said stock, still, it is not required that both the fireman and engineer in charge of a train, both at the samé time, keep a constant lookout; and if the jury find that any of plaintiff’s stock sued for in this action were, without plaintiff’s negligence, on defendant’s railroad, and were killed by its trains, and that the engineer in charge of the train was keeping a careful lookout for stock, and that he discovered said stock as soon as the light from the headlight of the engine would permit, and that, after discovering said stock, the engineer used, all the means at his command to prevent the killing or striking said stock, then, as to such stock, your verdict should be for defendant, and it is not necessary that said stock be posted,” — to which refusal the appellant at the time excepted.
It was in proof that one of the engineers of appellant killed three mules and two horses of appellees, worth four hundred and fifty dollars, by running an engine over same. It was a level, straight track where the injury occurred. The engineer was looking ahead, and says he saw the stock as soon as the light would shine on them, so that he could see what they were. By the light from the engine, he could see a little over two hundred or two hundred and fifty feet. The animals, he supposed, were about two hundred feet in front when he saw them on the track. It was impossible to prevent striking them after he saw them. He stopped the train as soon as it was possible to do so. He did not have time, after attempting to stop, to blow the whistle or ring the bell to scare stock off the track. The headlight on the engine cast its light as far ahead as those in general use. This evidence was sufficient to entitle the appellants to the instruction asked.
Under the statute (Sand, & H. Dig., sec. 6207), it is the duty of railroads to keep a constant lookout for persons and property upon their tracks. Before the passage of this act, it was not negligence for railroads to fail to keep a lookout for persons on their tracks, and from the time of the decision in Memphis & L. R. R. Co. v. Kerr, 52 Ark. 162, in May, 1889, to the passage of the act of April 8, 1891, it was not negligence for railroads to keep a lookout for live stock upon their tracks. By that act (1891), the duty of keeping a constant lookout was enjoined as to both persons and property, upon their tracks; and a failure to perform that duty, resulting in injury to another, is negligence. The act does not designate who of the employees are to keep this constant lookout. A literal construction of it would impose that duty upon every employee on trains running in this state; for it says: “It is the duty of all persons run ning trains in this state, etc., to keep a constant lookout; * * and if any person or property shall be killed or injured by the neglect of any em-ployees of any railroad to keep such lookout,” etc. But this would be impracticable and nonsensical. We must give the statute a reasonable construction, so as to carry out the evident design of the legislature in the protection of persons and property, and the prevention of accidents which might be avoided by compliance with its provisions. A constant lookout must be kept, and it is but reasonable to suppose that it was intended that this lookout should be kept by the engineer and fireman, as they are placed in a position on the engine where only a lookout would be available and effectual to accomplish the purpose intended. If not kept by them, it would have to be by some one similarly situated. While a constant lookout is required, it certainly was not intended that both the engineer and fireman should at the same time be keeping such a lookout, unless the circumstances were such as to show that it was necessary in order to avoid striking persons or property upon the track. Where the track is straight and level, and objects could be seen as well by the one as the other, it would be useless to require both to be looking out at the same time. Such, it appears from the testimony of the witnesses set out above, was the case here. There was no curve or embankment, and no obstruction to interrupt the vision of the engineer. And it does not appear that the stock came up from the fireman’s side, but that they were on the track, and the engineer discovered them “as soon as the light shown upon them, so that he could see what they were, and he could see no object on the track further than the light shone.”
The court gave the following on behalf of the appellees: “If the jury find from the evidence that, at the time of the commission of the injuries complained of, any of the stock alleged and proved to have been killed or injured came upon defendant’s railway track upon the fireman’s side of the engine where the engineer, from his post or lookout, could not reasonably observe the same, then it is not sufficient for the defendant to show that said engineer performed his whole duty, as it was also at that time the duty of the fireman to have kept a lookout from his side; and the burden of proving that the fireman did keep such lookout is upon the defendant.” There was proof to justify this instruction, and the court properly gave it. It should also have given the second asked by appellants, supra, to meet the conditions presented by the proof, where it was not necessary to show that the fireman was also keeping a lookout. The court, in another instruction, had told the jury that the statute required a “constant lookout.” So that the second, suf>ra, could not be said to be defective because, in the first part of it, the word “constant" was omitted, and because, in the latter part, “careful” was used instead of “constant.” Taken in connection with the others, it could not have been misleading. In another respect the instruction was responsive to and necessary to cover that phase of the evidence which tended to show that the killing of these five animals, as charged in the twenty-first count of the complaint, was an unavoidable accident. The failure to give the second instruction is the only reversible error we find in the record, and that is only applicable to the three mules and two horses in the twenty-first count of the complaint. The complaint asked, and under the evidence and instructions the jury might have found, double damages. Whether they did or not, as to the twenty-first count, it is impossible for us to say. But to remove all possible prejudice to the appellant, by the refusal of the above instruction, if the appellees will, within thirty days, enter a remittitur for nine hundred dollars, the judgment will be affirmed; otherwise, it must be reversed, and remanded for new trial. | [
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Battle, J.
One bale of cotton, of the value of $34,
is the property in controversy in this action. Appellant, D. E. Watson, claims possession of it under a mortgage executed to him by R. P. Brown, and appellee, J. W. May, says that it was the product of labor performed by him in the service of Brown, and was received by him in payment of the amount due him for such labor.
No bill of exceptions was filed ; and the facts and the declarations of law, upon which a reversal is asked, are set out in the judgment of the court. The facts, as found by the court, are as follows: “(1) That the bale of cotton in controversy was the product of the labor of defendant, May, and delivered to him in payment for services as such laborer, under a verbal contract with one R. P. Brown in 1891. (2) That the plaintiff Watson had a valid mortgage on the crop of said R. P. Brown for said year 1891. (3) That plaintiff’s mortgage, duly acknowledged, was filed for record January 15, 1891, and defendant May’s contract with Brown was made in April, 1891.”
Filing contract to secure laborer's lian.
Appellant contends that his mortgage having filed for record on the 15th of January, 1891, and the contract of appellee to perform labor .having been entered into in April, 1891, his lien upon the cotton was prior and paramount to that acquired by appellee, and that he is entitled to the possession of the cotton. The accuracy of this contention depends upon the proper interpretation of the statutes regulating laborers’ liens.
Section 4766, Sand. & H. Dig., provides: “Laborers who perform work and labor for any person under a written or verbal contract, if unpaid for the same, shall have an absolute lien on the production of their labor for such work and labor.” Other statutes were subsequently enacted which are as follows : “Section 4783. Contracts for services or labor for a longer period than one year shall not entitle the parties to the benefit of this act, unless in writing signed by the parties, witnessed by two disinterested witnesses, or acknowledged before an officer authorized by law to take acknowledgments.
“Sec. 4786. Specific liens are reserved upon so much of the produce raised, and articles constructed or manufactured, by laborers during their contract as will secure all moneys, and the value of all supplies furnished them by the employers, and all wages or shares due the laborers; and if either party shall, before settlement, dispose of or appropriate the same without the consent of the other, so as to defraud him of the amount due, such party shall be deemed guilty of a misdemeanor, etc.
I/aborer’s lien prior to mortgragre.
“Sec. 4787. A copy of such contract, or the original, shall be filed in the recorder’s office of the proper county, and such filing shall be sufficient notice of the existence of such lien, and no third party shall be prejudiced by the existence of such lien, nor in any manner liable under the provisions of this act, unless a copy of the contract is filed in the recorder’s office as above provided.”
As verbal contracts cannot be filed, the last section has no reference to them, or contracts for a less period than one year, as they are not required to be in writing.
It not appearing that appellee was hired to labor, except in the production of the crop of 1891, it is apparent he was not employed for a longer period than one year. The court did not so find, and we cannot presume that he was; and it was not necessary that his contract should have been in writing.
The mortgage of appellant and the contract of appellee being valid, who had the superior lien? Upon this question the statute is silent, and no decision has been rendered by this court. But the decisions of similar questions as to liens of landlords furnish us with a guide in this case. The statutes give landlords liens upon the crops of their tenants for rent, but say nothing about the superiority of such incumbrances over prior mortgages; yet this court has held that such liens take hold of the crops as soon as they come into existence, and are superior to a mortgage on the same property executed and filed for record before that time, notwithstanding the statutes make a mortgage on a crop to be planted valid. Meyer v. Bloom, 37 Ark. 43; Buck v. Lee, 36 id. 525; Roth v. Williams, 45 id. 447. No lien can attach at an earlier moment. Being the creatures of the statute, liens created by contract must yield to them in superiority. This preference is due to the fact that the crop is the fruit of the lands of the landlord.
The lien for-rent is on the production of the land of the landlord, while the lien of the laborer is on the production of his labor. As the lien of the former seizes the product of the land as soon as it comes into existence, so does the latter seize the product of the laborer. As a prior mortgage of a crop must yield to the lien of the former on the same property, so a like mortgage for the same reason must yield under the same circumstances to the latter. The evidence , of the intention of the statute to protect the latter against older mortgages is stronger than it is in the case of the former. It inhibits the employer from disposing of or appropriating the production of labor, before settlement, so as to defraud the laborer of the amount due him, and makes it a misdemeanor for him to do so, thereby evincing an intention that the lien of the laborer on the product of his labor shall be paramount to any created by his employer.
As the bale of cotton in controversy was the product of the labor of the appellee, and was received in payment of the amount due him for his services, he is entitled to hold it.
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Battle, J.
The Fort Smith & Van Burén Bridge Company owns a bridge over and across the Arkansas river, one-half of which is in Sebastian, and the other in Crawford, county. The assessor assessed the half of it in Crawford, for the year 1895, at $150,000. The bridge company then complained to the county board of equalization of excessive valuation, and asked that the assessment be reduced to $75,000; and the board reduced it to $125,000, and refused to make any further reduction. The bridge company then appealed to the county court, and it refused any relief, and then appealed to the circuit court, and, it refusing to reduce the valuation, appealed to this court.
The evidence adduced at the trial in the circuit court proved the facts we have stated; that $240,000 or $250,000 was a fair market price for the entire bridge; and that the basis on which the board of equalization of Crawford county attempted to equalize the assessment of all real estate in that county for 1895 was 50 per cent, of its actual value; that is to say, made the assessed or taxable value of such property one-half of what it was actually worth. Appellant contends that, under the circumstances, the assessment of one-half of the bridge should have been reduced, according to its request, to $75,000.
The theory of our constitution is that the burden of the support of the government should be borne by common contributions. Taxation is the principal means provided for this purpose. To make this burden equal, all property subject to taxation is required to be taxed according to its value, “that value to be ascertained in such manner as the general assembly shall direct, making the same equal and uniform throughout the state;” and the constitution provides that “no one species of . property from which a tax may be collected shall be taxed higher than another species of property of equal value.” Constitution, art. 16, sec. 5.
To carry into effect the constitution in this, respect, the general assembly has enacted statutes making it the duty of the assessors of the counties in this state to assess all real estate “at its true market value in money” (Sand. & H. Dig., secs. 6498, 6499), and to prevent unjust discrimination, and to make the burden of taxation equal and uniform, enacted statutes which require the appointment of a board of equalization for every county in this state, whose duty it is to hear complaints of property-owners, and to equalize the valuation of all property, personal and real. In the discharge of this duty the board is required to observe the following rules:
“First. It shall raise the valuation of such tracts and lots of real property as in the opinion of the board have been returned [that is, by the assessor] below their true value to such price or sum as may be deemed to be the true value thereof, agreeably to the requirements of this chapter in regard to the valuation of real property. Said board may actually enter upon and view property when they are not fully satisfied of its true value.
“Second. It may reduce the valuation of such tracts or lots as in the opinion of the board have been returned above their true value, as compared with the average valuation of the real property of such county, having due regard to the relative situation, quality of soil, improvements and natural and artificial advantages” (Sand. & H. Dig., secs. 6526, 6530).
According to the first of these rules, it is the duty of the board to raise the valuation of all real property, which has been undervalued, to its true value ; and, according to the second, it is authorized to reduce the valuation of that which has been “returned above its true value, as compared with the average .valuation of the real property of the county." From the two it is apparent that the board has no authority to discriminate against one tract or lot of real estate in favor of all other property of the same kind in the county. All property of the same class should be valued according to the same standard, and that should be the market value. But, in the event the assessor has not done this, and the board finds that he has made exceptions to his rule of valuation, and assessed the real estate of a few higher than that of the majority of the property owners, the statute authorizes it to reduce the assessment of the few by valuing their property according to the rule by which such property of the majority was assessed. Whether the statute in this respect is constitutional, it is not necessary, at this time, to determine. One thing is clear, however ; and that is, the assessor and board have no right to make discriminations in the assessment and equalization of the valuation of property.
The real property of Crawford county, with few exceptions, was assessed, it appears, for 1895, at one-half its market value. The bridge of appellants was one of the exceptions. The board refused relief against this wrong, and its owner appealed to the county court. Was it entitled to relief? It may be said that, inasmuch as its property was not assesed above its true value, it had no right to complain. But this is not true. It had the right to demand that no unequal burden be imposed upon it by taxation. Dundee Mortgage Trust Investment Co. v. Charlton, 32 Fed. Rep. 194. The duty to contribute to the support of the state government by the payment of taxes is imposed upon all persons owning property subject to taxation. The constitution provides that this burden shall be apportioned among-them according to the value of their property, to be ascertained as directed by law. When, therefore, the property of a few is taxed according to its value, and of all others at one-half its value, then the few are required to contribute double their portion of the burden. This is manifestly a wrong, and justice demands that it be redressed, whenever it can be done conformably to the laws.
When the Nort Smith & Yan Burén Bridge Company, in the exercise of the right conferred upon it by the statute, appealed from the board, the county court, to which it appealed, thereby, acquired jurisdiction over the valuation or assessment of the bridge, and the authority to grant any relief to which the company may be entitled. Was it entitled to any?
Judge Cooley says: “Nor a merely excessive or unequal assessment, where no principle of law is violated in making it, and the complaint is of an error of judgment only, the sole remedy is an application for an abatement, either to the assessors, or to such statutory board as has been provided for hearing it. The courts, either of common law or of equity, are powerless to give relief against the erroneous judgments of assessing bodies, except as they may be specially empowered by law to do so. * * * * The grounds on which one should have an abatement are not such as arise on a consideration of his assessment, considered by itself; but they may include the assessment of others, so far as, by reason of their not being what they should be, they affect him injuriously. One may, therefore, justly claim an abatement of an assessment which, considered by itself, is not too high, if those of others are relatively and purposely made too low.” Cooley on Taxation (2d Ed.), pp. 748, 751.
But can one be entitled to an abatement of an assessment which, considered by itself, is not too"high, under any circumstances, when the constitution and statutes require all property to be assessed and taxed at its true value? In Cummings v. National Bank, 101 U. S. 153, “it appeared that the officers of Lucas county, Ohio, charged with the valuation of property for the purposes of taxation, adopted a settled rule or system by which real estate was estimated at one-third of its true value, ordinary personal property about the same, and moneyed capital at three-fifths of its true value. The state board of equalization of bank shares increased the valuation of them to their full value. Upon a bill brought by the Merchants’ National Bank of Toledo against the treasurer of the county, in which the bank was established, to enjoin him from collecting taxes assessed on the shares of the stockholders, payment of which was demanded of the bank under the law, it was held that the rule or principle of unequal valuation of the different classes of property for valuation adopted by the board of assessment was in conflict with the constitution of Ohio (art. 12, sec. 2), which declares that ‘laws shall be passed taxing by a uniform rule all moneys, credits, investments in bonds, stocks, joint-stock companies, or otherwise, and, also, all the real and personal property according to its true value in money,’ and worked manifest injustice to the owners of shares in national banks; and that the bank was, therefore, entitled to the injunction against the illegal excess, upon payment of the amount of the tax which was equal to that assessed on other property. That decision was rendered upon a disregard by the assessing officers of a rule prescribed by the constitution of the state.” Stanley v. Supervisors of Albany, 121 U. S. 551; National Bank v. Kimball, 103 U. S. 732; Cooley, Taxation (2d ed.), 784.
In Cummings v. National Bank the court did not deny relief because the plaintiff’s property was assessed at its true value, but relieved it of the unequal burden imposed upon it contrary to the constitution, by enjoining' the collection of so much of the tax as was in excess of the amount of that assessed on other property of the same value. The relief granted was equivalent to superseding, before the levy of taxes, so much of the assessment as rendered it unequal; for without the assessment the tax is void. The right to grant either relief is based on the same principle'. For the same reason that the injunction was granted in Cummings v.- National Bank, the equivalent can be granted in a proper case by a court of competent jurisdiction, the object of the two remedies being the same.
In this case the county court acquired jurisdiction, by the appeal of the bridge company, to grant relief from the illegal, erroneous, or unequal assessment of appellant’s property, but did not acquire the right or authority to make the valuation of all real property in the county, for the purposes of taxation, in all cases in which it had not been done, the true value, by raising it, or to change the valuation of any property except the bridge. The assessment of no property can be increased without notice first given to the owner by the board of equalisation. (Sand. & H. Dig., sec. 6520; Board of Equalization Cases, 49 Ark. 518). How, then, was the county court to afford relief to appellant? The only relief it could have afforded was to reduce the valuation, so as to make it conform to the standard adopted in the valuation of the other real property in the county, or the averag'e valuation of such property. Why should not this relief be granted? The valuation of property is only a constitutional means adopted for the purpose of making the burdens of government bear upon each taxpayer in proportion to the value of his property. The relief suggested accomplishes that end in this case. By granting it a constitutional right will be enforced, and by denying it will be withheld, because the means devised for its enforcement were not adopted. By pursuing the latter course the constitution will be made the means of defeating itself, by the imposition of unequal burdens. To avoid this result, the relief should be granted.
In assessing and equalizing the value of bridges, buildings, structures and improvements on lands, the assessors and boards are governed by the same rules; they being real property, as defined by the revenue laws of this state. Sand. & H. Dig., sec. 6401.
As the assessment of the real property of Crawford county for 1895 was purposely equalized at one-half of its market value, so the valuation of one-half of the bridge of appellant should have been reduced by the county court to $75,000, as the owner requested; that being fully as much as, or more than, one-half of its market value.
The judgment of the circuit court is, therefore, reversed, and the cause is remanded, with directions to reduce the valuation of the bridge, for assessment for 1895, to $75,000, and for other proceedings. | [
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Battle, J.
On the 2d day of December, 1890, J. A. Melton sold to N. M. Hensley a tract of land containing thirteen acres, and Hensley, A. L. Bromly, and J. N. Bromly executed to him their promissory note for the purchase money. The Boone County Bank after-wards purchased the note, and, in an action upon it, recovered judgment against Hensley, and caused an execution issued thereon to be levied on the land purchased from Melton. Hensley thereupon filed his schedule with the clerk, and claimed the land as his homestead, and that it was exempt from execution. The clerk sustained his claim, and issued a supersedeas. The plaintiff appealed to the circuit court, and there the appeal was treated by both parties and the court as a motion to quash the supersedeas, and the action of the clerk was sustained, and the plaintiff appealed.
On the hearing of the motion by the circuit court, it was admitted that the judgment was for the purchase money which Hensley agreed to pay for the land; that he was a married man, and a resident of the state; and that the land was his homestead. Evidence was adduced tending to prove that, in selling the land, Melton waived a lien, and accepted personal security in lieu thereof. The question is, was the land subject to the execution ?
The. constitution of this state ordains: “The homestead of any resident of this state, who is married or the head of a family, shall not be subject to the lien of any judgment or decree of any court, or to sale under execution, or other process thereon, except such as may be rendered for the purchase money, or for specific liens,” etc. (Constitution, art. 9, sec. 3.) The statutes do not enlarge or change the exemptions allowed by the constitution, but provide how they may be claimed. The constitution determines what the exemptions of a debtor, including the homestead, shall be. When he claims its benefits, he must take them subject to its éxceptions. In the exceptions there are no exemptions.
The constitution, in providing that homesteads shall not be exempt from sales for the purchase money, does not undertake to create liens, but to deny to the debtor the right to hold his homestead exempt from sales under executions issued on judgments for the purchase money which he owes for the same, and to subject it to sale in such cases. No man has a right to hold property for which he is owing his creditor in any such manner. No such dishonesty is tolerated by the constitution. Kimble v. Esworthy, 6 Ill. App. 517; Williams v. Jones, 100 Ill. 362; Bush v. Scott, 76 Ill. 524; Smith v. High, 85 N. C. 93; Fox v. Brooks, 88 N. C. 234; Hoskins v. Wall, 77 N. C. 249; Whitaker v. Elliott, 73 N. C. 186.
In this case the appellant was not seeking to enforce a lien, but to subject land to sale under an execution from which it was not exempt. The judgment of the circuit court is ' therefore erroneous, and is reversed, and the cause is remanded, with directions to quash the supersedeas. | [
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Bunn, C. J.
This suit was instituted in the Sebastian circuit court, Fort Smith district, and, having progressed to a certain point, plaintiff, Drura Brown, suffered judgment of nonsuit, and subsequently renewed the suit against the defendant company, which resulted in judgment in her favor in the sum of three hundred and seventy-five dollars, and the defendant company appealed to this court.
The plaintiff, Drura Brown, and her husband, referred to in the record as Dr. Brown, resided at Vinita, in the Indian Territory, and only a short distance from the city of Fort Smith; and on 22d December, 1892, each purchased at Fort Smith, from defendant’s agent, a round-trip ticket over its railroad and connecting lines to and from Memphis, Tennessee. This ticket was conditional to the extent that it was stipulated thereon that the holder thereof, in order to make the return part good, should identify herself or himself, as the case might be, by signing her or his name, and having the ticket stamped by the agent of the company, at a point named between the punch marks thereon made.
Plaintiff and her husband were on their return, and, by the connecting railway, reached defendant’s road at Nichols, in Green county, in the state of Missouri, without having her ticket signed as aforesaid, and stamped by an agent of the connecting road over which she had traveled on- her said return. From Nichols station, defendant’s road runs south to the Arkansas line, thence through the counties of Benton, Washington, Crawford and Sebastian in this state, and thence southerly, through the Indian Territory, to the city of Paris, in the state of Texas. Plaintiff and her husband boarded one of the coaches of defendant’s passenger train going south, at Nichols station, sometime before daylight on the 1st day of January, 1893; and, having gone a short distance (about which the evidence is conflicting), the conductor demanded, and was shown, plaintiff’s said ticket, and, observing that the same had not been signed and stamped as required, informed plaintiff that it was worthless, and, after some conversation with her, the nature of which is in dispute, informed plaintiff that she must get off at once, and immediately stopped the the train, and escorting her to the door and platform, followed by her husband, caused her to alight from the steps of the coach to the ground, in a manner which is also in dispute. At the time it was very cold and dark, and there is testimony showing that the ground was covered with snow or sleet, or both. There is testimony tending to show that the trainmen who assisted her to alight from the train did so in a rude and rough manner, jerking her down, so that she was hurt and bruised, and also that the place on which she was thus caused to alight was an embankment or “dump,” and sloped outward, and was difficult to stand upon under the circumstances. There was testimony just to the contrary of this, the plaintiff testifying the one way, and the trainmen the other, as to the place at which and the manner in which she was put off. There was evidence also pro and con as to the manner in which plaintiff was treated by the conductor from the time he examined the ticket until she was ejected from the coach, her evidence being to the effect that his manner, words, and actions toward her were rude, rough, and profane; and that on the part of defendant that they were just to the con trary. The witnesses on the part of plaintiff testified that the train had gone a mile and a half, more or less, from the depot; and those on the part of the defendant, that it had gone but a short distance from the depot, and where its lights were still in plain view. There was evidence that, by reason of the plaintiff’s exposure to the inclemency of the weather, and by reason of her having to walk a long distance from the point where she was put off to the first house near the road, there being no house observable at or near the place at which she was put off the train, she contracted a severe cold, producing pneumonia; so that she was confined to her bed for a long period after she arrived at her home, and also that she suffered much from rheumatism produced by such exposure.
when objection to w’awed?6
Admissibility -of opinion of non-expert.
The first contention we will notice is that which arose from the admission by the court of evidence to the effect that plaintiff had rheumatism sometime before she was put off the train and sometime afterwards. The testimony was not admissible, but the defendant contends that it was admitted, while the plaintiff contends that it was not admitted. The record shows that evidence to that effect was given, and that the defendant objected. The question was taken under advisement, but was never finally disposed of by the court, and seems to have been overlooked. We think defendant should have called the court’s attention to it, and asked a ruling on its motion to exclude, and, failing to do so, waived its objection. More likely still, the evidence was never considered by the jury, as it seems to have been taken under advisement in their presence.
It was also objected by defendant, that the witness ** Humphreys, who was a passenger in the coach at the time, not having shown himself to be an expert judge of the time, speed, and distance at which trains may be running, or have run, on any given occasion, when the circumstances are such that he cannot observe external objects, was incompetent to testify as to the distance the train had gone from the station to where it was stopped and the plaintiff put off. We do not think this objection is tenable. It may be true that people accustomed to travel much on trains, in the night as well as in the day time, as trainmen are accustomed to do, are better and more accurate judges of such matters than those who travel on trains only occasionally, as does the average passenger; and yet the difference is only in degree at last, and, the subject-matter being more or less of common knowledge, we cannot say that one is incompetent to testify because he is not an expert. His testimony may not be entitled to as much weight as that of the experienced man, but that is all that can be said against it, and that of course is a question for the jury.
Inability of carrier for rude expulsion of passenger.
Admissibility of proof of conductor’s bad temper.
It may and must be admitted that the unstamped ticket which plaintiff presented to the conductor in payment of her fare was, in its then shape, void, and did not authorize her to ride on the defendant’s cars; and her tender of the same in payment of her fare, instead of money, may be considered as a refusal to pay her fare; and, therefore, that the conductor, under the provisions of the Missouri statute, had a right to put her and her baggage off the car, near any depot or dwelling house; and yet, in doing so, he should have used no more force than was necessary, and, irrespective of any particular statute, should not have ejected her in a rude, insulting, or rough manner. Whether this was done in this particular instance was also a matter for the consideration of the jury, from the evidence relating thereto.
It is objected that the evidence adduced by the plaintiff to show the temper of the conductor on re-entering the coach after ejecting plaintiff should not have been admitted. We cannot see the reason in this objection. It was admissible in corroboration, however little weight there should be given to such evidence, even if ■true.
Enforcement of cause of action based on statute of another state.
The principal argument of defendant’s counsel is devoted to its contention that, since plaintiff was a resident of the Indian Territory, and since the injury was done in the state of Missouri, and since the case must be adjudicated according to the laws of the latter state, therefore it is contrary to the public policy of this state to lend the aid of her courts to settle the controversies of parties so situated, and thus the trial court was without jurisdiction. On this particular subject, we cannot better express our views than by quoting from others. In the case of the Chicago, St. Louis & New Orleans Railroad Company v. Doyle, 60 Miss. 977, Chief Justice Campbell, in delivering the opinion of the court, said: “The right of action for damages for killing a husband, given by the statute of Tennessee, may be asserted in the courts of this state, because of the coincidence of the statutes on this point, and, independently of this, because a right of action created by the statute of another state, of a transitory nature, may be enforced here, when it does not conflict with the public policy of this state to permit its enforcement; and our statute is evidence that our policy is favorable to such rights'of action, instead of being inimical to them,” — citing Dennick v. Railroad Co. 103 U. S. 11; Nashville &c. R. Co v. Sprayberry, 8 Baxter, 341; Selma &c. Ry. Co. v. Lacey, 49 Ga. 106; Leonard v. Columbia &c. Co. 84 N. Y. 48. There is but a slight difference between the provisions of the statute of the state of Missouri, shown in evidence as governing this case, and those of the statute of this state on the same subject; and that difference is as to the nature of the place at which a passenger may be put off. As was said in the Mississippi case, from which we quote above, our statute is evidence that our policy is favorable to rights of action for wrongs to persons of the nature of those charged in this case. We do not see, therefore, that any public policy of this state is contravened by the assumption of jurisdiction of this cause by the court below.
We append a list of authorities touching each phase of this question, or rather the reason of the rule from the different standpoints from which the question has been discussed. The common law rule is that, where the right of action is transitory in its nature, courts everywhere, when the defendant may be lawfully summoned to appear therein, have jurisdiction; and, when the suit is governed by statute of the state in which the injury is committed, courts of another state, having similar laws, or where it is not contrary to its public policy, will enforce such laws, by the rule of comity. .Eureka Springs R. Co. v. Timmons, 51 Ark. 459; Boyce v. Ry. Co., 63 Ia. 70; Morris v. R. I. & Pacific R. Co. 65 Ib. 727; Herrick v. M. & St. L. R. Co., 31 Minn. 11; Tex. & Pacific R. Co. v. Cox, 145 U. S. 593; Wintuska v. L. & N. R. Co., 20 S. W. 819.
In some jurisdictions, action for torts dommitted in and governed by the laws of another state are purely matters of comity; and when it appears that the courts of one state are resorted to, to adjudicate upon mere personal torts committed abroad, between persons who are all residents where the tort was committed, the courts may decline to take jurisdiction. Great Western, Railway Co. of Canada v. Miller, 19 Mich. 305.
There does not appear to have been any objection to the instructions given, or because any were refused. The evidence sustained the verdict of the jury, and, seeing no substantial erorr in the action of the court, the judgment is affirmed. | [
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Wood, J.
Appellant made the following indorsement on two promissory notes held by him, viz.: “Por value received I hereby transfer my interest in the within note to Isaac Halpern. (Sigmed) Geo. Spencer.” The maker having failed to pay at maturity upon demand, is appellant bound as indorser after due notice?
Where a negotiable instrument is indorsed in blank, or in full, the indorser contracts to pay the amount called for by the instrument if it is not paid by the principal on demand at maturity, provided notice of demand and non-payment is duly given. He also contracts that the instrument is genuine, that it is valid, that the parties are competent to make it, and that he has the title and right to transfer it. 1 Dan. Neg. Inst., sec. 669a; Tiedeman, Com. Paper, sec. 259. These rights of the indorsee and obligations of the indorser, under an indorsement in blank or in full in the common form, are not expressed, but fixed by implication, under the rules of the law merchant; and when there is such an indorsement, there is nothing for construction. But when the indorsement is in irregular form, and the contract is expressed, it may become, says Mr. Daniel, “a nice question for legal interpretation.” But we cannot agree to his interpretation that an indorsement containing an express assignment of “my interest” over one’s signature does not “exclude and negative the idea of conditional liability, which the law also imports, if such assignment were not expressed in full.” 1 Dan. Neg. Inst., sec 688c. That would be true only if the effect of the signature per se did nothing more than transfer the interest of the signer. But, as we have seen, the indorsement in blank not only transfers the title and interest of the indorser in the instrument, but it does more. It confers the absolute title upon the indorsee, and gives him rights against the maker which the payee himself might not have, and imposes upon the signer all the legal obligations of an indorser mentioned supra. Aniba v. Yeomans, 39 Mich. 171.
We fail to see the application of the maxim "Ex-prés sio eorum quae tacite insunt nihil operatur" in a case where all the implications of the law following an indorsement in blank, or in full, in the regular form, are not expressed. On the contrary, it seems clear to u^ that the payee, by expressing one only of the implications which the law attaches to an indorsement in blank or in full, in the regular way, and that one, too, not imposing any personal liability upon him, excludes every other. And the maxim “Expressio unius,” etc., does apply. Hailey v. Falconer, 32 Ala. 536.
In Michigan the indorsement was “I hereby transfer my right, title, and interest of the within note to S. A. Yeomans,” signed by the payee. The supreme court held that such an indorsement gave the transferee the same rights that the payee had, “but none other or greater.” Anida v. Yeomans, 39 Mich., supra. Mr. Tiedeman says: “The declaration that the payee assigns or transfers all his right, title and interest in the paper would seem to limit in a most effective way the rights acquired by the transferee to those which the transferrer had therein, and thus prevent the writing from operating as an indorsement.” Tiedeman, Com. Paper, sec. 265.
To avoid the necessity for construction, and the probability of misconstruction, it would always be better for the one desiring to escape the liabilities of an indorser to add the words “without recourse.” But the question here is not what the appellee should have done, but what did he actually do? Why should we not let the contract mean and have the effect that is plainly expressed by the terms “my interest" in their ordinary acceptation ?
Had the payee intended to be bound as indorser, why use so many words? Had the transferee expected more than the “interest" of the transferrer, why did he accept the instrument transfering only his “interest?” We must accept and interpret the completed contract as the parties made it. They have seen proper to express it at length,and have used unambiguous terms. Construing the terms “my interest” most strongly against the transferrer, we do not feel authorized to say they mean anything more than simply “my interest. ” They are clearly terms of limitation, when used in an indorsement on a negotiable instrument. Compare Reynolds v. Shaver, 59 Ark. 299.
Counsel for appellee cite us to cases which seem to hold the contrary, but we find in some of these the language of the indorsement is different from that under consideration, and, where similar, the cases are not satisfactory. With due respect to these,and to Mr. Daniel, we must conclude that their conclusions are illogical, and the doctrine they announce unsound.
Reversed and remanded, with directions to sustain the demurrer to appellee’s set-off.
Battle, J., absent. | [
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Riddick, J.,
(after stating the facts). The only question in this case is whether the appellant wilfully deserted her husband, as alleged in his complaint. When a wife separates from her husband, and lives apart from him with his consent, this is not a ‘‘wilful desertion,” within the meaning of the statute. Nor is it necessary that such consent be expressly given. It may be implied from the words or acts of the husband which show that he consented to the separation. Cox v. Cox, 35 Mich. 451; Beller v. Beller, 50 Mich. 49; Thompson v. Thompson, 1 Swab. & T. 514; Rose v. Rose, 50 Mich. 92; 1 Nelson, Divorce, sec. 67, and cases cited; 1 Bishop, Marriage & Divorce, secs. 1671, 1690.
In this case the appellant, Henrietta Reed, testified that she left the residence of appellee and returned to her former home because appellant advised her to do so if she was not satisfied. The appellee, Reed, in his testimony, does not state or pretend that he objected to her leaving his home. When she spoke of leaving, he did not attempt to dissuade her, but, on the contrary, told her that he had the same team that brought her to his home, and it “could take her back.” With his consent it did take her back, the appellee himself assisting her by driving her cow and calf. He afterwards visited her, remained over night at times, and occupied the same bed with her. These facts are not denied. It is true that he testified that “he and appellant had not kept up the relationship of husband and wife since she moved away,” but he does not deny that he visited her after she moved away, that at times he remained over night, and on such occasions slept with her. His denial that they kept up “the relationship of husband and wife” seems to have been based on the belief that a common home was necessary for the existence of such a relationship, and this statement is only an expression of a conclusion he formed from the fact that they lived apart. Before their marriage he was a widower and she a widow, and each of them had children. Afterwards some disagreement as to the treatment of these children probably convinced each of them that it was better to live separately, and so, with his advice and assistance, she moved away. The friendly relations existing between them were disturbed very slightly, if at all, by this separation. He afterwards assisted her at times in trading and managing her stock. She wove cloth, and made clothing for him, for which he returned provisions for her family. He did not at any time raise any objection to her living apart from him, or make any request that she .return to him. Afterwards, when she offered to 'return, he told her not to do so. The testimony of the plaintiff himself convinces us that he consented to the separation of which he now complains, and his case has no foundation to rest upon. Nelson, Divorce, sec. 67.
When desertion condoned.
Even if it be conceded that the appellant was guilty of a wilful desertion, the evidence shows that such desertion was condoned by appellee. We do not hold that a husband whose wife had wilfully deserted him would, if he afterwards visited her and assisted in supporting her, necessarily lose his right to divorce or condone such desertion. Such acts might, under some circumstances, evince regret for her absence and a desire for her return, and serve to make more clear the fault of the wife in remaining away from his home. But, if he goes further, and continues to exercise the right of matrimonial intercourse upon such visits, he will be treated as having condoned the conduct of the wife, and the continuity of her desertion will be broken. Burk v. Burk, 21 W. Va. 445; Phelan v. Phelan, 135 Ill. 445; Nelson, Divorce, sec. 81. The appellant testified that the appellee continuec] to occupy the same bed with her when he visited her up to the 8th day of November, 1893. The appellee does not deny this statement, and, as he commenced his action in less than four months from that date, he had no grounds for a divorce. 1 Nelson, Divorce, sec. 81. In refusing to allow the appellant to return to his home when she offered to do so, the appellee was himself guilty of a wilful desertion, but, as such desertion had not existed for the statutory period, the appellant was not entitled to a divorce.
We would not disturb the finding of the chancellor on a mere preponderance of the evidence, but, being fully convinced that no cause for divorce is shown by either party, the judgment is reversed, and case dismissed at costs of appellee.
Battle, J., absent. | [
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Hughes, J.
This is a bill in chancery to compel the executors of the will of Lafayette Gregg to account for profits realized by the testator upon trust funds bequeathed by William T. Wilson to his wife, his daughter (the plaintiff), and two sons; the two sons having died before the institution of this suit, and the plaintiff having, under the provisions of the will, succeeded to the interest bequeathed to them. The funds consisted originally of money, which, under the provisions of the will, Gregg (the trustee) converted into United States bonds, amounting to $18,000 principal.
Gregg was appointed executor of Wilson’s will, as well as trustee to purchase these bonds and manage his estate for the best interest of his children, who were legatees, until they should, respectively, reach the age of thirty years. Not a great while after the purchase of the bonds, Gregg procured an order of the probate court directing him to sell said bonds, which he shortly afterwards did, realizing therefor in cash $23,720. Soon after the sale of the bonds, Gregg entered into a contract with the legatees entitled to the fund under the will whereby he secured to himself the right to hold and use said funds at an agreed interest of $900 per annum for the use thereof.
The bonds were sold by Gregg at a premium of 28 cents on the dollar, and such bonds afterwards declined to 10 cents premium on the dollar. The sale was a good one, and perhaps the best that could have been made for the interest of the legatees, and we incline to the opinion that in making the sale the executor was not without the power to do so, under the discretion with which he was invested by the will, and the order of the probate court, and the consent of the cestui que trust. When the executor had made this advantageous sale of the bonds, it was his duty, acting for the best interest of the legatees, for whom he was trustee, to reinvest the funds upon good and approved security at the highest rate of interest obtainable upon that character of security. But, instead of doing this, he contracted with the cestui que trust for the privilege of using this fund himself, upon his personal obligation, without security, at less than 4 per cent, per annum interest, and, as the proof shows, invested $17,000 of it in a bank on his own account. What profit was made by the bank is not shown, but it is shown that the interest on money loaned at the time, and up to the time of this suit, was as high as 10 per cent, per annum.
After the contract was made with the legatees, they continued to receive the interest on the $23,720 into which the bonds had been converted, which interest was promptly paid by Gregg until, at the commencement of this suit, seventeen payments had been received by the plaintiff under the contract. She now says, however, that she was not advised, and did not know, what the usual interest on money was. But she was sui juris when she entered into the contract, and eleven payments of interest were received by her under it, after her marriage.
As to the payments made before she brought her suit, without objections upon her part, she cannot be heard to complain. She acquiesced in the contract made with Gregg up to the time she brought this suit. It is not shown that any positive undue influence was brought to bear upon her, and, being sui juris, she had opportunities, no doubt, to have ascertained what her rights were, and might have asserted them.
But we are of the opinion that Gregg did wrong in contracting with the cestui que trust to be allowed to hold and use the trust fund himself, at a rate of interest much below what might have been obtained for the use of the money upon safe security. It was his duty to manage and invest the funds in his hands as trustee for the interest of the cestui qu,e trust, and not to use it for his own advantage. A trustee is not allowed to speculate for his own interest upon trust funds, or to make profit out of his position as trustee. 1 Perry, Trusts, secs. 197, 427, and cases cited: secs. 430, 431, and cases; Brown v. Rickets, 4 Johns. Ch. 306. In England he is not. even allowed compensation for his services, but the rule is different in America. Hill, Trustees, *574, 576, 577; 1 Perry, Trusts, sec. 432; 2 ib. sec. 904.
As early as 1799, in the case Piety v. Stace, 4 Vesey, Jr., 620, the master of the rolls said: “The rules are now so well understood that it is a waste of time to repeat them. An executor, if he will take upon himself to act with regard to the testator’s property in any other manner than his trust requires, puts himself in this situation, that he cannot possibly be gainer by it. Any gain must be for the benefit of his cestui que trust; and if there is any loss upon the capital, as if the stocks rise ever so much, he must replace it, in order that the cestui que trust may sustain no damage from his conduct. Every farthing more than the dividends, that lay in his hands, is just so much gain to himself. Eor every shilling he got by any of these transactions, he shall pay interest at the rate of 5 per cent, for every minute it lay in his hands. As to what he lent his son, paying only the dividends of the stock, he ought to have lent it at 5 per cent. What business had he to lend it to his son upon such terms? There is a breach of trust in that respect. He must therefore pay 5 per cent, upon the whole. I suppose, he imagined he might make an advantage to himself, if he could do so without any disadvantage to the cestuis que trust, which is the notion of trustees; but he must pay for that.”
Sutherland says : “A trustee who has the custody and management of funds, and uses them in his private business, realizes interest by lending, neglects to render the fund productive when it was his duty to do so ; fails to account when called upon, or is otherwise guilty of neglect, evasion, fraud, or any wrong administration, will be charged with interest, and even compound interest, according to the culpability of his conduct.” 1 Suth. Dam. p. 622; In the Matter of Harland's Accounts, 5 Rawle, 323; Jones v. Ward, 10 Yerger, 160; 1 Perry, Trusts, sec. 464, et seq.
Pomeroy says : ‘‘The beneficiary is always entitled to claim and receive the actual profits, when they can be ascertained. If it is difficult to distinguish the fund, so as to tell the amount of profits or proceeds which the beneficiaries share, the court may not only require the trustee to restore the principal which he has appropriated, but, in the place of the profits, may compel him to pay interest compounded, with rests annual or semiannual, or even more frequent, as the extent of his bad faith may seem to demand.” 2 Pomeroy, Eq. Jur. sec. 1076, et seq.
Under the circumstances of this case, the plaintiff was not barred by laches or limitations when she brought this suit. Brinkley v. Willis, 22 Ark. 1. But we are of the opinion that there is error in the decree of the court below in refusing, in effect, to hold that, from the date of the contract of U. Gregg with the cestui que trust to the time of the filing of the complaint in this case, the plaintiff was bound by the payments made to and accepted by her under it, and cannot now be heard to complain as to the interest she voluntarily accepted upon the funds in the hands of L. Gregg as trustee paid to her according to said contract. She is estopped by her acceptance, and cannot undo what has been done. Kent v. Jackson, 14 Beav. 384; 2 Perry on Trusts, sec. 870; Hill on Trustees, (Star p. 382, and cases cited); 1 Perry on Trusts, sec. 467.
In other respects the decree of the chancellor is affirmed, and the decree will be modified so that the executors of U. Gregg shall pay to R. J. Wilson, trustee appointed by the chancery court, such amounts as may be found due the trust estate, calculating interest upon the amount that was due and unpaid at and after the filing of the bill in this cause at the rate of interest fixed by the chancellor below, which was 6 per cent, per annum.
There can be no doubt that, in appointing some other person to act as trustee, instead of I/. W. Gregg, one of the executors of the will of L. Gregg deceased, the chancellor properly exercised his discretion, as the interest of the estate of L. Gregg is not consistent with that of the estate of Wilson, and the confidence reposed in I/. Gregg by his appointment by Wilson as trustee for his children was a personal trust and confidence, which was not reposed in L. W. Gregg.
There is no error in the court’s refusal to allow the estate of L. Gregg' commissions on money he retained in his hands and used under the contract made with the legatees, as there was no disbursement of this sum; nor is there any error in the refusal of the court to credit his estate with the taxes paid by it upon the moneys in his hands, the proceeds of the bonds. Ordinarily, a trustee is allowed for taxes upon the trust property, and for all necessary disbursements incident to its management. But, under the circumstances of this case, it was within the discretion of the chancellor to allow or refuse to allow these taxes, and we do not think he abused his discretion, as he may have considered that the money was worth six per cent, interest and the taxes.
The cause is reversed and remanded, with directions to the chancery court to enter a decree below in accordance with this opinion. The parties will each pay half the costs in this court, and the appellants all the costs of the court below.
Battle, J., absent. | [
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Per Curiam.
Appellant was convicted of DWI under Act 549 of 1983. On appeal his single assignment of error is that the act violates the separation of powers doctrine under the Arkansas Constitution. That argument has been considered and rejected. Sparrow v. State, 284 Ark. 396, 683 S.W.2d 218 (1985) and Lovell v. State, 283 Ark. 425, 678 S.W.2d 318 (1984).
The judgment is affirmed. | [
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Steele Hays, Justice.
This is the third appeal of a long standing dispute between the Arkansas State Highway Commission and Mrs. Bessie W. Coffelt involving the intersection of Coffelt Road and U.S. Highway 67. The background of the litigation is stated in depth in our opinion in Coffelt v. Arkansas State Highway Commission, 285 Ark. 314, 686 S.W.2d 786 (1985).
In 1955 the D’Angelos granted an easement for a freeway and frontage road across lands they owned in north Pulaski County where Highway 67 was to be constructed. The conveyance affected all rights of abutment from either side of the freeway, reserving only the right of access to the frontage road and, hence, to the freeway at such points as might be established by the highway department. The D’Angelos later sold their lands to the Coffelts, subject to the easement, and eventually title vested to Mrs. Coffelt alone.
In 1972, Mrs. Coffelt sued the highway department to enjoin a threatened interference with what by then was known as Coffelt Road, at its juncture with Highway 67 alleging in the complaint that an overpass at the Coffelt Road crossing had been promised. As noted in our opinion mentioned above, this contention seems to have been abandoned, though had an overpass, been constructed, it would have resolved any conceivable dispute over the crossing.
In the 1972 phase of this litigation the Chancellor held that Mrs. Coffelt continued to own the fee in the lands involved and he permanently enjoined the commission from interfering with the free use of Coffelt crossing until her remaining interest was acquired by eminent domain or by purchase. That ruling was affirmed on appeal to this court in Arkansas State Highway Commission v. Coffelt, 257 Ark. 770, 520 S.W.2d 294(1975).
. The case remained in a dormant state until recently when the commission elected to condemn the outstanding interest and eliminate the crossing of Highway 67 at that point. A few days before condemnation proceedings were actually begun, “no turn” signs were erected at both sides of the freeway on Coffelt Road. Mrs. Coffelt petitioned the Chancery Court for citation for contempt of court against the commission members and director, as a result of which the respondents were held to be in contempt and fined $49 each. A later order awarded Mrs. Coffelt’s attorney a fee of $700.
The commission has petitioned for certiorari, tradi tionally the method of reviewing contempt cases. However, since this petition was filed we noted that gradually the distinctions between review of contempt proceedings by certiorari and review by appeal as in other cases have disappeared in all but name — and henceforth review in contempt would be by appeal. Frolic Footwear v. State, 284 Ark. 487, 683 S.W.2d 611 (1985).
We might easily dispose of this appeal on the basis of a lack of jurisdiction by the trial court to punish for contempt, as there was no personal service on the respondents, nor was there any waiver of that requirement. Hilltop, Inc. v. Riviere, 268 Ark. 532, 597 S.W.2d 596 (1980); Nooner v. Nooner, 278 Ark. 360, 645 S.W.2d 671 (1983). But in view of the long history of the case and because the latest, presumably the final, phase is still pending, we prefer to deal with the merit of the substantive issue.
No violation of the restraining order occurred. The highway commission simply posted signs which prohibited vehicles on Coffelt Road from turning onto the freeway, which it had every right to do. There was no attempt to interfere with the right to cross the freeway at Coffelt Road, the only right not conveyed by the D’Angelos under their 1955 easement and, thus, the only right acquired by Mrs. Coffelt. See Coffelt v. Arkansas State Highway Commission, 285 Ark. 314,686 S.W.2d 786 (1985). True, the wording of the permanent restraining order might have been clearer, as it enjoins the commission “from closing or interfering in any manner with the free use of Coffelt Road crossing or interfering with the flow of traffic on said crossing. ’’But the order must be read in context. Ferracuti v. Ferracuti, 27 Ill. App. 3d 495, 326 N.E.2d 556 (1975), Christiano v. Christiano, 131 Conn. 589, 41 A.2d 779 (1945), and in that light the order only restrained the fight of crossing. That was the only right Mrs. Coffelt had (or for that matter, the only right she even claimed to have when she filed her suit in 1972, in view of her allegation the commission had promised to build an overpass) and any scrutiny into the wording of the original easement, or the background of the case, would have rendered that fact quite clear. Coffelt v. Arkansas State Highway Commission, supra.
The orders appealed from are reversed and the petition is dismissed.
Hickman, J., not participating. | [
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Hon. Jas. P. Brown, Special Judge
(after stating the facts). No principle of the law of ejectment is better settled than that where, a plaintiff proves that his ancestor died in possession of real estate, under color of title, and claiming to be the owner, he has proceeded far enough to make out at least a prima facie case; and that the defendant in such a case, if he would overcome the prima facie showing thus made by the plaintiff, must show, either in himself or some third party, a better title or right of possession than the plaintiff himself has. This canon of ejectment law does not mean, however, that merely because a plaintiff’s ancestor may have died in possession of real estate, claiming the same under color of title, he can prevail in ejectment proceedings against a defendant who, while he could show no right of possession or title in himself, might show that some third party is the true owner of the land in suit, and entitled to its possession. While the rule everywhere is that in ejectment the plaintiff must recover, if at all, on the strength of his own title, not only as against the defendant, but the whole world; yet neither the rule itself nor its wisdom is in the least impaired by allowing the prima facie case under the circumstances above referred to. In the case at bar, the prima facie case was made out by the proof adduced by the plaintiffs at the hearing in the lower court; and the burden of proving, by the ordinary rules of evidence, that either the defendants, or some one else other than the plaintiffs, owned the land, or had a right to its possession, at once devolved on the defendants. They first tried to convince the court that W. C. Stephenson was the rightful owner, and in support of the effort they exhibited a deed, dated in 1868, from Dickson to Fitten; then a deed dated December 10, 1888, from Fitten to Burns ; and next a deed dated December 14, 1888, from Burns to Stephenson, and also a deed of the same date from one of the plaintiffs, Mary L. Cave, widow of John W. Roman (married to Cave after Roman’s death), to Stephenson. In this connection, it is proper to state that there has never been an assignment of dower in Roman’s realty to his said widow. Consequently Mrs. Cave’s conveyance of her dower interest to Stephenson conferred upon him no right that he could enforce in a court of law. Thus, with the burden of proof on them, we find the defendants tracing their title only back to the Dickson deed of 1868, and without a particle of proof as to Dickson’s title, or that either he, Fitten, or Burns ever possessed the lands for an hour, or that either of them ever paid one cent of taxes on the property in their lives. Such a showing falls far short of discharging the burden of proof imposed on the defendants. Furthermore, if Fitten had any faith at all in his title to those lands, the manifest indifference with which he regarded them, as property, during the entire twenty years of his alleged ownership, is perhaps without a parallel in the ownership of property in Arkansas ; and right here'we announce that we can find nothing at all of a substantial nature in the contention of counsel for appellants to the effect that Roman and wife at any time held the lands under Mr. Fitten, or that either of them regarded the claim of Fitten with any feeling akin to seriousness.
when such «overcome,
But, in addition to that effort of defendants to establish Stephenson’s title, and, by way of trying to show an outstanding title in some third party, the defendants allege in their answer, or one of their amendments thereto, that the various tax titles under which Roman claimed title at the time of his death were all void; but beyond exhibiting copies of certain records from the county courts of Cross and Crittenden counties (which copies certainly do not explain, within themselves, anything prejudicial to Roman’s titles), and without pointing out or in anywise explaining- to the lower court, or to this court, how or in what respect said transcripts from said county courts proved the invalidity of Roman’s titles, no proof at all was adduced to prejudice those titles, except that in their motion for a new trial, and by way of newly discovered evidence, the defendants alleged that the title to all of said lands was in the St. Francis Levee District, under the act of the legislature of 1893 donating certain lands of the state to said levee district. But, on a careful examination of the list of lands described in the land commissioner’s certificate filed by defendants in support of said alleged fact, last above referred to, we fail to find in said certificate a sing-le foot of the lands involved in this suit. Besides this, there was positive oral testimony to the effect that, at the time of his death, John W. Roman had been in the actual possession of all of the lands, claiming them adversely as his own for the several periods of limitation set out in the complaint; and it is the settled practice of this court to never disturb findings of fact on oral testimony of witnesses, unless they are so clearly erroneous as to shock one’s sense of justice.- Furthermore, we regard it as a material part of this case that the defendant Stephenson kimself recognized the Roman" title when he bought from and paid Roman’s'widow, $1,250, for her interest, as widow, in the estate; and filed in support of his right of possession of the lands, and as evidence of his title, so far as it went, the deed conveying to him said widow’s interest. Counsel for appéllants insist that, as Roman went into possession of some part of the northeast quarter of section fourteen as the tenant of his subsequent wife, he could not hold adversely as to her. As an abstract proposition of law, counsel is probably correct in this; but there is no testimony in the record that convinces us, to the extent of reversing the judgment of the lower court, that the small clearing on which the widow Cook resided when Roman married her was situated in the west half of said quarter. And this view, as just expressed', is perhaps a sufficient response to the sti-ll further contention of appellant’s counsel that Roman, being in possession, and receiving the rents and profits, could not purchase outstanding tax titles. We might, if we deemed it necessary, go still further, and say that the record' discloses no positive fact that stood in the way of Roman’s right to purchase outstanding tax titles to any of the lands in this controversy.
when error f°romsiesleei
So, taking the evidence altogether, we do not think that the defendants have discharged the burden of proving that either they or third parties have a better title or right ■of possession to the lands In suit than the administrator .and heir's of J. W. Roman have .; nor that the Roman title is not the best title. Therefore, so far as the judgment of the lower court awards to said administrator and heirs their proper interest in said land's, said judgment should be affirmed. But there isa feature of the judgment of the lower court to which this court cannot lend its assent or approval. We refer to the action of the trial court in striking out-, on motion of the plaintiffs, the deed of Mrs. Cave (Roman’s widow), by which she conveyed to the defendant Stephenson all of her interest as such widow in the Roman lands, merely because, as alleged by plaintiffs -in their motion to strike, said deed Was not filed in apt time. Mrs. Cave* one of the active plaintiffs, had sold that valuable interest of hers to Stephenson for the expressed consideration of twelve hundred and fifty dollars ; and she ought not to be permitted by the courts to thus not only disregard her solemn conveyance, but also actively join Roman’s children and administrator in their effort to deprive Stephenson of the lands which she had so recently sold to him, and accepted his money for, and placed him in possession of. Ordinarily, the discretion of a circuit judge would not be reviewed by this court in striking a deed from the files as evidence in a cause on the ground that the party relying On it had failed, without good excuse shown, to file it earlier and at a more proper stage of the proceedings. But, inasmuch as the defendant’s motion to transfer to equity had already been denied, arid inasmuch as the very substance and vitals of the litigation, só far as Mrs. Cave was concerned, were involved in that deed, it appears to us that, instead of striking the deed out of the case, the better practice would have been to have-transferred the whole cause to the equity side of- the court’s docket, on the court’s own motion, as soon as it was discovered from- the filing of that deed, not: only that the defendant Stephenson had valuable, equities in the case which could avail him only in a court of equity, but also that a refusal to transfer to equity would amount to nothing short of encouragement, in effect, to Mrs., Cave to perpetrate a gross injustice on, said defendant. If the filing of the. Cave deed had in- any way “surprised” the plaintiffs, the- court might, have granted them their own time in preparing to resist its effects ; or, if there was any ground for the motion to strike out the deed’, of a more substantial character than the objection/ to. its introduction assigned by plaintiffs,, this court’s attitude on this feature might now be different. But to sustain the lower court’s action on this point would amount to a denial of plain, simple justice to the defendant. Not only that, but the effect would be to aid and enable one of the plaintiffs i'.n this, cause to perpetrate, an, act of injustice, just such as courts are designed to prevent. The judgment of the circuit court is therefore reversed, so far as it deprives the defendant Stephenson of his rights under his purchase from Mrs. Cave.
Effectof widow dowf“ed
A widow’s-dower in the realty of her deceased husband, before it is assigned to her as the statute directs, is a mere “thing in action’'’ that cannot be the subject of a conveyance, by her to a stranger, so. as to confer on him any rights that he can enforce in a court of law. But courts of equity do not hesitate to uphold such conveyances. Scribner on Dower, vol. 2, pp. 42-47, secs. 33-38, and cases therein cited. And as the dower interest bought by .Stephenson from Mrs. Cave, might have “affected the personal judgment of the trial court against him for rents in excess of improvements made by him if his said' interest in the dower had, been enforced by that court, it is necessary for this court also to reverse the judgment for the recovery of money.
The judgment of the circuit court of Crittenden county in this cause is therefore reversed, as regards the amount of money adjudged to be paid by Stephenson to the plaintiffs, and in so far as said judgment deprives the said Stephenson of his rights under his purchase from Mrs. Cave, as widow of John W. Roman; otherwise the judgment should be affirmed, so far as it awards to the administrator and heirs of J. W. Roman the recovery of the fee of the lands involved in this controversy, subject only to said dower interest now owned by the said Stephenson ; such interest of the said Stephenson and of the said estate to be subject to the homestead rights, if any, of the minor children of the said John W. Roman; his said widow having abandoned her homestead rights in said lands, if any such homestead right existed, by her sale of her entire interest in said lands to said Stephenson ; and said homestead, if any, to be enjoyed wholly and solely by the minor children of the said John W. Roman, as the law provides, until they arrive at the ages of twenty-one years.
This cause is therefore remanded to the circuit court of Crittenden county, with directions to transfer it to the equity docket of the court, there to be proceeded with in accordance with equity practice, and not inconsistent with this opinion. And after the dower interest of the said widow of John W. Roman in said lands shall have been set apart and assigned for the benefit of the said Stephenson, as the law provides in the matter of assignment of dower, the said circuit court is hereby directed to ascertain and settle the question of improvements made on said lands by the said Stephenson, so far as he may be entitled under the law to compensation for said improvements, and also the question of rents owed by him, according-to the laws in such cases made and provided.
Perhaps the effects of this reversal might have been as thoroughly attained by affirming the judgment of the lower court in this cause in toto, and by leaving the appellant Stephenson free to pursue, if he should see fit to do so, by a separate suit in chancery, the remedy, and to seek the relief, to which we have indicated he is entitled, under the rule of estoppel and res jicdicata announced by this court in the case of Dawson v. Parham, 55 Ark. 286. But, as such course would necessitate an entirely new proceeding in chancery, thereby forcing the parties to incur additional costs that might be avoided, and as it is the policy of the law that a multiplicity of suits be avoided, and that there be an end to litigation, we have concluded, after due reflection, that the foregoing decision to reverse and remand is best for the interests of all herein concerned. | [
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Battle, J.
The statute under which the order of attachment was sued out by the appellee against the appellant provides that “ the plaintiff in a civil action may, at or after the commencement thereof, have an attachment against the property of the defendant,” when he ‘‘is about to remove, or has removed, his property, or a material part thereof, out of this state, not leaving enough therein to satisfy the plaintiff’s claim or the claims of said defendant’s creditors.” Sand. & H. Dig. sec. 325, subd. 6.
The court, sitting as a jury, found that the appellant had, at the time the order of attachment was sued out against him, removed a material part of his property out of this state, and was indebted at that time in the sum of $12,280, and had still remaining in this state property, estimating his dioses in action, which amounted, according to their face value, to $14,000, at fifty-two cents on the dollar, of the value of $13,320, his assets exceeding his liabilities in the sum of $1,040. But the court said : ‘‘ Taking into consideration the exemptions, to which the defendant [appellant] is entitled, and the necessary costs of collecting any choses in action, and uncertainty as to the amount which could be realized, it appears that the assets of the defendant, in the state of Arkansas, were insufficient to satisfy the claims of his creditors,” at the commencement of this action — and for this reason sustained the attachment.
The correctness of this conclusion depends upon the proper interpretation of these words in the statute: ‘‘not leaving enough therein to satisfy the * * claims of said defendant’s creditors.” We understand from them that the property left in the state must be sufficient, at its fair, market value, to pay the creditors. By what other standard can its sufficiency be determined ? By forced sale? Who can tell what it will bring at a public sale ? That depends upon the circumstances of the sale, which no-one can foresee. Then, in the absence of any other reasonable standard by which the sufficiency of the property left remaining can be determined, it seems its market value should be accepted as the guide. Any other interpretation would offer an inducement to creditors i to hasten to sue out the first attachment against the debtor, and thereby oppress him, and sacrifice his property, by allowing them, as it does, to be paid out of his assets in the chronological order of their attachments, when, under other circumstances, they might not disturb him, and he with proper management might pay his debts. He ought not to be required to provide for a contingency which may be created by his creditors in a race for priority. No interpretation conducive to such evil consequences ought to be placed upon the statute, if it can be well avoided.
According to the test suggested, the appellant had property in this state, at the commencement of this action, sufficient to pay his debts. Deducting $500 in personal property for his exemption, there will still be a sufficiency; the homestead occupied by him belonging to his wife, and not being included in his assets.
The judgment of the circuit court is therefore reversed, and the cause is remanded with instructions to discharge the attachment, and for other proceedings. | [
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Battle, J.
The indictment in this case is based on section 1900, Sand. & H. Dig., which reads as follows: “Any person who shall be convicted of obtaining carnal knowledge of any female by virtue of any feigned or pretended marriage, or of any false or feigned express promise of marriage, shall on conviction, be imprisoned not exceeding two years in the penitentiary, and fined in any sum not exceeding five thousand dollars,” etc.
The indictment does not allege that the defendant obtained carnal knowledge of the female therein mentioned by virtue of any feigned or pretended marriage, or any false or feigned express promise of marriage. It should have alleged that it was obtained by one of these two means. In the omission to do so it is fatally defective. 2 Whart. Cr. Daw (10th E}d.), sec. 1762.
Reversed and remanded. | [
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Battle, J.
1. A railroad company has no right to fill up a ditch made for the purpose of drainage over lands afterwards acquired by it for a right of way, when the person owning the Soil drained made said ditch over his own land, or had acquired the right of drainage thereby as an easement. It has no right to obstruct such drainage, but if it has occasion to cross the drain by an embankment or raised way, it is its duty to place a culvert or covered drain under it to carry off the water as before, and for a neglect to perform this duty is liable for the damages caused by the failure. Proprietors of Locks and Canals v. Nashua & L. R. Co., 10 Cush. 385.
2. The next material question for consideration is, in what time shall an action for the damages occasioned by such an obstruction be brought? In St. L., I. M. & S. Railway v. Biggs, 52 Ark. 240, it is said: “Whenever the nuisance is of a permanent character, and its construction and continuance are necessarily an injury, the damage is original, and may be at once fully compensated. In such case the statute of limitations begins to run upon the construction of the nuisance.” St. L., I. M. & S. Railway v. Morris, 35 Ark. 622, and Little Rock & Ft. S. Railway v. Chapman, 39 Ark. 463, are cited to sustain the rule.
In Railway v. Morris, supra, “a solid roadbed embankment was built across a wet weather stream which drained an area of several square miles.” The railway company left an open trestle at a considerable distance from the natural crossing, and endeavored, without success, to drain off the water through that. The court held that the evidence justified the jury in finding that damage had resulted from the failure to use due care and skill in constructing the roadbed, and that the action for the recovery of such damage should be brought within three years from the time the embankment was completed.
Damage for obstruction of drain.
limitation of action for obstructing-drain.
In Railway v. Chapman, suprra, the appellant “erected and maintained an embankment on its right of way, across a natural drain or swale, through which the accumulation of waters from the surrounding country, in their natural flow, had previously passed off from the land of appellee and into the Arkansas river. Appellant had, by reason of a failure to place sufficient culverts or drain pipes in said embankment and roadbed, obstructed the usual flow of water across the grounds occupied by the defendant, and had dammed up the water, and caused it to flow back and accumulate on the appellee’s land.” This court held that an action for the damages caused by the embankment should be brought within three years after its completion.
So, in this case, the obstruction of the ditch was permanent; that is, it will continue without change from any cause except human labor. The effect of it was to restore the land drained to the condition in which it was before the ditch was dug. Its present and future effect upon the land could be ascertained with reasonable certainty. The damage was original, and susceptible of immediate estimation. “No lapse of time was necessary to develop it.” It was the difference between the value of the land as it would have been with the ditch open, and the value of it with the ditch closed. St. L., I. M. & S. Railway v. Morris, 35 Ark. 622; Chicago & E. I. R. Co. v. Loeb, 118 Ill. 214.
As the law does not favor the multiplicity of suits, and all damages which will be sustained as the necessary result of the filling of the ditch in question, and are recoverable, could have been estimated at the time of such obstruction, from the effect of it upon the value of the land, only one action should be brought therefor, and that within three years after the ditch was closed up.
The rule for the measure of damages recoverable in an action at law for the destruction of crops is given in Railway Co. v. Yarborough, 56 Ark. 613. It is unnecessary to repeat it here.
Reversed and remanded, with instructions to overrule the demurrer to the second paragraph of appellant’s answer, and to grant a new trial. | [
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Hughes,
J., (after stating the facts.) At the time the appellant conveyed the land in controversy, she was an infant feme covert, and was remaining under the disability of coverture, when she commenced this suit. Was she barred by the seven-years statute of limitations or by laches?
dotaSpeSedf
when mar-
The statute of limitations in this state allows a married woman three years after she becomes discovert within which to commence her action. Hershy v. Latham, 42 Ark. 307; McKneely v. Terry, 61 Ark. 527. But “where seven years have elapsed since the right of action for land accrued, and three of these years have been free from disability, the right of entry or of action is barred.” Chandlers. Neighbors, 44 Ark. 479.
The act of April 28, 1873, which authorizes married women to sue alone, and in their own names, does not repeal by implication the saving clause in their favor in the statute of limitations. Hershy v. Latham, 42 Ark. 305; Stull v. Harris, 51 Ark. 297.
A married woman may be estopped to claim real estate. But mere silence or inertness will not suffice to work an estoppel. Sims v. Everhardt, 102 U. S. 300. “Mere submission to the injury for any time short of the period limited by statute for the enforcement of the right of action cannot take away such right, although, under the name of laches, it may afford a ground for refusing relief under some peculiar circumstances. De Bussche v. Alt, L. R. 8 Ch. Div. 286, 314. Unless in some way the party relying upon an estoppel is put at disadvantage by the action of the party sought to be estopped, it will not be available. Of course, if one stand by, without making his claim known, and see another make permanent and valuable improvements upon land, knowing that the party improving claims to own it, he will afterwards be estopped to enforce his claim, for his silence in such a case would imply consent. If the doctrine of laches could apply in an action at law, which this really was, though it was transferred to the equity docket, there is no sufficient evidence in this case to support it.
When unnecessary to return consideration.
As the purchase money paid for the land in this case was received by appellant’s husband, and expended by him while she was an infant, she was not required to offer to return it. The evidence tends to show she was not able to do so. St. L., I. M. & S. Ry. Co. v. Higgins, 44 Ark. 296; Stull v. Harris, 51 Ark. 299.
The judgment is reversed, and the cause is remanded for a new trialv | [
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EakiN, J. :
Appellant Jno. J. Jowers bled bis bill in equity against bis son, Goo. A. Jowers, for specific performance of a sale of lands ; alleging purchase, payment of the price, continued possession under the purchase, and valuable improvements. Upon this branch of the cause the proof was clear, and specific performance was properly decreed as against Geo. A. Jowers. Phelps was also made a defendant, against whom it was charged, that, whilst complainant was so in possession, without any deed of record, he had taken a mortgage upon the land from Geo. A. Jowers, in whom the legal title remained. The prayer against him was that the mortgage might be set aside,, and the property relieved.
Phelps answered, denying any notice of complainant’s, equitable claim at the time he took the mortgage, stating that complainant was present when it was executed by Geo. A.. Jowers and set up no claim that the lands appeared on the-assessossment rolls in the county in the name of Geo. A. Jowers who also appeared from the records of the Reorder’s office to be the legal owner. He makes his answer a cross-bill against complainant and his co-defendant Geo. A. Jowers, stating that the lands had been levied upon at the suit of one James A. Huff as the property of said Geo. A., and advertised to be sold upon the 7th day of April, 1873. That said Geo. A., applied to him for a loan of money to pay off the execution, offering a mortgage on the lands. He lent the money and took the mortgage, to secure a note given therefor in the sum of $300, which mortgage was duly recorded. He on his part prays foreclosure. The occupancy of J. J. Jowers at the time of the mortgage is admitted. Complainant J. J. Jowers answered the cross bill, reiterating the grounds of his equitable claim, relying on his possession at the time the mortgage was executed, and denying that it was made with his knowledge or consent, although he does not expressly deny that he was present.
The Chancellor, on this branch, found that J. J. Jowers “knew of the mortgage being contemplated, prior to its execution, but failed and neglected to assert his claim to the land and notify the said Phelps of his title;” and as against J. J. Jowers decreed a foreclosure in favor of Phelps for debt, interest and costs. Erom this portion of the decree J. J. Jowers appealed.
This court has repeatedly held that actual possession of land, with visible indications of occupancy, is notice to all the world of some right or equity claimed by the occupant, so as to put all others who deal concerning it upon inquiry ; and that a mortgage taken under such circumstances from the legal owner, should be subordinated to the rights of the occupant, whatever they may actually be, and whether shown by record or not. The question now raised is whether the complainant has been estopped by his conduct from claiming the benefit of that protection which equity extends to the bona fide occupant.
The evidence on this part is, substantially: that the occupancy of the land by J. J. Jowers, and his claim of ownership was matter of notoriety in the neighborhood. He had been ■over two years in possession, and when the mortgage was made-had a tenant upon it. . Geo. A., had refused to make him a deed in pursuance of the parol purchase. It seems to have been discovered that the legal title remained in Geo. A., and the execution in question was levied upon it as his property, to satisfy a judgment of about $150. Upon the day appointed for the sale, J. J. Jowers, Geo. A. Jowers and Phelps were all at Searcy, the county seat. J. J Jowers had made an arrangement with a neighbor to buy in the land and get a sheriff’s deed to fortify his title, inasmuch as his son refused to convey. He heard that his son intended to mortgage the laud to Phelps to raise money to pay the execution, and advised him not to do so. His sou disregarded his advice, executed the mortgage, paid the debt, and thus defeated the purposes of his father, who was waiting for the sale. J. J. Jowers was advised of his son’s intentions before the mortgage was made, and was informed soon aftrrwards that they had been carried out, but he was not present when the mortgage was executed, nor did he say or do anything to mislead Phelps, the mortgagee. • He seems simply to have declined any active interference, and Phelps on his part seems to have relied upon the fact that J. J. Jowers had no legal title ; and upon his own judgment, that the mortgage was good. There is no proof that Phelps and J. J. Jowers had any conversation on the subject from which the assent or concurrence of the latter, in the mortgage, could be reasonably inferred. In fact, the mortgagee defeated the objects which J. J. Jowers bad in view, and which were legitimate. Phelps-resided about four miles from the land.
Estoppels in pais, depend upon facts, which are rarely in any two cases precisely the same. The principle upon which' the3r are applied is clear and well defined. A party who by his acts, declarations, or admissions, or by failure to act or speak under circumstances where he should do so, either designedly, or with willful disregard of the interests of others,, induces or misleads another to conduct or dealings which he would not have entered upon but for this misleading influence,, will not be allowed, afterwards, to come in and assert his-right, to the detriment of the person so mislead. That would be a fraud. But it is difficult to define special acts or conduct which in all cases would amount to an estoppel. Generally it is said that if the owner of property, with a full knowledge of the facts, stands by, and permits it to be sold to an innocent purchaser, without asserting his claim, he will be estopped. Although this will not embrace all species of estoppel in pais,.. which may be as diverse as are the nature of human transactions, it is, so far as it goes, about as safe and correct a rule as can be formulated. The leading idea is that a person shall not do, or omit to do, anything regarding his rights, which if taken advantage of by him, would work a fraud upon another ; but, in this as in all other cases involving fraud, the exact limits and boundaries of fraudulent conduct, are left undefined, to be applied by the Chancellor to the facts before him.
There are no cases that seem to require the equitable owner of property to be active in seeking one about to take the legal title, for the purpose of advising him against it. He must see to it, at his peril, that by some mode which courts of equity recognize as sufficient, notice of his equity be given to all the world; or that such particular notice be brought home to the purchaser as should put him upon it until inquiries be made, upon which there would devolve upon him the further duty ■of full, frank and explicit explanation. Men are not required to be clamorous in asserting their rights ; nor to be active in •seeking others about to deal concerning them, in order to prevent anticipated mischief. To stand by and see a sale to •an innocent purchaser would be, however, a breach of moral ■duty, unless the owner meant to abide by it.
Upon a view of all the facts in this case the court is of opinion, that the complainant J. J. Jowers might well rest upon the notice of his equity, given to all the world by his «notorious possession, and that hearing of the intended mortgage he was not obliged to seek Phelps and warn him against taking it. The time and opportunity of forbidding the sale, .and asserting his rights iiever occurred, inasmuch as the land was not offered. He did not desire the mortgage to be made, bad no inducement to mislead Phelps, and seems never to have intended by any act of his to encourage Phelps to take the mortgage. He had no influence in the matter over his son ■George A. and as to Phelps, he acted on his own judgment, under the advice and information of others.
So much of the Chancellor’s decree as Confirms the title in the land in complainant J. J. Jowers as against Greorge A. .Jowers, by way of specific performance, with costs, must be affirmed. So much of it as declares the land subject to the mortgage of Phelps, and orders a foreclosure, with costs, against said J. J. Jowers, will be reversed; and a decree will be ■entered here dismissing the cross-bill, and quieting the title of complainant J. J. Jowers against all claim of Phelps under or by virtue of the mortgage. The costs of this court, and so much of the costs of the court below as resulted from the cross-bill, will be adjudged against the defendant Phelps. | [
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ENGLISH, C. J.:
At the March term, 1876, of the Circuit Court of Arkansas -county, James W. Collins and David Collins were jointly indicted for stealing a mare.
On the day that the indictment was returned into court by the grand jury (29th March), the presiding judge made the following endorsement upon it:
‘■‘Bail will be received in this case in the sum of $500 each.
“John A. Williams, Judge.”
On the same day a capias was issued by the clerk for the arrest of the parties accused, in the form prescribed by the ■statute (Gantt's Digest, Sec. 1808), upon which the clerk -made the following endorsement:
“The defendants may give bail in the sum of $500, and the same may be taken by the sheriff of the county in which they are taken, or by the sheriff of Arkansas county.” Signed by the clerk.
The sheriff of Arkansas county, to whom the writ was delivered, arrested the defendants on the 80th of March, 1876, and on the next day they executed a joint bail bond in the penal sum of $500, with Zach. Humphries, John H. Barker, and William Garrison as the sureties, conditioned that they would appear in the Circuit Court of Arkansas county on the first day of the following September term, etc., to answer the indictment, etc.; and the sheriff duly returned the capias and bail bond.
It seems that on the application of James W. Collins, the venue as to him was changed to the Circuit Court of Jefferson county.
At the March term, 1877, of the Arkansas Circuit Court,, David Collins failed to appear, and a forfeiture was entered upon the above bail bond, and an alias bench warrant ordered against him, and a summons issued to his sureties, upon the-forfeiture, returnable at the next term.
The alias capias was returned non est as to Collins, and the summons was served upon Zach. Humphries and John H. Barker, two of the sureties, and returned not found as to Win., Garrison.
At the return term, Humphries and Barker answered, setting-up the defenses below stated aud considered.
At a subsequent term the .case was submitted to a jury, and the prosecuting attorney read in evidence the indictmei/c, the bench warrant issued thereon, the bail bond, the entry of forfeiture and the summons, all of which were admitted against the objection of defendants. No other evidence being introduced, the jury returned a verdict in favor of the State for $250. Defendants filed a motion for a new trial, which was overruled, aud they took a bill of exceptions. Judgment was entered in accordance with the verdict, and defendants appealed.
The first point of defense made by appellants is that the Slate failed to show that the court made an order for the issuance of the bench warrant upon which their principal was: arrested, and that therefore the warrant, arrest, and bail bond; were void.
The principal was indicted for a bailable felony, and was not' in custody or under recognizance when the indictment was found. It would not have been proper, therefore, for the-court to have caused to be entered of record, and thereby made-public, an order for the clerk to issue a bench warrant for his. arrest. Gantt’s Digest, Secs. 1799, 1800.
The presiding judge endorsed upon the indictment, when it. was returned into court, the amount of bail required, and, it. must be presumed, ordered the clerk to issue the bench warrant, as required by the statute, ( Gantt’s Digest, Secs. 1806„ 1810), but a prudent judge would hardly announce such order-openly from the bench, and direct it to be entered of record,, subject to public inspection.
If the parties indicted, on being arrested, had moved to. quash the capias on the ground that no order appeared of record for it to issue, the court, of course, would have overruled the motion, and the sheriff would have put them in jail-had they failed to give bail.
The second point of defense made is that each of the parties indicted was required by the endorsement to enter into-bail in the sum of $500, and that the sheriff accepted a joint-bail bond from them in the penal sum of $500 only.
If both of them had made default, there could not have been a forfeiture and judgment for more than the penalty of the-bond. On the default of one of them only, the condition of the bond was broken, and there might have been a forfeiture- and judgment against appellants for $500, but the verdict and judgment against them were for only $250, which was an error-of which they have no cause to complain. See Gantt’s Dig.,. Sec. 1726.
Affirmed. | [
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HarrisoN, J. :
Edgar G. Hodgkin, in behalf of himself and all other taxpayers of school district No. 9, in the county of Chicot, filed his complaint in equity against Reuben M. Fry, as collector of taxes of said county, to enjoin the collection of the school tax •of said district, levied by the County Court for the year 1876.
The complaint alleged that the tax was levied by the County Coui't without a vote therefor by the electors of the district.
No annual school district meeting, it averred, was held on the third Saturday in August, 1876, and no notice forsuch a meeting was given either by the trustee or the sheriff, but that fourteen, •of about four hundred electors of the district, met together on that day at the court-house in Lake Village, and organized themselves as the annual school meeting of the district, and having chosen three judges and one clerk for that purpose, proceeded to hold an election for three directors, and proceeded to determine whether any and what tax should be levied for that year ; and they voted a tax of five mills ; a report of whiclu proceedings was filed with the county clerk ; but no return of' the result of the election was made. by the said judges to the-County Court.
The report of said proceedings, a copy of which was filed as-an exhibit with the complaint, was as follows :
‘ ‘Pursuant to call the annual school meeting of McConnell1 school district No. 9’, Chicot county, Arkansas, met at the court-house, in the town of Lake Village, Saturday, August 19th, 1876, at 2 o’clock, p. m., to order by the trustees, and was organized by electing S. H. Holland, chairman, who-explained the object of the meeting.
The trustee read his report for the past year, which, on motion was received and adopted. On motion, the meeting, proceeded to the election of three school directors ; and Aaron Walker, Phan Walker and William Miles, were chosen judges, of the election, and W. H. Logan appointed clerk, who were duly sworn ****** * * *■ * * * * And the votes being counted, the judges reported as follows: * * * * * * * Eor tax, 5 mills. 14 votes. Against. no votes.. * * * * * * * *
* * * * On motion, the school directors were instructed to have taught each school in the district a term of three months, and as much longer as they may be able.
A copy of the proceedings of this meeting was directed to be-filed with the county clerk.
On motion, the meeting adjourned.
H. W. Gkavers, Clerk. S. H. Hollare, Ck’m.”
The defendant demurred to the complaint upon the ground that it did not state facts sufficient to constitute a cause of" ■action. The court sustained the demurrer and dismissed the complaint. The plaintiff appealed.
The act “to maintain a system of free common schools,” of December 7th, 1875, is a revision of the former school law. It .retains the provisions for the annual school meeting of the district, on the third Saturday in August, in each year, but more particularly directs the mode of proceeding at such meetings, in determining the tax to be levied, and provides for the •election, at the first annual school meeting, of three directors in place of a trustee.
The former law — Section 5436, Gantt’s Digest, required the trustee to give notice of each annual, and of each special .meeting, by posting notices thereof at least fifteen days previous to such meeting, in three or more conspicuous places in the district, which duty is now required of the directors ; and the first section of the act of December 1st, 1875, requires the sheriff, by proclamation, to give twenty days notice of the time and place of holding the election for ascertaining the will of the electors as to the tax ; which provision, not being inconsistent with the act of December 7th, 1875, is not repealed by it; and the notice by the sheriff is additional to that given by the directors, or formerly by the trustee.
It is somewhat remarkable that we find no where in the present, or in the former law, any provision fixing the place of the annual meeting, or in any very clear terms, indicating whose duty it is to designate it. As, however, the trustee, formerly, and the directors now, “have charge of the school affairs and the local educational interests” of the district, it must necessarily have devolved on the former, and now on the latter.
Notice of the time and place of voting the taxes is essential to its validity. Judge Cooley says : “A popular assembly for .any legal purpose must be regularly convened in such manner as the law may have prescribed. The coming together of a majority of the people of a municipality, or even of all the people, at a time and in a manner not provided for by law, and the voting upon the levy of a tax, will have no legal force or validity whatever. In levying taxes, or in exercising any other function of government, the local community are wielding a part of the sovereign power of the State, but only with •the State’s permission, and under such conditions, instructions and regulations as the State has prescribed. One of these invariably is, that the power shall be exercised in an orderly manner, at a meeting assembled after due notice, and conducted according to legal forms, in order that there may be full ■opportunity for reflection, consultation and deliberation upon the important work tobe done.” Oooley on Taxation, 245.
The statute having fixed the time of the annual school meeting, all are bound to take notice of it. The right to hold the meeting comes from the statute, and not from the published notices, Avhich are but to remind the people that the law has provided for such a meeting ; and though omitted, the meeting-then held at the place legally appointed and in accordance with the provisions of the statute in regard thereto, is the lawful annual school meeting of the district. Ib., 246.
But it is as important and essential to its authority that it be •held at the proper place as at the proper time.
There is nothing, however, in the record before us to show that the place at which the meeting referred to in the complaint, was appointed by the trustees, whose duty, we have before said, it was to fix or designate it; and consequently it •does not appear that said meeting had the power to vote the tax.
The act of December 9, 1875, went into force at the date of its passage, but the first election for directors did not take place until at the annual school meeting on the third Saturday in August, 1876, and until then the teachers necessarily continued in office.
The first section of the act of December 1, 1876, before mentioned, is as follows :
“Be it enacted, etc., That hereafter an election shall be held in every school district in this State on the third Saturday in August in every year, for the purpose of ascertaining-the will of the qualified electors, and the rate of taxation for school purposes within such district; which election shall be held and conducted as other elections ; and the sheriff of each county shall give twenty days notice of the time and place of holding such election, by proclamation throughout the county* and the returns of such election shall be made to the county clerk of the county in which such election is held, who shall certify the result to the County Court of such county, which shall proceed to levy the tax thus voted, in the manner now-required by law.”
Among other provisions of Sec. 56 of the act of December-7, 1875, concerning the annual school meeting and its powers, are the following: “The annual district election shall be held by the school directors as judges, who shall have power to appoint two clerks; and if any of the directors should not attend, the assembled voters may choose judges in the place of those not attending, and the judges and clerks shall take the oath prescribed by the general election law. The ballot of the vote shall, in addition to the name of the persons voted for as directors, have written or printed on it the words, “for tax,” or “against tax,” and also the amount of the tax the voter desires levied. When the polls are closed the judges shall proceed to count the votes, ascertain the result and make return thereof to the County Court, showing the number of votes cast for each person voted for for school director; also the number cast for and against tax ; and the number of votes cast for each amount or rate of tax voted for. Such return, together with the ballots, shall be sealed up and delivered by one of the judges to the county clerk at least ten days before the meeting of the County Court for levying the taxes.
“In other respects the election shall be held according to the-general election law.”
It was provided by Sec. 59, that at the first annual school meeting after the passage of the act, (which was that in 1876),. three directors should be elected for one, two and three years, respectively.
So far, if at all, as the provisions of the act of December 1, 1875, are inconsistent with the provisions of the act of December 1, 1876, just read, they are repealed by the latter act.
It evidently was the intention of the Legislature, that after the passage of the act revising the whole school system, the-tax should be voted and the election conducted and the return made in the manner there provided ; although at the first election thereafter there could be no directors to serve as judges. According to the general election law, when the judges appointed by the County Court are not present when the polls, are to be opened, the electors may appoint others ; and at all subsequent elections under the act, if any of the directors do-not attend, the electors may choose other judges.
It is therefore clear to our minds, that the electors should have appointed, as they did do, the judges for that election.
But it was alledged, and the demurrer admitted it, that the-judges made no return of the election or vote to the County Court. Without such return the County Court had no authority to levy the tax. Murphy v. Harbison, 29 Ark., 132; Cairo & Fulton Railroad Co., v. Parks, 32 Ark., 131, Worthen v. Badgett, Ib., 496.
“Every essential proceeding in the course of the levy of taxes must appear,” say the "Supreme Court of Michigan, “in some written and permanent form in the records of the bodies authorized to act upon them.” Moser v. White, 29 Mich., 59; Cooley on Taxation, 247.
Had there been no change in the law as to the manner of voting the tax, and making return to the County Court, and had the assemblage of electors on the third Saturday in August been the annual school meeting of the district, the report of its proceedings filed with the county clerk would, perhaps, have authorized the levy of the tax by the County Court; but the law requiring the judges of the election to make the return, their return could alone be considered or acted upon by the court.
The decree of the court below is reversed and the cause is remanded for further proceedings. | [
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STATEMENT.
Eakin, J.:
On the 4th day of December, 1858, Frances M. Terry, her trustee, Abner Gaines, and her husband, George G. Terry, sold and conveyed to William F. Smith and Daniel W. Adams, for $20,000 in cash, and a balance secured by notes, a plantation designated as the “Yaucluse Place,” with all the stock, corn, fodder, hogs, horses, thirty average mules, farming implements, one-half the sheep, and all other property on the place.
The credit payments, for which a lien was reserved, were secured by five several notes, for $12,954.75 each, payable at one, two, three, four and five years, with interest at 6 per cent, from the 1st day of January, 1859. The lands were set forth by the usual descriptions of the government surveys.
On the 5th of December, 1860, Wm. F. Smith, executed to his own order, endorsed and delivered to J. J. Persons & Co., of New Orleans, twenty promissory notes for $5000 each, due respectively, October 9tb, 1861; October 30th, 1861; November 12th, 1861; November 20th, 1861: November 24th, 1861; December 8th, 1861; December 18th, 1861; December 31st, 1861; January 8th, 1862 ; January 30th, 1862 ; March 21st, 1862 ; March 25th, 1862 ; March 27th, 1862 ; March 30th, 1862 ; March 31st, 1862 ; April 6th, 1862 ; April 12th, 1862 ; April 17th, 1862 ; April 23d, 1862 ; April 30th, 1862 ; all to bear interest at the rate of 10 per cent, per annum, from maturity.
To secure their payment he executed to Daniel W. Adams and James H. Duncan, of New Orleans, and the survivoi’s of them, a deed of trust of the plantation then known as the “Vaucluse Plantation,” setting forth lands by the government surveys, together with other lands not included in the description of said plantation, in the original conveyance. Also 105 negro slaves, and the horses, mules, stock, cattle, and farming utensils on the place. They were authorized to sell on default, pay the notes, and reconvey the balance of the lands, property or proceeds, to the grantor. This was- duly filed for record, December 24th, 1860.
A large portion of these lands were sold for taxes of 1866, as delinquent, on the 15th of April, 1867, and bid off by Chapman & Carlton. No deed appears to have been executed to them. The lands were allowed to become delinquent again for taxes of 1867, and on the 29th day of May, 1868, they were again sold, and bid off by A. L. Gaines, a tax deed for said lands so purchased was not. executed until March 12th, 1873, when one was executed by the Clerk of the Court.
On the 19th of December, 1866, in a suit, by attachment, of Jno. Cate v. Wm. F. Smith, a part of the same property, with other lands not included in either mortgage, was attached. The lands were subsequently sold under order of court in the attachment suit, on the 20th December, 1869, and purchased by Abner L. Gaines, who obtained the Sheriff’s deed.
At the April Term, 1867, suit to foreclose the first mortgage was brought in the Chicot Circuit Court, in the name of “The Crescent City Bank,” for the use of herself and of James B. Johnson and Thomas S. Serrills, who severally held the last four notes of the first mortgage. At the December Term, 1867, the lands were condemned to be sold for the lien, and a Commissioner appointed. The sale was duly made, and the lands purchased by Abner L. Gaines, for the sum of $500, to whom the Commissioner executed a deed on the 8th day of Juno, 1868. The debt, as ascertained by the decree, upon all four of the notes, amounted to $51,819 of principal, and $27,774 96-100 of interest. In this suit said Smith, Adams, Duncan, and the members of the firm of J. J. Persons & Co., were made defendants, and order of publication made against them as non-residents.
Out of these complications arose the present suit, which was begun on the 12th day of August, 1870, and is brought by Thomas H. Hunt (under the firm name of Thomas H. Hunt & Co.), and other creditors of William F. Smith, against said Smith, Abner L. Gaines, “The Crescent City Bank,” Jas. B. Johnson, Thos. S. Serrill, Dan. W. Adams, James H. Duncan and the firm of J. J. Persons & Co.
Complainant alleges that he is the owner of two of the notes of Smith, secured by the second mortgage (due November 21st and December 28th, 1861), and that he believes all the others have been paid ; or, if not, are held by ¡parties unknown, whom he desires to make defendants, when discovered.
He charges that said Gaines and Smith, in pursuance of a fraudulent agreement, made an arrangement with the Crescent City Bank, and others holding the paper of Smith, secured by the first mortgage, ostensibly for the benefit of Gaines, but with money furnished by Smith, whereby the payment of a large sum in cash, and a further payment upon time, the mortgage notes were transferred to said Gaines. That Gaines, having co.me into possession of the four notes, brought the suit in the name of the Crescent City Bank, for her use and that of Johnson and Serrill, without the knowledge of either of them, and bought in the property, upon the sale for foreclosure.
That in further pursuance of the fraudulent design, Smith omitted to pay the taxes for 1866, and the lands were purchased in by Gaines as delinquent; and that doubting the validity of the sale, he allowed them to be again sold for the taxes of 1867, and to be again purchased by Gaines. That in each case the lands were bought for the benefit of Smith and paid for with his means. The proceedings in Cate’s attachment suit are recited and the purchase of the lands under that sale by Gaines for the sum of $1500.
Further he alleges that Gaines falsely pretends that Smith owes him money, but that in fact he is indebted to Smith in a large sum, and that these proceedings were designed to hide Smith’s property from his creditors ; that Gaines in all these proceedings was the trustee of Smith; that the decree of foreclosure of the first mortgage was fraudulent, inasmuch as the notes had been in a great part paid by money furnished by Smith, and that complainant was not a party to the first mortgage suit, and knew nothing of the fraudulent intent. He prays that all these deeds to Gaines may be cancelled ; that an account be taken of what is due on the first mortgage notes, and also of the amount due from Gaines to Smith, and a decree for that against Gaines, as well as for the rents and profits of what he made, or should have made, on the plantation, and that the residue, if more than the first mortgage notes, be paid to complainants, and that his lien'be declared on the bind and personal property, subject to any unpaid portion of the first mortgage ; and for foreclosure and sale.
A decree pro confesso was entered against Smith, Adams, Duncan and J. J. Persons & Co.
Gaines, answering, denies all fraudulent arrangement regarding the purchase from the bank, but says that with his own money he bought from the bank an interest in the mortgage note it held, to the extent of $4500 with the privilege of purchasing the remainder on the same terms. He admits that he did so at Smith’s request, as an act of friendship, but with his own money, without fraudulent intent. He denies that he came into possession of the four notes sued on, or caused the suit. He merely recommended an attorney to the bank, and had no connection with Serrill and Johnson; sajes that his purchase at the foreclosure sale was fair, legal and without fraud. He bought the land at the tax sales with his own money, and without any understanding with Smith, intending the purchase as a security for his claim, and so with regard to the purchase under attachment. He denies his indebtedness to Smith, denies all fraud and collusion, and prays that his answer be taken as a cross-bill, and his title to the property confirmed.
James B. Johnson, answering, says that he was the holder of one of the first mortgage notes, which he had placed in the hands of Hays & Adams, of New Orleans, for collection. Through these attorneys and Gaines, acting for Smith, it was agreed, that upon the payment of 25 per cent, in cash, and a credit payment to be made on the 1st of .Tune, 1867, Smith was to be released from the balance. The credit payment failed, and the mortgage notes were forwarded to Johnson Chapman, Esq., for foreclosure. Gaines never had any interest in the notes or the suit. He joins in the prayer of the bill for relief.
Serrill, answering, says he owned two of the first mortgage notes, which were forwarded to Chapman for foreclosure. G-aines had no interest in them at all nor right to sue. He ' also joins in the prayer of the bill.
The bank, answering, says it placed one of the first mortgage notes in the hands of Hayes & Adams. These attqrneys agreed with Gaines, acting for Smith, that upon a cash payment of $4500, and a future payment of a further sum amounting in all to 50 per cent., Smith was to bereleased. The cash payment was made, and on the failure of the other, which was to have been made on the 1st of January 1867, the note was forwarded to Chapman for foreclosure. Gaines never had any i’ight or title to. it. The bank joins also in the prayer of the bill.
Wm. F. Smith does not answer the original bill, but answering the cross-bill of Gaines, denies all fraudulent collusion as to the purchase of the notes. He says that he was a discharged bankrupt, and furnished the money to purchase an interest in the notes for his (Smith’s) benefit. The whole agreement was for his benefit and was not intended as a purchase, but a payment. The arrangement, if carried out, would have been with his money. Any assignment to Gaines was without his knowledge, and would have been a fraud on him. Gaines did not furnish the money, and had no right to the lands purchased. Did not know of any fraud on Gaines’ part until he found him claiming the lands as his own. He says he paid the purchase money of the lands bought at the sale under the decree, and that Gaines bought the tax titles with intent to defraud him. Ho himself furnished all the moneys expended,, and says that Gaines owes him about $4500, and denies that Gaines had been in possession of the lands for a year, or any period of time, before filing his cross-bill. He says also that the purchase under attachment was made for his benefit.
Upon these pleadings, and a mass of exhibits and depositions, the cause was submitted to the court, which decreed that the title of the lands (describing them) be confirmed to Gaines, and that he recover costs. Complainant appealed.
OPINION.
The testimony in this case is, on both sides, vague and unsatisfactory ; and between Gaines and Smith hopelessly irreconcilable. The onus of the proof of fraud lies upon the complainant and appellant, otherwise the parties must stand upon their rights as shown by their deeds, and the records of the courts.
Upon this point it is sufficient to say, that whilst the evidence indicates that the whole action of Gaines was prompted, originally, by a desire to assist Smith in keeping his property, and working through his embarrassments, there is no preponderance of evidence that he intended to do so fraudulently, or at his own expense, without retaining securities for moneys advanced; or that he ever used funds of Smith in such manner as to raise a resulting trust in any of the lands in Smith’s favor.
He was the friend of Smith and disposed to indulge him. It would have been to Smith’s advantage during the continuance of these friendly relations, that Gaines should purchase and hold the first mortgage notes, and the second mortgagees were not interested in the amount to be paid for them. It is very plain that the first mortgage notes were not worth their face value, as their amount largely exceeded the value of the lands which constituted their principal security. It was absolutely hopeless, that any of the property embraced in the first mortgage would become available for the notes secured by the second. The utmost right of the cestuis que trust under the second mortgage, was to redeem the land by paying off the first mortgage notes, a thing which they never offered to do— nor do not now — and obviously cannot, since the amount acknowledged to -be due and uupaid, admitting all credits, claimed — quadruples the value of the lands. It is a matter of indifference to them whether the lands, under the decree of sale, brought $500 or the full amount of the debt. Even if the second incumbrancers were not made parties, so as to cut off their equities of redemption, they could only redeem from the purchaser by paying the full amount of the actual balance due from Smith, when the foreclosure was made. If they were made parties, their rights, as to the lauds bound by the first lien, are entirely gone — unless there were fraud in obtaining the decree. The exhibit of the proceedings in the former suit shows that, by the bill, both the trustees in the second mortgage, and J. J. Persons & Co., the beneficiaries, were made parties defendants. If they were served, this was enough, inasmuch as it is not shown that the complainants were aware at the time that the present complainants had any interest in the notes secured, and would, perhaps, be enough to bind all the beneficiaries of the second mortgage in any case. (See Pindall et al. v. Trevor & Colgate, 30 Ark., p. 250.) The transcipt of the record shows that publication against them as non-residents in that case was duly prayed, and the decree recites that afterwards proof of publication was duly made. No contest is made as to the validity of the proof, and we may well hold that the trustees and J. J. Persons & Co., were parties to the former decree, and that it would bind all assignees of the notes — especially when it is not shown that they were known to the complainants in that suit, and had peculiar equities requiring their presence.
The question is not important in this cuse. There is no offer to redeem. The validity of the sale rests wholly on the question of fraud. The proceedings were regular and contain nothing on their face, or in connection with matters in pais, to show any fraud or mal-practice calculated to affect the material right of the present complainant. The credits were not allowed for the sums paid by Gaines to the Crescent City Bank, and, through Adams, on the note held by Johnson. It is not plain from the proof that such credits were intended to have been made. Gaines, then, was evidently endeavoring to support Smith, and to carry him through his embarrassments, but it cannot be inferred that he meant to lay out his own money for the purpose, without security for advances. The proof conduces to show that he contemplated a subrogation to the rights of the creditors, to the extent of re-imbursement— meaning to give Smith the benefit of the discount. In that view, which, to say the least, consists with the proof, there was no fraud in foreclosing for the full amount, which the subsequent incumbrancers could complain of. If there had been any fraud in the purchase from the Commissioner, at the sale, at an inadequate price, of which there is no proof, it would only affect the lights of the complainants in that suit. They were represented by attorneys and made no complaint. With regard, therefore, to all the lands sold by the Commissioner in that suit to Gaines, the decree of the Chancellor in this case, confirming his title, was correct.
It remains to consider of the rights of complainants as to lands included in the second mortgage, and not embraced in the Commissioner’s deed.
Some of these were purchased by Gaines for the taxes of 1866 and 1867. This was evidently do íe by the'joint consent and concurrence of Gaines and Smith, whilst they were in amity. It was done to strengthen title. It cannot ever have that effect with those who are taking the profits and ought to keep down the taxes. This was Smith’s case, and Gaines bought by understanding with him. It gave Gaines no other right against Smith, or the encumbrancers, than that of simple re-imbursement for cash actually paid (or scrips at currency-value), with 6 per cent, interest, upon the particular tracts soly in gout side the Commissioner’s deed. Subject to this burden,, which should be allowed Gaines out of the sales, the lands are subject to the second mortgage. It is not necessary to determine the validity of the tax sales. The taxes were due and were paid, and the lands disburdened.
The lands bought at the sale under attachment, should also-be held subject to complainant’s debt. The second mortgage-lien is superior.
The Chancellor erred in refusing the relief sought with regard to all the lands embraced in the second mortgage (or trust) deed, and notin the lien retained upon the sale to Smith and Adams. Let the decree be reversed and the cause remanded for further proceeding, consistent with this opinion. | [
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HarrisoN, J.:
This was an action by Dowdle, Gibson & Co. against John M. McGill aud A. J. McGill, upon a note purporting to have been executed by them in their partnership and firm name of J. M. McGill & Bro., for $400, dated October 20th, 1875, and payable one day after date.
A. J. McGill made no defense, and judgment was taken against him by default.
John M. McGill in his answer averred that the note, though given in the firm name, was given by A. J. McGill for his several and individual debt, without his knowledge and consent, and denied that it was his note.
The issue was tried by the court, which found as conclusions of fact, that the note was made by A. J. McGill, personally, for goods purchased in his name by John M. McGill, ostensibly as his agent, from the plaintiffs, but in fact for the use and benefit of both defendants, and in respect to which they were partners : and that it was their joint note.
John M. McGill moved for a new trial, which motion was overruled, and judgment was entered against him ; whereupon he appealed.
The appellant testified in his own behalf; that A. J. McGill, gave the note in settlement of a debt of his own to the plaintiffs for goods purchased from them whilst he was merchandising and doing business alone, and before the partnership between him and the appellant was formed. The goods he said were purchased for A. J. McGill, who was his brother, by himself, as his agent, but he was not then his partner, and had no interest whatever in his business. The note was given after they became partners, but in the absence of the appellant from home, and without his knowledge, and without any authority from him ; and when he returned and learned from A. J. McGill that he had given the firm’s note for his debt to the plaintiffs, he expressed his dissatisfaction, and told him he had done wrong.
On cross-examination he admitted that the note was presented to him shortly after it was given by the plaintiff’s attorney, and said, he may have promised to pay it, but did not remember distinctly whether he did or not; and he admitted, that after the suit was brought, he requested the attorney of the plaintiffs’ to take no further proceedings in it, until he should return from St. Louis, where he was then going; and that, he told him he would stop over at Little Rock, and would see and settle with the plaintiffs. He also admitted that he never at any time in formed the plaintiffs’ attorney that A. J. McGill did not have authority from him to give the firm’s note for the debt — or denied his liability on it.
He had before the goods were purchased, he said, filed his petition in bankruptcy, and had not then obtained his discharge, and that their partnership was not formed until after he had obtained it. That A. J. McGill, when the partnership was formed, had a small remnant of goods on hand, which with whatever other assets of his business and property he had, went into the firm. He had no knowledge, he said, of any liabilities of A. J. McGill, except the debt to the plaintiffs ; if there were any they were not assumed or paid by the firm, and he was in no way liable for them.
William D. Hawkins, the plaintiffs’ attorney testified for the plaintiffs, that about the date of the note an agent of the plaintiffs called at his office in Rocky Comfort, and showed him an account or note of A. J. McGill, and asked his opinion in regard to its collection. He told him it would be a better claim, if it was against J. M, McGill & Bro. The agent then left and went to the store of J. M. McGill & Bro., and soon after returned with the note sued on, which he left with the witness for collection, and told him that A. J. McGill had promised to pay it on the first of December. John M. McGill was then absent, but returned in a day or two, when he went to see him, and asked him if the note would befpaid on the first of December. He replied that he could not pay it then, but would by the first of March. About the first of March he called on him again for payment of the note. He asked further time, and promised to pay it as soon as he was able. He was afterwards instructed by the plaintiff to bring suit on the note, and did so.
After the suit was commenced, John M. McGill came to him and requested that nothing further should be done in it, until his return from St. Louis, and promised that he would stop over at Little Rock, where the plaintiffs did business, and would settle with them ; and he accordingly took no further step in the suit until after his return. At no time did he deny to the witness his liability on the note, or intimate anything of the kind, and he never heard of his denying it until he filed his answer, which was done shortly after his return from St. Louis.
He had lived in Rocky Comfort, where the defendants did business, several years, and was living there when A. J. Mc-Gill was carrying on business in his own name, and knows when the change in the business from A. J, McGill to J. M. McGill & Bro. took place. When A. J. McGill was conducting business in his own name, John M. McGill was usually about the store. There was no change of store or house, and the business was conducted by the same parties and, as appeared, in the same way as before, and thé change, so far as he was able to see, was in name only.
An exception was taken by the appellant to the ruling of the court compelling him, upon his cross-examination, to testify concerning the promises made by him to the plaintiffs’ attorney to pay the note, and also in allowing the plaintiffs’ witness to testify to the same facts ; and the admission of this evidence is the first ground of the motion for a new trial.
It is insisted that these were promises to pay the debt of another, and not being in writing, were within the statute of frauds, and parol evidence of them inadmissible.
The action was on the note, of which he appeared on its face to be one of the joint makers, and against him as an orig inal promissor, and not as promising to pay the debt of another.
The execution of the note was the only matter in issue, and this his promises very directly tended to prove.
The evidence was competent, and the ruling of the court in respect to its admission correct.
The second ground of the motion was that the court erred in its declarations of law. There were two, to which the appellant excepted. The first, was a statement of the evidence, and not of the facts, which it tended to prove — followed by a conclusion therefrom, which was nothing more than a conclusion of facts. As an instruction to a jury, it would have been improper, as instructing them as to the weight of the evidence, but inasmuch as the trial was by the court, which had itself to weigh the evidence, it amounted to nothing.
The second was as follows :
“If A. j. McGill and John M. McGill had a community of interest in the losses and profits of the business conducted by A. J. McGill, after the firm of A. J. McGill & Bro. was formed, the court should find for the plaintiffs ; and this fact may be arrived at from the facts and circumstances of the whole case, if they warrant such a conclusion, although the said John M. McGill may have denied it.
This declaration, we think, was unobjectionable. If the defendants had, after they became partners, a common interest in the unsettled business of the former concern or in its profits and losses, as there stated, they were between themselves partners as to that business also. Sto. Part. secs. 16-18.
The remaining ground was, that the finding of the court was contraxy to the evidence.
The testimony of the appellant was direct and positive, that the note was given for the sole debt of A. J. McGill, and as direct and positive in the denial of any authority to him to give such joint note. But, on the other hand, the evidence for the plaintiffs tended to prove that he had an interest in the goods, the purchase of which was the consideration for the note, and the authority of A. J. McGill from the appellant, in its execution.
It was the province of the court sitting as a jury, to determine the weight to be given to the evidence, and there was no want of evidence to warrant its finding.
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EakiN, J.:
This bill was filed on the 17th of April, 1876, by complainant against her alleged husband, setting up their marriage on the 6th day of the same month, and that afterwards he had treated her continuously with open insult, contempt, unmerited reproach and studied neglect. That he had publicly proclaimed her a prostitute, and used concerning her, other vile epithets, and that her condition had been rendered intolerable. Prayer for divorce, alimony and general relief. There was also a separate petition for an order to restrain the defendant from selling or disposing of his property to defeat alimony, to which petition he responded on the 20th of the same month, denying the marriage, and also his intention to dispose of his property.
Complainant followed her bill on the 9th of May, 1876, with a motion in open court for attorney’s fees, and alimony pendente lite.
On the 11th of May, defendant filed his answer and cross bill, setting up in substance that by conspiracy and threats, he had been forced to undergo the marriage ceremony, against his own free will, and praying that the marriage might be annulled.
The complainant answered the cross bill on the 12th, denying all conspiracy, force or fraud, and stating that the defendant after having seduced her under promise of marriage, had married her at the urgent request of friends, as a reparation of the evil. On the 10th of June, the court below ordered defendant to pay her $100 as attorney’s fees, and the sum of thirty dollars per month for maintenance, pendente lite.
A voluminous mass of testimony was taken, upon which the cause was heard. The chancellor found that the defendant had never of his own free will, consented to the marriage on the 6th of April; that his apparent consent had been procured by force and threats of violence to his person, such as to put him in fear of his life or great bodily harm; that he never recognized her as his wife, and that the marriage was void. It was so decreed, and the motion for alimony and attorney’s fees denied.
Complainant appealed, and an order was made in this court, on the 6th of February, for a further allowance; pending the appeal.
Without detailing the mass of testimony appearing in the transcript, this court finds upon a careful review of the same, the following substantial facts : That the complainant was a young woman of good character and social position. That defendant began paying her the usual attentions incident to courtship whilst she was quite a girl, about fifteen or sixteen years of age; that he persisted in them for a course of years so as to monopolize her society, gained her love and confidence, and under promise of marriage violated her chastity. Early in the year 1876, she became enciente from this connection. It became known to her relatives during the absence of defendant on a trip to New Orleans.
They considered her ruined and abandoned by defendant, and despaired of his return. She however clung to her confidence, and continually asserted that he intended to return, and do her the only justice which remained in his power.
Meanwhile great excitement prevailed amongst the friends of the families, most of whom seem to be Israelites. Defendant returned on the 6th of April, and went peaceably and unmolested from the steamboat to his place of business. He was there called upon by numbers of his friends, who reproached him with his conduct, and by arguments, expostulations, and by threats of a grave character urged him to an immediate marriage. He requested time to make up his mind, but was told that the matter would not admit of delay. The only direct threat emanated from the brother in law of complainant, who remarked if he did not marry complainant, he would never marry another woman. He explains the threat in his deposition to mean, that he would follow him up and disgrace him wherever he went, even if he went to Germany, and that he had been offered money for the purpose. There is some evidence also that he was told that if he did not marry the woman he would be lynched, not by parties present, but by others in the community.
During this pressure and these expostulations, defendant was much moved. He shed teai's and trembled, and seemed sorely perplexed. He was appealed to by the portraits of his parents which hung in the room to act honorably in this matter, marry the complainant, and make all things right. He was assured that they might still live happy and respected. He was very reluctant to consent, but yielding to these influences, whether from fear or from remorse, finally did so ; to the great satisfaction' of all concerned. He went with a friend to the clerk’s office to procure his own license, and several hours afterwards came with a friend to the house of complain ant’s brother in law, where she resided and where the ceremony was duly performed. He remained but a short time afterwards, and left; since that time he has refused to lire with her or even visit her, and to justify himself, announced on divers occasions and to different persons, that she was unchaste, and had been guilty of intercourse with other men. Of this he does not offer one scintilla of proof, or ground of suspicion, beyond his own declaration. The character of the lady saAre as to this matter, is established by the most conclusive testimony.
Afterwards, being put upon trial, by some association of which he was a member, for his conduct towards the lady; he announced that he had made her his Avife, and that it was no longer the business of the members to enquire into his private affairs. It seems that ho was acquitted on these grounds.
Taking the Avhole testimony, it is impossible for this court to determine the true motives that actuated the defendant in consenting to the marriage. He was certainly under no fear' of bodily harm from those around him, who were urging him to it. They offered none and allowed him to go to and fro without hindrance. He might, possibly, have been in general fear of the consequences of his act, from the natural impulses of resentment on the part of her relations, as he Avell might be; and may have failed in the courage necessary to meet the consequences. He may have feared the frowns of his people, and loss of caste and confidence, or the withdrawal of their aid. He may have been actuated by genuine emotions of remorse induced by the appeal to his parents. Certainly the influences, Avhatever they Avere, were irresistible. He consented with the greatest reluctance.
Meanwhile, the complainant took no part in any of the proceedings, nor does she seem to have been aAvare of them, although she, doubtless, kneAv ner friends were urging the marriage. She remained passive and trusting until defendant came to the house, and led her from her sick room to be married. His refusal to remain with her, caused great distress to herself and her friends, and this, with the reasons assigned, caused the filing of her bill.
It is difficult to speak with calmness and patience of the conduct of the defendant throughout this affair, towards the helpless victim of his selfish passions. In marrying her he did what he ought to have done, and we prefer, in case of doubt, to attribute his action to the better motives of remorse and a sense of justice. His highest motive would have been to save, in some degree, the character of the confiding woman whom he had ruined — to relieve the shame and anguish of her condition, to give her his name, and his child a legitimate father ; and to win back the confidence and friendship of his people.
But if his motives were lower, and he feared the' natural and probable consequences of a treachery and a crime, and married to escape them ; it would not be such duress as would avoid the marriage in the absence of any force, or direct threat of bodily harm at the time the act was done. It would be shocking to allow one to escape the probable and natural consequences of such an outrage, by a marriage, and then having obtained security, to immolate his victim by repudiation of his act. She, at least, was no party to any fraud or duress.
The Chancellor, we think, erred in his findings from the-evidence.
Had there been actual duress, it was a tort, which defendant could waive; and we find him afterwards, when under no other duress than fear of expulsion from an association, owning his marriage as a voluntary act, and claiming immunity under it.
Tbe equity of complainant for a divorce on her part, must rest upon the ground of such indignities to her person as rendered her condition intolerable.
After the decision of this court in the case of Rose v. Rose, 9 Ark., 507, we cannot hesitate to declare, that without any fault of hers, to abandon his wife on the day of marriage, with declarations indicating a fixed and unalterable determination never to live with her or treat her as a wife, and to add to this insult, the deeper injury of traducing her character, without the shadow of proof, was an indignity calculated to crush to earth any woman of ordinary sensibilities.
We think the Chancellor erred also in denying her the relief prayed in her bill, both as to divorce and alimony.
Reverse the decree, and remand the cause with instructions to dismiss the cross bill, and grant a divorce to complainant, with suitable alimony and attorney’s fees, to be ascertained by reference to a Master, or in any other mode the Chancellor may deem most fitting in accordance with equity practice. | [
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Eakin, J. :
Plaintiff (then Eliza G. Tucker) brought an action at law against Clark and others, to recover certain town lots in ' Buffalo, Marion county, showing her title by descent. The-complaint was filed in July, 1876.
Defendant made no defense at law, but filed a cross-complaint in equity, whereupon the cause was transferred to the equity docket. Some errors of practice in allowing this are-complained of, not material to notice.
The cross-bill, admitting that the title had been, in plaintiff,, as alleged, sets up a purchase of the lots by defendant from plaintiff and her, then, husband on May 2, 1870, for the sum of $395, paid to plaintiff; that she and her husband thereupon executed and delivered to him a deed of conveyance ; that he entered into possession, under the purchase, with plaintiff’s assent — has continued to hold, and with like knowledge and consent has made valuable and lasting improvements, worth $2,000. The deed under which defendant claimed was . offered as an exhibit, and asked to bo taken as a part of the answer.
Pending the suit plaintiff intermarried with Wentworth who was made a party. They excepted to the deed exhibited because it did not show that it had been executed and acknowledged by plaintiff as required by law, and asked that it might be suppressed.
The defendant filed an amended cross-complaint, setting up. the same conveyance by Tucker and plaintiff, then a married women, by which she intended to convey the property. That Tucker died about the 20th of March, 1872 ; that plaintiff' intermarried with Wentworth about the 15th of July, 1876 that during the intermediate time, while plaintiff was sole,, defendant continued in possession, making valuable improvements to the additional amount of $75, all with the knowledge and consent of plaintiff, and that whilst sole she demanded of defendant $50 as part and parcel of the purchase money for “real estate under said original contract,” and did many other acts recognizing said contract.
A demurrer was filed to the amended cross complaint, and also exceptions to the deed of conveyance set up and relied upon therein.
Both were overruled and plaintiff answered the cross-bill. She denies the execution of the deed by herself and her former husband, or any attempt on her part to execute the same, and that defendant ever paid the consideration. She admits that during her first coverture, and after defendant's possession, he put on improvements to the value of five or seven hundred dollars. Admits that he remained in possession during her widowhood, but denies that it is, or was, with her consent, or that he Inis made valuable improvements since her first husband’s death. She admits that she may have signed the paper, but denies that she did so intelligently ; denies that the $50 she demanded was for purchase money, but was due her on other accounts ; and denies, finally, that during her widowhood she acquiesced in defendant’s possession of the property, but saj^s that she had long been a resident of Ala bama, where she remained until her first husband’s death, when she came to Arkansas to look after her property, and commenced proceedings against defendant in a reasonable time.
The deed exhibited in the cros.s complaint and relied upon by defendant, was signed by Tucker and his wife (plaintiff), and'acknowledged before a Justice of the Peace in Alabama. The form of his certificate expresses only, that she “ of her own free will signed and sealed the relinquishment of dower in the foregoing deed, for the purpose therein contained and set forth.”
The evidence, taken most strongly for defendant on all conflicting points, showed that Mrs. Tuckei’ — coming to Arkansas after her first husband’s death — began making enquiries concerning her property : that she lived a short time near the lots in question, then held by defendant, and at onetime demanded of him money as part of the purchase price, which he refused to pay ; that she acknowledged her signature to the bond was genuine, after she had claimed title to the lots, and made no objection to some slight repairs the defendant was making, amounting to about $75.
The Chancellor deemed the lots to be the property of defendant Clark, and confirmed his title; from which plaintiff appealed.
The exceptions taken to the deed set up and relied upon in the cross-bill and made an exhibit thereto, was in accordance with the new practice in land suits, prescribed by the act of March 5th, 1875.
In the year 1870 a married woman could not convey any interest in real property in any other mode than that prescribed by statute, nor, except in the case of separate property, make any contract whatever with regard thereto, either express or implied, which would in any way affect her title or give equities :against it.
The statute has been always construed with the utmost rigor, ■and those who deal with married women have been held, at their peril, to see to it that every requisite of the statute is observed. The power of conveyance is in derogation of the common law, and, construed with all rigor, too often leads to the •spoliation of a class, subject to all manner of subtile and indefinable influences upon the part of husbands, which are none the less irresistible because they may often elude the scrutiny •of the courts.
Her deed, if not in accordance with the statute, is not, like ■an infant’s, voidable. It is absolutely void and a nullity. McDaniel v. Grace et als., 15 Ark., 465; Elliot et als. v. Pearce, 20 Ark., 508; Stidham and wife v. Matthews et als., 29 Ark., 650; Wood and wife v. Terry et al., 30 Ark., 385.
In this last case it was also held that no estoppel can attach from her conduct, nor can she be bound by any executory contract not duly acknowledged.
The deed was, in this case, acknowledged before a Justice of the Peace in another State. There was no law authorizing that. The deed could not be used jin evidence to show title, or an executory contract; nor could it derive any validity from subsequent confirmation, in any manner, which would not, of itself, without the deed, give an equity to defendant. The exceptions to it should have been sustained.
After the death of complainant’s first husband, there is nothing to show such new contract and part performance as would entitle defendant to a deed.
The trifling repairs, amounting to $75, taking his own estimate, made upon property he was already occupying and holding adversely, would not be sufficient part performance to create such an equity. But it is not necessary to consider that. Ho did not take possession and improve under or by virtue of, or in pursuance of, any such new and independent parol contract.
The decree should have been for plaintiff, upon her complaint at law, and possession should have been awarded her with costs, and the cross bill in equity should have been, dismissed.
Let the decree be reversed, and a judgment be entered here-for the possession of the property and all costs, in favor of plaintiff Eliza Gr. Wentworth and her husband. | [
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ENGLISH, C. J.:
Joseph Merrill sued James M. Portis, in the Circuit Court of Jefferson county, on the following note :
“ $475.79. On or before the 28th day of November next, value received, I promise to pay to the order of J. Merrill four hundred and seventy-five 79-100 dollars, with five per cent interest per month from due until paid. Witness my hand and seal, this 28th day of June, 1874.
J. M. Portis.
The defendant filed the following answer to the complaint :■
“ Comes the defendant and files this, his equitable answer to the complaint herein, and says : That he admits that he executed the note as set out in the complaint, but he says that said note was executed under the circumstances and for the consideration following — that is to say: On the 28th day of' June, 1874, the plaintiff held against the defendant a certain promissory note given by defendant to one James S. Evans, dated the — day of -, 187-, for the sum of $500, bearing 10 per cent interest per annum, and which interest was af-terwards increased to 2 1-2 per cent per month, which note had been indorsed by said Evans to the plaintiff herein, before said 28th day of June, 1874, and on which note was due, at the dato last aforesaid, the sum of $422.93, as accumulated interest, and by way of payment of such accumulated interest, and in order to compound the same, the plaintiff agreed with the defendant, to accept the defendant’s note for such accumulated interest,, payable at the end of five months, to wit: on the 28th day of November, 1874, with the understanding and agreement that interest at the rate of 2 1-2 per cent, per month should be calculated on said sum of $422.93, accumulated interest as aforesaid, and that the said interest, so calculated, should be inserted in said note as principal, and in pursuance of such agreement, interest at the rate of 2 1-2 per cent, per month was calculated on said sum of $422.93 from the said 28th day of June, the date of said note, until said 28th day of November, 1874,. the date of the maturity of said note, such interest, so calculated, amounting to the sum of $52.86 ; and the defendant thereupon, for the consideration aforesaid, and for no other or different consideration, executed to plaintiff the note in suit, and as a penalty to secure the payment of said sum of $422.93, and the said sum of $52.86 interest, so included in said note as aforesaid, it was stipulated in said note that the said note, should bear interest, after maturity, at the rate of five per cent, per month. This defendant is willing to pay, and here tenders to pay the said sum of $475.79, with six per cent, interest, thereon from the maturity of said note, and all costs of this suit; and defendant makes this equitable answer a counterclaim against the plaintiff, and asks to be relieved from the-payment of said penalty stipulated in said note at five per cent., interest per month, as unconscionable and contrary to equity,, and for other relief.”
The court sustained a demurrer to the answer, and defendant saying nothing further in bar of plaintiff’s demand, judgment was rendered against him for $475.79 debt, and $285.75- damages, being interest on the note from maturity to date of judgment (December 18, 1876), and the judgment was made to bear six per cent, interest. •
Defendant appealed.
The answer of appellant to the complaint is not in the nature of a plea of want of or failure of consideration of the note sued on, for it shows neither. Nor can it be sustained as a plea of usury, for at the date of the note the Constitution of 1868 was in force, which allowed the parties to contract for any rate of interest they pleased, and the plea of usury was not allowed.
The note, on its face, is plainly a contract for interest at five per cent, per month from its maturity, and the appellant could not set up a cotemporaneous verbal agreement that it was to be a penalty, and thereby vary the plain terms of the written contract.'
It was a hard bai'gain, and the creditor may have been over-exacting, but appellant must abide by the face of his written contract, as we held in Miller v. Kempner, 32 Ark., 573. We can not make new contracts for parties, or alter their plain meaning by construction.
If it be said that the five per cent, interest, after maturity, stipulated for in the face of the note, must be treated as a penalty intended to stimulate the maker to pay the note promptly at maturity, how could it have any such effect if the law be that he can only be required to pay the legal rate of interest after maturity as damages for breach of the contract? On the contrary, if the maker is legally obliged to pay the rate of interest stipulated form the face of the contract, he would be stimulated to pay the note at maturity, and stop the running of such interest.
A sane man has no claim upon a court of law or equity to relieve him from a hard bargain, when it is voluntarily entered into, and no fraud is practiced upon him. We have heretofore examined this subject fully, and we are not disposed to retrace our steps or reverse our conclusions.
Affirmed.
DISSENTING OPINION.
Eaiíin, J.:
This is a case of direct application, by cross-bill, to a court of equity for relief against a penalty. The note in suit was ■given for accumulated interest on a debt at the rate of 2 1-2 per cent, a mouth, calculated up to the maturity, and included in the sum total, and with interest upon the whole, after maturity, at the rate of five per cent, per month. There was no law, at that time, forbidding such a contract, and a court of law would have no option but to enforce it, nor should a court of equity refuse to do so at the suit of the creditor, unless the -equitable defense should be properly made, and in apt time. Under the Constitution of 1868, parties might lawfully agree upon any amount or rate per cent, of interest, unless so exorbitant or oppressive as to give rise to the presumption of oppression, or undue influence, or fraud. Equity then interposes upon grounds independent of statute or constitutional provisions as to the permissible rate per cent, in fair transactions. It is, moreover, the settled policy of courts of equity to relieve against penalties invoked upon themselves by parties to a contract ; and further, to discourage, and except in peculiar cases, refuse to enforce executory contracts for compounding interest in future. These principles are all based on the broad ground of duty on the part of the chancery courts to protect needy persons from such improvident contracts as should not be exacted of them by others whose situation naturally gives them .an undue influence.
Within a few years all usury laws in England have been repealed, and the state of the law in this respect is now, there, as it was here under our Constitution of 1868. The courts of' chancery here have nevertheless held that they were not prevented from setting aside extravagant and improvident bargains, with regard to interest (see cases cited in 2d edition of Bisp-ham’s Eq. Ju., sec. 222) ; nor has the right to contract for interest any bearing on the question of penalties.
What is a penalty, and what a contract for the use or forbearance of money, depends upon intention, to be deduced, from the terms of the contract and the circumstances of the-case. In this case the cross-complaint alleges that the agreement to pay five per cent, per month on the whole accumulated interest at 2 1-2 per cent, a month was, in truth, a penalty, and' so intended. Indeed it would seem so in the light of the present Constitution, which has since fixed ten per cent, per annum' as the highest permissible rate. It certainly was, in any view,, a contract in futuro for compounding interest.
I think, in all cases, agreements for increased interest after-maturity, or for exorbitant interest then to commence, especially when there is no reciprocal obligation on the part of the creditor to allow the debtor the use of the money at the' increased rate for a definite time, are penalties in their very nature and essence, at least prima facie. Thejr bear indubitable marks of intention to secure prompt payment to avoid, worse consequences. The debtor never calculates upon really paying them. He is too apt to be sanguine with regard to his resources and the chances of business, hopes to pay at maturity, and often is not in the mental condition to make cool calculations. He improviden'tly puts himself into a situation where disappointment as to his means is attended with the most shocking annoyances. This is more apt to occur where there-is no legal restriction upon conventional interest, and courts of equity, in such cases, should rather increase their vigilance than renounce their powers.
I think, in this case, the offer to pay the full amount of the ■note, with legal interest after maturity, was quite enough, and relief should have been granted. I think these views may be reconciled with the decisions in Badgett v. Jordan, 32 Ark., 154, and Miller v. Kempner, Ib., 573. The first was strictly :a case at law, in which it was contended that a judgment for the excessive interest was erroneous. Courts of law have, of course, no power to administer equitable relief. The last was a case in equity by Kempner to foreclose a mortgage given to ■secure, a note made to bear interest at the rate of ten per cent, per annum until maturity, and two per cent, per month after-wards till paid. After due service a decree was rendered upon default to appear and answer. Afterwards he moved to set the decree aside, which was refused. This court sustains the •action of the court below upon the ground that the motion was .addressed to the sound discretion of the court, and there was nothing to show that the court abused its discretion.
With these views I cannot assent to the opinion of the majority. | [
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HarrisoN, J.:
R. L. O’Shields, administrator of Isaac O’Shields, deceased, applied to the court below for a writ of certiorari to the Probate Court, to bring up the record and proceedings in the matter of allowance of two .claims against the .decedant’s estate, in favor of John J. Horner.
The petition stated that W. E. and C. L. Moore, on the 1st day of June, 1867, in the Phillips Circuit Court, recovered judgment against said Isaac O’Shields for $503.04 and 10 per cent, interest thereon, from that date until paid ; and Charles L. Moore and Robert C. Moore, also, the same day, in said court, recovered judgment against him for $202.95, and 10 per cent, interest thereon from said date until paid; and that they afterwards assigned and transferred the judgments to said Hornor.
That on the 5th day of January, 1876, Hornor exhibited certified transcripts of the judgments to P. O. Thweat, who was the petitioner’s attorney, and Thweat, at his request, made the following endorsement on them :
“Examined and not allowed. Notice and copy waived.
R. L. O’Shields, Adm’r,
per Thweat, Att’y.”
And at the January Term, 1876, he presented the judgment so endorsed to the Probate Court for allowance against the decedant’s estate, and that the Probate Court, allowed the claims and ordered that they be paid as claims of the third class. That Thweat, though the petitioner’s attorney in other matters, had no authority from him to make the indorsement upon the claims, or to waive notice of their presentation; that the claims had never been exhibited to himself, and he had had no knowledge of the allowance of the claims, until the time in whichhe might have appealed therefrom, had elapsed ; that there had been no revival of the liens of the judgments, and that the exhibition of the claims to Thweat was not within one year from the date of the letters of administration.
Hornor filed an answer to the petition. He admitted all its. statements, except those denying that the claims had ever been exhibited to .the petitioner himself, that Thweat had authority to make the indorsement on the claims, or to waive notice of their presentation, as to which he declared that the claims were duly exhibited to the petitioner himself, and that he waived the copy and notice of the presentation, and that the endorsement was made by Thweat at his request.
The record says, that Hornor waived the issuing of the writ, and that the record of the Probate Court was brought in, and it was agreed by the parties that the answer of Hornor should be considered as a return to the writ, and that the cause was heard upon the petition, answer, transcript from the Probate Court, and the testimony of witnesses.
The court affirmed the allowances of the claims, but quashed the classification of them.
No copy of the orders and proceedings of the Probate Court appears to have been made an exhibit with the petition, as properly should have been done, and no such record, if the same was really before the court below, is in the transcript before us.
The court in the case of McKay et al. v. Jones et al., 80 Ark., 148, says : “The greatest extent to which we have gone in sustaining the jurisdiction of the Circuit Court in cases of certiorari, has been to permit the parties, by consent, to waive the necessity of a writ, and try the case upon the transcript filed.”
The better practice, however, is for a transcript of the record to be exhibited with the petition, and that the writ be issued and regularly returned.
A record imports absolute verity, an attribute, the'agreement of the parties could not impart to Hornor’s answer, and in certiorari to inferior courts, the record alone is the subject of consideration, and so far as it extends conclusive.
As therefore the orders and proceedings of the Probate Court were not before the Circuit Court, it acquired no jurisdiction over the subject matter of the controversy.
The judgment of the court below must therefore be reversed, aud the cause remanded to it, with instructions to grant leave to the appellee, if so advised, to amend his application by filing as an exhibit to his petition a certified transcript of the orders and proceedings of the Probate Court; and for further proceedings according to law. | [
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HaerisoN, J.:
This was a suit in equity, which the appellee brought by the name of Rebecca McRae against W. B. Beavers, to enforce a lien on a tract of land for the payment of a note given in the purchase of it.
The complaint alleged, in substance, that the plaintiff, on the 15th day of October, 1873, bargained and sold to the defendant the land in question, part of the price of which he paid in cash, and executed to her his note for $250, the remainder, with ten per cent interest from date, payable on the 1st ■day of November, 1874; and she executed to him a bond to make him a title upon the payment of the note, and gave him possession of the land.
That after the note became due, she offered, if he would pay it, to make him a deed to the land, and had tendered one to him, but that, with the exception of $130, paid on the 18th of January, 1876, the note remained unpaid. And that he was, and had been ever since his purchase, in possession of the land.
It also stated that sinee the tender of the deed, she had assigned and delivered the note to H. B. Strange, as collateral ■security for a debt which Eliza Smith owed him, who still held it; and besides the prayer for the foreclosure and sale, asked that the decree stand as a security for the debt instead of the note.
She filed the note and a copy of the bond for title, as exhibits, with her complaint; but no assignment of the note to ■Strange appears.
The answer of the defendant admitted the purchase of the land, the giving of the note for a part of the purchase money, the execution to him of the bond for title, and' his entry into* and continued possession of the land under his purchase ; but denied that the plaintiff had ever tendered him a sufficient deed, and averred that the plaintiff',, when she sold, had not, nor had she since had, any title to the land, the same having-before then been sold for taxes, and the title was then in-Eogers and J. E. England, who had a tax deed for the same ;■ and she never had had an absolute title to more than an undivided fourth part — whatever title she had having been conveyed to her by a deed from Archibald A. McKay for her own use, and as trustee for Helen McKae, Elizabeth McKae and Koger W. McRae, minor heirs of Daniel McKae, dated November —, 1866. Denied that plaintiff had assigned the note to Strange, or that he or she had any interest in it, the same being, it said, the property of Eliza Smith, to whom the plaintiff had given it. Admitted that there was still a balance due on the note, but claimed a further credit of $8.76 for taxes of 1873, paid by him at plaintiff’s request.
The plaintiff, it averred, a few days after the sale to the defendant, inter-mai*ried with George P. Baucum, who was still living; and that her name was Rebecca Baucum, and not Rebecca McRae.
A copy of the deed from Archibald K. McKay to the plaintiff, referred to in the answer, was filed with it as an exhibit.
The plaintiff, by an amendment to her complaint, brought, into court and tendered to the defendant a deed for the land containing covenants of warranty of title and quiet enjoyment, from George F. Baucum, Rebecca Baucum, John S. Gibson, Helen Gibson, Roger W. McRae, J. Floyd Smith, and Eliza Smith, the persons, as stated in said amendment, named in the defendant’s answer as grantees and beneficiaries in the deed from Archibald K. McKay, or having an interest in it. No answer was made to the amendment.
The court, upon the hearing, found the remainder due upon the note to be $200, and rendered a decree for the same, and also for a foreclosure and sale.
It also found that the note was, as stated in the complaint, pledged to said Strange as security for a debt Eliza Smith owed him, and of which $100 was still due ; and it ordered that the decree stand as security for said debt in lieu of the note.
The decree was entered in the name of Rebecca Baucum, without any amendment of the pleadings.
The defendant appealed.
There was, upon the hearing, no controversy as to the aveiment in the answer that the plaintiff, after the sale of the land, inter-married with George E. Baucum; that fact was conceded; but the mistake in her name did not affect the pleadings or the merits of the action. Such defect can now be reached only by motion to correct the mistake, or such correction may be made by the court on its own motion, as was very properly done in this case. Newm. Plead, and Prac., 287.
The note was the separate property of the plaintiff, upon which she could sue alone, or without joining her husband •with, her in the action. Gantt’s Digest, Secs. 4193, 4194.
It was stated in the complaint that the plaintiff had assigned the note to Strange as a collateral security, yet it is apparent from the fact that there is no assignment upon the note, and also from the general tenor of the evidence — the witnesses saying only that it was deposited with him — that nothing more was meant by that averment than that she had simply deposited it with him as such security.
The note being an exhibit, became a part of the record ; and an exhibit, when it is the foundation of the action, as in this case, will explain, or even control, an averment in the pleadings. Newm. Plead. and Prac., 252.
The propert}' in the note being in the plaintiff, the action was properly brought in her name, and though Strange had a beneficial interest, and might have been made a party, he was not a necessary one, and the defendant not having demurred to the complaint because he was not joined in the action, the objection was waived.
Indeed, the note seems to have been in the hands of the plaintiff, as she filed it as an exhibit with the complaint, having been delivered back to her most likely for the purpose of the suit.
It was not averred in the complaint, nor is it so stated in the deed, that George F. Baucum is the husband of Rebecca Bau-cum ; John S. Gibson, of Helen Gibson, and J. Floyd Smith,, of Eliza Smith, nor what were their respective interests ; but it does so appear by the certificates of acknowledgment of the deed ; and moreover, as no answer was made to the amendment of the complaint, in which the grantors were averred to be the sole owners of the land, it was admitted that they were such, and if properly executed, the deed would have been sufficient.
But it appears from the certificate of Mrs. Baucum’s-acknowledgment, that she acknowledged to have signed a relinquishment of dower, although, there was no such relinquishment in the deed, and there was no acknowledgment of the execution of the deed by her. Title being in her, she should have acknowledged its execution as a grantor. ■
The deed, therefore, was not such as the defendant could be required to accept.
There was no proof that the land had been sold for taxes.
The court, it appears, allowed the defendant the additional-credit claimed by him, but computed the interest for the whole time- at ten per cent when the note bore that rate only until maturity, and after that but six per cent.
The decree must be reversed, and the cause will be remanded’ with direction to the court below that should the plaintiff bring into court a proper and sufficient deed to the defendant for the land, to enter a decree in her favor for the true amount due upon the note and as heretofore rendered. | [
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EakiN, J.:
Rowan sued Abbott at law, for breach of covenants in two deeds, conveying certain lands to the former, with the usual covenants of seizin, freedom from incumbrances, and warranty of title.
The complaint freely indulges in all the latitude given by the code. It does not set forth the covenants either in the same words, or substantially, but simply alleges the purchase, and that the lauds were conveyed to him “by deed of warranty” and makes the deeds part of the complaint. The consideration is set forth, and the breach alleged is this, that the lands were at the time, the property of the United States, being unimproved, and in the actual possession of neither party; that they were afterwards taken up by valid homestead entries of other parties under the laws of Congress. There were other charges of false and fraudulent representations as to title, inducing the purchase. The complainant claimed his purchase money with interest.
Defendant moved the court to compel complainant to make the complaint more definite and certain, because :
1st. It did not show whether plaintiff relied on the covenants or the false representations :
2d. It did not show».disseizin of complainant, as to when, by whom, and in what manner it was done, whether by judgment of a legal court, or by compromise or collusion, and
3d It did not show with sufficient certainty, facts and circumstances to give cause of action.
Whereupon, as the record shows, the complainant declared in open court that he elected to “stand on the covenant of warranty in said deed,” and dismiss all claim on the false representations and deceit. This was taken down by the clerk and thereupon the defendant’s motion to make the complaint more certain and definite was dismissed.
Complainant then filed an amended complaint expressive of his intention ; and without setting out the covenants says, that “he relies entirely upon the warranty in the deeds made part of the original complaint and that he does not intend for this suit to be in the nature of an action on the case, but in the nature of covenant, and only asks that he may have judgment against defendant for the amount of money be paid” and interest.
Being thus advised, by reference to the old familiar forms of Action, of what the plaintiff meant, and being directed to ■sources of further information, to-wit: the deeds filed, the defendant might have ascertained, as he doubtless did, that in the deeds, which are alike, he had used the statutory words of •covenant “grant, bargain, sell and convey,” and had specially •covenanted that he was lawfully seized of the lands in fee simple ; that they were free of incumbrances, and that he had bound himself to warrant and defend the title against the lawful claims of all persons whatsoever. There might have been some uncertainty in his mind pei'haps as to which of the warranties the plaintiff relied upon, but he answered and thereby waived all further objections.
These proceedings are strongly suggestive of the primitive ■days, when all altercations before the court, between suitors and defendants, were ore terms, and taken down in the third person by the clerk. They made an issue, however, with tolerable precision, deriving their certainty chiefly from the reference to the old common forms of action — now abolished. The Civil Code (see Sec. 4599 Gantt’s Digest) requires a pleader to make a bond, bill, note, or other writing which is evidence of indebtedness, and the foundation of the action “a part of the complaint” by filing it. In such cases, upon demurrer, the court may consider the paper filed as part of the record. It has been considered loose practice, however, to plead in this way, and upon the motion to make more definite, the court should have ruled the plaintiff to set forth in the body of the complaint, in a clear succinct manner, everything necessary to make his cause of action complete. The failure to do so was not error, however, and, if it were, it is cured by the answer. It is in the power, and is the duty of the courts, to educe from the code and settle by practice, new forms of pleading in accordance with its genuine spirit. But this falls; within their discretion.
An important distinction is to be noted in passing. (Ib.,. 4600.) When the action is not founded upon the instrument, as evidence of indebtedness, but when the instrument is merely relied upon, it must still be filed; but the plaintiff has. no right, by reference, to make it a part of the pleading, and it cannot be noticed on demurrer any further than to explain allegations — not to supply them, nor should it be noticed, on demurrer, to contradict them even, since, in such cases, the instruments are essentially evidence and no part of the pleading. In the first class of cases the filing and making them a part of the pleading, places them in the position they would! have had at common law if heard to be read in response to a. prayer of oyer. In the latter class they are simply required to be filed for information to the court and suitors in advance*
In this case the written covenants are the foundation of the action to recover money, and might, at common law, have been the subject of oyer. The allegation is that plaintiff purchased by warranty deed. The court could understand that, there were some covenants in the deed to warrant and defend the title, and the deeds themselves, made part of the pleadings,, might supply more definite information. Orderly pleading,, and the dispatch of business will, in general, however, be promoted by requiring the complainant, upon motion for rule, to insert in the body of his complaint, as at common law, all that, is necessary to show his cause of action, and not drive a defendant to search voluminous documents or obtain explanations of record, before he can be well advised of what he must answer. Thus only by wise and prudent co-operation on the part of the Circuit Courts with the spirit and purpose of the new procedure, can the experiment be fairly tried of remodel ing the formal modes of arriving at issues of law and fact, and crystalizing into the practice new forms embracing only matters of substance, and better adapted to modern convenience, "but insisting upon that much. This effort is due from the judiciary to the legislative department, and if, after all, it may be found best to return to the old forms of action, divested of excrescences and absurdities, the Legislature may be trusted "to perform the work. Until that is done, this court will not interfere with the discretion of the Circuit Courts within the latitude which the Code allows, especially where the defendant has answered and gone to trial on the merits.
The answer admits the execution of the deeds, but denies "that the consideration was paid in full, or that the lands then belonged to the United States. By way of further defense, 'defendant says that he was duly declared a bankrupt on the 13th day of October, 1868, and discharged on the 23d of •July, 1869.
It appears that the deeds were executed respectively on the 51st of August, 1861, and 7th of March, 1863.
The plaintiff filed a reply, which not being authorized by the Code, should have been stricken from the files.
The cause was submitted to the court, sitting as a jury, which found for the plaintiff, and rendered judgment for the -sum of $1,474.36. There was a motion for a new trial overruled: bill of exceptions, and appeal granted.
The evidence showed that at the time of the execution of the ■deeds, the title to the property was in the United States, and that neither party had ever taken or attempted to take possession. At the time of the suit a part had been entered by a third party under the laws of the United States, as a homestead, and was in his possession. Pending the suit the balance had been entered and occupied by still another party.
The covenants for seizin and against incumbrances, (if the latter was broken at all) were broken at the time of the conveyance, and damages might have been proven in bankruptcy. The remedy on them was clearly barred.
With regard to the covenant to warrant and defend the title, it was personal between covenantor and covenantee. It might, have run with the land if any land, or interest in land or seizin of land, had passed by the deed upon which it could attach. There being none, no lawful possession could have been taken, and as held by this court in Hendricks v. Kezee et als., there was nothing to defend; and there could be really no eviction. Where anything passes to the vendee, there must be eviction or its equivalent, before an action can ai-ise on a covenant of warranty. Where no title passes, nor possession is taken of lands held by a stranger, there have been two lines of decisions totally at variance and antagonistic to each other, with regard to the rights of a covenantee under a covenant of warranty.
In some it is held that as there never was possession, nor could not be without trespass (which the law would neither require nor sanction), there could never be eviction, or its equivalent, and that no cause of action could arise on the warranty at all; but that a purchaser must protect himself by taking covenants of seizin and right to convey, and against in-cumbrances, or be helpless, except perhaps, by action for money paid without consideration.
In other cases it has been held that the scope of a warranty of title is more extensive than a mere obligation to defend against eviction, or make compensation in damages. That it implies that there is such a title existing as the deed pretends, to convey, so far, at least, as to absolve the covenantee from the necessity of first entering and tüen yielding to title paramount, which latter course would be equivalent to eviction, and that an action would lie at once. The matter is very ably discussed, and the authorities upon both sides collected in a recent case before the Commission of Appeals of New York (65 N. Y. Rep., 499, Shuttuck v. Lamb.) In this case a dissenting opinion was delivered by Commissioner Dwight in support of the first view above mentioned. It was an action upon covenants for quiet enjoyment, and to warrant and defend the title, which covenants are essentially the same. (See Raule on Covenants for Title, p. 215, and cases in note.) The court held that if the covenantee is kept out by superior title, it is equivalent to an eviction, and gives effect to the covenant.
These two lines lead to different poles, totally at variance. In the first view there is no cause of action at all upon the covenants. In the second a cause of action arose at once, without any evietion, and in the latter case the time of discovery of the paramount title is not important.
In the case of lands held by the United States, it may be remarked that the reason of the general rule requiring eviction before suit on warranty does not apply. Ordinarily, if one be not evicted by title paramount, his possession will ripen into a title, and until eviction, non constat that he will lose it. But in the case of government lands, there can never be such adverse possession as will give title. Which ever line of decisions may be the better founded, either will apply more strongly to the case of lands held by the United States than to that of lands held by title paramount in the hands of a third party.
Without further discussion of a point which does not require a decision in this case, it suffices to say that in either view of the effect of the warranty, this action could not be maintained upon that.
If the former line of decisions be correct, there never was any cause of action on the warranty. If the latter be better founded, the cause of action arose at the time of the execution of the deeds, and like the covenant for seizin, is barred. The same reasoning applies to the statutory covenants embraced in the words “grant, bargain and sell.”
It is unnecessary to notice divers other grounds of error alleged to have been committed. They all depend upon the principles above discussed, and stand or fall accordingly.
The court, for the reasons above indicated, erred in finding for the complainant, and rendering judgment in his favor.
Reverse the judgment, and remand the cause for a new trial, and other proceedings consistent with law and this opinion. | [
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ENGLISH, C. J. :
On November 15, 1875, Thomas J. Eogers filed before a Justice of the Peace of Gray township, White county, the following note, executed to him by W. H. Cooper :
“$235.50. Searcy, Ark., January 23, 1875.
On or before the 15th day of October next, I promise to pay Thomas J. Eogers, or order, two hundred and thirty-five and 50-100 dollars, for rent for the Thomas Eogers place, on Little Eed river, for the year 1875.
W. H. Cooper.”
Eogers also made the following affidavit before the Justice :
“ The plaintiff, Thomas J. Eogers, states that the claim in this action against the defendant, W. H. Cooper, is for money due upon a promissory note executed by the defendant to the plaintiff for the rent of his farm on Little Eed river, for the year 1875, and for corn furnished the defendant by the plaintiff > and a judgment against the defendant before a Justice of the Peace, and that it is a just claim, and that he ought, as he believes, to recover thereon $235.50, and that said debt is justly due and remains wholly unpaid, and that unless attachment, issues there is reason to believe, and he does believe, that said debt will be lost or greatly delayed.”
Rogers also filed, the following bond : “ We undertake that the plaintiff, Thomas J. Rogers, shall pay to the defendant, W. H. Cooper, all damages, not to exceed five hundred dollars, which the said defendant may sustain by reason of this attachment, if the order therefor is wrongfully obtained.” Signed by Thomas J. Rogers and R. J. Rogers.
Whereupon the Justice issued a writ of attachment, directed to any Constable, etc., commanding him “to attach and safely keep all the crop of corn, cotton and other produce raised by the defendant, W. H. Cooper, on the farm of plaintiff, Thomas J. Rogers, situate on Little Red river, in township seven, etc., in the year 1875, or so much thereof as will satisfy the claim of plaintiff, etc., for $235.50, and $20 for costs, etc., and to summon the defendant,” etc.
The writ was made .returnable before the Justice on November 27, 1875.
The officer to whom the writ was delivered returned upon it that he had executed the attachment by attaching three bales of lint cotton, marked, etc., as the property of W. H. Cooper. That said cotton was found in the hands of J. W. Arnold, who executed bond and retained possession thereof, etc.
On the return day the cause was continued to December 20, 1875, on which day Arnold interpleaded for the cotton, and a demurrer was sustained to his iuterplea. The defendant, Cooper, moved to dissolve the attachment for want of a sufficient affidavit; whereupon the Justice permitted the plaintiff to amend the affidavit by inserting after the word “ unpaid ” the following: * ‘ and defendant had removed a part of the property from the premises without paying said rent.”
Cooper then filed an answer, in substance, as follows :
He denies that he is indebted to plaintiff in the sum of $235..50, and that the same is wholly unpaid. Admits that on January 23, 1875, he executed a promissory note to plaintiff for that sum, for the rent of his farm on Little Red river, and for corn furnished defendant, and a judgment in a Justice’s court in favor of Deener & Bro. against defendant, which plaintiff had purchased of them. That the sum of $150 embraced in said note was for the rent of said place, $37.50 for corn furnished defendant by the plaintiff, and the balance was for said judgment. But that under the contract for.rent of the farm plaintiff agreed to pay defendant for all work he might do for him, and for all improvements done by him on the place, which should come out of the rent. That, pursuant to said contract, defendant had done work for plaintiff on said place to the value of $151.25, for which an itemized account was filed, and which defendant' claimed as an offset, etc. He admits that he removed a part of the crop from said place without the consent of the plaintiff, but he states that he had a perfect right to do so, as he had more than paid him for said rent.
On the filing of this answer, by agreement of parties and order of the Justice, defendant’s set-off was referred to arbitrators, the award to be returned on February 3, 1876.
The arbitrators returned their award, allowing defendant $92.72 for labor and improvements, to be deducted from the rent note in suit, which sum was credited on the note.
Plaintiff then demurred to defendant’s answer, and the J ustice sustained the demurrer, and defendant failing to answer further, judgment was rendered against him and Arnold and R. S. Pitts, his surety in the bond for the attached cotton, for $145, plaintiff’s debt for rent, and upon failure of Arnold and Pitts to deliver the. attached cotton in satisfaction of the judgment, execution to be issued against them.
Cooper appealed to the Circuit Court.
In the Circuit Court the defendant filed a motion to quash and dismiss the attachment in the cause on the following grounds:
1. Because no affidavit was filed before the writ issued, as the law requires.
2. The affidavit shows that the indebtedness sued for was for corn furnished defendant by plaintiff, for a judgment against him, etc., and for rent, a character of indebtendess for which a specific attachment could not issue.
3. The writ does not correspond with the affidavit.
4. No bond was filed as required by law.
5. The court has no jurisdiction in this case.
The motion was argued, and submitted and sustained by the court, but before judgment was entered, “plaintiff moved the court to be allowed to amend his said affidavit and the grounds of attachment therein named,” which motion the court overruled, and rendered judgment discharging the attachment.
A personal judgment was then rendered against defendant for $145, as balance due upon the note sued on, and for costs.
Plaintiff excepted to the ruling of the court sustaining defendant’s motion to dismiss and discharge the attachment, and in overruling plaintiff’s motion to amend the affidavit for attachment, and obtained the allowance of an appeal by the Clerk of this court.
I. By statute a landlord has a lien upon the crop grown upon the demised premises in any one year for rent that accrues for that year, and the lien continues for six months after the rent becomes due. Gantt’s Dig., sec. 4098.
A landlord who has a lien on the crop for rent may bring suit before a Justice of the Peace, or in the Circuit Court, as the case may be, and have a writ of attachment for the recovery of the same, whether the rent be due or not, in the following cases. Ib., 4101.
First — When the tenant is about to remove the crop from the premises without paying the rent.
Second — When he has removed it, or any portion thereof, without the consent of the landlord.
Before such writ of attachment can issue, the landlord, his. agent or attorney, must make and file an affidavit of one of the above facts, that the amount claimed, which must' be therein stated, is or will be due for rent, etc., stating the time when the same became or will be due, and that he has a lien on such crop for such rent, etc. 26., 4102.
In this case the note sued on was due when the suit was commenced,'and on its face the whole sum promised tobe paid pui’ported to be for the rent of the plaintiffs farm for the year 1875.
But the plaintiff, in his affidavit for an attachment, stated, that the note was executed for the rent of his farm for the year 1875, and for coni furnished the defendant, and for a. judgment against him, but the affidavit does not state how much of the note was for rent.
The plaintiff had no lien on the defendant’s crop, under the above statute, for the price of the corn nor the amount of the judgment. So much of the note only as was for rent was a lien upon the crop, and the affidavit should have stated the amount.
Nor did the original affidavit state either of the grounds for attachment prescribed by the statute. It did not state that defendant was “about to remove the crop from tlie premises without paying the rent,” or that he had removed the crop, or a portion thereof from the premises, without the consent of the plaintiff.
When the defendant moved to dissolve the attachment before the justice for want of a sufficient affidavit, the plaintiff was permitted to amend the affidavit by inserting a clause as above stated, which did not help it much.
The affidavit, as amended, reads thus: “That said debt: ‘ ($285.50 the full amount of the note)’ is justly due and remains wholly unpaid, and defendant had removed a part of thz property from the promises without paying said rent,” etc.
If the justice wrote this amendment, he could not have had the statute before him. It was an attempt, perhaps, to cover the second ground for attachment prescribed by the statute. The amendment states “ that the defendant had removed a part of the property from the premises without paying said note,”. when it should have stated that the defendant had removed a portion of the crop from the premises without the consent of the plaintiff.
No attempt was made to amend the affidavit before the justice by stating what portion of the note was for rent.
With the affidavit thus defective, the cause went into the Circuit Court on appeal from the judgment of the justice. Should the Circuit Court have permitted the plaintiff to amend, the affidavit ?
The statute giving landlords the right to attach for rent, cited above, was enacted December 28, 1860, and contains no provision for amending an affidavit upon which such attachment is issued.
But the general statute of attachments passed, afterwards, contains this proviso :
“ The affidavit or ground of attachment may be amended so. as to embrace any grounds of attachment'that may exist up to and until the final judgment upon the same. If the amendment embrace grounds existing at the time of the commencement of said proceeding, and is sustained upon such grounds, the lien created by the suing out or levying of the original attachment shall be good,” etc. Gantt’s Digest, chap. 11, see, 394.
And section 459, same chapter, provides that: “The pro •visions of this chapter may be applied, so far as shall be proper, to regulate the proceedings in cases of attachments against specific property.”
And by section 4617: “Whenever any proceeding taken by a party fails to conform in any respect to the requirement ■of the law, the court may permit an amendment of such jproceedings, so as to make it conformable thereto.”
There can be no good reason why attaching creditors generally should be permitted to amend their faulty affidavits in furtherance of the substantial administration of justice, and -the same privilege be denied to landlords attaching their delinquent tenants.
It is objected by counsel for appellee that the record fails to show what amendment the appellant proposed to make to his affidavit. To this it may be replied, that it is manifest that the court denied to him the privilege of amending his affidavit at all.
The amendments that should have been made to make the .affidavit conform to the statute are apparent, as above shown.
Moreover, the requisite amendments might have been made upon facts appearing of record. The defendant admitted in his answer before the justice that $150 of the sum named in the note sued on was for rent. He also admitted that he had removed part of the crop from the demised premises without the consent of the plaintiff. He adds, however, that he had a perfect right to do so, as he had more than paid him for the rent in labor and improvements on the farm ; but this, by the award of the arbitrators, proved not to be true.
The court below erred in refusing to permit the appellant to amend the affidavit, and in discharging the attachment so far as its discharge was based upon defects in the affidavit.
II. As to the bond for attachment.
The statute also requires the plaintiff landlord, before an attachment is issued, “to file with the justice or clerk, as the case may be, a bond to the defendant, with sufficient security, in double the amount of the claim as sworn to, conditioned that he will prove his debt or demand and his lien in a trial at law, or that he will pay such damages as shall be adjudged against Mm. Gantt’s Digest, sec. 4102.
At the time this statute was passed it required a seal to make a bond, and though private seals have since then been abolished, lawyers will call such instruments bonds, as they are almost compelled to say “ejectment,” “replevin,” etc., regardless of the fact that the code makers have abrogated the common law classification of actions. It is difficult for innovators to stop the use of long used legal terms, founded on a classification as natural as that in any department of abstract or physical science.
The bond in tMs case is signed by the plaintiff and a surety, it is made to the defendant, and is in double the amount of the plaintiff’s claim as sworn to, but it is not conditioned as prescribed by the statute, and is therefore not a good statute bond (Edwards et al. v. Cooper, 28 Ark., 469,) though the plaintiff and Ms surety may be liable upon it as a common law obligation.
No objection was made to the bond before the justice of the peace, but if the court below had permitted the plaintiff to amend his affidavit, it might have required him to file a statute bond in good form for the protection of the defendant. True, the plaintiff did not offer to file another bond, but the offer if made, would have been useless, as the court would not permit Mm to amend his affidavit, and the rem feature of Ms case had to fall under this ruling.
The appellant does not complain, on tMs appeal, of the judgment in personam rendered in Ms favor.
So much of the judgment as discharges the attachment must be reversed, and the case remanded with instructions to the court below to permit appellant to amend his affidavit in the matters indicated, and that he be required to file a bond, conditioned as required by the statute, and for such other proceedings in the case as may be had in accordance with law. | [
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HarrisoN, J.:
This was an action by George Belding and Amanda Belding against Henry James and Amanda J. Hill for recovery of the possession of a store-house in the town of Hot Springs, which vfas commenced on the 3d day of November, 1877.
The complaint alleged that the plaintiffs are the owners of the store-house, which is situated on a lot occupied by them in the Hot Springs reservation, and on-which is their residence; that on the 6th day of November, 1876, they leased the same to the defendants for the term of seventeen months, from the 1st day of said month, at the rent of $13.50 per month, payable in advance ; that it was, however, expressly provided in the lease, that if default for fifteen days was made in the payment of the rent or any part of it, the lease should become void, and the possession upon the demand of the plaintiffs be surrendered to them ; that one month’s rent was due, and the ■defendants had been, not only in default in the payment of the rent, fifteen days, but they denied the plaintiff’s title, and refused to pay them rent; and that the plaintiffs after such default for fifteen days, demanded from them the possession of the premises, yet that they refused to surrender the same, but withheld it from them to their damage — two hundred dollars.
The defendants denied that the plaintiffs are the owners of the store-house or entitled to its possession, the title of the ground being they said, in the United States ; and that the store-house was built prior to the 24th day of April, 1876, bjr the defendant James ; that he had sold it to the defendant Hill, who was then and had been eArer since his purchase in the occupancy of it, and that said Hill had filed before the commissioners appointed under the Act of March 3d, 1877, in relation to the said Hot Springs reservation, his claim to purchase the parcel of ground upon which it stands.
They did not deny the alleged lease to them or any other of the allegations of the complaint.
The cause was, at the June term, 1878, submitted to the ■court, sitting as a jury, which found in favor of the plaintiffs, ■and it assessed their damages at $108.
The defendants moved for a new trial, upon the ground that the finding of the court was contrary to law and evidence. Their motion was overruled, and they excepted and appealed.
The proof was that George Bolding had been in the occupancy and possession of the lot upon which the store-house stands, about twenty years, that he employed and paid James to build the store-house, and after it was built the plaintiffs rented it to him, and James paid rent to them until they leased it to him and Hill on the 6th day of November, 1876, and that that they paid the rent up to the first day of October, 1877.
There is no rule of law better settled, than that a tenant can not dispute his landlords title; and a reference to this rule would seem to be sufficient for the decision of this ease.
But, it is insisted by the appellants, and that is the onty contention in the case, that as Congress has by the Act of March 3d, 1877, made provision for determining the rights of occupants to purchase the parcels or tracts they have made improvements on, the Circuit Court now has no jurisdiction of; any matter relating to lands in the reservations.
To this proposition we can not yield our assent.
It is not as to the right of possession but the fight to purchase, the commissioners are to enquire and determine, and there is not, necessarily, any inconsistency or repugnancy between such rights, for whilst one person may have the right to purchase the tract or parcel, he has improved, another may-under him or as his tenant, be entitled to possession.
The fifth section of the Act is as follows :
“Sec. 5. That it shall be the duty of said commissioners to. show by metes and bounds on the map herein provided for, the. parcels or tracts of lands claimed by reason of improvements, made thereon or occupied by each and every such claimant and occupant on said reservation, to hear any and all proof offered by such claimants and occupants and the United States in respect to said lands and in respect to the improvements thereon, and to finally determine the right of each claimant or occupant to purchase the same, or any portion thereof, at the appraised value, which shall be fixed by said commissioners. Provided, hoioever, That such claimants shall file their claims under the provisions of this Act, before said commissioners within six-calender months after the first sitting of the said board of commissioners, or their claims shall be forever barred, and no claim shall be considered, which has accrued since the twenty fouith day of April, eighteen hundred and seventy-six.”
In the case of Earle's, admx. v. Hale, admr., 31 Ark., 470, which was a suit for the use and occupation of a tavern in the-reservation, the court say : “As between these parties, it is a. matter of no importance whether the United States was or not the legal owner of the property. The United States might, perhaps in strictness, treat Hale as a trespasser, but as an actual settler upon public lands his occupancy has not only been tolerated, but actually encouraged by several Acts of Congress. The improvements upon the public lands have been recognized and held as the property of the occupant by Acts of State-Legislature and by many decisions of this court. They are held to be the property of the occupant or party making the-improvements of value, and the subject of transfer and sale.”
No conflict between the jurisdiction of the court, and the duties and powers of the commissioners can possibly arise, and the reason and necessity for the jurisdiction are as apparent now as before the passage of the act.
The judgment is affirmed. | [
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HaRRIsoN, J.:
Thomas B. Hanly was employed as an attorney by William H. Ford, a non-resident of the State, to bring suit by attachment in the Phillips Circuit Court, against Thomas C. Gist, on two writings obligatory or bonds, made by said Gist to John N. Herndon, each for $3500, dated December 27th, 1859, and payable with interest from date, respectively, on the 1st of January, 1861 and 1862, and the bonds were placed in his hands for that purpose. Ford at the time of his retainer paid him $225, and agreed to pay in addition thereto, eight per cent, of what might be recovered.
Hanly accordingly brought suit on each bond, in the name of Herndon, for the use of Ford, which suits were commenced on the 12th day of February, 1868, and the attachments were levied on fifteen hundred acres of the defendant’s lands.
The defendant filed a motion, in each case, to dismiss the suit upon the ground that the bond was given in the purchase of slaves.
Before the motions were determined, Grist died, and the suits were revived against his executor, Thomas Gist.
Afterwards, Ford and said Thomas Gist, without the consent or knowledge of Hanly, compromised and settled the suits; and Gist paid Ford $1500, in full satisfaction and discharge of the bonds, and agreed to pay the costs, and Ford gave him a receipt against the bonds, and an order to Hanly for them.
Hanly refused to surrender the bonds, and he filed this complaint in equity against Ford, Herndon, and Thomas Gist, as such executor of John C. Gist, to enforce his lien on the bonds for the remainder of his fee, and $15.75 costs in the suits, paid by him, stating therein the foregoing facts, and charging collusion between Ford and Gist to defraud him.
Only Gist answered the complaint, or made any defense. He denied the charge of collusion, or any knowledge that any thing was due the plaintiff, and denied that he had a lien' on the bonds or debts settled by him. He offered to pay the costs advanced by the plaintiff.
The court found that Ford was indebted to the plaintiff, on his fees, and for the costs advanced, $405.75, and for which he had a lien on the bonds or claims, and decreed the payment of the same by Gist out of the goods and property of his testator’s estate.
Gist appealed from the decree.
That an attorney has a lien on the judgment he has recovered for his client, for his fee and the costs advanced by him, is beyond controversy; and it is as well settled that he has a similar lien on thesecurties in his hands.
Hollis v. Claridge, 4 Taun. 807; Furlong v. Howard, 2 Scho. & Lep. 115; Ex-parte Nesbit, Ib. 279; Taylor v. Popham, 13 Vesey, 59; Twort v. Dayrell, Ib. 195; Pemberton, ex-parte, 18 Vesey, 282; Stevenson v. Blakelock, 1 Maule & Seld. 535; Pleasants v. Kortrect, 5 Heis. 694; Howard v. Osceola, 22 Wis. 453; Keenan v. Dorflinger, 19 How Pr. 153; Story on Agency, sec. 383.
But it is contended that lie has no lien whatever until after the judgment, and that his client may compromise or settle the suit with the opposite party without his consent, and without paying his fee; and we are referred to section 3622 of Gantt’s Digest. That section, so far as it extends, is but declarative of the law as it stood at the time of its enactment, and makes no change. By no possible construction can it be held to have taken away the lien of the attorney upon the papers and securities in the cause. That the law gives such lien before judgment the authorities abundantly show.
Pleasants v. Kortrecht, supra; Howard v. Osceola, supra; Keenan v. Dorflinger, supra; Jones v. Morgan, 39 Ga. 310; Rasquim v. Knickerbocker Co. 12 Alb. Pr. 324; Hutchinson v. Howard, 15 Vt. 544; 2 Kent’s Com. 640.
The attorney is virtually an assignee of a portion of the judgment, or of the debt or claim, equal to his fee, and the advances which he has made for his client. For the parties then to make any arrangement or settlement between themselves, without his consent, by which his right might be defeated, would be a fraud upon him, against which he is entitled to protection. As has been said, a party should not run away with the fruits of the cause, without satisfying the legal demands of his attorney by whoso industry those fruits are obtained.
It does not appear that any other defense was set up against the bonds than that they were given in the purchase of slaves, or .that there was any valid defense againt them,. nor is it shown that the lands attached, were not of sufficient value to satisfy the debt.
The lien of the attachments also enured to the benefit of the appellee, and the parties for that reason had not the right, by a compromise or settlement between themselves, to release the attachments. In the case of Pleasants v. Kortrechl, above cited, the solicitors impounded a trust fund by attachment for the benefit of their client. The client, without their knowledge or consent, compromised his case and dismissed the suit. The court say; “We think that whenever the solicitor has succeeded, by his professional services,, in securing a fund by attachment, and thereby fixing upon it the lien of his client, his own lien, like that of his client, attaches, both however subject to be defeated by the loss of the fund on final hearing or trial. Prima facie, the fund attached is subject to be appropriated to the satisfaction of the attaching creditor’s lien, and along with his lien, that of his solicitor goes pari passu.”
The appellee’s connection with the suits, and the levy of the attachments were facts which the appellant must necessarily have-known, and they were sufficient to put him upon inquiry as to the lien, and the appellant’s settling with Ford in the face of these facts without the appellant’s consent, was at his peril.
It is also insisted that the appellee should have verified his claim as a demand against the estate of the appellant’s testator.
This objection is wholly untenable. As has been shown, it is part of the demands upon which the suits against his testator were brought, as to which no ¡presentation to the executor or verification was required, and which has been appropriated to the estate by the appellant.
Although, as it seems to us, the appellee might have enforced his liens by an application to the court in the cases in which they arose, this does not exclude the jurisdiction of the court, in an original suit in equity, to afford the relief. No such objection, however, was raised in the court below, or in this.
The decree is affirmed. | [
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James R. Cooper, Judge.
The appellant in this civil case brought an action for breach of an employment contract against Riley’s, Inc., seeking contractual severance pay of $36,000.00; $6,000.00 for wages earned in July 1991; $4,154.00 for accrued vacation; $8,295.00 for real estate commissions incurred from the sale of his house; $1,365.00 in moving expenses; $9,000.00 for an incentive bonus earned between February 1, 1991, and July 31, 1991; attorney’s fees; and costs. After the conclusion of the appellant’s case at a bench trial on February 12, 1993, in which Riley’s, Inc., stipulated that Singh was entitled to $3,600.00 in accrued and unpaid wages, the trial court directed a verdict against the appellant with regard to the disputed elements of his claim, and awarded him $3,600.00 in wages and an attorney’s fee of $360.00. From that decision, comes this appeal.
On appeal, Singh does not contest Riley, Inc.’s right to terminate his employment at will; however, he contends that he was entitled to certain benefits under the agreement because he was terminated without cause. The agreement, which was handwritten by Pat Riley, president of Riley’s, Inc., provides in part:
This is a brief memorandum covering agreements reached by Riley and Singh as to his new position effective 8-1-90. Riley will develop a Job Description, Goals to be accomplished by Singh, Incentive Compensation and reasonable yardsticks to evaluate performance and timing of such evaluations. As for now the brief but pertinent outline is as follows:
Reports to; Pat M. Riley, Sr. - President and Chm. of Board.
Severance Pav - (1) If Singh resigns there will be none. (2) If he is released for cause there will be none. Cause does not mean failure to meet corporate goals or to earnings and other performance ratings. Nor does it mean failure to demonstrate the necessary qualifications for the position or extension of appropriate effort. It does mean fraud or dishonest acts and/or conduct in his daily life that is inappropriate to his executive position. (3) If he is released for other reason than cause as broadly defined above he will receive severance pay of $36,000.00 if it occurs prior to 8/1/93.
This constitutes all of the agreement.
(Italics supplied). Riley’s, Inc. responds that although “cause” is frequently included in employment agreements, it is seldom completely defined and that the trial court correctly determined that the grounds for cause listed in the contract were not exclusive but merely illustrative. We do not agree. Instead, we think it clear that the trial court misread the handwritten contract and based his directed verdict on an erroneous belief that the failure to exert appropriate effort was included within the contractual definition of “cause.” This is apparent from the trial judge’s order, in which he stated that:
I think the extension of appropriate effort means exactly what it says. You simply are not going to tie yourself into a contract of employment for someone who does not perform appropriately. The effort they put into it is not the poundage that they lift, but the amount of struggle they do to perform the job.
In this situation, Mr. Riley has testified that he didn’t feel this man extended appropriate effort in curing the problems that the Long-term Care Board had placed on him because of the inappropriate placement of funds. He also felt there wasn’t appropriate effort used to investigate a very severe problem which could have caused the corporate entity not only embarrassment but legal problems that would have cost them monetary problems, so I feel that extension of appropriate effort has definite meaning to this contract and it should be broadly defined as cause, so I agree with Mr. Freeland.
Although a question of fact is presented when a contract is ambiguous as to the parties’ intent, Elkins v. Arkla, Inc., 312 Ark. 280, 849 S.W.2d 489 (1993), the construction and legal effect of a contract are questions of law when the terms thereof are not susceptible to more than one equally reasonable construction. See State Farm Fire & Casualty Co. v. Amos, 32 Ark. App. 164, 798 S.W.2d 440 (1990). We hold that the contractual provision that failure to extend appropriate effort did not constitute cause for dismissal with respect to severance pay was not ambiguous, and that the trial court erred as a matter of law in directing a verdict against the appellant.
We address the appellant’s remaining point for reversal because it is likely to recur on retrial. He contends that the trial court erred in admitting parol evidence to determine the meaning of the term “cause” with respect to the severance pay provision. This argument is meritorious. Because parol evidence is admissible only if an ambiguity exists, see Minerva Enter., Inc. v. Bituminous Casualty Corp., 312 Ark. 128, 134, 851 S.W.2d 403 (1993); Pizza Hut of America, Inc. v. West Gen. Ins. Co., 36 Ark. App. 16, 20, 816 S.W.2d 638 (1991), we hold that the trial court erred in admitting parol evidence for the purpose of determining the meaning of this provision.
Reversed and remanded.
Jennings, C.J., and Robbins, J„ agree. | [
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John E. Jennings, Chief Judge.
Tau Carter and Marco Lamont Sanford were found guilty of possession of a controlled substance with intent to deliver. Carter was sentenced to ten years in the Arkansas Department of Correction; Sanford was sentenced to fifteen years imprisonment and a fine of $15,000.00. Their sole point on appeal is that the evidence was insufficient because the State did not present testimony concerning intent. We find no error and affirm.
In determining the sufficiency of the evidence we consider all of the evidence, including that which may have been erroneously admitted. Burkett v. State, 40 Ark. App. 150, 842 S.W.2d 857 (1992). We review the evidence in the light most favorable to the State and affirm if there is any substantial evidence to support the trial court’s judgment. Substantial evidence, whether direct or circumstantial, is evidence of such sufficient force and character that it will compel a conclusion one way or the other, without resorting to speculation or conjecture. Turner v. State, 24 Ark. App. 102, 749 S.W.2d 339 (1988). Intent, being a subjective matter, is ordinarily not susceptible of proof by direct evidence but usually must be established by circumstantial evidence. Sumner v. State, 35 Ark. App. 203, 816 S.W.2d 623 (1991).
In the afternoon of September 1, 1992, a narcotics squad of the Little Rock Police Department went to 18th and Park Streets to investigate complaints of drug sales. Appellants Carter and Sanford were part of a group on the porch at 1722 South Park, described as a duplex or apartment with two front doors. As the uniformed officers approached the residence, Carter pulled a small white box out of his pocket and turned toward one of the doors. He did not obey Officer Anthony Brainard’s order to stop. Officer Brainard grabbed Carter and recovered the white dental floss container which Carter was placing in a mailbox just inside the door. Officer Robert Mourat retrieved a brown pill bottle and a clear Lifesavers tube which Sanford dropped into a mailbox outside the other door. The Lifesavers tube contained only a residue, but the pill bottle held twenty-eight rocks of crack cocaine.
The dental floss container held eight rocks of crack cocaine with a total weight of .87 grams. The weight of the twenty-eight rocks was 3.46 grams. In Arkansas possession of more than one gram of cocaine creates a rebuttable presumption that the person possesses it with intent to deliver. Ark. Code Ann. § 5-64-401(d) (Supp. 1991); Johnson v. State, 35 Ark. App. 143, 814 S.W.2d 915 (1991). Thus, the presumption of intent to deliver arose against Sanford and the jury was permitted to infer that he possessed 3.46 grams of cocaine with the intent to deliver it. We find that the evidence summarized above was sufficient to support his conviction.
The dental floss box which Carter took from his pocket held less than a gram of cocaine, so the statutory presumption of intent to deliver did not arise against him. Detective Austin Lynch testified that his work in the narcotics detail had included undercover buys as well as searches and seizures in crack houses. He testified that he had seen crack cocaine smoked in crack pipes. He said that typically only one rock would be smoked in a crack pipe unless the rocks were small, and that the eight rocks at issue were entirely too big to be placed in a crack pipe at one time. He stated that the street value of a single rock on September 1, 1992 was $20.00, and the eight rocks had an approximate value of $160.00.
The court qualified Detective Lynch as an expert witness for the limited subject of the suspected intent and use of narcotics. Detective Lynch stated that the number and total value of cocaine rocks affect his perception of how a person intends to use cocaine. Possession of one to three rocks would indicate to him possession for personal use. He testified'that Carter’s possession of the eight rocks here was “for the sole intent of sell ing it.” The admissibility of this opinion evidence is not an issue on appeal.
Though the amount possessed was not enough to give rise to our statutory presumption, the jury could find from Detective Lynch’s testimony that appellant possessed the drugs with intent to sell. The jury is the sole judge of the weight of the evidence and the credibility of the witness. AMI Crim. 104. Viewing the evidence in the light most favorable to the State, we conclude that there was substantial evidence to support appellant Carter’s conviction.
Affirmed.
Mayfield, J., dissents. | [
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Ed. F. MoFaddin, Associate Justice.
This appeal involves a sales commission claimed by Don Finley, a licensed real estate broker, from J. D. Waltbour, a landowner. Judgment of tbe Circuit Court was in favor of Finley, and Walthour prosecutes this appeal.
Appellant, J. D. Walthour, as Trustee, held title to a tract of 223.47 acres in Pulaski County owned by a partnership of which Walthour was a member. On September 12, 1960, appellee Finley showed the land to Mr. Brinson; and when he showed an interest in making the purchase, Finley called Walthour at the latter’s home and a meeting was arranged. Finley, Brinson, and Wilkins vent to Walthour’s home, as Walthonr was not able to go to his office because of a disabling incapacity. At that meeting Brinson and Walthour agreed on the price of $1,000.00 per acre. According to Finley this was the conversation and agreement for Finley’s commission:
“. . . Mr. Walthour stated that a thousand dolíais an acre was the least that he would take. At that time I again told Mr. Walthour that I ivas a broker, Mr. Brinson the buyer, and Mr. Wilkins was advising Mr. Brinson, and I also asked him if the property was listed with anyone and he said it wasn’t. I asked him if it was committed to anyone and he said it wasn’t. He said he, as Trustee, had the right to sell it and asked if I expected the full commission. I told him I did. He said that ivas all right and would it be asking—
‘ ‘ Q. * * * let me ask you this. Did he agree at that time to pay you the full commission?
“A. Yes.
“Q. In the presence of Mr. Brinson and Mr. •Wilkins ?
“A. Yes, he did.”
Finley testified that Mr. Walthour directed that Finley, Brinson, and Wilkins go to Mr. J. H. Larrison, who was handling such matters for Mr. Walthour during his incapacity. The three went to Harrison’s office, where a contract of purchase was signed by Brinson on behalf of Brinson Development Company, Inc.; and in keeping with the contract the Brinson Development Company, Inc. purchased the properties for $223,347.00. Upon completion of the purchase, Finley demanded of Walthour the regular 10% commission of $22,334.70, which Walthour refused to pay; and this action was filed. The case was tried by the Circuit Judge, a jury being-waived; and from the judgment in favor of Finley, Walthour prosecutes this appeal.
I. Sufficiency Of The Evidence. The substantial evidence is entirely sufficient to support the finding by the Trial Court that Mr. Walthour agreed to pay Finley the full commission, and that the said commission is 10% of the sale. Finley was corroborated by Wilkins as to the contract, and substantially corroborated by Brinson as to the conversation at Walthour’s home, as previously copied. A contract to pay a commission to a real estate broker does not have to be in writing. McCurry v. Hawkins, 83 Ark. 202, 103 S. W. 600; Vanemburg v. Duffey, 177 Ark. 663, 7 S. W. 2d 336. When a real estate broker, acting under the .contract brings buyer and seller together and the parties agree on a sale, and the sale is consummated, then the real estate broker is entitled to the agreed commission. Belyeu v. Hudson, 179 Ark. 657, 17 S. W. 2d 865; Sharp v. West, 176 Ark. 616, 3 S. W. 2d 692; Fike v. Newlin, 225 Ark. 369, 282 S. W. 2d 604.
The evidence was conflicting as to what Mr. Walthour said; and subsequent statements by Finley Avere offered in an effort to show that he had agreed to receive only $9,000.00 as the commission; but the Aveighing of all such testimony was for the trier of the facts. The finding of the Trial Court in a case like this one has the force and effect of a jury verdict; and Ave leave undisturbed such finding as to the contract and the commission.
II. Bes Judicata. The more serious issue is whether Finley has been defeated of his commission because of Walthour’s plea of res judicata; and we proceed to that point. Walthour completed the sale to Brinson Development Company, Inc. on January 17, 1961, for a total consideration of $223,347.00; and on January 24, 1961, there was filed in the Pulaski Chancery Court Case No. 116925 styled Bill of Interpleader. The only plaintiff Avas “Walthour-Flake Company, Inc.”; and the only defendants were “Don Finley and Ferguson & Company, Inc.” The Bill of Interpleader alleged that WalthourFlake Company, Inc. was a corporation engaged as a real estate broker; that it had recently concluded a sale of the 223.47 acres (here involved) to Brinson Development Company, Inc.; that Walthour-Flake Company, Inc. had received the commission for making the sale; and that of the total commission received, WalthourFlake Company, Inc. owed the sum of $9,000.00 to either Don Finley or to Ferguson & Company, Inc., another real estate broker. The Bill interpleaded $9,000.00 and called on the named defendants to establish their respective claims for the interpleaded fund.
It will be observed that the Bill of Interpleader did not mention the name of J. D. Walthour, nor did it state for whom Walthour-Flake Company, Inc. acted as a broker in making the sale of the 223.47 acres. Summons was served on Don Finley; and in due time he filed answer in said interpleader suit, which answer stated:
“1. Defendant, a duly licensed real estate broker, acted as real estate broker for the owner of the property described in said Bill of Interpleader, and during tlie month, of January, 1961, consummated a sale to Brinson Development Company, Inc. That, at the time of the negotiation of the sale, the owner of the property, J. D. Walthour, agreed to pay the defendant, Don Finley, a commission of $22,300.00, which is usual and customary as a commission on the sale of rural properties. At no time prior to the sale of the property was the defendant, Don Finley, informed or aware of the fact that WalthourFlake Company, Inc. had any interest in said property. Defendant, Don Finley, has no privity of contract with Walthour-Flake Company, Inc., but has a legitimate claim against the owner of the property for the full commission of $22,300.00 as his proper brokerage fee. The defendant denies that Walthour-Flake Company, Inc. has any legal right to file a Bill of Interpleader against the defendant and thus inject itself into the transaction in the place of or in the stead of the owner to whom defendant looks for the payment of his brokerage fee. Defendant asserts that the act of the plaintiff herein in seeking to interplead $9,000.00 which it received from a source unknown to the defendant, is contrary to law and that said Bill of Interpleader should be dismissed as to this defendant.”
On February 3, 1961, Finley sent to J. D. Walthour a registered letter reading:
“Dear Mr. Walthour: Will you please send by return mail the check for the full commission on the sale of the 223.47 acres as we agreed. The amount of the check is $22,347.00. Yours sincerely, (signed) Don R. Finley. ’ ’
In the interpleader suit Ferguson & Company, Inc. asserted the right to the $9,000.00 interpleaded by Wal thour-Flake Company, Inc.; and on February 16, 1961, the Pulaski Chancery Court entered a decree in the said interpleader suit awarding the $9,000.00 to Ferguson, after having recited that Don Finley made no claim against Walthour-Flake and there was, therefore, no adverse claimant to the $9,000.00 interpleaded by Walthour-Flake Company, Inc.
It is this interpleader suit and the decree therein that is now pleaded by J. D. Walthour as res judicata in the present action brought by Don Finley against J. D. Walthour. The rules as to when one suit or action is res judicata in a subsequent suit or action have been recognized and declared in many of our cases, some of which are: Geisreiter v. Sevier, 33 Ark. 522; Fogel v. Butler, 96 Ark. 87, 131 S. W. 211; Cleveland-McLeod Lbr. Co. v. McLeod, 96 Ark. 405, 131 S. W. 878; Williamson v. Grider, 97 Ark. 588, 135 S. W. 361; Biederman v. Parker, 105 Ark. 86, 150 S. W. 397; Mo. Pac. v. McGuire, 205 Ark. 658, 169 S. W. 2d 872; Hatch v. Scott, 210 Ark. 665, 197 S. W. 2d 559; C. & L. Elec. Coop. v. Kincaid, 221 Ark. 450, 256 S. W. 2d 337; Seaboard v. Wright, 223 Ark. 351, 266 S. W. 2d 70; Risser v. City of Little Rock, 225 Ark. 318, 281 S. W. 2d 949; Baumgartner v. Rogers, 233 Ark. 387, 345 S. W. 2d 476; Selig v. Barnett, 233 Ark. 900, 350 S. W. 2d 176.
In Mo. Pac. v. McGuire, supra and in Selig v. Barnett, supra, we briefly stated the general rule of res judicata:
■ “Briefly stated, (the doctrine of res judicata is that an existing final judgment rendered upon the merits, wdthout fraud or collusion, by a court of competent jurisdiction, is conclusive of rights, questions, and facts in issue, as to the parties and their privies, in all other actions in the same or any other judicial tribunal of concurrent jurisdiction. ”)
In Biederman v. Parker, supra, we said:
“It is well settled that a judgment is only conclusive between the parties or their privies. Avera v. Rice, 64 Ark. 330; Treadwell v. Pitts, 64 Ark. 447; Doss v. Long Prairie Levee Dist., 96 Ark. 454.”
In Pogel v. Butter, supra, we quoted an earlier case:
“ ‘To render a judgment in one suit conclusive of a matter sought to be litigated in another, it must appear, by the record, or by extrinsic evidence, that the particular matter sought to be concluded was raised and determined in the prior suit. ’ ’ ’
In Hatch v. Scott, supra, we said:
“In Smith v. McNeal, 109 U. S. 426, (3 S. Ct. 319, 27 L. Ed. 986), the court, quoting from Hughes v. U. S., 4 Wall. 232, 18 L. Ed. 303, said: ‘In order that a judgment may constitute a bar to another suit it must be rendered in a proceeding between the same parties or their privies, and the point of controversy must be the same in both cases . . .’ ”
In C. & L. Rural Elec. Coop. v. Kincaid, supra, we said :
“As to the defense of res judicata, we think it without merit and can have no application here for the reason that the parties are not the same as in the McEntire suit and the issues and subject matter in the present case are entirely different. It is well settled that res judicata only applies to parties and their privies.”
When we apply the law from these cases, as above quoted, to the facts in the case before us, it is clearly apparent that the rule of res judicata was not a valid defense by Walthour. There was no identity of parties. The Interpleader suit was by Walthour-Flake Company, Inc. against Don Finley, whereas the present action is between J. D. Walthour and Don Finley. It was shown in the present case that Walthour-Flake Company, Inc. is an Arkansas corporation, with certain named stockholders. The fact that J. D. Walthour owned stock in Walthour-Flake Company, Inc. did not, in itself, make J. D. Walthour identical with or a privy to a suit brought by Walthour-Flake Company, Inc. J. D. Walthour was not a party to the Bill of Interpleader filed by WalthourFlake Company, Inc. The name of J. D. Walthour did not appear in the Bill, nor did the Bill state for whom Walthour-Flake Company, Inc. had acted as a broker in making the sale of the 223.47 acres. There was no identity of subject matter between the interpleader suit and the present action. In the interpleader suit the sum of $9,000.00 was deposited by Walthour-Flake Company, Inc.; and Don Finley and Ferguson & Company, Inc. were required to establish claims to the said fund. Finley frankly answered that he had engaged in no dealings with Walthour-Flake Company, Inc. and had no claim to any amount which that corporation held; he stated that his claim was against J. D. Walthour; he proceeded to prosecute that claim in the present action; and the decree in the interpleader suit is not res judicata against the present action.
Finding no error, the judgment is affirmed.
Here is Finley’s testimony as to the telephone conversation:
“A. I told Mr. Walthour I- - my name was Don Finley. I was a real estate broker, and asked him if the property was for sale. He said that it was. I asked him if it was listed with anyone. He said it was not. I asked him if it was committed to anyone, and he said it wasn’t. Then I told him I would like to sell the property if the price was right, and he suggested to see him at 11:00 o’clock that morning.
“Q. All right, sir. Did you tell him you had a person there, in mind, that would be a prospective purchaser?
“A. Yes, I told him that he would be out at 11:00 o’clock—that was all right.”
The Circuit Court judgment as to these specific findings reads: “At the request of the plaintiff, the complaint of the Plaintiff is amended to conform to the proof in the case. A preponderance of the evidence and the applicable law justify the following findings and conclusions:
“1. The plaintiff and defendant entered into a contract for the commission claimed by plaintiff.
“2. The plea of res judicata does not afford the defendant any relief in this case. . . .
“6. That defendant may have, through the listing and the subsequent agreement with Finley, subjected himself to liability for two commissions, but payment to Walthour-Flake would not discharge the obligation of defendant to Finley.
“7. The fact that the Agent of the defendant performed certain acts in connection with clearing title to the property involved, could not mitigate against plaintiff since the obligation to furnish the purchaser a merchantable title rested on the seller.
“8. The proof fails to show that the plaintiff Finley ever entered into any agreement for a division of the commission between himself and anyone else.
“9. That the proof fails to establish any agreement on the part of Finley to split his commission with anyone.
“From a consideration of all of the evidence, the pleadings, the briefs and the arguments, the Court is of the opinion that the plaintiff should have and recover from the defendant the sum of $22,334.70.”
The prayer of the Bill was in part:
“WHEREFORE, plaintiff prays a proper and immediate order of this Court enjoining and restraining each and both of defendants herein, their agents and employees, from instituting or prosecuting any suit or proceeding in any other Court to assert any claim against plain tiff growing out of the real estate sale described herein; that'defendants and each of them be required to interplead and settle among themselves their rights to said funds deposited in the registry of this Court by plaintiff; that plaintiff be fully and forever released and discharged from all liability on account of and in connection with claims for commissions from the sale of said 223 acre tract of land; ...” | [
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Jerky Witt, Special Associate Justice.
This is an appeal from that part of the judgment and order of the St. Francis County Circuit Court entered on the 8th day of February 1963, in the above entitled cause of action, which order declared of no force and effect, the Proclamation of the Governor of Arkansas, remitting, cancel-ling, and releasing a bond forfeiture, and for which forfeiture judgment was entered against Ted Hood in the St. Francis Circuit Court on the 24th day of February, 1958, in favor of the State of Arkansas in the sum of Two Thousand ($2,000.00) dollars and costs, and which judgment of forfeiture was affirmed by this Court on March 26, 1962.
The facts in this case are: Johnny Puckett was charged in the St. Francis Circuit Court with the crime of Forgery and Uttering. Appellant Ted Hood, d/b/a Ted Hood Bonding Company, made Puckett’s appearance bond. The ease was set for trial on February 24, 1958, but Puckett failed to appear. On February 28, 1958, the Court entered an order forfeiting the bond; appellant filed a motion to set aside the bond forfeiture, which was overruled; and summons was then issued for Hood to appear and show cause why judgment should not be rendered on the bond forfeiture. Appellant filed answer and asked for a jury trial, which was overruled; and judgment was rendered against him in the sum of Two Thousand ($2,000.00) dollars. There was an appeal to this Court; and on February 29, 1960, this Court reversed the Lower Court, and remanded the case for jury trial. (Hood v. State, 231 Ark. 772, 332 S. W. 2d 488.)
On remand, the case was tried to a jury on February 22, 1961, and a verdict was rendered against the appellant in favor of the State of Arkansas in the sum of Two Thousand ($2,000.00) dollars on the bond forfeiture. There was an appeal to this Court; and on March 26, 1962, this Court affirmed the judgment of the Lower Court. (Hood v. State, 234 Ark. 901, 356 S. W. 2d 28.) On August 4, 1962, the Governor issued a Proclamation remitting, extinguishing, cancelling, and releasing the forfeiture of the bond; and Hood pleaded that Proclamation as a release of the judgment against him. On February 8, 1963, the Circuit Court found that said Court had retained jurisdiction against appellant and the execution issued on the bond forfeiture and held that the Governor’s Proclamation of August 4, 1962, had no force and effect and did not relieve appellant from the judgment against him on the bond forfeiture rendered by the Circuit Court on the jury verdict of February 22, 1961; and from that judgment of February 8, 1963, there is the present appeal.
The Lower Court, in reaching its conclusion with reference to the Governor’s Proclamation, said this:
“After the jury returned that verdict, this Court entered the proper civil judgment, based upon that judgment ... It is the opinion of this Court, with reference to the Proclamation of the Governor which was issued August 4, 1962, that it is ineffectual because, although the Constitution provides that the Governor has the right to set aside forfeitures, it is the opinion of this court that this is not a forfeiture . . . the forfeiture was had even before the hearing before the jury and even after the matter was submitted to the jury and they rendered a verdict thereon . . . and the Court refuses to set aside the judgment against the Ted Hood Bonding Company.” The appellant, in his brief, assigns two points:
“ (1) The lower court erred in holding that the Governor’s Proclamation of August 4, 1962, remitting and cancelling the bond forfeiture in this cause, was of no force and effect.
“(2) Assessment of costs.”
At the outset we copy certain pertinent provisions of the Governor’s Proclamation here involved:
“Whereas, the Circuit Court of St. Francis County did, on February 28, 1958, order forfeited the bond made by Ted Hood . . . for the appearance of Johnny Puckett in a criminal action against him in the Circuit Court of St. Francis County; and . . .
“Whereas, execution has been issued for collection of said bond; and
“Whereas, extenuating circumstance in behalf of Ted Hood are: [mentioning four]; and . . .
“Whereas, it would be just and fair to remit, extinguish, cancel, and release the forfeiture of said bond hereinabove referred to:
“Now, Therefore, I, Orval E. Faubus, Governor of the State of Arkansas, by virtue of the power and authority vested in me under Article 6, Par. 18, of the Arkansas Constitution of 1874, do hereby remit, extinguish, cancel, and release the forfeiture of the aforesaid bond ...”
Article 6, Section 18, Constitution of 1874, provides:
“In all criminal and penal cases, except those of treason and impeachment, the Governor shall have power to grant reprieves, commutation of sentences and pardons after convictions, and to remit fines and forfeitures under such rules and regulations as shall be prescribed by law.”
Attorneys for the State do not raise the question of the right of the Governor to act, because of the failure to comply with Ark. Stat. Ann. § 43-2818 (1947), where it is provided that the Governor is prohibited from considering or granting any application for pardon or “remission of forfeiture of bail bond” until there is filed in his office a certificate of the County Clerk or the affidavit of two persons known to be credible, that the application for such pardon or remission of forfeiture has been published as hereinafter provided.
The attorneys for the State insist that the judgment on the forfeited bail bond is a civil proceeding and not a criminal matter. The Lower Court held that this was not a forfeiture; that the forfeiture was had before the jury trial and its verdict; in other words, a trial by the jury on the bond changed the nature of the proceeding and, being a civil judgment, could not be affected by the Governor’s Proclamation. Attorneys for the State cite the case of Tinkle v. State, 230 Ark. 966, 328 S. W. 2d 111, and say that in the cited case the Court held:
“. . . that the Governor had authority under the Constitutional provision to remit forfeited bail bonds prior to judgment in the collection thereof. Although there was some dicta to the effect that the same would be true of remittitur after judgment, the court did not so hold.”
We agree that our Constitution limits the right of the Governor to grant reprieves and commutations in all criminal and penal cases except those of treason and impeachment, and that it does not extend to civil cases. We are now called upon in this case to decide the nature of the proceeding in the Lower Court; whether the judg ment on the forfeited bond, after trial by jury, is a civil or criminal proceeding. We hold that it was a criminal proceeding and the Governor’s Proclamation had the effect of relieving the appellant from payment of said judgment. The case of Tinkle v. State (supra) was very similar, if not on all fours, with the case at bar, and we quote from it at length:
“The issue here is whether the Governor has authority to remit a forfeited bail bond. Thomas Gordan Tinkle, Jr. was charged in the criminal division of the Chickasawba District of the Mississippi County Circuit Court with the crime of burglary and grand larceny. When the case was called for trial, Tinkle failed to appear, and the court ordered that the bail bond be forfeited. Later, the Governor issued a proclamation purporting to remit such bond forfeiture. Appellants filed motion in circuit court to set aside the judgment in the sum of $5,000.00 rendered on the bond forfeiture, alleging that the forfeiture had been remitted by the Governor’s Proclamation which was made a part of the motion. The trial court overruled the motion to set aside the judgment, and the principal, Tinkle, and bonding company, Carolina Casualty Company, have appealed.
“The State contends, first, that the Governor does not have the authority to remit a forfeited bail bond; second, that if the Governor does have such authority, procedure required by the statute was not followed and, therefore, the proclamation is invalid . . .
“Attorneys for the State argue that the procedure to force collection on the forfeited bail bond is a civil action and that, therefore, the whole proceeding arises out of a civil penalty or forfeiture, and that the Governor, therefore, can give no relief. Hutton v. McCleskey, 132 Ark. 391, 200 S. W. 1032, is cited as authority for that conclusion. But in that case the only issue was whether the Governor under the constitution could remit a penalty imposed on all who failed to assess their property for taxes in the manner prescribed by statute. It was certainly not a ‘criminal or penal case’ . . . The forfeiture in the case at bar was in a criminal case. The bond was given to insure the defendant Tinkle’s appearance under a criminal indictment. A majority of the states have a constitutional provision in which the power (to remit fines and forfeitures) is granted either to the Governor alone or in conjunction with other executives comprising a board. In none of these states have the courts ever held that the forfeiture mentioned in the Constitutional provision does not apply to a forfeited bail bond . . .
“The case of State v. Dyches, 28 Tex. 535, is directly in point. There the Texas Court held outright that under a constitutional provision similar to ours the Governor had the power to remit a forfeited bail bond. See also: Williams v. Shelbourne, 102 Ky. 579, 44 S. W. 110; • • •
“In Harbin v. State, 78 Iowa 268, 43 N. W. 210, the defendant Harbin failed to appear and an action on the bail bond was instituted and judgment rendered thereon. Almost a year after judgment, the Governor issued a proclamation remitting $600.00 of the $795.00 forfeiture, providing the balance plus costs, was paid . . . The judgment was not satisfied of record and execution was issued. A proceeding was instituted to stay the collection of the judgment. The court said: ‘Had the Governor authority, after the bond was prosecuted to judgment, to remit any part thereof? The power of the Governor to make such remission after the entry of the breach of the conditions of the bond by the justice, and before judgment, is not questioned in this case; the point in argument being that, after judgment there is no forfeiture within the meaning of the law, but a judgment over which the Governor has no control or right of remission. The question involves a construction of Section 16, Article 4, of the Constitution, the essential part of which is that the Governor “shall have the power to remit fines and forfeiture under such regulations as may be prescribed by law” [same as ours] . . . The case deals with the question of the claim being so changed that it is no longer a forfeiture within the meaning of the law as to the authority of the Governor to remit.’ After discussing the argument of whether the Governor had authority to remit after judgment, and deciding in the affirmative, the court further said: ‘The principle is of so much importance as to have a foundation in Constitutional enactment. It hardly needs argument or citation of facts to show that reasons might exist for this beneficent act on the part of the Governor, as well after judgment on a forfeiture as before . . . and we think it the spirit of the law that this large discretion with which the Governor is invested extends to the time of payment of the forfeiture, whether after judgment or before. ’ ’ ’
The case of Harbin v. State, 78 Iowa 268, was cited by this court in Tinkle v. State as authority for holding that the Governor had authority to remit the forfeiture whether after judgment or before. In said case, the point in argument was, that after judgment there is no forfeiture, but a judgment, “civil” (italics ours) over which the Governor has no control or right of remission. In 77 A.L.R. 2d, p. 989, there is this language:
‘ ‘ The judicial procedure for effecting the forfeiture of a bail bond, as reflected in a number of the cases herein, frequently includes two distinct steps. Under this method an order of forfeiture is entered soon after the time at which the principal was in default for appearance. This is generally regarded as in the nature of an interlocutory decree, and an absolute judgment is then entered only after notice to the surety and an opportunity to show cause why final judgment should not be entered. Consideration is frequently given in the cases to whether, when the Governor purports to exercise the power of remission, the prior entry of a final judgment should determine the existence, or at least the scope, of such a power . . . the courts have generally held that a constitutional or statutory grant of power to the Governor to remit ‘fines and forfeitures’ includes that of remission of a final judgment of forfeiture entered upon a bail bond.”
In the case at bar, the origin was in a criminal proceeding: Pucket was charged with a crime (Forgery and Uttering), he made bond; when the case was called for trial lie failed to appear and a forfeiture was taken on Ms bond; and later a trial by jury was had on the bond forfeiture and verdict rendered against Ted Hood, the bondsman. The trial by a jury on the bond did not change the character of the proceeding from a criminal to a civil case: it had its origin in a criminal proceeding, and it made no difference whether the judgment was rendered after a trial by a jury or from an interlocutory order by the court. Being a criminal proceeding, the Governor had the authority, under the Constitution, to issue his proclamation remitting, extinguishing, cancelling, and releasing the forfeiture of the bond and the judgment rendered thereon by the Lower Court, and said Proclamation also had the same effect as to the costs in the case.
The judgment of the Lower Court is reversed and said forfeiture is set aside.
Justice Holt not participating.
Justice McFaddin dissenting. | [
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George Rose Smith, J.
This workmen’s compensation case involves an employer’s liability for the expense of a surgical operation performed upon an injured employee. The operation was a success, and we know now that it was necessary; but it was performed by a surgeon engaged by the employee against the wishes of the insurance carrier and at a time when the physician selected by the insurer thought surgery to be inadvisable. The commission’s refusal to charge the employer with the expense of the operation was upheld by the circuit court.
There is no dispute in the material facts. Caldwell, the claimant, suffered a compensable back injury on August 23, 1960. He was unable to work for about a week, during which he was treated by a general practitioner. After the claimant returned to his job he continued to suffer pain, although he did not lose any more time from his work until he entered the hospital about fourteen months later.
Caldwell first saw a specialist on January 18, 1961, when the insurer sent him to Dr. Nixon, an orthopedic surgeon. In the course of visits extending over about two months Dr. Nixon prescribed an elevated shoe to compensate for a congenital difference in the length of Caldwell’s legs.
On August 8,1961, the claimant on his own initiative consulted Dr. Murphy, the orthopedic surgeon who was later to perform the operation in controversy. Dr. Murphy concluded that Caldwell had a disc problem and should have a myelogram. A myelogram is described as a diagnostic procedure in which an opaque dye is injected into the spinal canal so that X-ráy pictures can be taken. In September Dr. Murphy sent the insurance company a bill for his services, but the insurer refused to pay it, explaining that medical attention was being provided by other doctors. Later on a representative of the insurer also told Caldwell himself that the company would not pay for the operation that Dr. Murphy had in mind.
Later in August the claimant, without authorization from the insurer, was treated unsuccessfully by a chiropractor.
On October 18, at the direction of the insurer, Caldwell went to Dr. Hundley, another orthopedic surgeon. Dr. Hundley diagnosed Caldwell’s trouble as a degenerative disc and accordingly began a course of conservative daily therapy, involving exercise, heat application, and sonic treatments. On October 27, after nine days,- the patient appeared to be greatly improved.
On Sunday, October 29, Caldwell’s condition suddenly became much worse; he suffered severe pain in his back and partial paralysis. His wife called Dr. Murphy, who arranged for Caldwell’s admission to a hospital. On Monday Dr. Murphy did a myelogram, which indicated that the patient was suffering not from a degenerative disc but from a more serious condition known as an extruded disc. This extruded disc had been forced from its position between two vertebrae and was lying in the spinal canal. On Tuesday morning Dr. Murphy operated, removing the extruded disc and fusing the two vertebrae that it had cushioned. After a convalescence of several months Caldwell was able to return to work Avith entire freedom from pain. His recovery was complete except for some stiffness that was occasioned by the bone fusion and that resulted in a slight permanent partial disability.
It is shown by undisputed evidence that the operation not only was necessary but also was successful. It is true that Dr. Nixon and Dr. Hundley, concededly qualified orthopedic surgeons selected by the insurer, testified that they would have continued conservative therapy for a while longer before considering a myelogram or surgery. But their preference for conservative measures AAras based upon their belief that CaldAvell was suffering from a degenerative disc, for which conservative therapy is effective. Such treatment, however, is of no avail in the case of an extruded disc. Surgery alone can then give relief from pain and protection against the possibility of further complications. Thus the only real difference between the position taken by the insurer’s doctors and that taken by Dr. Murphy is that, the latter resorted to surgery earlier than the former thought such action to be advisable. In this conflict of opinion hindsight proves conclusively that Dr. Murphy’s decision was actually right. As the court observed in Laws v. Industrial Comn., 116 Utah 432, 211 P. 2d 194, surgery has rendered certain that which was previously uncertain.
Our statute requires an employer to provide promptly for an injured employee such medical and surgical service “as may be necessary” during the period of six months after the injury and for such additional time as the commission may require. Ark. Stat. Ann. § 81-1311 (Repl. 1960). (We should add that the six-month limitation is not in issue here, for the insurer recognized its continuing obligation to provide medical care, as, for example, by sending Caldwell to Dr. Hundley more than a year after the injury occurred.)
There is much discussion in the briefs about the right of an injured employee to make his own free selection of a doctor. We do not reach this issue-. Even if we should concede, without deciding, that the insurance carrier has the right in the first instance to select the physician, it does not unavoidably follow that Caldwell’s later choice of Dr. Murphy exempts the appellees from the expense of the operation.
It was the employer’s duty to provide this injured employee with necessary surgery. It has now been demonstrated with certainty that the operation was necessary. In fact, if the surgeons selected by the insurer had realized that the patient was suffering from an extruded disc they too would doubtless have recommended the procedures that Dr. Murphy adopted. The appellees ought not to be in a position to profit by their physicians ’ erroneous diagnosis, and this is true even though the error was made in complete good faith by doctors whose ability and standing are not questioned in the least.
Our holding is not intended to, and does not, give an injured workman unrestricted freedom to reject the medical care offered by his employer. Counsel for the appellant concede that Caldwell acted at his peril in overriding the insurer’s warning that the proposed operation would be at the claimant’s own expense. If the operation had disclosed a degenerative disc, for which conservative treatment was indicated, the surgical expense would not have been the employer’s responsibility. (Similarly, there is no contention that the appellees should pay for the claimant’s unauthorized and unavailing visits to the chiropractor.) It develops, however, that it was Dr. Hundley’s treatment that was in a sense unnecessary, in that it could not correct the condition that really existed, while the surgical operation was the right and necessary step. In this situation there is no sound basis for exempting the employer from liability upon the present claim. See Atlas Powder Co. v. Grimes, 200 Tenn. 206, 292 S. W. 2d 13.
The appellees also rely heavily upon this sentence in our compensation act: “The Commission may order a change of physicians at the expense of the employer when, in its discretion, such change is deemed necessary or desirable.” Ark. Stat. Ann. § 81-1311 (Repl. 1960). We believe that this provision was inserted in the statute to anticipate any possible doubt about the power of the commission to order a change of physicians. It should not be regarded as establishing an exclusive method of procedure, for, as a practical matter, an injured employee ordinarily has no lawyer and is not in a position to apply to the commission for a change of physicians. To construe the statute as narrowly as the appellees would have us do would convert this provision from a remedial measure designed to help the workman into a punitive measure designed to hurt him.
The judgment must be reversed, and the cause will be remanded, through the circuit court, to the commission for the entry of an award against the appellees for the reasonable expense of the surgical operation and for the claimant’s disability during his period of convalescence. The award should also provide compensation for any permanent partial disability that the commission finds to exist.
Reversed.
McF addin, J., concurs; Robinson, J., dissents. | [
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