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Holt, J.
The parties to this litigation are the heirs of Maggie S. Kelly, who died August 26, 1934. Appellants brought this suit against appellees, alleging an interest in the proceeds from the sales of certain mineral rights in an eighty acre tract of land in Union county. .Their prayer was “that the defendants (appellees) be declared trustees for the plaintiffs (appellants) herein; and that they be required to make a full and complete accounting of all sums received from any source from said lands;” etc. Appellees answered with a general denial. The trial court found all issues in favor of appellees and this appeal followed.
The record discloses that on January 22, 1872, Joel Kelly and Mary T. Kelly, his wife, by warranty deed, conveyed for a valuable consideration, the land here involved to their son, John M. Kelly; September 20, 1909, John M. Kelly, by warranty deed, conveyed for a valuable consideration, this same land to his wife, Maggie S. Kelly. December 17, 1919, Maggie S. Kelly conveyed by warranty deed, for a valuable consideration, to her son, J. A. Kelly, 40 acres of the land here involved; February 16, 1934, Maggie S. Kelly conveyed by warranty deed, for a valuable consideration, the remainder of the land here involved, less one acre, to her daughter-in-law, Mrs. E. A. Kelly. Thereafter, on September 16, 1938, Mrs. E. A. Kelly, by warranty deed, for a valuable consideration, conveyed to her daughter, Oma Spooner, thirty acres of the land here involved and which she obtained from Maggie S. Kelly, and on this same date, September 16, 1938, Mrs. E. A. Kelly also conveyed by warranty deed, for a valuable consideration, to her son, Hugh Kelly, the remainder of the tract involved here. All 'of the deeds affecting the interests of appellees, in the eighty acre tract, are absolute in form.
There is evidence that while Maggie S. Kelly owned the land here involved and other land, she had expressed a desire that it be divided at her death among her five children, and that during her lifetime she had divided among appellants money received from the sale of oil and gas leases and minerals in and on the land. There is also evidence that J. A. Kelly had given his mother, Maggie S. Kelly, some of the money from time to time which he realized from certain leases on the land, which his mother had deeded to him December 17, 1919.
Appellants argue that an implied trust was created; that appellees held the proceeds from the sale of leases, and oil and gas rights in arid to the land in question as trustees, and that they (appellants) are entitled to an accounting. There is no contention that'an express trust was created.
In Stacy v. Stacy, 175 Ark. 763, 300 S. W. 437, it was held that an implied trust is a term which includes constructive trusts, trusts ex maleficio, and resulting trusts, and it was there said: ‘ ‘ These implied trusts, which arise or result by implication of law, may be proved by oral testimony. Section 4868, C. & M. Digest (§ 6065, Pope’s Digest); Bray v. Timms, 162 Ark. 247, 271 and 272, 258 S. W. 338.” In the Stacy case, Mr. Pomeroy’s definition of a resulting trust was there approved as follows: ‘ ‘ Resulting trusts arise where the legal estate is disposed of or acquired, not fraudulently or in the violation of any fiduciary duty, but the intent, in theory of equity, appears or is inferred or assumed from the terms of the disposition, or from the accompanying facts and circumstances, that the beneficial interest is not to go with the legal title. In such case a trust results in favor of the person for whom the equitable interest is thus assumed to have been intended, and whom equity deems to be the real owner. ”
We also approved his definition of a trust ex maleficio or a constructive trust, as follows: “Second, well-settled and even common form of trusts ex maleficio occurs whenever a person acquires the legal title to land or other property by means of an intentionally false and fraudulent verbal promise to hold the same for a certain specified purpose, as, for example, the promise to convey the land to a designated individual, or to reconvey it to the grantor, and the like, and, having thus fraudulently obtained the title, he retains, uses and claims the property as absolutely his own, so that the whole transaction by means of which the ownership is obtained is in fact a scheme of actual deceit. Equity regards such a person as holding the property charged with a constructive trust, and will compel him to fulfill the trust by conveying according to his engagement.”
After a careful review of the record, we think the testimony falls far short of'establishing appellants’ contention that an implied trust was created. As we recently said in McKindley v. Humphrey, 204 Ark. 333, 161 S. W. 2d 962, (quoting with approval from Bray v. Timms, 162 Ark. 247, 258 S. W. 338): “It is a well-settled principle that, while trusts resulting by operation of law may be proved by parol evidence, yet the courts uniformly require that such evidence be received with great caution, and that it be full, free and'convincing. Colegrove v. Colegrove, 89 Ark. 182, 116 S. W. 190, 131 Am. St. Rep. 82; Hunter v. Feild, 114 Ark. 128, 169 S. W. 813. See, also, Nevil v. Union Trust Co., 111 Ark. 45, 163 S. W. 162.”
This court also held in the Bray v. Timms case that (Headnote 5): “In the case of a deed absolute in form there is a strong presumption against the existence of a trust, which must be overcome by a greater weight of evidence than a mere preponderance.”
Here the undisputed evidence shows that the deeds,. under which appellees claim title to the property involved, are absolute in form. There is no evidence of fraud in their procurement. There is no evidence that appellees did not pay a valuable consideration for their respective tracts or that they took title to hold in trust for these appellants or anyone else.
binding no error, the decree is affirmed. | [
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McFaddin, J.
Appellee, as administrator, filed, action against appellants for damages for alleged negligent killing of appellee’s intestate. From a jury verdict and judgment thereon for ten thousand dollars, there is this appeal presenting the questions herein discussed.
I. Sufficiency of Evidence to Support Verdict.
At the close of plaintiff’s evidence, and again at the close of all the evidence, the defendants moved for an instructed verdict; and now assign as error the' denial of these motions by the court. This assignment necessitates a review of the facts, and in the light most favorable to the appellee. (See Arkansas Power & Light Co. v. Connelly, 185 Ark. 693, 49 S. W. 2d 387.)
On January 16, 1943, at about four p.m., on a clear day, the deceased, Vera Caple (aged seven years, five months, and three days), with her companion of about the same age, was walking westerly on appellant’s railroad track, as the public seemed accustomed to do. She caught her foot in a cattle guard. Twenty-two feet west of where she was caught, there was a road crossing; and eight hundred and two feet west of where she was caught there was a sharp curve to the south in the railroad track and a high earthen bank on either side, so that the view of the cattle guard was obstructed —at eight hundred and two feet and beyond — to the engineer or other operative of any train approaching the cattle guard from the west; that is, the distance of observability of the engineer on the train to the cattle guard was at least eight hundred and two feet: The deceased was wearing a bright red hood and coat. While she was thus caught in a cattle guard, a train traveling at a speed of twenty-five to thirty-five miles per hour came around the curve eight hundred and two feet away and proceeded to strike the deceased, knocking her body several feet from the track. She was unconscious at all times from the moment she was struck until her death which occurred less than an hour later. The plaintiff alleged the negligence of the defendants to be the violation of § 11144 of Pope’s Digest, which is commonly known as the “Lookout Statute,” and which statute, inter alia, requires the operatives of all trains to keep a constant lookout and to exercise reasonable care to prevent injuring any persons discovered in peril on the tracks.
The plaintiff introduced evidence that before the train came around the curve and all times thereafter the deceased and her companion were screaming and waving to the train in every effort to cause it to stop; and one witness nine hundred feet away from the cattle guard saw and appreciated the danger of the child before the train came around the curve: so the engineer on the train, if he had been keeping a lookout, could have likewise appreciated the situation. The plaintiff showed that a man standing on the south rail of the railroad track eight hundred and two feet west of the cattle guard could see the place where the child was struck.
The engineer on the train testified that the front of the train was “between six hundred and seven hundred feet” west of the cattle guard when he first saw the child; and that the train went “between two hundred or three hundred feet” after striking the child. Although the engineer testified that he was at all times keeping a lookout and that he did all that he could to stop the train after discovering the child on the track, still the jury could have found (by using the minimum figures of his testimony) that he stopped the train within eight hundred feet after seeing the child. Since the engineer could have, seen her at least eight hundred and two feet away, the jury might have reasonably concluded from the engineer’s evidence that, if he had been keeping a lookout when he rounded the curve, he could have stopped the train two feet before reaching the child — even using his own figures on distance. But there was other evidence: one witness said the train did not slacken its speed-until after it struck the child. Another witness (offered by the defendants) said the train (not the engine only) was “clear of the cut” when the brakes were first applied. This evidence would mean that the engine and all five passenger cars had completely rounded the curve before the brakes were applied.
So, without reviewing all the evidence we reach the conclusion that there was sufficient evidence to take the case to the jury on the lookout statute. Some of our cases construing this statute are listed in the footnote to said § 11144 of Pope’s Digest and there is no need for us to list them here.
II. Plaintiff’,s Instruction No. 4.
This reads as follows: “You are instructed that if you find from a preponderance of the evidence in this case that the defendant, W. L. Martins was operating one of the defendant railway company’s trains, approaching a crossing at the time and they came through a cut that the defendants had caused to be in a hill, and that, this obstructed the view of the operators of the train from the crossing some 800 feet away, and you further find by a preponderance of the evidence that the operators of the train were operating said train at such a rate of speed that they could not stop the train by the time they got to the crossing, and you further find by a preponderance of the evidence in this- case that this failure on their part of not having the train under such control to stop it by the time they got to the crossing was the cause of the train striking and killing ’Vera Virginia Caple, you are told that you can take this into consideration in passing upon whether or not the defendants were guilty of negligence.”
W. L. Martins was the engineer on defendant’s train. It will be recalled that there was a public crossing twenty-two feet west of the cattle guard; and that the train had to pass the crossing before reaching the cattle guard. In the above instruction the court in effect, told the jury that if the train was running so fast that, after rounding the curve, the train could not be stopped at the crossing, then the jury could consider that fact in passing on the question of negligence in the case at bar. This instruction thus argued to the jury that if the train was running so fast that the engineer could not stop the train at the crossing then he might not have been able to have stopped it at the cattle guard where the deceased was fastened.Certainly to discuss the duty of the railroad company to sonieone at a public crossing between the cattle guard and the curve was to inject a most argumentative issue into the case. We hold that this instruction as given was argumentative and misleading and highly prejudicial. See 64 C. J. 660 and West’s Arkansas Digest, “Trial,” Key No. 240. Specific exceptions were saved which bring these errors before us.
The case at bar was not a crossing case, because the deceased never reached the crossing. The deceased, in walking along the track was at most a licensee, and the duty that the operatives of the train owed her was measured by the lookout statute. This point was discussed and explained in St. Louis-S. F. Ry. Co. v. Williams, 180 Ark. 413, 21 S. W. 2d 611. The question in the case at bar was not what the train operatives might have done regarding someone on the crossing, but what they did, or failed to do, regarding this child with her foot fastened in the cattle guard. They owed her the duty stated in the lookout statute; and to instruct about the crossing was clearly erroneous and prejudicial. This error in giving plaintiff’s instruction No. 4 was emphasized and reiterated when the court amended the defendants’ instruction No. 2 over defendants’ objections.
III. Plaintiff’s Instruction No. 5.
This instruction reads: “You are instructed that if you find for the plaintiff in this case, in assessing the damages you may take into consideration the mental suffering and fright the plaintiff’s intestate suffered before the train actually struck her, but' after she saw the train coming, provided you find from the preponderance of the evidence in this case that plaintiff’s intestate did see the train coming and was frightened thereby.”
The evidence shows that the deceased lived only a short time after being struck by the train; and -there is no allegation or proof of any conscious pain or suffering-after the injury. By this instruction the jury was permitted to award damages for mental suffering before the injury. The instruction uses the words “mental suffer- • ing and fright” but in this case fright was but another form of mental suffering (15 Am. J. 607); so we come to the question of whether there can be a recovery for mental suffering antecedent to the'physical injury or only for mental suffering following or resulting from the injury. To discuss the question necessitates a cataloguing- of some of the cases:
A. Where the action is wanton or willful there may be a recovery for humiliation and mental suffering without any physical injury. Such cases are Erwin v. Milligan, 186 Ark. 658, 67 S. W. 2d 592; Rogers v. Williard, 144 Ark. 587, 223 S. W. 15, 11 A. L. R. 1115; Lyons v. Smith, 176 Ark. 728, 3 S. W. 2d 982. But the case at ba*t is not such a case as any of these, for the liability .here was predicated on negligence as distinguished from willful or wanton wrong.
•
B. In cases of negligence (or as said in one case, “unintentional negligence”) where there is no willful or wanton wrong then there can be no recovery for mental suffering unless there is also physical injury. Some of these cases are St. Louis, etc., Ry. Co. v. Bragg, 89 Ark. 402, 64 S. W. 226, 86 Am. St. Rep. 206; St. Louis, etc., Ry. Co. v. Taylor, 84 Ark. 42, 104 S. W. 551, 13 L. R. A., N. S., 159; Chicago, etc., Ry. Co. v. Moss, 89 Ark., 187, 116 S. W. 192. It will be noticed that some of these cases say, there can be no recovery for mental -suffering unless accompanied by physical injury. The question now posed in the case at bar is whether the mental suffering may immediately precede the physical injury and none of these cases decides that question.
O. There are cases (from other jurisdictions) which hold that where one is frightened and faints and is injured in falling, there may be a recovery for the injury resulting from the fright. See Comstock v. Wilson, 257 N. Y. 231, 177 N. E. 431, 76 A. L. R. 676, and see annotation in 11 A. L. R. 1119, 40 A. L. R. 983 and 76 A. L. R. 681. But in the case at bar there is no claim that the fright caused the injury, so these cases afford us no guide.
1). We have several eases where fright or mental-anguish was allowed as an element of recovery, but in each of these there Avas a preceding eviction, or a derailing of the car, or some other preceding wrong which was complete and consummate before the mental anguish began. Some of these cases are Arkansas Motor Coaches v. Whitlock, 199 Ark. 820, 136 S. W. 2d 184; St. Louis, etc., Ry. Co. v. Brown, 97 Ark. 505, 134 S. W. 1194; Lamden v. St. Louis S. W. Ry. Co., 115 Ark. 238, 170 S. W. 1001; St. Louis, etc., Ry. Co. v. Robertson, 103 Ark. 361, 146 S. W. 482; Stevenson v. John J. Grier Hotel Co., 159 Ark. 44, 251 S. W. 355. But in the case at bar, it may be stated that if the train had stopped two feet or two inches before striking the child there could have been no recovery for her mental anguish or fright. The violation of the lookout statute was not a “fait accompli”, until-the child was struck, so the case at bar is thereby distinguished from these cited cases.
Without further cataloguing of cases we may state that in the excellent briefs of learned counsel of both sides, and also in our own search, we have been unable to find a case of similar facts (involving only antecedent mental anguish) either in this or any other jurisdiction to serve as a guidepost in this case. McDermott v. Severe, 202 U. S. 600, 26 S. Ct. 709, 50 L. Ed. 1162, was a case of a child injured by reason of being caught in the track, but the question of mental anguish preceding the injury was not there involved. General statements may be found in the following cases and texts, to-wit: Bahr v. Northern Pacific Ry. Co., 101 Minn. 314, 112 N. W. 267; Hunter v. Fleming (Mo.), 7 S. W. 2d 749; McCardle v. Geo. B. Peck Co., 271 Mo. 111, 195 S. W. 1034; Cook v. Maier, 33 Cal. App. 2d 581, 92 Pac. 2d 434. Annotation in 23 A. L. R. 361 and White on “Personal Injuries on Railroads,” vol. 1, § 171. See, also, 15 Am. J. 513 and annotation in L. R. A. 1916C 973. But in none of these do we find a set of facts stated that is similar or analogous to the situation in the case at bar. We must, therefore, approach the decision by citation and discussion -of basic authorities, and reasoning from them.
The question may be simplified by stating it thus : “Is it the mental anguish that flows from the negligent act, or is it the mental anguish that flows from the injury, that is compensable?” We reach the conclusion that it is the mental anguish that flows from the injury and not the mental anguish preceding the injury that may be recoverable, in a case like the one at bar.
In the case of St. Louis, etc., Ry. Co. v. Taylor, 84 Ark. 42, 104 S. W. 551, 13 L. R. A., N. S., 159, Mr. Justice McCulloch, speaking for the court, said:
“The reason that mental suffering, unaccompanied by physical injury, is not considered as an element of- recoverable damages is that it is deemed to be too remote, ■uncertain and difficult of ascertainment; and the reason that such suffering is allowed as an element of damages, when accompanied by physical injury, is that the two are so intimately connected that both must be considered because of the difficulty in separating them. 4 Sutherland on Damages, § 1245; Fell v. Rich Hill Coal Mining Co., 23 Mo. App. 216; Chapman v. Western Union Telegraph Co., 88 Ga. 763, 15 S. E. 901, 17 L. R. A. 430, 30 Am. St. Rep. 183; Johnson v. Wells, Fargo & Co., 6 Nev. 224, 3 Am. St. Rep. 245; Wyman v. Leavitt, 71 Me. 227, 36 Am. Rep. 303; Ewing v. Pittsburg, etc., Ry. Co., 147 Pa. 40, 23 Atl. 340, 14 L. R. A. 666, 30 Am. St. Rep. 709.
“ ‘So far as mental suffering originating in physical injury is concerned,’ says Judge Lumpkin in the Georgia case cited above, ‘it is rightly treated as undistinguishable from the physical pain. On ultimate analysis, all consciousness of pain is a mental experience, and it is only by reference back to its source that one kind is distinguished as mental and another as physical. So, in case of physical injury, the mental suffering is taken into view. But, according to good authorities, where it is distinct and separate from the physical injury, it can not be considered’.”
In Chicago, etc., Ry. Co. v. Mizell, 118 Ark. 153, 175 S. W. 396, the train was flagged and did not stop, and the plaintiffs did not get to a funeral on time, and had to walk in the rain and became sick. They were denied recovery for mental anguish by this court, and in language as follows: “Mental anguish was.not a recoverable element of damages under the facts of this case. The mental anguish suffered in this case did not result from the walk in the rain and cold, nor from the sickness which resulted therefrom; but from the delay in getting to Malvern in time to look after the funeral arrangements of the father on the part of two, of the appellees and the failure to attend the funeral of an uncle on the part of the other. It is true appellees suffered physical pain as the result of their illness and mental anguish on account of the delay; but there is no such casual connection between tlie two as that the railway must respond in damages for both.”
In 15 Am. J. 594, in speaking of a recovery of mental anguish, it is said: “It (mental anguish) must result directly from, or be the natural, legitimate, and proximate consequence of the physical injury forming the basis of the action.”
And in 25 C. J. $. 552 the rule is stated: “Mental pain and suffering as a direct and necessary consequence of a physical injury is a distinct element of damages. . . . The mental pain for which compensation' may bo had under this rule, however, must be such as accompanies the physical, injury and is fairly and reasonably tiie natural consequence which flows from it.”
It will be observed tliat in all of these authorities it is stated that the mental suffering must follow and flow from the injury.
An analysis of our statutes strengthens our views that the action for mental anguish of the deceased cannot be brought under the sections that are now 1277 and 1278 of Pope’s Digest was decided in St. Louis, etc., Ry. Co. v. Robertson, 103 Ark. 361, 146 S. W. 482; and see, also, Smith v. Mo. Pac. Rd. Co., 175 Ark. 626, 1 S. W. 2d 48. The only cause of action that the administrator has for mental suffering is that allowed by § 1273 of. Pope’s Digest. At 'common law a cause of action for mental anguish ceased on the death of the injured party and it is only bj^ reason of § 1273 of Pope’s Digest that this administrator can maintain this suit. This section reads: “For wrongs done to the person or property of another, an action may be maintained against the wrongdoers, and such action may be brought b3r the person injured, or, after his death, by his executor or administrator against, such wrong-doer, or, after his death, against his executor or administrator, in the same manner and with like effect in all respects as actions founded on contracts.”
No wrong was done the deceased until she was injured. This statute uses the words “the person injured.” It does not say “the person against whom there was a negligent action.” So the statute, under which this action is brought, does not provide for an action for mental suffering antecedent to the injury, in a case like the one at bar.
We therefore reach the conclusion that plaintiffs instruction No. 5 was erroneous, in allowing mental anguish preceding the injury to be considered as an element of damages.
IY. Excessive Verdict.'
The appellant claims that the verdict of $10,000' was grossly excessive and in this we agree. Some of our cases on the size of verdicts that we will sustain in cases like the one at bar are Arkansas Baking Co. v. Wyman, 185 Ark. 310, 47 S. W. 2d 45; Davis v. Gillin, 188 Ark. 523, 66 S. W. 2d 1057, and see other cases listed in West Arkansas Digest, “Death,” Key No. 99 (3). The size of the verdict in the case at bar was probably influenced by plaintiff’s instruction No. 5 which we have heretofore discussed.
Ordinarily in a case of excessive verdict the error may be cured by a remittitur, where the excessive verdict is the only error. See Mo. Pac. R. R. Co. v. Newton, 205 Ark. 353, 168 S. W. 2d 812. But in the case at bar there was not only the error in plaintiff’s instruction No. 5, but there were also the errors (a) in giving plaintiff’s instruction No. 4, and (b) in modifying defendant’s instruction No. 2; and these last mentioned errors go to the question of liability; so the excessive verdict can not be cured by a remittitur.
It therefore follows that for the errors indicated the judgment is reversed, and the cause is remanded for a new trial. | [
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Mehaeey, J.
The appellee wag the owner of certain land in Montgomery County, Arkansas, across which an old road ran, and the Caddo River Lumber Company, in carrying out its .operations, used said road for about two Aveeks in hauling loga. Appellee forbade tliem to use the road further, and threatened to close the road. The lumber company then. brought suit to enjoin the appellee from closing the road or interfering Avith its use of the same. . • «
The lumber company alleged in its complaint that, bn account of the .Ouachita River, it and several other residents in the community had no other Avay of getting into any public highway without using the road and crossing the lands of the appellee. There had been an old road across the land in question for more than 30 years, and the said road had been used by. the residents of the Qualls land, the Pike lands, and the Martha Rankin lands, and the public, in getting out to the Mount Ida highway, and such use of the road had been open, notorious, adverse and uninterrupted as against. the owners of the lands traversed by the road, and, as a result of such long-continued and adverse user, the residents of the farms in question and the public in general have acquired a right by prescription. That, at the time the’ appellee forbade the company haulers to use the road further, the company had doAvn in the woods adjoining defendant’s land a large quantity of timber, for which it had no outlet other than the road in question, and that, unless it was permitted to use said road, its down timber would be a loss and its remaining timber would be of no value. That the usé of the road did not damage the lands.
The defendant demurred to the complaint, which demurrer was overruled by the court. He then filed answer, and denied the long-continued and adverse user of the road in question, and denied that it was the only accessible outlet to the Mount Ida highway. Defendant alleged that the use of the road had at all times been permissive, and that the. land through which the road ran was open, wild, unimproved and uninclosed; The ,.. answer further alleged that the company had, without fe; right, used said road Avith heavily loaded eight-wheeled ■¡¡wagons, to defendant’s damage in the sura, of $225. •Alleged that the use of. the road damaged liis lands, and that the company haulers stopped their teams and shod their mules near a certain spring, to his damage in the sum of $50, and that the haulers further damaged him in the sum of $25 by cutting and removing timber from his lands.
The chancellor found' that the road was private -and not public, and that the use had been permissive and not adverse, and that defendant should have judgment for $100 for damages ■ caused by the use of said ■ road, $25 for damages-to the spring, and $8 for damages for timber cut and removed. ' ■ ' .■ ' •
The lumber company excepted and prayed an appeal ■to this court, which was granted. ' '; ■ '
There is very little dispute about the: testimony, and we think it unnecessary to set it out in full. There was no controversy about the land through which the road ran being open, wild, unimproved and uriinclosed. There, is no testimony tending.to show that the public or any one else had ever claimed any adverse right or any right at all against the objections of 'appellee. ■ The road had been there for probably more than 30 years, and a few neighbors had been using thé roád, 'bút not only the public, but those neighbors who used that road, so far as the proof shows, had never claimed any right adverse to the owner of the land. The testimony showed that the defendant had used five eight-wheeled wagons for about a week and that they later used thirteen wagons for about a week. The testimony also shows that there was some damage resulting from the use of the road, and, while there is no testimony that' any' timber was out or used, there is testimony showing that' small'timber had been skinned and bruised, and also testimony showing that the road had been 'made wider and at one place the road hád been changed about 25 feet from the old road. ■ ’ :
' We think the chancellor was clearly correct in holding that the lumber company 'had no right to use it against the objections of the' owner of the land. Testi mony shows that the 40-acre tract of land was worth approximately $600, and practically the only testimony with reference to the amount of damages was that of the plaintiff, who testified that he figured he had been damaged $300. But the evidence as to what was actually done shows that the damage was rather slight, and, from the testimony, there was very little damage to the spring. In fact, the proof showed that it would only have taken an hour or two to clean the spring out, and the other damage about shoeing mules close to the spring shows not only slight damage hut that the damage could be repaired for a nominal sum. There is no testimony in the record showing the amount of damage either done to the spring or to the timber, and, from the evidence in the case, we are of the opinion that the- $Í00 awarded by the chancellor for damage to land is full compensation for all fhe damage done by the lumber company, and that there is no evidence in the record as to the amount of damage done to the spring or the amount of damage to the timber.
It is unnecessary to set out the testimony more fully. We have examined it all carefully, and are thoroughly convinced that the chancellor was correct in finding that the use of the road had not been adverse, and that the appellee was entitled to an injunction.
This court has said in a case where the facts were very similar:
“It is unnecessary to. set out more of the testimony. We have examined it all and are thoroughly convinced that the finding of the trial court to-the effect that the use of the roadway by the public had not been adverse but permissive is not against the preponderance of the evidence.” Brumley v. State, 83 Ark. 236, 103 S. W. 615.
Among other things we said:
“When the public use a road running through open and unfenced lands, without any order of the county court making it a public road and without any attempt to work it or exercise authority over it as a public highway, the presumption is that the use of the road is not adverse to the rights of the owner of the land, but by his consent. When he needs the land, he. may withdraw his consent, fence the land, and exclude the public without violating the law.”.
In Sharp v. Mynatt, 1 Lea (Tenn.) 375, it is held, (quoting syllabus):
“Mere user by permission of landowner of a way over his land cannot establish a right to a public way, unless such user is shown by facts and circumstances showing the user by the public under a claim of right, and not simply by permission, actual or tacit, of the owner. The fact that the road had never been woi’ked, repaired, taken control of by the public, or overseers appointed, is an important element of evidence against such claim of right, though not conclusive.” Merritt Mercantile Co. v. Nelms, 168 Ark. 46, 269 S. W. 563.
There is no evidence in this case tending to show that there was ever any order of court making this a public road or any attempt to work it or exercise authority over it as a highway, and there is no evidence either, of facts or circumstances showing that the public used it under claim of right.
The decree will therefore be modified and affirmed for $100. It is so ordered. | [
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Humphreys, J.
This suit was brought in Perry County, Arkansas, by appellee against appellant, upon service procured in Union County, Arkansas, under § .1829 of Crawford & Moses’ Digest. A motion was made by appellant to quash the service upon the ground that said, section of the statute was void as being repugnant to the 14th Amendment to the Constitution of the United States. The validity of the statute in question has been sustained by this court in the case of Power Manufacturing Company v. Saunders, 169 Ark. 748, 276 S. W. 599."We adhere to our views announced in that case.
The purpose of the suit was to recover $3,000 damages for personal injuries received by appellee on the 10th day of December, 1925, through the alleged negligence of appellant while engage'd in its employment as a laborer. It was alleged in the complaint that, at the time of the injury, appellee was working for appellant in the oil fields, and, on the day of the injury, was Avorking under the direct supervision of its foreman, C. W. Watson; that they were engaged in connecting a broken pipe line used for the purpose of conveying gas from the field to the main plant; that, just immediately prior to the time the injury occurred, appellee and one of the other men were finishing putting* up a jack about 90 or 100 feet away from the place where the injury occurred; that appellant’s foreman, Watson, and one of the other men raised the pipe up on the jack and jack-bar preparatory for appellee and a fellow-servant to cut the dies in order -that the same could be put together, and said foreman, upon the pipe being raised, told appellee to hurry up and thread the pipe, as the plant was down, and that everything was ready for him to begin; that appellant, through its foreman, negligently and carelessly set up the jack and jack-bar in that it Avas in a crooked position, not braced, which left it in an unbalanced condition, and that the weight resting upon it by virtue of the pipe caused it to fall on appellee when he went to cut the die, and that this constituted negligence on the part of the company. The complaint contained a prayer for $3,000 damages on account of the personal injuries received.
Appellant filed an answer to the complaint, denying the material allegations as to injuries and damages, and pleaded as affirmative defenses assumed risk and contributory negligence on the part of appellee.
The cause was submitted upon the pleadings, the testimony adduced by the respective parties and'the instructions of the court, which resulted in a judgment in favor of appellee for $3,000, from which is this appeal.
A miniature model of the jack, jack-bar and the pipe line was introduced in evidence, and it and the use thereof Avere described and explained by the Avitnesses. When in use, it- sits in an upright- position, and is about eighteen or twenty inches wide at the bottom and two inches thick. The jack-bar is notched in order to afford a resting place for the jack. The jack has iron pins extending through it about one inch in diameter. At the bottom of the jack there is a bolt in which there, is supposed to be placed a block in order to brace it with the jack-bar. When placed on the ground for use, the jack rests on the jack-bar where it is notched, and the other end of the jack-bar rests on the ground at an angle so that the short pins on the jack extend over the jack-bar, while the bottom of the jack rests at the desired stop on the jack-bar. The pipe is then placed on the jack, and one of the pins which extends upward from this position forms a groove in which the pipe firmly rests while being threaded with a die in order to connect same. The pins clear the bar and make a firm structure to hold the pipe.
. Appellee testified that, when he was injured, the pipe was resting on a third pin, and was about three and one-half feet from the ground; that the notches on the jack-bar were parallel with the pipe on which he was undertaking to cut the threads; that the jack was not setting squarely with the jack-bar, and was put up in a' crooked manner; that same was not noticed by him until after he had touched the die handle; that Watson, the foreman, had told him to hurry and cut the die threads on the pipe, and that when he went around the pipe with his tools to approach same from the front, without noticing its being improperly set up, immediately upon touching it it fell, thereby injuring him.
The testimony introduced by appellee tended to support the allegations contained in the complaint, and that introduced by appellant tended to disprove negligence on its part, and contributory negligence and assumption of risk on the part of appellee.
Appellant’s first contention for a reversal of the judgment is that no liability was shown to exist against it because the undisputed testimony disclosed that the tool or appliance complained of and the method of using it was extremely simple. In other words, appellant invoked as a defense to the cause of action the rule of non-liability for injuries growing out of the use of ‘ ‘ simple appliances” or tools, as expressed by this court in many cases in the following language.:
“The duty of the master to exercise ordinary care to provide reasonably safe tools and appliances for his servants has no application where the tools are common tools in ordinary use and the servant possesses ordinary intelligence and knowledge of their use and construction.” Royal v. White Oil Corporation, 160 Ark. 467, 254 S. W. 819; Railway Co. v. Kelton, 55 Ark. 483, 18 S. W. 933; and Fordyce Lumber Co. v. Lynn, 108 Ark. 377, 158 S. W. 501, 47 L. R A. (N. S.) 270. .
The inspection of the miniature model, made an exhibit in the evidence, the description thereof and method of using same, did not bring it within the ‘1 simple appliance” doctrine.
Appellant’s next contention for a reversal of the judgment is that the court erred in giving instruction number 1, which is as follows:
“You are instructed that it was the duty of the defendant company to exercise reasonable care in furnishing the plaintiff a reasonably safe place in which to work and safe tools with which to work, and if you find from the evidence in this case that the pipe, when jacked up on the jack-board and jack, was not securely fastened, which would have been discovered by the employer in the exercise of ordinary care, and if you find that such defective or dangerous condition was not apparent to the plaintiff and would not have been discovered by him in the exercise of reasonable care for his own safety, and if you further find that the plaintiff suffered an injury on account of such alleged defective manner in which said pipe was laid upon said jack and jack-board, then you are told that the defendant was guilty of negligence, and your verdict will be for the plaintiff. ’ ’
The instruction, is assailed because the word “ reasonable” is used instead of the word “ordinary” to modify the word “care,” and to the use of the phrase “safe tools” instead of the phrase “reasonably safe tools.” The use of the word “ordinary” would he preferable, but the difference in meaning in the connection used is so slight that the use of the word “reasonable” does not constitute reversible error. Wisconsin & Arkansas Lumber Co. v. Standridge, 132 Ark. 535, 201 S. W. 295. Reading the first part of the instruction in connection with “safe tools,” “reasonably” is necessarily implied before the phrase “safe tools,” as the two parts of the instruction are conjunctively connected. We do not think the instruction imposes upon appellant a higher degree of care than the law imposes upon it. The instruction, however, is erroneous because it told the jury that they should render a verdict in favor of appellee if they found appellant guilty of the negligent act detailed in the instruction. The effect of this was to exclude appellant’s defenses of contributory negligence and the assumption of the risk, if they should find that appellee was guilty of either.
Appellant’s next contention for a reversal of the judgment is that the court erred in giving instruction number 2 at the request of appellee, which is as follows:
“You are instructed that it wás the duty of the defendant to furnish the plaintiff a safe place in which to perform his duties, and if you find-from the evidence that the foreman of the defendant company raised the pipe from the ground at the place 'where it was to be repaired, or had it done, and affixed same upon the jack and jack-board in a position where plaintiff could get to it, and that, after doing so, notified said plaintiff to go to work on it as quickly as possible, that it was all ready for them to begin work, you are instructed that the plaintiff had a right to assume that the defendant had fixed the pipe in a secure manner, so "that it would be -safe for him to proceed to work thereon, and if you find from the testimony that the defendant had not fastened said pipe in a safe and secure manner, and that the failure thereof was not known to this plaintiff, nor, in. the exercise of ordinary care, would have been discovered by him, then the defendant will be guilty of negligence, and your verdict will be for the plaintiff.”
The instruction is assailed because it imposed the duty upon appellant to furnish appellee a safe place in which to perform his duty. The instruction was inherently defective on this account. The law only imposed the duty upon appellant to exercise ordinary care to provide a reasonably safe place for appellee to perform his duty. Instructions numbers 1 and 2 are in open conflict in this particular. Instruction number 2 is also inherently defective because it omitted' to take into account the defenses tendered by appellant of contributory negligence and the 'assumption of risk by appellee. The question of whether appellee assumed the risk or was guilty of contributory negligence was a disputed question of fact under the evidence and a question for determination by the jury. The defect with reference-to the omission of appellant’s defenses in the two instructions mentioned above ran through all of the instructions given by the court at the request of appellee, and should be corrected so as to recognize these two defenses on a retrial of the cause.
Appellee contends that the omission in the two instructions to take into account appellant’s defenses of contributory negligence and the assumption of the risk by appellee was cured by instructions numbers 2 and 4 requested by appellant and given by the court. Number 2 related to contributory negligence and number 4 to the assumption of the risk, and would have cured the defect, had the court not told the jury in both cases to render a verdict in favor of appellee in case they found that appellant was guilty of negligence as alleged. This declaration on the part of the court created a conflict between the two instructions given at the request of appellee and instructions 2 and 4 given at the request of appellant. Southern Anthracite Co. v. Bowen, 93 Ark. 140, 151-152, 124 S. W. 1048.
On account of the errors indicated the judgment is reversed, and the cause is remanded for a new trial. | [
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Humphreys, J.
This suit was instituted by appellees against R. S. Morris, the legal owner of about 1,900 acres of land in Crittenden County, Arkansas, his wife, the appellant and other parties, to foreclose a deed of trust by R. S. Morris and wife on the tract of land referred to, on the 7th day of February, 1920, and recorded on the 14th day of the same month, to secure a loan of $32,000 which, after allowing all credits, amounted to $37,480.57 on the date of the foreclosure. The 1900-acre tract included the northeast quarter of section 32, township 8 north, range 7 east; and was also intended by the parties to include the ■ southeast quarter of section 29 in said township and range, hut, through mistake, was described as the southwest quarter of said section, township and range.
Appellant tiled an answer and cross-complaint, alleging that its assignor, the Guaranty Bank & Trust Company, loaned R. S. Morris $9,600 on the southeast quarter of said section 29 and the northeast quarter of said section 32, under the representation that the 320-acre tract was unincumbered except by the mortgage for $3,500 to the Southern Abstract & Loan Company; that out of the money it loaned Morris he paid off the mort gage to the Southern Abstract & Loan Company, amounting to $4,096, including interest, and paid the balance of $5,500 to appellees on their mortgage; that, by reason of paying the indebtedness due the Southern' Abstract & -Loan Company, which was a superior lien to the mortgage lien of appellees-, and by reason of paying $5,500 to-appellees on their mortgage, it was entitled, under the doctrine of subrogation, to have its mortgage lien declared a prior and paramount lien to that of appellees on the northeast quarter of section 32, township 8 north, range 7 east.
On the hearing of the cause upon the pleadings and testimony adduced by- the respective parties, the court adjudged the lien of appellant prior and paramount to that of appellees on the southeast quarter of said section 29, and declared the lien of appellees prior and paramount to that of appellant on the northeast quarter of section 32, township 8 north, range 7 east, from which latter judgment an appeal has been duly prosecuted to this court.
The facts are undisputed, and are as follows:
R. S. Morris, who was the owner of the southeast quarter of said section 29 and the northeast' quarter of said section 32, executed a mortgage to the Southern Abstract & Loan Company for $3,500, prior to February 7, 1920, in which his wife joined. On the 7th day of February, 1920, R. S. Morris and wife conveyed to R. B. Barton, as trustee for F. G-. Barton Cotton Company, the appellees herein, by deed of trust to secure an indebtedness to F. G-. Barton Cotton Company of $32,000 on about 1,900 acres of land, including the northeast quarter of said section 32, and intending to include the southeast quarter of said section 29, but, through mistake, described the látter 160-acre tract as being in the southwest quarter of said section 29. The deed of trust recited that it was made subject to the mortgage of the Southern Abstract & Loan Company for $3,500. The mortgage to R, B, Barton, as trustee for.the F. Gr. Barton Cotton Com pany, was recorded on the 14th day of February, 1920. On the 16th day of October, 1920, B. S. Morris and his wife executed a mortgage on the southeast quarter of said section 29 and the northeast quarter of said section 32 to appellant’s assignor, the Guaranty Bank & Trust Company, to secure a loan of $9,600, which was recorded on November 9, 1920. It was represented, and the abstract showed, that the only mortgage on said 320-acre tract was the mortgage held by the Southern Abstract & Loan Company for $3,500. The abstract failed to show the mortgage of B. S. Morris and wife to B. B. Barton, as trustee, on the northeast quarter of said section 32 and other lots, to secure an indebtedness of $32,000.
B. S. Morris used a part of the money he borrowed from appellant on the 320-acre tract to pay off the $3,500 mortgage and accumulated interest to the Southern Abstract & Loan Company, and used the balance, amounting to $5,500, to pay on the mortgage to B. B. Barton, as trustee, and F. G. Barton Cotton Company. B. B. Morris and the F. G. Barton Cotton Company knew where and how B. S. Morris obtained the money with which he paid the Southern Abstract & Loan Company and the $5,500 to themselves, but had nothing to do with procuring and negotiating the loan, either directly or indirectly.
The only question involved on this appeal is whether the court erred in declaring the lien of appellees on the northeast quarter of said section 32 prior and paramount to that of appellant on said quarter section.
Appellant contends that, because B. S. Morris used a part of the money procured from its assignor, the Guaranty Bank '& Trust Company, to pay off the prior mortgage lien to the Southern Abstract & Loan Company, it is entitled to be subrogated to the rights of said Southern Abstract & Loan Company and have its lien declared prior and paramount to the lien of appellees. The exact point involved was decided adversely to appellant’s con tention in the case of Southern Trust Co. v. Garner, 145 Ark. 58, 223 S. W. 369. The rule announced was:
“A bank which lent money on mortgaged chattels, in reliance on the borrower’s representation that they were unincumbered, and took a mortgage thereon, was not entitled to be subrogated to the rights of the prior mortgagee to the extent to which the loan was used to pay off the prior mortgage, there being no agreement in regard to the payment of the prior mortgage, and the prior mortgagee being unaware of the fraud practiced on the bank, and the prior mortgage being duly recorded. ”
In the instant case there was no agreement between E. S. Morris and appellees that he should borrow money from the Guaranty Bank & Trust Company with which to pay the prior mortgage of the Southern Abstract & Loan Company, and, if any fraud was practiced by E. S. Morris upon the Guaranty Bank & Trust Company, appellees were ignorant thereof. It is not alleged or proved that they advised or suggested that Morris borrow the money from the Guaranty Bank & Trust Company to pay off the first mortgage of the Southern Abstract & Loan Company or to borrow the money from the Guaranty Bank & Trust Company to pay them. E. S. Morris negotiated the loan on his own account. Appel-lees had nothing to do with furnishing the abstract of title which omitted their mortgage.
No error appearing, the judgment is affirmed. | [
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Hart, C. J:
This is an application b3r Randolph H. Macon and W. A. Robinson for a writ of prohibition to the Union Chancery Court for the Second Division to vacate an order of said court appointing a receiver in a designated case, and from proceeding’ further in such case.
According to the allegations of the petition, on the 6th day of April, 1927, Randolph H. Macon and W. A. Robinson filed a complaint in the Pulaski Chancery Court against the Central States Gras & Electric Company, hereinafter called the Central company, and otters, asking for the appointment of a receiver for certain corporations and an accounting between said corporations. The defendants in that case are the Central company, a corporation organized under the laws of the State of Maryland and authorized to do business within the State of Arkansas; the El Dorado Cas Company, hereinafter called the gas company, which is a corporation organized under the laws of the State of Arkansas; and the Morgan Utilities, Inc., which is also a corporation organized under the laws of-the State of Arkansas. The principal office of each of said corporations is in Little Rock, Arkansas. S. R. Morgan is a resident of the city of Little Rock, and Hopkins Wade is a resident of El Dorado. They are the managers of each of said corporations, and were the officers in charge of the Republic Power & Service Company prior to the appointment of a receiver for said company by the Pulaski Chancery Court. Plaintiffs are the owners of 222 shares of the capital stock of the Central company and four shares of stock in the gas company. All the rest of the stock of the gas company, is owned by the Central company. All of the stock of the latter company, except that owned by the plaintiffs herein, is owned by the Republic Power & Service Company. S. R. Morgan, M. B. Morgan and Hopkins Wade are in practical control of all of said defendant companies. They are the owners of the stock in the Morgan Utilities, Inc., and all the assets of that company are the property of the Republic Power & Service Company.
It is alleged that Morgan had mismanaged the affairs of the Central company and the gas company and had acted fraudulently in the management of the affairs of said companies. It is also alleged that said S. R. Morgan is endeavoring to defraud the creditors and stockholders of the Republic Power & Service Company, the Central company and the gas company by fraudulent practices in the management of their affairs and by confusing and intermingling their assets in such a way that the real condition of said companies is not known. The complaint is very voluminous, but the gist of it is that S. it. Morgan is the principal stockholder of all of said companies, and is the practical manager and in control of all of them; that he is intermingling and confusing the assets of Said corporations so that the creditors and stockholders thereof may be induced to sell their stock or to relinquish their claims for a small sum of money. A summons was issued in said case on said 6th day of April, 1927. The return of the sheriff shows that it was served on the authorized representative of the Central company on the 7th day of April, 1927, and on the receiver of the Republic Power & Service Company on the 9th day of April, 1927. Service was had on S. R. Morgan on the 7th day of April, 1927.
The record also shows that on the' 12th day of April, 1927, Gr. R. Anderson and others filed a complaint in the Second Division of the Union Chancery ‘Court against the Central company, the gas company, Morgan Utilities, Inc., S. R. Morgan and Hopkins Wade. It is alleged that the Central company is a foreign corporation with its .principal office in this State located at El Dorado, and that it owns and operates pipe lines for distributing gas in Union County. The gas company is a domestic corporation, and is a subsidiary of the Central company. The gas company is a public utility, and operates a gas distributing system in the city of El Dorado and receives its gas from the Central company. The Morgan Utilities, Inc., is a domestic corporation, owned and controlled by S. R. Morgan. On the 16th day of August, 1926, a majority of the stock of the Central company and the gas company was acquired by Hopkins Wade and S. R. Morgan. The plaintiffs are the owners of shares of stock in the Central company and in the gas company. There is a bond issue in the aggregate sum of $275,000 against two said companies named in the complaint. One of the plaintiffs is the owner of $7,500 of said bonds.
It is further alleged that S. E. Morgan Jias willfully diverted the earnings of said companies to other enterprises in which he is interested, and has willfully defaulted in the payment of interest to the bondholders with the avowed purpose of decreasing the value of said bonds so as to enable himself to purchase them at a discount. Other allegations of gross mismanagement of said companies are made in the complaint.
The prayer of the complaint is for the appointment of a receiver to operate the affairs of said companies and to make payment by said companies on their bonded indebtedness. On the 12th day of .April a receiver was appointed by said chancery court to take charge of the property of all said companies and to operate the same under the directions of the court. The receiver appointed gave the bonds prescribed in the order appointing him, and duly took charge of the Central company, the gas company and the Morgan Utilities, Inc. On the 12th day of April, 1927, the Pulaski 'Chancery Court appointed a receiver for the Morgan Utilities, Inc., and on the 18th day of April, 1927, on his motion, said Union Chancery Court made an order vacating its former order appointing a receiver for said Morgan Utilities, Inc., and turned over the property of said company to the receiver appointed by the Pulaski Chancery Court. Said Union Chancery Court refused to vacate its order appointing a receiver for the Central company and for the gas company on the motion of the receiver for said Eepublic Power & Service Company.
It is the contention of counsel for the petitioners herein that the Pulaski Chancery Court acquired jurisdiction of the property of the Central company and the gas company when an application for receiver for said companies was filed, and that thereafter the Union Chancery Court had no jurisdiction to appoint a receiver for said companies. The office of the writ of prohibition is to restrain an inferior tribunal from proceeding in a mat ter not within its jurisdiction, but it is never granted unless the inferior tribunal has clearly exceeded its authority and the party applying for it has no other protection against the wrong that shall be done by such usurpation. Russell v. Jacoway, 33 Ark. 191.
This court has ever since recognized that the purpose of a writ of prohibition is to keep inferior courts within the limits of their own jurisdiction and to prevent them from encroaching on the jurisdiction of other tribunals. Weaver v. Leatherman, 66 Ark: 211, 49 S. W. 977; Finley v. Moose, 74 Ark. 217, 85 S. W. 238; and District No. 21 United Mine Workers of America v. Bourland, 169 Ark. 796, 277 S. W. 546. In the case mentioned last it was held that a writ of prohibition is an appropriate remedy to restrain the exercise of jurisdiction by an inferior court over a subject-matter when it has none and over parties where it can acquire none. The court, however, in that case recognized the settled rule that the writ is never granted unless the inferior tribunal has clearly exceeded its authority, and the party applying for it has no other protection against the wrong that shall be done by such usurpation; In the case of Finley v. Moose, 74 Ark. 217, 85 S. W. 238, 109 Am. St. Rep. 74, it was held that, if the existence or nonexistence of jurisdiction depends on contested facts which the inferior tribunal is competent to inquire into and determine, a prohibition mil not be granted, though the superior court may be of the opinion that the questions of fact have been wrongly determined by the court below, and that their correct determination would have ousted the jurisdiction..
Now, the Union Chancery Court had the power to determine whether or not the affairs of the gas company and of the Central company were being grossly mismanaged and the assets thereof dissipated to the injury of the creditors of said corporations. If it erred in determining this fact, the error could have been corrected by appeal. A writ of prohibition would not lie. The Central company is a foreign corporation, and the courts of this State have no authority to dissolve and wind up its business; the rights of courts of equity in this State are limited to taking charge of the property within the jurisdiction of the court and enforcing the rights of creditors here. Dickey v. Southwestern Surety Ins. Co., 119 Ark. 12, 173 S. W. 398, Ann. Cas. 1917B, 634, and oases cited.
Under the allegations of the complaint in the Union Chancery Court, the affairs of the Central company were being mismanaged and the rights of creditors were prejudiced, thereby involving the jurisdiction of the court in aid of the rights of creditors. A similar allegation of the mismanagement of the affairs of the gas company, which was a domestic corporation, was also made, and this was the ground for the appointment of a receiver to protect the interests of creditors. Excelsior White Lime Co. v. Reiff, 107 Ark. 554, 155 S. W. 921. Thus it will be seen that, in ordinary cases, the jurisdiction of the Union Chancery Court to appoint a receiver to take charge of the assets and property of these two corporations in Union County could not be doubted.
It is earnestly insisted, however, that no jurisdiction could attach, because an application for a receivership for said companies was pending in the Pulaski Chancery Court at the time the Union Chancery Court appointed a receiver for said company. According to tl^e allegations of the complaint, the principal grounds for the appointment of a receiver by the petitioners herein in the Pulaski Chancery Court was to protect their interest as stockholders ill the Central company and in the gas company. The reason for their action was that S. R. Morgan was intermingling the funds of various corporations which he controlled, including these two corporations, to the detriment of the interests of the stockholders. The chancery court might have concluded that a receiver was not necessary, and that the purpose of the suit would be accomplished by the appointment of a master and by appropriate injunctive orders. In any event, the interests of the claiming;» in the suit filed in the Union Chancery Court were those of creditors and were not identical with th« interests of tlie plaintiffs in the suit in the Pulaski Chancery Court. The proof might have developed the necessity of the appointment of a receiver in the Union Chancery Court to operate said properties, although it might or might not have been necessary to appoint one in the Pulaski Chancery Court.
The case is not like that of Dunbar v. Bourland, 88 Ark. 153, 114 S. W. 467. In that case the suit involved the same subject-matter and was between the same parties. An action was brought at law for the partition of the land involved in that suit, and the court held that a subsequent suit in equity seeking the same relief between the same parties could not be maintained. All the matters involved in the chancery court were necessarily involved in the suit in the circuit court in that case. This is not true as to the case at bar. The issues in the suit in the Union Chancery Court were not necessarily the same as those in the Pulaski Chancery Court. The jurisdiction of the Union Chancery Court depended upon the existence of facts which were proved in that court, and it could not be said in any sense that the issues raised there must necessarily be the same as those raised and determined in the Pulaski Chancery Court.
It follows that the temporary writ is quashed, and the petition is .denied. | [
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Smith, J.
This case originated in the Pulaski Chancery Court on a bill for an injunction against the Arkansas Railroad Commission to restrain that body from hearing a certain petition filed before it by J. C. Childers, county judge of Lawrence County, and other persons, asking the Commission to regulate and fix the tolls to be charged on a certain toll bridge spanning Black River, on State Highways Nos. 63, 67 and 25, at Powhatan, Lawrence County, Arkansas, on the grounds that the schedule of rates fixed in the franchise under which the bridge was constructed is excessive and discriminatory, and that the county court of Lawrence County had no .jurisdiction to fix the schedule of rates at the time it attempted to do so, as the Railroad Commission had sole jurisdiction of the subject-matter, and still has, under act 571 of the Acts of 1919 (General Acts 1919, page 411) and act 124 of the Acts of 1921 (Acts 1921, page 177),' respectively. Attached to the complaint as an exhibit thereto was the order of the county court granting the franchise to erect the bridge and to collect tolls thereon, the various items of which were specified. There was a provision in the franchise whereby the named tolls might be increased, if they were unremunerative, or, on the other hand, might be reduced if they were excessive.
Notice was given by the Railroad Commission that a hearing would he had on the petition addressed to it asking- a reduction of the tolls, and the holders of the franchise appeared before the Commission and made objection to the hearing, on the ground that the Commission was without jurisdiction, which motion was overruled, whereupon this suit was begun to enjoin the Commission from proceeding-.
A demurrer to the complaint was filed, which was overruled, and, the Commission refusing to plead further and electing to stand on the demurrer, the court entered an order restraining and prohibiting the Railroad Commission from hearing the petition for a reduction of tolls and from assuming any jurisdiction over or making any order regulating tolls on said bridg-e. The Railroad Commission excepted to this order, and was granted an appeal to this court. The matter is now before us on a writ of certiorari which issued out of this court.
The pleadings in the case raise the question of the jurisdiction of the Railroad, Commission to regulate the tolls upon the bridge in controversy. It is the contention of the Commission that it has this jurisdiction, uncle]- the acts of the General Assembly above referred to, and that the recent opinion of this court in the case of Fulton Ferry & Bridye Co. v. Blackwood, 173 Ark. 645, 293 S. W. 2, is a recognition of this jurisdiction.
The act of 1919 was amended by act 124 of the Acts of 1921, entitled "An act to amend act No. 571 of the General Acts of the State of Arkansas for the year 1919, entitled 'An act to create the Arkansas Corporation Commission and to define its powers and duties,’ approved April 1, 1919, and to regulate public utilities and public service corporations, and for other purposes.”
The Commission asserts its jurisdiction to act under subsection (A) of § 5 of the act of 1921, which provides that "the jurisdiction of the Commission shall extend to and include all matters pertaining to the regulation and operation of (A) * * * toll bridges, ferries * *
This identical section of the act in question was construed by this court in the case of Gray v. Duffy, 152 Ark. 291, 238 S. W. 60. The county court of Independence County entered an order fixing the rates of the tolls for the ferries in that county, and attempted to enforce these orders, whereupon certain citizens of that county brought an action in the chancery court to restrain the county judge from attempting to enforce the orders. A demurrer to this complaint was overruled, and the court made perpetual a temporary restraining order issued at the commencement of the action. In the opinion on the appeal it was said that: “The main question in the case is whether or not the power to fix ferry tolls is vested in the county court by the Constitution, or in the Railroad Commission by the recent statute creating that Commission. (Act 124, Acts 1921, p. 177).”
It was there contended that article 7, § '28, of the Constitution of 1874, which provides, “county courts shall have exclusive original jurisdiction in all matters relating to county taxes, roads, bridges, ferries, paupers, bastardy, vagrants,” etc., related only to jurisdiction to establish ferries, and left the Legislature free to provide any agency it saw fit to regulate rates, but, in answering this contention, it was said:
“We do not agree to this interpretation of the constitutional provision, which in plain terms confers jurisdiction on the county court £in all matters relating to county taxes, roads, bridges, ferries,’ etc. This undoubtedly includes the regulation of ferry rates, because it is a part of the control of ferries. It was the plain purpose of the framers of the Constitution to place within the jurisdiction of the county court all control and regulation of ferries. The jurisdiction was exercised by the county court without objection in the case of Covington v. St. Francis Co., 77 Ark. 258, 91 S. W. 186.”
The decree of the chancery court was reversed, and the cause remanded with directions to sustain the demurrer to the complaint.
That case is exactly in point here, as the word “bridges” immediately precedes the word “ferries” in the section of the Constitution quoted.
The doctrine of that case was expressly reaffirmed in the case of White River Bridge Co. v. Hurd, 159 Ark. 652, 252 S. W. 917, which case involved the toll to be charged on a bridge instead of a ferry, as in the present case, and it was there said:
“Under article 7 of § 28 of the Constitution of 1874 the county courts of this State have exclusive original jurisdiction in all matters relating to county taxes, roads, bridges, ferries, etc. Under this provision of the Constitution county courts have exclusive jurisdiction of the matter of building bridges over watercourses. The Legislature might authorize county courts to build such bridges at the public expense, or it might authorize them to grant the privilege to any person or corporation to build a toll bridge in the county over any navigable stream or other watercourse when it might be deemed necessary for the public convenience and too burdensome to be constructed by general taxation. Wright v. Norris, 43 Ark. 193; Gray v. Duffy, 152 Ark. 291, 238 S. W. 60.”
Appellant insists that the recent case of Fulton Ferry & Bridge Co. v. Blackwood, supra, is a recognition of the authority of the Legislature to create an agency which may regulate tolls on bridges which are a part of the highway system, and that the Railroad Commission is such an agency and has had conferred upon it that jurisdiction.
The complaint here under review does allege that the bridge in question supplies a link in certain highways, which had been designated as State highways, but it does not allege that the bridge has ever been taken over as a part of the State Highway system. The allegations are to the contrary, their purport being that certain persons are m charge of the bridge and are operating it as such under the franchise authorizing them so to do, and that petitioners before the Railroad Commission allege that tliese private persons are charging excessive tolls, which the petitioners seek to have reduced.
The Fulton Ferry & Bridge Company case, supra, does hold that it is within the power of the Legislature to grant to the State Highway Commission, or to any other State agency, the right to enter upon, take over, construct, improve and repair any existing public highway as a part of the State Highway system, and to construct, maintain and repair any bridges thereon, so long as it does not involve the levying of a tax on the general public for such purpose, and that a bridge may he taken over and incorporated into the State Highway system, although it was erected under a franchise from the county court, upon making compensation for any property so taken.
We have here no such proceeding. There is no attempt to take over the bridge and incorporate it into the State Highway system. On the contrary, the attempt is on the part of an agency of the State to exercise a jurisdiction vested in the county court, which cannot he done, according to the decisions of this court in the case of Gray v. Duffy and White v. Hurd, supra.
Appellee also insists that act 135 of the Acts of 1927 (Acts 1927, p. 452) repeals, by implication, so much of the act of 1921 as attempts to confer jurisdiction on the Railroad Commission to fix and regulate tolls on bridges, but, as we have concluded that the power was never in fact conferred on the Railroad Commission, it will not be necessary to consider any effect accomplished by the act of 1927.
The decree of the court below is correct, and it is therefore affirmed. | [
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Hart, C. J.,
(after stating the facts). This appeal questions the constitutionality of an act of the Legislature of 1927, providing, by a vote of the people, a county unit school system in counties having a population exceeding 75,000. Acts of 1927, page 531. Section 1 provides that the act shall apply only to counties which, according to the last Federal census preceding the election herein provided for, have a population of 75,000 or over.
Section 2 provides that, upon the petition of not less than one hundred qualified electors of any county in this State, the county hoard of education shall, within thirty days, call an election to be held in said county, at which election the qualified electors shall vote on the question of whether said county, outside of the school districts pertaining to cities with a population exceeding ten thousand inhabitants as shown by the last Federal census, shall be made into one school district. Section 3 provides for the manner of giving notice of said election. Section 4 provides how the election shall be conducted. Section 5 provides that, in ease the county, outside of the districts organized in the cities named, is made into one school district, such district shall become owner of all the property of the former school districts composing it. Special school districts in cities of a population of more than 10,000 inhabitants are not affected by the act. Section 6 provides that the consolidated district shall be a special or single school district with all the powers of a single special school district of the first class. Section 7 looks to protecting the obligations of the contracts of the consolidated districts. Section 8 provides for a bond issue to borrow money for purchasing sites for school buildings and erecting, equipping and repairing the same. Sec tion 9 provides that, for the purpose of administration, the county board of education shall divide the county school district into local divisions and that the duties of the local trustees shall be outlined by the county board of education.
It is first earnestly insisted that the act is in violation of article 14 of our Constitution, relating to the subject of education. That article makes it the duty of the Legislature to provide for the establishment, maintenance and support of a system of common schools in this State. This court has recognized from the beginning that the Legislature must employ aguncies to accomplish that object, and that a school district is a proper agency therefor. To effectuate the purposes of the Constitution, this court has recognized generally that the Legislature has what is commonly called a free hand in the establishment and division of the State into school districts. The power given to the Legislature to classify school districts in any reasonable manner is no longer an open question in this State, and a legitimate classification has been upheld generally, unless it has clearly gone beyond reasonable limits in defining the classification. Such classification has been upheld when applied to both cities and rural territory being organized into single or special school districts and into common school .districts. The Legislature recognizes the difference in population, wealth, and the topography of the country in the organization of school districts. School District of Hartford v. Hartford Special School District, 102 Ark. 261, 143 S. W. 895; Crow v. Sp. Sch. Dist. No. 2, 102 Ark. 401, 144 S. W. 226; Bonner v. Snipes, 103 Ark. 298, 147 S. W. 56; Sp. Sch. Dist. No. 2 v. Sp. Sch. Dist. of Texarkana, 111 Ark. 379, 163 S. W. 1164; and Krause v. Thompson, 138 Ark. 571, 211 S. W. 925.
There is no constitutional objection to the classification of school districts any more than there is to the classification of cities. Classification may become as necessary for school districts as for cities. The needs of school districts, may differ as substantially as those of cities. The density of population,, the wealth of the country, the system of roads and the topography of the country with reference to whether it is hilly or not, may be taken into consideration. This is the legitimate office of classification, and, so long as the Legislature makes a reasonable classification which is uniform in its operation, its power is supreme in the matter. The uniformity of a system of public schools is not interfered with by providing a general method of the election of trustees and the division of the territory into school districts. State v. Long (Mont.), 52 Pac. 645; and Minsinger v. Rau, 236 Pa. St. 327, 84 Atl. 902, Ann. Cas. 1913E, p. 1324. In a note to the case last cited it is said that with the right to create also inheres the right to classify school districts and to enact different provisions for the different classes, providing' the classification is based on distinctions that afford a reasonable ground for the classification, and various decisions of several State courts are cited in support of the text. In the same case-note the substance of the decision in State v. Long, Ann. Cas. 1913E, p. 1332, is stated as follows.
“A law classifying school districts according to population for the purpose of the election of trustees is not violative of a constitutional provision which requires that provision shall be made for the establishment and maintenance of a uniform system of public schools, and that the legislative assembly shall establish and maintain a general, uniform and thorough system of public free common schools. It is sufficient if the law passed -makes a reasonable classification, and is reasonable and uniform in its' operation and effect on all districts within the classification made, although, at the time of the enactment of the statute, the classification may extend to a few districts only.”
Another objection to the statute is that the act, by its terms, is merely confined to Pulaski County, and for that reason is in violation of an amendment to our Constitution forbidding the passage of special or local laws. In making this contention reliance is placed upon, the decision of this court in Ark-Ash Lumber Co. v. Pride & Fairley, 162 Ark. 235, 258 S. W. 335. In that case the court held that the act was purely local because it could only apply to Mississippi County. It will be noted, however, that the act was not prospective in its operation, and that no county other than Mississippi County could ever fall within its operation. Hence we said that, while the law was genéral in form, the court could not permit the constitutional prohibition to be overruled by enacting a local law under the guise of a general statute. In the case at bar we think that the ease falls within the principles of. law announced in McLaughlin v. Ford, 168 Ark. 1108, 273 S. W. 707. In that case it was held that, to make a law applicable to municipal corporations general, it is not necessary that it should operate upon all cities and towns in the -State, but that it is sufficient of it applies to such cities and towns coming within the designated class. We recognize that the form of the statute does not control in determining whether it is general or special. We also held that the Legislature may classify counties, cities and towns according to population, where such classification rests upon substantial differences in situation and needs. Here the act is prospective in its operation. It is not. confined to counties having a population of 75,000 or over at the time of the passage of the act. Counties which might have a population of 75,000 or more at any time in the future automatically fall within the terms of the law. Construing the words, “ which, according to the last Federal census preceding the election herein- provided for, ’ ’ according to the general rules of construction,'when taken in consideration with the whole context of the act, we think mean the census next preceding the election which is to be held under the provisions of the act. Hence, as above stated, when any county acquires a population of 75,000 or more in a Federal census, it comes within the terms of the act, and may operate under its provisions and hold an election for the purpose of organizing its school districts into, one district.
Another objection to the constitutionality of the act is that its provisions amount to a delegation of legislative power to the people. It is a rule well established that, while the Legislature may not delegate to the people the right or power to make laws, it may enact a law and consult the people as to the propriety of putting it into effect. The statute does not delegate legislative power so long as it is complete in itself when it has passed the Legislature, even though it is left to a vote of the people when it shall come into operation. In the case at bar the law is complete in itself and declares the result which may come from holding the election under its provisions. It is simply a case where the Legislature passed a complete statute but made its enforcement depend upon the will of the people, to be expressed at an election called under the provisions of the act for that purpose. Little Rock v. North Little Rock, 72 Ark. 195, 79 S. W. 785; Harrington v. White, 131 Ark. 291, 199 S. W. 92; Lee Wilson & Co. v. Compton Bond & Mortgage Co., 103 Ark. 452, 146 S. W. 110; State v. Martin & Lipe, 134 Ark. 420, 204 S. W. 622; Van Hook v. Wallace, 143 Ark. 203, 220 S. W. 37; Thompson v. Trice, 145 Ark. 144, 223 S. W. 367; Capps v. Judsonia & Steprock Road Improvement Dist., 154 Ark. 46, 242 S. W. 72; Summers v. Road Imp. Dist. No. 16, 160 Ark. 371, 254 S. W. 696; and Miller v. Witcher, 160 Ark. 479, 254 S. W. 1063.
The result of our views is that the Legislature was within its power in passing the law in question, and it becomes our duty so to declare. It follows that the judgment of the chancery court was correct, and will be affirmed. | [
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Smith, J.
In September, 1923, W. S. Biles, trustee, instituted suit in the Union Chancery Court against A. W. Friend and his lessee, the Pure Oil Company, to establish title to the southwest quarter of the southeast quarter of section 6, township 16 south, range 15 west, claiming title by sundry conveyances from the alleged collateral heirs of one Charlie Wilson, deceased. Defendants claimed title under an alleged deed from Charlie Wilson to J. M. Young, or under a foreclosure of a mortgage from Wilson to Young, who conveyed to Friend, the lessor of the Pure Oil Company. Defendants also claimed title by adverse possession and under a sale for the nonpayment of the taxes for the year 1917, and that plaintiff’s cause of action is barred by lachés. Various-parties intervened claiming as and under alleged collateraUheirs of Charlie Wilson and his widow, Lizzie Wilson.
O. W. Clark, trustee, intervened and claimed title under a warranty deed from Fannie Watt,’who, it is alleged, is the granddaughter and sole heir at law of Charlie Wilsori, who is the common source of title of all claimants.
The decree of the court below was in favor of Friend and his lessee upon the finding that the cause of action was barred by limitations and laches, and from this decree Clark, trustee, has appealed. It will be unnecessary to set out the claims of the other parties, as this appeal concerns only the respective claims of 'Friend and his lessee and Clark, trustee.
Charlie Wilson owned, at the time of his death, an adjoining forty-acre tract of land, described as the southeast quarter of the southwest quarter of section 6, township 16 south, range 15 west, which the witnesses refer to as the west forty in contradistinction to the forty acres involved in this litigation, which is called the east forty. We will employ the same designations. Both tracts are now very valuable, as there are .a number of producing oil wells on each. The west forty was the subject of the litigation in the case of Wilson v. Biles, 171 Ark. 912. Much of the history of Charlie Wilson and his heirs is set out in the former opinion, but the decision in that case has no bearing on the decision in the present appeal.
In taking testimony in the present case the fact was developed that Charlie Wilson had a granddaughter, who, if alive and found, would inherit to the exclusion of the collateral heirs. After an extended search Fannie Watt, the alleged heir, was found, and Clark, as trustee, procured a deed from her, and, by an intervention which he filed, the title thus acquired was set up. in opposition to that of all other claimants.
Fannie Watt is not a party to this litigation, but during its progress an attorney representing, her filed a pleading, which 'was denominated “suggestion to the court, ’ ’ -in which she alleged that she had brought suit in the Federal court against her grantee, alleging that the deed from her was void as having been obtained by fraud. The court found that Fannie Watt had declined to become a party to the litigation, and had not been made a party and had filed no pleading whatever making her a party, and the cause was disposed of without attempting to adjudge the merits of her “suggestion” that the deed from her had been fraudulently obtained.
It is claimed by appellant that Fannie Watt is the grandchild of Charlie Wilson, and many -witnesses testified as to her identity and her relationship to Charlie Wilson. We do not set out this testimony, because we have concluded .that, even though it he conceded that the testimony has established her identity as the granddaughter and sole heir at law of Charlie Wilson, and that her deed is valid, her grantee is not entitled to recover in this action.
The testimony establishes the fact that Charlie Wilson lived on the east forty and cultivated portions of both tracts, and continued to reside on the east forty until his death, which occurred in 1910. Neither forty possessed any great value at that time, and the east forty sold for $10 per acre as late as 1920.
It is very clearly established that Charlie Wilson and his wife executed a deed of trust to Young & Anderson, who were merchants doing a farm-furnishing business, to secure an indebtedness incurred for advances. It is not clear whether the deed of trust covered both forties, but it is certain that the east forty was embraced in the deed of trust. It is also clearly established that Young, who appears to be the surviving member of the firm of Young & Anderson, took possession of the east forty as early as 1909, -which is the year preceding the death of Charlie Wilson. It is not clear under what authority this possession was taken. The answer alleged that possession was taken under a deed from Wilson to Young, but the testimony makes it much more probable that the possession is referable to a foreclosure of the deed of trust, or a satisfaction thereof, whereby the east forty was conveyed to Young.
The execution of the deed of trust is established by the testimony of the justice of the peace who took the acknowledgments, and the proof of statements made by both Wilson and his wife in regard thereto. It was shown that the land was advertised for sale by the trustee in the deed of trust, but it was not shown that the land was ever ap.praised or that the trustee ever sold it. The parties Avho could have cleared up these uncertainties died before the institution of this litigation. Wilson and his wife are dead, and so also are Young, the surviving member of the firm of Young & Anderson, and the trustee who advertised the land for sale.. Young kept his papers in his store, and these were all lost when the store was destroyed by fire. The deed of trust had never been recorded.
A number of persons who lived near the land and who knew .Charlie Wilson and his wife testified that both Wilson and his wife had told them that they had satisfied the deed of trust by letting Young have the east forty, and that this tract had become known as the Young land in Wilson’s lifetime, and that Young was in possession thereof by tenant for at least a year before Wilson died, although Wilson did not move from the house in which he lived, which was on the east forty. It does not appear by. Avhat arrangement Wilson retained possession of this house until his death, but it does appear that, after Wilson’s death, his widow changed her residence to the west forty and resided there until her death, which occurred in 1922, and that she said to a number of persons that Young owned the east forty, having taken title thereto in satisfaction of the deed of trust. But, whether under a deed from Wilson and his wife or under a foreclosure sale and a trustee’s deed, or a parol settlement and satisfaction of the deed of trust, the fact is established that, in some manner, Young took actual possession of the east forty during Wilson’s lifetime and remained in possession of it by tenant until 1920, Avhen he sold it to Friend, trustee, for $400. It Avas also shown that Young’s possession was not that of a mortgagee in possession, but that of an OAvner claiming title thereto, and that this title was recognized”by both Wilson and his wife.
As Ave have said, the court found that the cause of action was barred both by the adverse possession of Young for a period of more than seven years and by laches in bringing the suit. It is insisted that Fannie Watt is not barred by laches, because it appears that, after she had been located, she immediately. consulted an attorney in regard to enforcing her rights and that her grantee at once intervened and set np in this litiga.tion the title -which had been acquired from her.
It isdnsisted that the plea of limitations cannot be sustained, for the reason that Lizzie Wilson was in possession of the land as her homestead until her death in 1922, and that Fannie Watt, as heir at law, could not have sued to recover the land until the termination of the homestead right of the widow, and this suit.was, in fact, begun in 1923, and the intervention setting up her claim of title was filed May 25,1925.
It is the contention of appellee (and the finding of the court sustains the contention) that Wilson and his wife in some manner conveyed the east forty to Young, and, while Wilson did not remove from this forty, he occupied only a house on it, the land being cultivated during Wilson’s lifetime by the tenant of Young. It is not shown under what arrangement Wilson occupied the house if he had in fact conveyed the land, but, after Wilson’s death, his widow removed to the west forty and lived there until her death. An adverse occupant and claimant was thus in possession of the east forty from which she removed. This was clearly an abandonment of the homestead right, if it then existed, in the east forty. It is settled law that the abandonment of the homestead right affords grounds for re-entry by the holder of the title in remainder. Murphy v. Graves, 170 Ark. 180, 279 S. W. 359; Garibaldi v. Jones, 48 Ark. 230, 2 S. W. 844; Warren v. Martin, 168 Ark. 682, 272 S. W. 367; Brinkley v. Taylor, 111 Ark. 309, 163 S. W. 521; Fletcher v. Joseph, 105 Ark. 646, 152 S. W. 293; Griffin v. Dunn, 79 Ark. 408, 96 S. W. 190; Killiam v. Carter, 65 Ark. 68, 44 S. W. 1032; Barnett v. Meacham, 62 Ark. 313, 35 S. W. 533.
It is true, if the title to the east forty had not in some manner been conveyed to and acquired by Young, the widow had an unassigned dower right therein; but this did not bar the right of entry of the heirs so as to prevent the statute of limitations from running. Murphy v. Graves, supra; Griffin v. Dunn, 79 Ark. 408, 96 S. W. 190; Fletcher v. Josephs, 105 Ark. 646, 152 S. W. 293.
The widow of Charlie Wilson did not remarry, and. she was not at any time after his death undet-' the disability of coverture, and it is not claimed that the granddaughter was under the disability of either infancy or coverture, and there was therefore no reason why the statute of limitations did not run against both the widow and the heir. Indeed, the statute of limitations may have commenced running against Charlie Wilson himself if there was in fact no grant from him.
It is not claimed that there was any consideration for the grant except the cancellation of the mortgage and the satisfaction of the debt which it secured; hut this was a sufficient consideration for a deed. Todd v. Grayson, 168 Ark. 446, 270 S. W. 595. And if there was a mutual settlement of the matter, the heirs of Wilson cannot question the validity of the settlement. Straughan v. Bennett, 153 Ark. 254, 240 S. W. 30.
There may have been no deed from Wilson to Young; there may have been no foreclosure of the deed of trust; but there was a contract of some kind whereby Young was put in possession of the east forty and was allowed to remain without question by the widow, who resided on the adjoining forty, or by the heir, whose whereabouts and residence was unknown. The suit was not begun until 1923, at which time all the parties to the deed of trust — the grantor and his wife, the beneficiary and the trustee — were all dead. The debt secured by the deed of trust was long since barred. Large sums of money had been expended in developing oil before any one attempted to assert any rights through or under Fannie Watt. True, she knew nothing of the discovery of the oil, but that fact proves only her indifference 'to her grandfather and to her inheritance. She, no doubt, would have continued inert and indifferent but for the discovery of oil, which resulted from the expenditure of the large sum of money -always involved in such explorations and tlie diligence of appellant in searching her out.
We said, in the case of Avera v. Banks, 168 Ark. 718, 271 S. W. 970:
“There is no hard and fast rule as to what constitutes laches. It is well settled that a court of equity may, in the exercise of its own inherent powers, refuse relief where it is sought after undue and unexplained delay, and where injustice would he done in the particular case by granting the relief asked. It is usually said that the two most important circumstances in such cases are the length of the delay and the nature of the acts done during the interval, which might affect either party and cause a balance of .justice or injustice in taking the one course or the other in so far as it relates to the remedy. (Citing cases).”
The doctrine there announced is applicable here, and, after a careful consideration of the testimony, aided by the excellent briefs of counsel, we have concluded that the decree of the court below is correct, and should br> affirmed, and it is so ordered. ' | [
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McHaNey, J.
Appellants were indicted, tried and convicted on a charge of possessing burglars’ tools, the indictment, omitting formal parts, being as follows:
“The grand jury of Crawford County, in the name and by the authority of the State of Arkansas, accuse Red Satterfield and John Thomas of the crime of possessing burglary todls, committed as follows, to-wit: The said Red Satterfield and John Thomas, in the county and State aforesaid, .on the 9th day of March, A. D. 1927, .did willfully, unlawfully and feloniously, have in their custody certain tools, nippers, fuse, force screws, punches, drills, jimmies, files and implements and mechanical devices adapted, designed and commonly used for breaking into vaults, safes, railroad cars, boats, vessels, warehouses, stores,, shops, offices, dwelling-houses, door shutters and windows of buildings, and against the peace and dignity of the State of Arkansas. ’ ’
A demurrer to this indictment was overruled. Upon appellants’ motion to require the State to elect upon what particular charge in the indictment it 'Would stand, whether “tools, false keys, lock picks, bits, nippers, fuse, force screws, punches, drills, jimmies or files,” as being adapted, designed and commonly used for breaking into vaults, safes, etc., the prosecuting attorney elected to strike out the words “false keys, lock picks, fuse, force screws, punches, drills, jimmies.” This left the indictment charging the possession of “certain tools, nippers, files and implements and mechanical devices, adapted, designed and commonly used for breaking into vaults, safes,” etc.
Appellants were arrested in Crawford County on the night of the 8th of March, 1927, on their way home from Fort Smith, driving in. appellant Thomas ’ automobile, and at the time of the arrest the sheriff took from the car two bolt cutters, one large and one small, four common hoe files, one ordinary hammer, two Stil-son wrenches, ia flashlight, a pistol that belonged to appellant Satterfield, and some sacks of flour.' The car was equipped with diamond tread tires. It was proved, over appellants’ objections, that a storehouse near Spiro, Oklahoma, had been broken into that night, that is, the padlock in the rear had been unlocked and the lock taken away, and the owner identified three sacks of flour taken from appellants as being that taken from his store. He and his wife testified they were able to identify the flour from a hole in one of the sacks that she had sewed up. One McKinney stated that he lived near the store, and that it was robbed on the morning of the 9th of March, about one o’clock; that his dog barked, and he went out and saw two men get out of a car near his house and go in the direction of the store, and were gone 20 or 30 minutes, and that the car track was a diamond tread.
The arrest was made about 2:30 a. m. Appellants stated they got the flour from a Mr. Allen in Fort Smith, but he denied selling that brand of flour.
Warner Sartain, chief of Police of Fort Smith, and an expert on burgiary tools, for the State, testified, over objection, in answer to a question as to whether these tools were used by burglars and usually found in their possession, “I have had several occasions when these bolt cutters were used. Q. Do they commonly use flashlights'? A. Yes sir. Q. Do burglars commonly use pistols'? A. Yes sir. Q. Then would you say a pistol is a burglar tool? A. Yes sir, I would. Q. From your experience, what would you say as to this set of tools being complete? A. With a complete set of punches and drills, I would consider that a complete set of burglar tools.”
On cross-examination this witness testified: “ Q. Do you see a set of punches or drills there? A. No sir. Q. It would take them to be complete? A. It might. Q. This is a bolt cutter? A. Yes sir. Q. You find them most anywhere? A. Yes sir. Q. And this is an ordinary hammer? A. Yes sir. Q. This is a flashlight, and not a burglar tool? A. I don’t call any of those burglar tools * '* *. Q. Each of these tools can be used for anything? A. Yes sir.”
He also testified that they are used by burglars. Two keys were found in the jail, but not in the possession of either appellant. From a verdict and judgment sentencing them to two years in the penitentiary they have prosecuted this appeal.
Appellants were indicted under § 2438, C. & M. Digest, which reads as follows:
“Any person who makes, mends, designs or sets up, or who has in his custody or concealed about his person, any tools, false key, lock pick, hit, nippers, fuse, force screw, punch, drill, jimmy, hit or any material,, implement or other mechanical device whatsoever, adapted, designed or commonly used for breaking into any vault, safe, railroad car, boat, vessel, warehouse, store, shop, office, dwelling house, or door, shutter, or window of a building of any kind, shall be guilty of a felony, and, upon conviction thereof, shall be punished by imprisonment in the penitentiary for not less than two years, nor more than ten years.”
This statute was passed in 1915, and has never before been before this court for construction. It is notable that the statute does not require an intent to commit the crime of burglary to make the possession of such tools or implements unlawful. The bare possession thereof, without anything more, is made a felony. In this respect it is unlike the statutes of some of the other states. This being a criminal statute, it must be strictly construed. As was said in State v. Graham, 38 Ark. 519, “Criminal statutes are to be strictly construed, and no case is to be brought by construction within a statute unless it is completely within its words.” State v. LeMay, 13 Ark. 405; Stout v. State, 43 Ark. 413; Robinson v. State, 59 Ark. 341, 27 S. W. 233. And the construction must be strict as against the defendant, but liberal in his favor. Grace v. State, 40 Ark. 97; Stout v. State, supra. But this rule of strict construction must be applied with other rules of construction in mind so as not to work an absurdity or to defeat the intention of the Legislature. State v. Sewell, 45 Ark. 387. We must attribute to the Legislature, in enacting the above statute, the intention to accomplish a useful and laudable purpose, that of eliminating the crime of burglary, as far as possible, by making it unlawful to make, mend, design, set up or have in possession burglar tools, such tools as are peculiarly and fittingly “adapted, designed or commonly used for breaking into any vault, safe, railroad cars, boats, vessels, warehouses, stores, shops, dwelling-houses, or door shutters or windows of a building of any kind.” We cannot attribute to the Legislature the intention to prohibit the making, mending, designing, setting up or having in possession of the common, ordinary, everyday work tools of a mechanic, plumber, carpenter, farmer or other person who may require such tools in his business, trade or profession. If so, the act would be unconstitutional and void. The tools mentioned, including the particular enumeration of tools (and every tool mentioned may be had for a lawful purpose) must be such as are “adapted, designed or commonly used” by burglars. Under this construction of the statute, we agree with the State’s expert witness that the tools found in appellants’ car were not burglar tools, within the meaning of the statute. Therefore appellants’ objections to the testimony of the witness, Warner Sartain, were proper, and should have been sustained.
If appellants committed larceny in Oklahoma, and brought the stolen goods into this State, they may be indicted and tried in any county in this State into or through which the stolen property was brought. If they committed burglary in Oldahoma, they may be indicted and tried there on such charge'. But we do not think the possession of hoe files, Stilson wrenches, bolt cutters, a hammer, a flashlight and a pistol was in violation of the above statute. Nor was the possession of the stolen flour properly admitted over appellants’ objection, for the only purpose for which it could have been competent was to show the intent for which these tools were possessed, or the use to which they had been put in the burglary of the store near Spiro. But the undisputed proof is that the store was not broken into- with these tools. The padlock had been unlocked and taken away, and either the storekeeper had left it unlocked or the burglar had a pass key, or false key. However, the State elected to strike out “false keys,” which was never in the ■ indictment, according to the copy of it in the record, and failed to show that appellants had any false key.
The demurrer was properly overruled. ' It is sufficient to charge this crime substantially in the language of the statute, but the proof must conform to the requirements of the statute, in that the tools lare “adapted, designed, or commonly used” for the purposes named in the statute by burglars, and not merely that they may be so used, their general use and purpose, being lawful.
It necessarily follows from what we have said that the judgment must be reversed, and the cause remanded for a new trial. It is so ordered. | [
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McIíaNey, J.
Appellee was discharged by the city commission of the city of Fort Smith, Arkansas, on May 26,1924, as a member of the Fort Smith Fire Department, and on a trial of the case, both in the circuit court and in this court, it was held that he had been wrongfully discharged, and his reinstatement was ordered. The facts in the case and the reasons therefor are stated in "the case of Fort Smith v. Quinn, 170 Ark. 54, 278 S. W. 625, and this case grows out of that. It is a suit to collect his salary at the rate of $110 per month from the time of his discharge, May 26, 1924, until the 16th day of February, 1.926, at which latter date he was reinstated. The case was tried 'before the court sitting as a jury, and the court found that he was entitled to his pay between those dates, at the rate stated, less $130, which the -court found he had earned in other employment between those dates. This left a balance due appellee in the sum of1 $2,125, for which judgment was entered, and the city has appealed.
Appellant’s first contention for reversal is that the contract of employment is void for want of mutuality. The answer to that contention is that appellant was not serving as an officer in the fire department by virtue of a contract. He held his office as such member pursuant to the civil service act of Arkansas, applicable to cities with the commission form of government, and the rules enacted pursuant thereto, which is act 13 of the Acts of 1913, page 48. Section 19 of said act provides for the creation of a board of civil service commissioners, who shall hold examinations, under rules and regulations, to determine the qualifications of persons desiring appointment to municipal positions, and who shall certify those qualified as shown by such examinations, and all vacancies in municipal positions are required to be filled from such certified list. It is admitted that appellee was selected pursuant to this act, and it necessarily follows that he did not hold his position by virtue of any contract, express or implied. As was said in the case of City of Louisville v. Gorley (Ky.), 80 S. W. 203, which involved the right of policemen illegally prevented from discharging their duties, and who had been employed under a civil service act, to recover their salaries, “the appellees derived their pay hy reason of law and not hy contract.”
In the case of Fitzsimmons v. City of Brooklyn, 102 N. Y. 536, 7 N. E. 787, 55 Am. Rep. 835, the court used this language:
“The rule sought to be applied hy the city to the claim of the plaintiff: finds its usual and ordinary operation in cases of master and servant and landlord and tenant; relations not at all analogous to those existing between the officer and the State or municipality. The rule in those cases is founded upon the fact that the action is brought for a breach of contract and aimed to recover damage for that breach or compensation for the servant’s loss actually sustained hy the default of the master, * * * but this rule of damages has no application to the case of an officer suing for his salary, and for the obvious reason that there is no broken contract or damages for its breach where there is no contract. We have often held that there is no contract between the officer and the State or municipality hy force of which the salary is payable. That belongs to him as an incident of his office and so long as he holds it; and, when improperly withheld, he may sue for it and recover it. When he does so, he is entitled to his full amount, not by force of any contract but because the law attaches it to the office; and there is no question of breach of contract or resultant damages out of which the .doctrine invoked has grown.”
To the same effect, see Paden v. City of New York, 92 N. Y. (Supp.) 926, 45 Misc. Rep. 517; City of Chicago v. Luthardt, 61 N. E. 410, 191 Ill. 516; People v. Laffer, 175 Ill. 585, 51 N. E. 785. And in the case of Leonard v. City of Terre Haute, 93 N. E. 872, 48 Ind. App. 104, the Supreme Court of Indiana said:
‘ ‘ The salary of an official position belongs to the officer occupying such position as an incident to the office and does not depend upon his performance of the duties of the office. The statute makes provision for the chief and the fire force. It also provides for their appointment, the manner of fixing their compensation and the proceedings by which they can be removed. Their duties are of a public nature. We therefore.conclude that the duties of the. chief and fire force or a member of the department are so far official in their character .that the one holding either position is entitled to draw his salary as. an incident' to such position, whether he performs the duties of such position or not.”
Appellee was undoubtedly an officer of the city of Fort Smith, This court, in Lucas v. Futrell, 84 Ark. 540, 106 S. W. 667, quoted approvingly from U. S. v. Maurice, 2 Brock. 96, Fed. Cas. No. 151, 747, where Chief Justice Marshall, speaking’ for the court, said:
• ■ “An office is defined to be a public charge or employment, and he who performs the duties of the office is an officer. * ■ * * Although an office is an employment, it does not follow that every employment is an office. A man may certainly be employed under a contract, express or implied, to do an act or perform a service, without becoming an officer. But if a duty be a continuing one, which is defined by rules prescribed by the Government, and not by contract, which an individual is appointed by Government'to perform, who enters on the duties appertaining to his station, without any contract defining them, if those duties continue, though the person be changed, it seems very difficult to distinguish such a charge or employment from an office, or the person who performs the duties from an officer. ’ ’
We therefore hold that appellee was not serving the city of Fort Smith under a contract, and that appellant’s contention on this point is not well taken.
The next contention of appellant is that, even though appellee should recover, the amount thereof should he offset by the amount he earned while working for the Ponca City Fire Department in Oklahoma. We do not agree with appellant in this, contention. The court deducted one month’s salary on this account in the sum of $130, and allowed appellee to recover from the time of his discharge to the date of the order of his reinstatement, less $130, which he had received in. other employment. What we have said with reference to the first-contention of appellant applies with equal force here, and the authorities there cited are applicable here.
In the case of Andrews v. Portland, 79 Me, 484, 10A. 458, Am. St. Rep. 280, the court held that an officer illegally discharged could recover his compensation for the period between the wrongful discharge and'his reinstatement, and that the city could not offset an amount earned by him in other employment during the period he.was wrongfully prevented from working. See also Peterson v. City of Butte, 120 Pac. 483, 41 Mont. 401; Reising v. City of Portland, 57 Ore. 295, 111 Pac. 377, Ann. Cas. 1912B, 895. The rule of law contended for by appellant does not apply to employees under the civil service, and only to those eases in which there has been a wrongful breach of the contract of employment, in which case the city may offset the earnings of the employee in other employment to reduce the damages, caused by the breach.
It is finally contended that appellee cannot recover because it is claimed that he was not reinstated. But he was reinstated by the order of this court, affirming the judgment of the lower court. The city commission thereafter made an order reinstating him. The fact that he did not.actually reenter the service of the Fort Smith Fire Department' did not preclude his right to recovery during the time appellant unlawfully deprived him of his employment.-
We find no reversible error, and the judgment is accordingly affirmed. | [
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Hart, C. J.,
(after stating the facts). At the outset it may be stated that the annotator, in a case-note to 15 A. L. B., at page 318, states the general rule to be that insanity or incapacitating sickness of the insured will.not excuse the failure to pay insurance premiums at the required time so as to prevent a forfeiture of the policy, where the policy expressly provides for such forfeiture in the event of nonpayment. The rule is supported by many decisions of courts of last resort, including the Supreme Court of the United States. Such holding is in application of the well-established doctrine that nonperformance of a contract which does not require or contemplate performance by the promisor personally is not excused by his sickness or other disability which- renders him unable to perform it. Hence it has been said that, while a court of equity will relieve against forfeiture for a breach of a condition subsequent caused by unavoidable accident, that power has never been extended to a condition precedent so as to excuse a breach of contract arising from the disability of the party by sickness or insanity.'
In the application of the rule counsel for appellants concede that, when a life insurance policy provides for a forfeiture of the insurance in case of a failure to pay •premiums, the policy, in case of failure to pay, is for feited, and sickness or insanity will not avoid the forfeiture. They contend, however, that the facts of the case at bar take it out of the rule and bring it within the rule, equally well settled in this State, that, if an insurance- company has in its hands sufficient funds due the insured to pay an assessment or premium when diie, it is the insurer’s duty to apply them to the payment of the premiums and prevent a forfeiture. The rule has been applied by this court in the following cases: Union Central Life Ins. Co. v. Caldwell, 68 Ark. 505, 58 S. W. 355; Mutual Life Ins. Co. v. Henley, 125 Ark. 372, 188 S. W. 829; American National Insurance Co. v. Mooney, 111 Ark. 514, 164 S. W. 276; and Knights of Pythias of North America v. Sanders, ante p. 279.
In the Caldwell ease it was held the duty of the insurer to apply dividends in its hands to the payment of interest on premium notes where a default in the payment of the interest would work a forfeiture of the policy.
In thé Henley case the premiums were payable on a certain date annually, but the policy contained a provision that the premiums might be paid semi-annually or quarterly. The court held that, although the insured had not elected to pay quarterly, the policy was not forfeited for nonpayment of the premium where the insurer had in its hands a dividend to the credit of the insured sufficient to pay the premium for the first quarter. The court said that the consent of the insured to the application of the dividend to the payment of the quarterly installment to prevent a forfeiture might be presumed. The court relied upon the decision in the Caldwell case. In the latter ease the court said that the doctrine had its origin in that fundamental principle of justice which null compel one who has funds in his hands belonging to another, which may be used, to- use such funds, if at all, for the benefit and not the injury of the owner; for his consent to the one and dissent to the other will be presumed. It is reasonable that, when the object and purpose of insurance policies are considered, the company will know that, when it has in its possession'money sufficient to pay premiums, it would certainly embarrass the unfortunate insured if a forfeiture was declared; As a matter of fact the consent of the insured to the appropriation should be presumed.
In the Mooney case the rule was applied where sick benefits were due on an industrial policy which were sufficient to pay the premium. The insurance company in that case was a stock company, and the court, in the application of the rule, said:
“If, however, as plaintiff contended, a sum of money was due, sufficient to pay the premiums and keep the policies alive up to the death of Weatherall, then there was no forfeiture of the policies, for the reason that the amount due should have been applied by the company in satisfaction of the premiums, so as to keep the policies alive.”
Therefore it may be said that it is the settled, law of this State that forfeitures of insurance policies are not favored and conditions which affect such forfeitures should be strongly construed against the party making-them, especially in cases where the liability, in whole or in part, has already accrued and nothing remains on the part of the insured to be done except to give notice to the company and make proof of disability in accordance with the terms of the policy.
In discussing principles governing cases of this sort after the liability has accrued, the Court- of Appeals of New York said:
“Those conditions which relate to matters after the loss have for their general object to. define the mode in which an accrued loss is to be' established, adjusted, and recovered, after the reciprocal rights and liabilities of the parties have become fixed by the terms of the contract, and are to receive a more liberal construction in favor of the insured. In determining the liability of the defendant it is entitled to the benefits of its contract, fairly construed, and can stand upon all of its stipulations.' But, when its liability has become fixed by tbe capital fact of ,a loss, within the range of the responsibility assumed in the contract, courts are reluctant to deprive the insured of the benefit of that liability by any narrow or technical construction of the conditions and stipulations, which prescribe the formal requisites by means of which this accrued right is to be made available for his indemnification.” McNally v. Phoenix. Ins. Co., 33 N.E. 475, 137 N.Y. 389.
Again, in Trippe v. Provident Fund Society, 35 N.E. 316, 22 L. R. A. 432, 37 Am. St. Rep. 529, the Court of Appeals of New York said:
“Such conditions in a policy of insurance must bé considered as inserted for some reasonable and practical purpose, and not with a view of defeating a recovery, in case of loss, by requiring thé parties interested to do something manifestly impossible. The'"object of the notice was to enable the defendant, within a reasonable time after death or injury, to inquire into all the facts and circumstances while they were fresh in the memory of witnesses, in order to determine whether it was liable or not upon its contract.”-
The indemnity provided for in the case at bar was twofold. One was to pay" a stated monthly sum when the insured became totally or permanently disabled from engaging in any gainful occupation. The other was to pay a stipulated sum in case of his' death.
A decided preponderance of the evidence shows that the insured became permanently disabled, by reason of his gunshot wound and pellagra, from pursuing any gainful occupation in the fall of 1924 and that such permanent disability continued until his death in May, 1925. No notice of this disability was given the insurance company,' as required .by. thé terms of the policy, and counsel for the insurance company invoke the rule announced above with regard to forfeitures because the immediate notice of disability as provided in the policy was not •given. On the other hand, counsel for appellants contend that the insured was excused from giving this notice because he became permanently insane in the fall of 1924 and so continued until the date of his death in May, 1925. The clause of the policy with respect to giving notice of permanent disability of the insured is a condition subsequent, and, as we have already seen, should be construed liberally in favor of the beneficiary. The condition of the policy in respect to giving notice of permanent disability as well as making proof of death operates upon the contract subsequent to the fact of loss. The insured has done all that he can do toward carrying out his part of the contract, and the liability of the company under the terms of the policy has attached. Nothing remains to be done except to give the ’company notice of its liability and make proof thereof. If the . insured has become permanently insane at the time the permanent disability attaches, it is evident that he is in no condition of mind to give the notice or make proof of his disability. Hence, if the policy in such case is to receive a liberal and reasonable construction in favor of the beneficiaries, it should be said that permanent insanity, which, causes, in whole or in part, permanent disability, should operate to excuse the insured from giving the required notice. The very object and purpose of the policy, in a large part, would be defeated where the company inserted in the policy a condition which it knew that the insured could not perform in person and would not be in a state of mind to obtain its performance at the hands of others. There is nothing in the terms of the policy from which it might be said that it was the duty of the beneficiary to give the notice.
As a case directly in point we cite Woodmen Accident Association v. Byers (substituted for Pratt), 62 Neb. 673, 55 L. R. A. 291, 89 A. S. R. 777, 87 N. W. 546. In discussing what would excuse the giving of notice because of insanity, the court said:
“The evidence discloses that the injury was occasioned by plaintiff falling from a windmill tower, pro- during a concussion of the brain, from which he was utterly unconscious for about sixteen hours, and thereafter his mind appeared deranged and crazed for some three or four months. At times he was somewhat-rational ; he had lucid intervals in the sense that he could recognize the members of his family and immediate friends, could come and go to and from his house. But that he had not regained the possession and use of his mental faculties in their normal state, during the time intervening between the accident and the time notice was given, is entirety manifest from the evidence, and that he did not, in fact, recover from his mental derangement until long subsequent to the time is equally apparent. He was, because of Ms mental condition, incapacitated from attending his ordinary affairs of life. He was wild and visionary, trying to run away, and imagined that he was preparing to go to another State. His mind during all this period was deranged and disordered, and at times he became violently insane. His ivife knew nothing of the policy. She was opposed to his carrying such insurance, and, from the litigation following, her confidence in its wisdom and prudence is probably not strengthened. She discovered among his papers correspondence indicating that he carried accident insurance, and when she asked him if he held such a policy he answered in the negative. She however discovered the policy and sent the required notice in his name. The verdict of the jury was proper and the evidence sufficient, in our opinion, to excuse the plaintiff from earlier notifying the defendant of the accident and the injury following, with the particulars and other information called for by the terms of the provision quoted. The justness of the judgment and the regularity of the proceedings are fully established by the record. ’ ’
This view is supported by the Supreme Court of the United States in an opinion delivered by Mr. Justice Miller in the case of Insurance Companies v. Boykin, 12 Wall. 433, 20 L. ed. 442, where it was said:
“Based on the facts of the case, the defendants at the trial asked instructions, the substance of which is condensed iii the proposition that they had a right to proof of 'loss by an intelligent being, and, if plaintiff was, insane, no- such proof had been given, and if hé Was sane, then his ‘ affidavit showed such • ‘fraud as 'should defeat recovery. • ’The last of these propositions'is not •denied, but was not asked' aá an indepéndent instruction. But the 'first is too repugnant to justice and humanity to merit serious consideration; ■ There áre two obvious answers to it. First, the affidavit, whether of an insane man or not, is sufficient in the information which it conveys at the time, the nature, and amount of the loss. Second, if he was so insane as to he incapable of making an intelligent statement, this would of itself excuse that condition of the policy.”
The agents of the insurance company admit that, if the insured had died prior to December 20, 1924, the death claim' would have been paid. On March 20, 1922, for an annual, premium of $840, the company issued the policy in question to Samuel C. Pfeiffer. The premium due on March 20,1923, was paid. The insured borrowed $475 from the company and paid $393.50 in cash. The $475 was the surrender value of the policy at the end of the second year. This payment carried the policy to March 20, 1924. On that date the insured made a small cash payment and gave, the company his note for the balance. The policy, was kept in force until December 20,1924, by virtue of an extension agreement. The policy calls for $67.50 a year as the premium for total and permanent, disability-benefit, and this, amount helps to make up the' total premium of $840. On December 17, 1924, the company wrote the insured, inclosing an extension note for $530, due February 20, 1925, and calling for $94.22 in cash. No payment was made, and the policy, was declared forfeited on December'20, 1924, when the extension note became due and was not paid. We have already seen that; if the insurance company had in its hands disability benefits ■ owing the insured at the time it declared the policy forfeited on December 20, 1924, it bad no right to forfeit the policy, but should have applied the disability benefits to the payment of the extension note in order that the policy might be kept in force. Under the terms of the policy the insured was entitled to a disability benefit in the sum of $250 monthly, and a decided preponderance of the evidence shows that be became permanently disabled by a com- ' bination of causes, consisting of bis gunshot wound and pellagra and insanity incident thereto, in the early part of the fall of 1924. Thus it will be seen that bis disability benefits for the months' of October, November and December would have more than paid the amount of bis extension note. In fact, according to the terms of the policy, be might have paid $94.22.in cash and might have obtained another extension note payable February 20, 1925. Under the views we have stated above the insured was excused from giving notice of bis permanent disability, if be wras insane' at the time such notice ivas required to be given, bnd continued in that state until the date of bis death.
This brings up the question of whether or not the insured became permanently insane in the fall of 1924 and continued in that state until the date of bis death in May, 1925. The chancellor was of the opinion that he was insane at times during that period, but that-he had intervals of sanity, and, for this reason, he was not excused from giving notice of his permanent disability as provided in the policy. The facts relating to this branch of the case are very, voluminous, and it will not be practical for us to set out the evidence and review it in detail. We shall state the substance of the evidence as best we may and give our views in as concrete form as practicable as to the impression made upon us by it. After a careful consideration of it as.a whole, the majority of the court is of the opinion that the insured became permanently insane during the , early part of October, 1924, and continued in that state until the date of his death on May 15, 1925.
The record shows that Samuel C. Pfeiffer was a successful farmer and business man in Lonoke County, Arkansas, and, like many others, became involved financially by business losses during that-same period of time. He gave the Missouri State Life Insurance Company a mortgage on his land, comprising about 1,072.07 acres in Lonoke County, Arkansas, to secure a loan of $40,000. On March 20, 1922, the policy in question was issued to Samuel C. Pfeiffer. He was at that time forty-five years of age, and operated a commissary or supply store in connection with his farming operations. He held a commission as deputy sheriff of Lonoke County in 1923, and was shot in the hip while in the discharge of his duties on August 4, 1923. He was carried to a hospital at Little Rock, and kept there until September 26, 1923. He was not able to sit up when he was carried home. He was confined to his bed for several months as a result of his gunshot wound. After he recovered his strength to some extent, he was able to go to his store, about fifty yards from his dwelling-house, and help his wife and sixteen-year-old son run the supply store. He could only stay two or three hours each day, and some days he could not go at all. In the spring of 1924 the family of Pfeiffer noticed that his hands began to peel off. The doctors pronounced it pellagra, and treated him for that. It soon developed that Pfeiffer could not make settlements at -the store with customers, and frequently could not even make small change. His mind gradually weakened, and Pfeiffer frequently spoke of his mental incompetency to his friends and acquaintances. He had been an unusually strong-minded and self-reliant man. In the fall of 1924 he became afraid that he might injure some of his family, and requested his fire-arms to be 1 alcen from him in order to prevent this.- Thus it will be seen that his troubled spirit had a premonition of his impending fate. At the last there was no question in tlie minds of any but that he was insane eleven days before his death, when he was again carried to Little Bock and placed in a hospital.
The widow and son of the insured operated the supply store and, in the main, looked after the business of the insured after he was shot. They also looked after the insured, and permitted him to come to the store after he gained enough strength to do so. In their opinion he became wholly disabled from insanity as a result of pellagra about the first of October, 1924, and continued in that state until his death on May 15, 1925. They did not know anything- about the policy in question. Numerous other persons, who were friends of the insured and came in contact with him in a business and social way, testified that he was insane from the first.part of October, 1924, until his death in May, 1925. About the same number of friends and acquaintances, who had an equal opportunity, except as to the family, to observe the mental condition of the insured, thought he was sane at times during the period of time in question, and at such times capable of comprehending and attending to his own affairs. If this was all there was in the record, we would be unwilling to disturb the finding of fact made by the chancellor on this point; but we think that, when the .testimony of the expert witnesses for the appellants is considered in the light of the situation of the parties .and the attendant circumstances, it turns- the scales in favor of the appellants, and that a preponderance of the evidence shows that the insured was permanently insane from the first part of October, 1924, until his death on May 15, 1925. In reaching this conclusion we do so with the full realization of the frailty and uncertainty of expert testimony in many cases; but no such uncertainty rests upon such testimony in this case. Their testimony is in full and complete accord with the teachings of medical science, and, when viewed in its broadest scope, is explanatory of the testimony of several witnesses for appellees, who testified that the insured appeared sane at times during the period of time in question.
. To illustrate, F. H. Martineau, sheriff of Lonoke County, was a witness for appellees. He saw insured ■about two weeks before lie died, and be did not know anything; He was in the last stages of pellagra. Witness saw insured in December, 1924, and in January and February, 1925. He ivas in poor health, (but talked rationally. He was not exactly sane in 1924. • His health would not permit him to follow a gainful occupation in 1924. He offered the insured ia commission for 1925 as a matter of courtesy and not with the view of :putting him in active service. The insured refused the commission on the ground that at times he was not mentally all right. When he told the witness that, his mind seemed to be all right.
Dr. C. C. Kirk had been engaged in hospital work for nervous and insane patients since 1902. At one time he had been superintendent of our State institution. He testified that pellagra affects the memory after it affects ■ the'nervous system. Pellagra usually runs from six months to two or three years before death, sometimes longer. Patients of that-type may have good days, and .bad days. Practically all mental cases have certain days when they are better than they are on other days, but .it does not follow that they are sane because they have one day when they are better than they were the day .before. Such persons have difficulty in thinking,-and f.or this reason they neglect their affairs. From the history of the case he would not consider Mr. Pfeiffer capable of carrying on the ordinary affairs of life. .
, There lies the whole nub of the matter; it seems that the lay witnesses for appellees thought that Pfeiffer was sane at times because he was able to talk rationally about the matters which were presented to his mind. This was not sufficient. He must have been able to carry on.the ordinary affairs of life, and this meant that his mind must be capable of sustained effort so that he would comprehend such affairs as needed his attention, and not .merely that he might talk with seeming intelligence upon a subject brought directly to his attention by some' one. There is nothing in the record to show that his mind during the period in question was over in condition to realize that his policy was in danger of being forfeited. The cloud on his mind was'lifted only to the extent that he realized that he might hurt some of his family.
Dr. Kirk’s testimony is corroborated in every respect by that of Dr. R. F-. Darnall; who had made-a specialty of mental and nervous diseases for twenty-nine years. Prom the history of the case given them,- both wére of the opinion that Pfeiffer became insane as a result of pellagra and that he was not capable of attending to the ordinary affairs of life. No effort was made to show that pellagra patients do not become insane. Some effort was made to show that Pfeiffer had not suffered with it long enough to have become mentally incapable at the period of time in question. But we must remember that Pfeiffer' received a severe gunshot wound in the early part of August, 1923, and that he never recovered his strength. It is fairly inferable that his impaired physical condition hastened the ravages of pellagra. His physicians warned him that, pellagra, if not treated, would cause him to become insane. He replied that he was already in a bad mental state at times. This indicates that he had found out something about pellagra after he first thought, from his symptoms, that he might have that ■ disease. Then, too, his business reverses might have caused him to brood over his condition and thus have hastened his unfortunate mental condition. We desire to state again that, while we have not deemed it of sufficient, practical importance to set out and discuss all the evidence introduced on this branch of the case, we have carefully read and considered all of it, and a majority of us have reached the conclusion that the weight of the evidence establishes the fact that Samuel C. Pfeiffer was mentally incompetent from the first of October, 1924', until May 15, 1925, the date of his death, and that such mental incompetency furnished sufficient legal excuse for .not giving the notice of his total disability as-provided by the terms of the policy. Therefore we find that the company had in its bands sufficient funds from tlie total disability benefits to pay the note given by the insured, under the extension agreement, when it became due, and that it was its duty to have so applied a sufficient-amount of such benefits.
The result of our views is that the company could not legally declare the policy forfeited, and it was in force at the time of the death of the insured. Therefore the decree will be reversed, Avith directions to the chancery court to render judgment in favor of appellant against the Missouri State Life Insurance Company for $25,000, and for the statutory penalty, interest and attorney’s fees, and that same may be set-off against the mortgage debt of said insurance company, unless the foreclosure proceedings have proceeded to such an extent as to make such course impracticable, and for further proceedings in accordance with the principles of equity and not inconsistent with this opinion. It is so ordered.
Smith, J., dissenting. | [
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Humphreys, J.
This is a suit in equity brought on the 4th day of April, 1927, in the chancery court of White County, by appellants against appellees to permanently enjoin the Higginson Special School District in said county from selling and delivering bonds in the sum of $20,000 for the purposé of. refunding its existing bond issue and redeeming outstanding and past due warrants upon the following alleged grounds:
“ (1). There was no legal meeting held by the board of directors authorizing the bond sale. (2). That there ’was no legal notice given that such a meeting was to be held. (3). That the proper records of the alleged meeting at which it was claimed that the resolution was passed directing the sale of the bonds was not made. (4). That the alleged order authorizing the sale of the bonds was not made by a majority of the legal qualified and acting members of the board of directors. (5). That the Hig-ginson Special School District had no legal authority to offer for sale the bonds or certificates of indebtedness. (6). That the issuance of the bonds was forbidden by this court. (7).' That the bonds were not advertised for sale as required by law, but that the members of the school board acted in collusion with R. C. Helbron,and sold said bonds at a private sale, and that the meeting by which it was claimed the bonds were sold was conducted in a manner to discourage and prevent other parties from purchasing said bonds.”- .
Appellees filed an ansAver, denying seriatim' the material -allegations in the complaint.
On application to the circuit judge in vacation, immediately after filing the suit and during the absence of the chancellor from White 'County, the following restraining order was issued:
“It is therefore ordered, adjudged and decreed that the defendants, acting as members of the Higginson Special School District, and' each of them ar'e hereby restrained and enjoined from advertising- and offering for sale or selling, either by private sale’ or public sale, any certificates of indebtedness or bonds of the Higginson .Special School District, on April 7, 1927, or any other date, until this cause is heard by the White Chancery Court. And the defendants, B.. L. Smith, as county clerk of White County, W. C. Ward, as county treasurer of White County, and Ben D. Smith, as circuit clerk and ex-officio recorder of White County, are restrained, enjoined and forbidden to receive, register or record any bonds or certificates of indebtedness or any deeds of trust or mortgages executed by the board of directors of the Higginson Special School District, by reason of any sale made on April 7, 1927, or any other date, until this cause can be heard by the White Chancery Court.”
On the next day, and during vacation, the chancellor set aside the temporary restraining order of the circuit judge, in so far as it restrained the sale of the bonds, and set the case down for final hearing on May 4, 1927, which was an adjourned day of the chancery court, all over the objection and exception of appellant.
When court convened on May 4 such of the appel-lees as had not filed answers theretofore filed their respective answers. Appellees then insisted upon an immediate hearing of the cause. Appellants objected, and protested against proceeding with the hearing of the cause until the next regular term of the chancery court, on June 13, 1927, or before the issues had been made up ninety days. Tliey filed a written motion for a continuance, which was overruled by the court, over their objection and exception. The court , then offered to set the case down for a hearing’ before the chancellor in chambers at Little Bock between May 9 and 14,1927, but appellants insisted upon their right not to proceed with the trial until ninety days after the issues had been made up, and declined to finally submit the cause in vacation as suggested by the court. The court then ordered appellants to proceed with the trial, which they declined to do, whereupon the temporary restraining orders were dissolved and their complaint dismissed, over their objection and exception, from which judgment an appeal--has been duly prosecuted to this court.
This suit is bottomed upon act No. 62 of the General Assembly of 1927, passed for the purpose of obviating the rule announced by this court in the case of Phillips v. Baker, 172 Ark. 726, 290 S. W. 371, decided and handed down on January 31,1927, to the effect that said district could issue bonds only to refund outstanding bonds, interest and expenses incident thereto, and not to pay for repairs and operating expenses of the school. The allegations in the complaint challenge a compliance with- said act No. 62 in selling and attempting to-deliver the bonds, and also allege that the- members of the school board acted collusively and sold bonds at private sale, and seek to permanently enjoin the delivery thereof to the purchaser.
After the issues were made up, appellants were entitled, under § 1288 of Crawford & Moses’ Digest, to ninety days in which to get ready for trial. Harnwell v. Miller, 164 Ark. 15, 259 S. W. 387; Issues joined in a chancery court in an effort to obtain a permanent injunction are equitable proceedings, and come within said section of the statute allowing ninety days to prepare for trial after the pleadings are made up.
On account of the error indicated the judgment- is reversed, and thé cause is remanded for a trial of the issues joined by the pleadings. | [
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Smith, J.
Appellee Sprigg, as the administrator in succession of the estate of John Nevin, deceased, brought suit in the Jackson Circuit Court against the executors of the estate of TV. 1). McLain, and for his cause of action alleged the following facts:
John Nevin died November 6, 1920, -and McLain was appointed administrator of his estate, and served as such until his death, which occurred October 15, 1921. His bond as administrator was made by the American Surety Company, and tliat company was joined as a defendant. In June, 3922, the executor of McLain’s estate filed a final settlement and account of the administration of the Nevin estate by McLain. To this account and settlement exceptions were filed by certain creditors of-the Nevin estate, and, from the judgment of the probate court pronounced thereon, an appeal was prosecuted to the circuit court, where there was a trial ele novo on these exceptions, certain of which were sustained, while others were overruled, and the circuit court found that McLain, as the administrator of the estate of Nevin, was indebted to the estate in the sum of $2,042.19. This judgment of the circuit court was rendered on February 2-6, 1925, and it was upon this judgment that appellee, Sprig'g, as administrator in succession of the Nevin estate, brought this suit.
It was further alleged that the executors of the McLain estate, -and 'the surety on his bond as administrator of the Nevin estate, had failed to pay over to the plaintiff, as administrator in succession, the .amount found to be due by the circuit court from McLain to the Nevin estate, and judgment was'prayed therefor.
The judgment here sued on ordered and adjudged that “the amounts due said estate of John Nevin from said administrator, TV. I). McLain, and from the estate of TV. I). McLain, is $2,042.19, and the clerk of this court is hereby ordered and directed to transmit a certified copy of this order and judgment to the probate court of Jackson County for further proceedings in said court consistent with law and this judgment.”
To this complaint a demurrer -was interposed, which was overruled and exceptions saved, whereupon the executors of tiie McLain estate filed an answer, alleging substantially the facts set out above, with the additional allegation that the circuit court judgment above referred to had never been transmitted to the probate court, nor had a certified copy thereof been delivered to McLain’s executors, that there was no judgment of the probate court on the judgment and order of the circuit court. It was also alleged that the judgment in the circuit court had erroneously charged the McLain estate with certain items and had erroneously failed to allow certain proper credits.
To this answer a demurrer was filed and sustained, and, defendants declining to plead further, judgment was rendered, against the McLain estate for the sum sued for, and this appeal is from that judgment.
Appellant insisted that the complaint was demur-rable for the reason that it contained no averment that the judgment of the circuit court against the McLain estate was properly authenticated, -nor presented to the executors, nor allowed and classed by the probate court, as required by § 97, C. & M. Digest.
This, however, was not necessary. The judgment sued on was not rendered against the deceased in his lifetime. The judgment here sued on was rendered in an appeal from the probate court, in a proceeding which was intended to adjudicate the liability of McLain to the estate of which he was administrator, and, in such a proceeding, it was the duty of the circuit court to try the case cie novo and to render a final judgment, and the judgment thus rendered did not require probation to give it validity as such.
Section 43, C. & M. Digest, provides that, if an executor or administrator shall die, resign or be removed, or for any cause shall cease to be the executor or administrator before the estate has been fully administered and settled, another executor or administrator shall be appointed to complete the administration and settle the estate. Section 44, C. & M. Digest, provides that the preceding executor or administrator shall account for and turn over to the executor or administrator in succession all money or property, administered or unadministered, remaining in his hands, and not before accounted for, and, for this purpose, may cause such former executor or administrator to be notified to appear in the probate court to make settlement. Section 45, 0. & hi". Digest, reads as follows:
“II.' the sum i'ouud duo upon settlement is not paid, tlie executor or administrator in succession shall sue the former executor or administrator and his bondsmen therefor, or any of them, or, if such former executor or administrator be dead, he may sue his personal representatives and bondsmen, or any of-them, and shall recover the full sum found due, with interest and costs.”
The judgment here appealed from appears to have been rendered on a .judgment recovered pursuant to the section last cited, and, liability having been thus determined, it was not necessary to have the same issues again adjudged.
In the cáse of Wilson v. Hinton, 63 Ark. 145, the facts were as follows:
Wilson was appointed administrator of the estate of Vital Lesea, and, after taking possession of the assets of. the estate, died without having been discharged. Hinton was appointed administrator in succession, and commenced proceedings in the probate court against the administrator of Wilson’s estate to recover assets of the Lesea estate. The administrator of Wilson’s estate filed a response, denying the right of the administrator in succession to call him to account. The cause was heard in the circuit court on appeal, where the circuit court restated the account, as was done in the instant case, and the circuit court adjudged the balance due from Wilson, and ordered his administrator to pay that sum to the administrator in succession, and an appeal was prosecuted from that judgment to this court. The similarity of the cases is therefore apparent.
Wilson’s administrator defended upon the ground that he had not received the assets for which the administrator in succession sued, and this court held on the appeal that this was no defense to the petition for a settlement, as the object of the proceeding was hot to determine whether the personal representative of Wilson had received the money, but whether it was due from the estate of his intestate. The Supreme Court cited the sections of the .statute above referred to, and there said:
“Cases on appeal from the probate court are tried by the circuit court de. novo. The contention of the appellant that the circuit court should have reversed the judgment and remanded the case for a new trial in the probate court cannot therefore be sustained. San. & H. Dig. § 1152.” Grider v. Apperson, 38 Ark. 388. “The probate court refused to compel the personal representative to make settlement for all the money and property due from the estate of the deceased administrator to the estate of Vital Lesea, but only compelled him to settle for so much of the assets of the estate of Vital Lesea as had come to the hands of such personal representative. It was therefore proper, on the hearing’ de novo on appeal, for the circuit court to make such order as the probate court should have made, the circuit court having on such trial the power of the probate court.”
Appellants here say that the judgment of the circuit court should have been certified to the probate court, as the judgment directed should be done, and thus enable the personal representatives to assert any offsets they might have had against that judgment, and that they were in fact entitled to such offsets, which they could and would have asserted in the probate court, among these being certain uncollected demands due the Nevin estate, which the judgment of the circuit court charged into the account as restated.
Upon this question it suffices to say, if the administrator in succession sought to charge worthless demands into the account, that defense should have been interposed in the suit for accounting. This liability was adjudicated in the judgment here sued upon, and appellants are concluded thereby.
The judgment of the circuit court appears to be cor rect, and is therefore affirmed. | [
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Wood, J:
It is conceded by counsel for the appellees that counsel for the appellants “have given a fairly good statement” of the facts of this record as follows: “On November 9, 1925, under the provisions of Crawford & Moses’ Digest, § 5733, there was filed with the city council of Little Bock a petition representing the signers to be owners of a majority in value of real estate within the territory affected for the annexation of such'territory to Street Improvement District No. 363 of Little Rock. The purpose of the petition was to drain, grade, pave, curb and gutter .streets hereinafter more particularly set out. The council appointed a hearing for the petition to be held on December 7,1925, and caused notice to be given thereof. No hearing being had, the commissioners of District No. 363, on February 20, 1926, requested the council to take action on the petition. The matter was referred to the finance committee, and has since lain practically dormant.
“On July 19, 1926, more than ten individuals, representing themselves to be owners of property in territory sought to be organized into Street Improvement District No. 454, filed with the city council the first petition looking to such organization, under Crawford & Moses’ Digest, § 5649. An ordinance establishing the district pursuant to the petition was passed on the same day.
“District No. 454 embraces all the territory proposed to be annexed to District Ño. 363 and much additional territory. Its purpose is to improve the same streets contemplated by the annexation proceeding and some additional streets for a much greater length. In short, District No. 454 proposed to improve throughout an extent of about three miles a highway beginning at the intersection of Sixth and Cross streets north to Lincoln Avenue; thence on Lincoln Avenue to Valley Street; thence on Valley street to its intersection with South Lookout Avenue, Hillcrest Avenue and Beech Street; and Riverside Avenue from the north line of Lincoln Avenue to the West line of Riverside Park Addition to Little Rock. The highway contemplated by District No. 454 stretches from near the heart of Little Rock to the residence section in the west and northwest part of the city commonly designated ais ‘Pulaski Heights.’ This highway coincides with the highway sought- to he improved in the annexation proceeding, throughout the entire course of the latter; and one. of the announced purposes of District No. 454 is to improve the highway common to both districts in substantially the .same manner as proposed by District No. 363. The lines of the two districts adjoining the highway common to both are, roughly, the same. The common highway is only about one-fourth the total length of highway proposed to be improved by District No. 454, and that district also embraces a large area outside the territory proposed for annexation and adjoining that part of the highway peculiar to District No. 454.
“The second petition for District No. 454, purporting to carry a majority in value, was filed with the city council on October 20, 1926, and was approved on January 3, 1927. Meanwhile a suit to enjoin further steps in the organization of District No. 454 was filed in the Pulaski Chancery Court on December 11, 1926, by plaintiffs, alleging themselves to be owners of property in the annex territory against the city of Little Rock and its board of alderman. This suit has never proceeded to a hearing. Two days after its institution the same plaintiffs filed a mandamus proceeding in the Pulaski Circuit Court to compel the same defendants. to' hear and dispose of the petition for annexation. The mandamus suit, too, has remained pending without a hearing.
“Within thirty days after approval by the city council of the second petition for District No. 454, this suit was brought to review that finding. As property owners in the district, plaintiffs sue its commissioners, and ask that the district be invalidated on the following grounds : “(1) The district includes property not benefited. (2) It excludes benefited property. (3) The second petition does not contain a majority in value of signatures of property owners. (4) District No. 454 embraces certain property designated for annexation to District No. 363.
“The chancellor found for the defendants (appellants) on all issues except the last. On that the finding' was for plaintiffs, with a consequent •order invalidating District No. 454,” from which is this appeal.
The record is exceedingly voluminous, and it could serve no useful purpose to set out.and discuss any other issue except that upon which the chancery court based its decree. Concerning this issue the chancery court, in a written opinion, said:
“The third question to be passed upon is whether District No. 454 can legally be organized and include within its boundaries property in an annex petition to another district for a similar improvement when the said annex petition is pending before the city council, without action, and when said annex petition was filed before the filing of petition in No. 454. Counsel for defendant insist that the passing by the council of the petition in No. 454 is tantamount to a rejection of the annex petition to District No. 363. If this be true, it leaves the matter of passing ordinances on petition for improvement districts pending before the • city council a matter of discretion with the council. As set out by attorneys for plaintiffs, it seems to us that the better rule is stated in the case of Little Rock v. Boullioun, 171 Ark. 245, 284 S. W. 745, where the court stated that the city council should dispose of a petition in one of two ways, either by a definite finding that the majority had signed for the improvement or by a definite finding that a majority had not signed for the improvement. In this case the council has made no such definite finding in regard to the annex petition to District No. 363, although the council has been repeatedly requested to do so, and there is now pending in the circuit court of Pulaski County a mandamus petition to compel them to take action upon this petition.
“If No. 454, which includes all the property in annex petition No. 363, is held to he a valid district, then the granting of a mandamus in the case pending'would give the parties no relief, because No. 454 would have swallowed up the territory in their petition ánd would be in process of making a similar improvement contemplated in the annex petition. We doubt very much whether the statute intends that the city council should have- such a broad discretion in determining what districts should he formed and what districts should not he formed, but are rather of thé opinion that, unless a district is abandoned after its petition is presented, the council should act on petitions both of which cover part or all of the same property, in the order in which they are filed. To hold otherwise would he to invest a, legislative discretion in the city council which would cause undue political activity and favoritism in the formation of improvement districts. It is very clear to the court that, if the annex petition to No. 363 had been granted and the work commenced, or even completed, the property in the boundaries of this annex petition could not be included in No. 454, or any other district that might be organized. Of course, the assessment of benefits could not be made for the improvement already made by the annex, but the measure of benefits would be whatever advantage accrued to the property in its district being linked up with a through highway.”
The opinion of the chancery court is a correct interpretation of the opinion and a correct application of the decision of this court in the case of Little Rock v. Boullioun, 171 Ark. 245, 284 S. W. 745. The gist of the opinion, as it affects the issue here involved, is expressed at page 251 as follows:
“Our conclusion therefore on this feature of the case is that the city council had no right to refuse to pass the ordinance, unless it is shown that a majority in value did not sign the petition or that there was an obvious mistake in the inclusion or exclusion of property.”
Tiie facts set forth above show that, as early as November 29, 1925, a majority in value of the real estate within the territory affected petitioned to be annexed to Street Improvement District No. 363. The city council took no action whatever on the petition, although as early as December 7, 1925, there was filed with the city clerk a certificate of the Little Rock Abstract & Guaranty Company to the effect that the petition for annexation was signed by a majority in value of the owners of real estate in the territory to be annexed. Notwithstanding the attention of the council was thu's directed to the petition, it took no action thereon, and on February 20, 1926, the commissioners of District No. 363 requested the council to act upon the petition. At that time the city council, on February 22, 1926, referred the petition to its finance' committee, and recommended that it be referred to the new city council, and the new council again referred it to the finance committee. Still no action was taken thereon by the council, and on December 13, 1926, some of the original signers to the annexation petition instituted an action by petition filed in the circuit court for mandamus against the city council of Little Rock to require it to take action on the petition for annexation. Appearance was entered for the defendants and an agreement entered into by the attorney for the petitioners and the attorney for the city council for the matter to be heard on' December 27.’ F. L. Bruner and three other signers of the original petition for annexation filed a complaint in the chancery court of Pulaski County against the city council of Little Rock, asking that it be restrained from establishing District No. 454 until the city council had taken up the annexation petition and finally disposed of same.
Such being the facts of this record, the trial court did not err in holding that the city council had no power to create Improvement District No. 454 and to proceed with the improvement contemplated thereby until' it had definitely disposed of the petition for annexation to District No. 363. The reasoning of the chancery court as to why the decision in Little Rock v. Boullioun, supra, is applicable to and governs this case, is sonnd and unanswerable. To hold otherwise would, in effect, overrule that decision and vest the city council with legislative authority instead of an administrative and ministerial function which it must perform and which, under the decision in Little Rode v. Boullioun, supra, it has no right to refuse to perform when conditions exist, as they did here, calling for some action to be taken upon the part of the city council specifically with reference to the petition for annexation to District No. 363, which had been lodged with the city council before any steps were taken to create District No. 454. The law requires that the city council shall act with reasonable diligence land promptness. But it must act — it cannot dilly-dally with the rights of the property owners and pigeon-hole their petition.for annexation, as was done in this case. The law is mandatory in requiring them to act upon the petition for annexation, either to grant it or to disallow it. Such is the effect of the Boullioun case, supra. The trial court ruled correctly in so holding.
It follows, as a result of the views of the majority, 'that the action of the city council in ignoring the petition for annexation of territory to No. 363 and afterwards including this same territory in the attempted creation of District No. 454, was without authority, and void. Such being the case, the appellees, without doubt, as property owners and taxpayers in the alleged Improvement District No. 454, had the right to institute this action to' .challenge the validity of that district and the making of the improvement therein contemplated.
The judgment of the trial court is therefore correct, and it is affirmed.
Hart, C. J., and Mehaeey, J., dissent. | [
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Wood, J.
This is an action by J. L. Griffin, doing-business as Griffin Mercantile Company, hereafter called appellee, against the Penn-National Hardware Mutual of Huntington, Pennsylvania, issuing the National Fire Underwriters’ policy, and the surety on its bond, the American Surety Company, hereafter called the appellants.
The appellee set np his policy of insurance, and alleged that, on the 13th of January, 1925, he sustained a loss by fire to his stock of goods in the sum of $1,446.51 and to his furniture and fixtures in the sum of $200, making a total sum of $1,646.51, for which he prayed judgment, with 12 per cent, interest, penalty, and attorneys’ fees.
The appellants entered a general denial to the allegations of the complaint, and alleged that .the appellee had been requested to set out in detail the amount of his loss, showing each item of merchandise and furniture and fixtures and the amount of loss or damage on each item. The appellants also moved the court to require the appel-lee to make his complaint more specific. In response to the motion to make more specific the appellee alleged that his damage was occasioned almost entirely by smoke and water, and was of such a general character that it was impossible for him to itemize specifically the articles damaged. The appellee further alleged that the fire was reported immediately, and an adjuster of the company looked over the loss and noted the amount of the damage to the appellee; that he had taken an inventory of his stock on January 1, 1925, twelve days before 'the fire occurred, which inventory he tendered to the appellants, and showed the purchases and cash sales up to the date of the fire; that appellee estimated his damage to his stock as being fifteen per cent, of the amount thereof at the time of the fire. The court overruled the appellants’ motion to make more specific, to which ruling the appellants duly excepted.
The appellee identified and introduced his policy, which was a regular standard form, insuring appellee’s stock of merchandise in the sum of $5,000 and his furniture and fixtures in the sum of $1,500, on- which the premium was $131.30. The policy contained a three-fourths clause, also a record warranty clause providing that the assured “will keep and preserve all inventories of stock taken and all books made and prepared showing the record of business transactions during the current year and the preceding calendar year, and that such books shall be kept in a fire-proof safe, and, in the event of loss or damage, the books and inventories are to be delivered to the company for examination or the policy would be null and void and no suit or action could be maintained thereon. The policy also contained the following provision:
“If fire occur, the insured shall give immediate notice of any loss in writing to this company, protect the property from further damage, forthwith separate the damaged and undamaged personal property, put it in the best possible order, make a complete inventory of the same, stating the quantity and cost of each article and the amount claimed thereon; and, within sixty days after the fire, shall render a statement to this company, signed and sworn to by said insured, stating the knowledge and belief of the insured as to the time and origin of the fire, the cash value of each item thereof, and the amount of loss thereon; all incumbrances thereon; all other insurance. * * * The insured, as often as required, shall exhibit to any person designated by the company all that remains of any property herein described * * * and shall produce for examination all books of account, bills, invoices and other vouchers, or certified copies thereof if originals be lost, at such reasonable place as may be designated by this company or its representative. ’ ’
The appellee testified that the fire which damaged his property originated in the City ‘Bakery, which was located next door to appellee, about 9:30 in the morning. It was caused by the explosion of a gasoline stove. The bakery was on fire when the fire department arrived. Lots of water was poured on the fire, and appellee’s damage was caused by water, steam and smoke. Everything was damp in appellee’s store, like on a foggy morning— steam, smoke and ashes all over the counters and showcases. The damage extended the entire area of’the store. Every one in there had to get out and stay out. The smoke stayed in the store about a couple of hoiirs. Appellee’s merchandise was out on display where people could see it, with price tags on everything, on the variety store order. The largest part of appellee’s stock of merchandise was exposed. Nearly everything that was hanging up was practically ruined. Lots of these goods appellee could not sell, and what he did sell he had to sell awfully cheap. Appellee had a balcony in the rear of his store, about ten feet square, which was a kind of store room where he kept everything, so as to give room downstairs for display. The appellee generally kept about half the stock up in the balcony. The rear of the store was in a terrible condition. The front was not quite so bad, but it was brown and black to the front. The greatest damage was in the rear of the store, where the smoke came from. There were cracks in the glass front windows, and the black smoke came out of those cracks. A third or half of the goods in- the balcony was wet and spattered. The water dripped through the balcony on the floor, and was as deep as the soles of your shoes on the floor. Appellee had to throw away two or three hundred dollars ’ worth of goods. He had on hand at the time goods of the value of $9,643.43. That was the estimate made from the inventory taken the first of the year, deducting therefrom the amount - of the purchases up to the time of the fire and the cash sales to that date. The appellee looked over his stock of goods carefully, and cleaned it up. He thought he was damaged 2-5 per cent, on his stock of goods, but concluded to settle, if the appellants were willing to pay, at 15 per cent. He placed .the.figures at 15 per cent, because he wished to induce appellants to pay without a lawsuit. Appellee stated that his furniture and fixtures in. the store were also damaged, and his testimony in detail explains how they were damaged, which damage he estimated to be at least $20. He estimated his entire damage at' $1,646.51. Appellee notified the insurance company the next day, and made proof of loss within sixty days. On January 24, 1925, the insurance company wrote to the appellee stating that it had been notified that appellee had sustained damage on account of smoke and water from the fire, and that the company had requested its agent, Col. J. W. Powell, of Little Rock, Arkansas, to represent the company in the adjustment of the loss, and that appel- lee would hear from him shortly in connection therewith. Col. Powell did not come, and in about a month and a half or two months an adjuster did come. In the meantime appellee received a letter from Col. Powell, the adjuster, dated March 2, 1925, in which he stated that he had received appellee’s letter of January 27, complaining-that appellee’s loss had not been adjusted, and stating that he knew nothing of appellee’s loss at the time he was in Russellville adjusting other losses; that, since he had received appellee’s letter, he had not had time to return to Russellville, but that he would get there as soon as possible. Appellee also received a letter signed by J. W. Powell, adjuster, dated January 28, 1925, in which he stated that the loss had been reported and that he would take the matter up as soon as possible, and advised the appellee to take an inventory of his loss and to write fully about it. In reply to this letter the appel-lee, on January 29,1925, wrote to Col. Powell, describing the nature of the fire, the result of same, and the injury and damage to his goods, and stating that he did not know what particular items to list; that it was a general smoke damage all over the store and a slight water damage, some of the goods being knocked down in the dirt and water by the firemen and others passing through the building at the time of the fire.
On cross-examination the appellee details further the character of damage that he sustained, and stated that he had only made a general estimate of his damage; that he did not furnish an estimate to Powell, the adjuster. He did not ask for any. Scott came to Russellville, and said something about the list, and that he wanted to see the goods, and was told by the appellee that most of the damaged goods had been sold or thrown away, and therefore he did not furnish any inventory. -Some of appel-lee’s goods were damaged about 80 per cent., some 50 per cent., and some not at all.
Another witness, who was a clerk in appellee’s store, testified that he took the inventory of the stock, and that it was between nine and ten thousand dollars. He testi fied to the general damage, and his testimony tends to corroborate the testimony of the appellee as' to such damage.
Another witness, a merchant who had been engaged in the mercantile business in Russellville for many years and had had an opportunity to inspect appellee’s store during and after the fire, stated that appellee had sustained a damage to his stock of goods by reason of the fire which, in his opinion, was between 15 and 25 per cent. Another witness, a banker, who had never been in the mercantile business, stated that, if he were buying the stock, he would discount it on the general reputation of a fire, and, in his opinion, the appellee had been damaged between fifteen and twenty per cent.
The owner of the building, who saw the condition of the stock of goods about two or three hours after the fire, stated that he considered the damage to the stock was perhaps twenty-five. per cent. He looked at the stock, and it seemed to be considerably damaged.
• The appellee introduced the insurance company’s bond in the sum of $20,000, binding the company to pay promptly all claims arising by virtue of any policy issued by the fire insurance company. ' The appellee introduced the chief of the fire department and two other members of the fire department, who testified to the effect that they were on duty and at the scene of the fire on January 13, 1925. Two of them testified that the appellee was not greatly damaged. The chief estimated that the damage was between two hundred and two hundred and fifty dollars — he thought that $250 would cover the whole loss.
F. W. Scott testified that he was the adjuster of the defendant insurance company; that he ■ called on the appellee in March, 1925, and asked him regarding his damage, and requested him to show the witness his inventory and his books, but appellee did not comply with his request. Witness asked appellee to show him some of the damage, but appellee replied, “Well, there is my stock — look it over.” When he asked appellee to show him the books or something to give him assistance so that lie could arrive at the loss, appellee replied, ‘ ‘ There is the stock— go to it. ’ ’ Witness walked around through the stock and found slight damage — couldn’t tell whether it was shop-worn or damaged by smoke. Witness was not given any assistance to arrive at any part of the loss. Witness was the first man on the ground to look after the loss, and the reason he did not get there sooner was that he was overcrowded. Witness was not the company’s representative except on this particular loss, which he had been asked to adjust by Mr. Powell, the adjuster of the company, four or five days before the witness came. Witness exhibited a proof of loss signed by the appellee showing that' it was signed 'and sworn to by appellee on March 11, 1925, with a notation thereon that same was received by the company on March 16, 1925. Witness further stated that appellee had put on a fire sale about the tenth of February, and witness believed, that all the damaged stock had been disposed :of, and it would therefore be impossible to arrive at any loss or damage to the stock.
The appellee was recalled, and testified that he had sent in two proofs of loss, both sworn to, and that one of them had been sent within the required sixty days. Witness had received no receipt for either, but he had a letter from J. W. Powell stating that he could not accept the paper purporting to be the proof of loss, which was the first one sent.
The appellants prayed the court to instruct the .jury to return a verdict in their favor. It was the theory of appellants that they viere not liable under the policy and bond unless the appellee could specify the articles of merchandise, furniture and fixtures damaged or lost by the fire, and place an estimate of value and damage on each item claimed to have been damaged or lost by reason of the fire. The appellants presented appropriate prayers for instructions setting forth their theory, which the court refused. The court instructed the jury, at the request of the appellee, to the effect that the burden was on the appellee to prove by a preponderance of the evi dence the allegations of his complaint to the effect that his goods were damaged as alleged, and, if the appellee had done that and had complied with the terms of the policy in regard to furnishing the proof of loss, he was entitled to recover whatever damages he had sustained by reason of the fire, and that, in arriving at a verdict, the jury should take into consideration the value of the stock of goods at the time of the fire and immediately after the fire. The appellee had claimed that his stock of goods was worth fifteen per cent, less after the-fire than before; that this was an issue for the jury, and, if they found in favor of the appellee, the jury should return a verdict for whatever amount of damages they found he had sustained. If the jury found in favor of the appellants, they should return a verdict accordingly. The court also instructed the jury that, if the appellee had failed to furnish the proof of loss required by the conditions of the policy, their verdict should be in favor of the appellants.
The jury returned a verdict in favor of the appellee against the appellants in the sum of $1,631.50, with interest at six per cent, from March 14, 1925. Judgment was entered in favor of the appellee against the appellants for that sum, from which is this appeal.
The appellants contend that the appellee’s proof is too remote and speculative to entitle him to recover under the policy, because he does not point out the particular items of merchandise lost or damaged, or the particular articles of furniture or fixtures lost or damaged, nor specify the value of any particular item and the loss or damage thereto. This contention is wholly unsound. The policy under which the appellee seeks to recover insures his entire stock of merchandise to the extent of $5,000 and his furniture and fixtures to the extent of $1,500 “against all direct loss or damage by fire,” etc. There is a provision in the policy to the effect that the company shall not be liable beyond the actual cash value of the property at the time of the loss or damage, and such loss or damage shall be ascertained or estimated according to such actual cash value, with proper reduction for depreciation, however caused, and shall in no event exceed what it would then cost the assured to repair or replace the same with material of like kind and quality; said ascertainment or estimate shall be made by the insured and the company, or, if they differ, then by appraisers as hereinafter provided,” etc. In the notice of loss and proof of loss clause it is provided: “If fire occur, the insured shall give immediate notice of any loss thereby in writing to this company, protect the property from further damage, forthwith separate the damaged and undamaged personal property, put it in the best possible .order, make a complete inventory of the same, stating the quality and cost of each article and the amount claimed thereon.”
These provisions of the policy show that, where a loss occurs within the terms of the policy, the insured is entitled to recover to the extent of the loss, whether it be entire or partial, and he is entitled to make proof of the damage he has sustained fiy. any competent evidence of such damage. This court, in effect, has already ruled against the above contention of the appellants in the case of General Fire Ext. Co. v. Beal-Doyle Dry Goods Company, 110 Ark. 49, 56, 160 S. W. 889, 891 (Ann. Cas. 1915D, 791), where a similar question was presented, 'and where,.at page 56, we said: , “The witness showed that, by their long experience in handling goods of the land that were damaged, they had knowledge of the value of such goods before they were damaged; and the opportunity afforded them for the examination of the goods. after they had been damaged was sufficient to' enable them to estimate the extent of that damag'e. It was not necessary for them to count each piece,' or to measure the number of yards to the piece. Their familiarity with such matters enabled them to tell approximately what the per cent, of damage to the whole lot was by an examination of the piles of goods, without a minute examination of each particular piece. The testimony shows that the witnesses made an examination of the goods sufficiently specific and particular to enable them to testify that the goods were damaged 50 per cent, of their value. The testimony of these witnesses was manifestly to the effect that these goods, by reason of the damage they had sustained, were worth to appellee only half as much in the market where appellee would have to sell them as they would have been had they not been damaged. It was the opinion of experts about a subject-matter' of which they showed that they were thoroughly conversant. It was a subject-matter, too, that called for and made the testimony of experts proper. The opinions of witnesses having a special knowledge of a particular subject, a knowledge peculiar to them by reason of their observation and experience in connection with such subject, are generally admissible in evidence. The weight to be given to the testimony of such witnesses is for the jury, but it is competent for their consideration. St. L. I. M. & S. Ry. Co. v. Brookshire, 86 Ark. 91, 109 S. W. 1169; Combs v. Lake, 91 Ark. 128, 120 S. W. 977; see also Hutchinson v. Poyer, 44 N. W. 327, 78 Mich. 337.”
At least one of the witnesses who testified for the appellee, to^wit, the banker Neil, was not an expert, and if the appellants had objected to this testimony on that ground and that he was therefore an incompetent witness, the trial court doubtless would have excluded his testimony from the .jury. The other witnesses who testified as to appellee’s damage were merchants of experience in the business in which appellee was engaged, and had had an opportunity to examine appellee’s merchandise, furniture and fixtures, after the same had been damaged, and their testimony was therefore competent, under the doctrine of the above case, and tended to prove the appellee’s damage as set forth in his complaint. The court therefore did not err in refusing appellants’ prayer for a peremptory instruction directing the jury to return a verdict in their favor.
The appellants moved to require the appellee to make his complaint more specific by showing each item of property damaged, giving the amount he claimed it was damaged by smoke and water, and the appellants’ prayer for instructions, Áwhich, if granted, would have told the jury that the appellee was not entitled to recover because he had failed to make this itemized statement of the amount of his loss and damage on each particular article, and because he failed to separate the damaged property from the undamaged, making an inventory of the same, with the cost, quantity and amount claimed on said property.
Insurance contracts, like any. other contracts, must receive a reasonable construction so as to effectuate the intention of the parties to the contract. It would be wholly foreign to the purpose of the contracting parties to construe the language of the contract, such as that under review, to mean that, as a condition precedent to recovery, the assured must go through his entire stock, separating and segregating the loss on each item. Such is not in the contemplation of the parties where there is a general damage to the property insured, although, forsooth, some specific articles may escape damage entirely or may be only partially damaged, or all the articles not be damaged to the same extent. Such a requirement by the insurer of the assured would be wholly impracticable, especially where the policy covered a large stock of general merchandise and where the damage in its nature was general, covering in some degree the whole of the property insured. Such was the case here.
We have not set forth the testimony in detail, but it tended to prove that the entire store was blanketed in smoke and moisture as the effect of the fire, which continued for some tirne — two hours or more — and which proximately resulted in damage to the entire stock. Where such is the case the measure of damages may be ascertained as it was here.
In 33 C. J. 146, § 885, it-is said:
“The amount which plaintiff is entitled to recover generally depends upon the terms of the policy and the extent of the loss or injury, in connection with the pleading, and other controlling circumstances of the particular case, less amounts to which the company is entitled as credits or offsets on ;the amount, due under the policy. Plaintiff may be entitled to recover the full amount stated in the insurance contract, as in case of death under a life insurance policy, or in case of a total loss under a valued fire insurance policy. But, where the loss or injury is only partial, plaintiff ordinarily can recover only the actual amount of the loss or injury he has sustained, unless a specified amount is recoverable under the terms of the particular policy.”
The doctrine applicable here is expressed in R. C. L. as follows: ,
“Where all property was injured by fire, water, or smoke, the insured need take no steps to' segregate his property, under a policy which provides that damaged and undamaged property shall be separated and cared for in such manner as to protect the undamaged portion from further deterioration.” 14 R. C. L., page 1313, § 485.
It is not contended by appellants that appellee had not complied with the iron-safe clause; and the testimony tends to sustain appellee’s contention that he had complied with the notice and proof of loss clause.
The issues were submitted under correct declarations of law and there was evidence to sustain the verdict. No error appearing, the judgment is affirmed. | [
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Mehaeey, J.
The appellees, plaintiffs below, filed suit in the Phillips Circuit Court, alleging that the appellant, who is the defendant in the court below, willfully, maliciously and unlawfully shot and killed a female setter dog which was owned jointly--by the appellees, of the value of $750.
The defendant filed a motion to dismiss, which motion alleged that he had been arrested under § 2511 of Crawford & Moses’ Digest, charged with malicious mischief in killing the dog. That he was tried in the municipal court and acquitted. The motion alleged that, under said section, if appellant had been found guilty, then it would have been mandatory that the court assess damages in said action in favor of the owners (appellees) of the dog. That for this reason the prosecution in the municipal court was a bar to the proceedings in this case. The motion was overruled, and the défendant filed an answer; denied that plaintiffs were the owners of the dog; denied that he willfully, maliciously and unlawfully shot the animal, and denied that they were damaged in sum of $750. Further answering, the defendant alleged that ■ one of the plaintiffs was hunting in the inclosed premises of the defendant, which premises were inclosed by a lawful fence, and that, while he was so hunting in the inclosure with ,a dog, the defendant shot a dog, and alleged that he had a perfect right to do so under and by virtue of § 2511 of Crawford & Moses’ Digest, and that the killing of said dog was not unlawful, and that no cause of action accrued in favor of. plaintiff. He further alleged that the arrest and trial in the municipal court in the city of Helena and his discharge there was a bar to the prosecution of this action.
After the evidence on the part of plaintiff, defendant moved that the court direct the jury to find a verdict in favor of the defendant, and this motion was overruled. The jury returned a verdict for $600, for which amount judgment was entered. Defendant filed his motion for a new trial, which was overruled, and defendant appealed to this court.
There is no dispute about the fact that one of the appellees was in defendant’s inclosure with his dog, hunting; that there was a lawful fence around the same,- and that, while said plaintiff was thus trespassing and had his dog within the inclosure, defendant shot the dog; and there is no dispute about the fact that he was tried in the municipal court and acquitted.
The appellant does not contend that the prosecution for a crime is a bar to a suit for damages against the wrongdoer, a bar to a civil action for damages, but he contends that it is a bar in this case because the court, if he was guilty of malicious mischief, that is, if found guilty by the court, the court would be required to assess the damages in that case, and for that reason he contends that it is a bar. Of course it is unnecessary to cite authorities supporting the. doctrine that a prosecution and either conviction or acquittal for a crime does not bar a civil action for the same wrong." In the criminal action he could not be found guilty unless the proof showed that lie -willfully, maliciously or wantonly killed the dog. It mig'ht be found that he killed the dog’ without the act being willful, malicious or wanton, and he would not be guilty of violating the criminal statute, unless it was shown by the evidence, beyond a reasonable doubt, that he killed the dog willfully, maliciously or wantonly. In a suit for damages for killing the dog it would only have to be shown by a preponderance of the evidence. Any person whose property is damaged by the wrongful conduct of another has the right to maintain- a suit against the wrongdoer for damages, and has a right to control the suit and the trial thereof, but, in a prosecution under the malicious mischief statute, the State prosecutes the suit, and the person whose property is damaged has no right to control the procedure or the suit in any way. We think that the plaintiffs clearly had a right to maintain this suit.
The other question argued by the appellant is that the verdict is excessive. After a careful consideration of all the evidence and an examination of the authorities presented by both parties, we have reached the conclusion that the verdict is excessive.
The witnesses testified-that the dog was of the value of anywhere from $600 to $800, but there was no question asked about the market value, and there seems to be no indication, from the testimony, that any of the witnesses had in mind the market value, and the plaintiff testified that he could have obtained $500 for the dog, but that he had been offered only $250. That if the puppies had been born alive they would have been worth at least $300.
The jury, in fixing the value of the dog, must have fixed some value on the puppies themselves, as the witness had only been offered $250 for his dog. There was some evidence of the market value of the dog, and witness’ statement that he could sell the dog for $500 was also some evidence of its value.
Taking all the evidence together we have concluded that the market value of the dog was not in excess of $400, and,, finding no other error, the judgment will be.reduced to $400, and affirmed for that amount. It is so ordered. | [
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Wood, J.
The facts of this case are correctly stated by counsel for the appellees as follows:
“On February 16, 1920, Oeorge Flannagan executed an oil and gas lease to R. Y. M. Cordell, describing therein lot 1 in the northeast quarter and lot 1 in the northwest quarter of section 6, township 16 south, range 15 west, containing 90.26 acres. In form, the lease is an ordinary oil and gas lease, containing only the usual provisions relating to the payment of royalty and the development of the land. There is no provision in the lease for a forfeiture for failure to develop. .
“The lease was afterward subdivided by R. V. M. Cordell, the Humble Oil Refining Company acquiring lot 1 in the northeast quarter of section 6, containing approximately 50 acres, the Sinclair Oil & Cas Company acquiring the west 30 acres of lot 1, in the northeast quarter of section 6, and the remaining 16 acres off the east side of lot 1 in the northwest quarter of section 6 was retained by R. Y. M. Cordell. It is this 16 acres that is in controversy in this suit.
‘ ‘ On September 27,1922, R. Y. M. Cordell contracted for the drilling -of this 16-acre tract, Cordell retaining a 7-32 overriding interest in the oil production. The 16-acre tract was further subdivided, and drilling commenced. The first well came in on January 14, 1923. Seven wells were drilled by five different operators, who had acquired separate distinct parts of the 16-acre tract. These wells were drilled to the first producing sand, which began to fail and show considerable salt water after about three months. As these wells failed, the machinery was moved off and some of the casing pulled.
“During the fall of 1923 and the winter and spring of 1924 this lease was submerged by Smackover Creek. During 1923 and 1924 Miss Alice Cordell, who had an interest in the royalty, and her brother, R. V. M. Cordell, who had an interest in the leasehold, visited the lease on several occasions, and found water standing on the lease every time. They were trying to get some one to drill the property, as they had no drilling rig of their own. After production failed on the 16-acre tract, the title to the leasehold was' outstanding in numerous individuals and companies, some of which were involved in litigation, and, in order to secure some operator'who would accept the title and operate the property, it was necessary to acquire all of these outstanding interests. This Miss Alice Cordell undertook to do. It required at least fourteen deeds and assignments and affidavits to get the outstanding title back into one individual. This was finally accomplished by September; 1925. In the meantime the Superior Oil Company had agreed to buy the lease if the outstanding titles could be secured, and a number of conveyances and assignments were executed by Alice Cordell transferring the title to the several tracts to the Superior Oil Company.
“Just prior to November 6, 1925, the Superior Oil Company commenced drilling its first well. The contract price for this well was $14,500. This well was commenced before any objection was made by Dr. Hughes, and, according to Robert Tate and C. 0. Tate, before they had any intimation that Dr. Hughes or any one else claimed that the lease had been forfeited for abandonment. This suit was not filed until after the second well was started by the Superior Oil Company.
“The lease cost the Superior Oil Company $16,600, and it has drilled three wells on the lease. L. C. Peters, production superintendent for the Humble Oil Refining Company, testified concerning the wells drilled on lot 1 in the northeast quarter of section 6, which was held under the same lease as the 16-acre tract acquired by the Superior Oil Company. Five wells were drilled in 1923 to the first sand. Well No. 5 was deepened to the second sand in May, 1925, and wells Nos. 6, 7 and 8 were drilled to the second sand. Well No. 6 was later deepened to the third sand. The second sand was discovered about March, 1925.”
Mr. Stephenson, of the Sinclair Oil & Gas Company, testified that seven wells had been drilled on the west 30 acres of lot 1 in the northwest quarter of section 6, and two were drilling at the time he testified. The first well was drilled in December, 1922. Six wells were completed in January, 1923. There are three first sand wells still producing.
The following stipulation was made in open court and entered of record: “It is admitted that lot 1, in the northeast quarter of section 6-16-15, which is described in the lease executed by George Flannagan to R. Y. M. Cordell, came into possession of Humble Oil Refining Company by assignments, and that the Humble Oil & Refining Company entered this land and drilled the same and commenced producing oil on the 7th of January, 1923, therefrom] and have been continuously engaged in producing oil from the same at all times since that date; and it is admitted that the west 30 acres of lot 1 in the northwest quarter of section 6-16-15, in so far as the lease of Flan-nagan to Cordell affected the same, was assigned to the Sinclair Oil & Gas Company; that it drilled a well thereon in December, 1922, and began producing oil therefrom on the 23d day of December, 1922, and has been continuously producing oil from said west 30 acres of lot 1 in the northwest quarter of said section, ever since the 22d day of December, 1922, and that this production and all their operations have been carried on under the terms and by virtue of assignments of parts of the acreage covered in the original lease from Flannagan to Cordell.”
Dr. Hughes became connected with. this property when he secured a power of attorney from George Flan-nagan, May 28,1923. The power of attorney was revoked June'S, 1923. Flannagan again appointed J. F. Hughes his attorney in fact on July 24, 1923. This power of attorney was revoked on September 14,1923. Thereafter, on September 15,1923, Flannagan appointed Frank Betts as his attorney in fact. It does not • appear that Dr. Hughes was ever again appointed attorney in fact for Flannagan.
On April 14, 1924, Flannagan conveyed the fee simple title to this tract to G. F. Hughes, daughter of J. F. Hughes. On August 33, 1925, G. F. Hughes conveyed the land to Dr. J. F. Hughes. Prior to the conveyance by Flannagan to G. F. Hughes, he had sold undivided interests in the oil, gas and minerals on this land as follows:
On September 28,1922, to Alice Cordell, an undivided one-eighth interest in the oil, gas and minerals. On September 30, 1922, to Eula Greer, an undivided one-half interest in the oil, gas and minerals.' On September 30, 1922, to Texas Leasing Corporation, an undivided one-eighth interest in the oil, gas and minerals. On December 20, 1922, to Alice Cordell, trustee, and G. Gillespie, trustee, an undivided one-eighth interest in the oil, gas and minerals.
By these deeds Flannagan ■ conveyed % undivided interest in all the oil, gas and minerals in this land, subject to the outstanding oil and gas lease previously granted to R. Y. Cordell. Flannagan therefore had only an undivided one-eighth interest in the oil, gas and minerals left at the time he conveyed the land to Gr. F. Hughes. On November 6,1925, J. F. Hughes conveyed to Superior Oil Company an undivided one-eighth interest in the oil, gas and minerals, subject'to the lease to R. Y. M. Cordell. This conveyance left J. F. Hughes with the bare fee simple title to the land, with no interest in the oil, gas and minerals at the time this suit was brought.
This action was begun on November 28, 1925, in the Ouachita Chancery Court by J. F. Hughes against Alice Cordell, trustee, and the Superior Oil Company, a corporation, to cancel a mineral, oil and gas lease held by Alice Cordell, trustee, and the Superior Oil Company on sixteen and two-fifths acres of land covered by original mineral, oil and gas lease from George Flannagan to R. V. M. Cordell. The complaint alleged title to the land in the plaintiff through mesne conveyances from Flannagan, and that the leases on the lands in controversy had been abandoned, and that, after their abandonment, the plaintiff took possession for more than a year when the Superior Oil. Company acquired and was attempting to hold possession of the land that was unlawful and in excess of the rights he had' obtained under a surface lease for a pick-up station. The plaintiff alleged that the leases in controversy were a cloud on his title, and prayed that the same be canceled, and that he be awarded a writ of possession.
The defendants, in their answer, denied the allegations of the complaint as to. abandonment, and alleged that they were the owners and in lawful possession of the property under leases from R. V. M. Cordell, the original lessee of the property from Flannagan. The defendant, Superior Oil Company, alleged that there was an error in the deed from Hughes to it, in that the deed specified one sixty-fourth royalty when it should specify one-eighth, and prayed that the deed be reformed so as to effectuate the intention of the parties. •
The above are the issues and facts upon which the' trial court found that there was no abandonment, and therefore no forfeiture of the lease in controversy, an,d that the same was in full force and effect; and further, that there had been a mutual mistake in the mineral deed'from J. F. Hughes to the Superior Oil Company of date November 6,1925, in describing the royalty interest conveyed; that it was the mutual intention of the parties to convey one-eighth of the royalty interest instead of one sixty-fourth. The court therefore granted the prayer of the Superior Oil Company that the deed be reformed accordingly. The court entered a decree in accordance with its findings, from which is this appeal.
The first question presented is one of fact as to whether there had been an actual abandonment of the lease in controversy. As to whether or not there has been an abandonment, as a matter of fact, in any given case, is largely a question of intent to be determined, to he sure, by the conduct of the party charged with the abandonment. As is said in Cadillac Oil & Gas Co. v. Harrison, 244 S. W. 669, 196 Ky. 290, quoting syllabus: “To constitute the forfeiture of an oil and gas lease by ceasing operations, the relinquishment must he actual and the abandonment intentional, and such questions. are questions of fact.” See also McDaniel v. Conlan, 134 Ark. 519, 204 S. W. 850; Wooten v. Farmers’ & Merchants’ Bank, 158 Ark. 179, 249 S. W. 569.
It could serve no useful purpose as a precedent to argue purely a question of fact. The facts are set out above, and they speak for themselves. The trial court made a specific finding that there had been no abandonment of the lease in controversy, and certainly it cannot be said from the above facts that such finding is clearly against the preponderance of the evidence.
But, if it be conceded that the lease in controversy was in fact abandoned by the sub-lessees, such abandonment by them could not work a forfeiture as against those who claim under R. V. M. Cordell, the original lessee of the lease from the lessor, Flannagan. Learned counsel for the appellants say in their brief: “The evidence shows that the oil has been produced on the other 39 acres of this lease practically during all the time since the first discovery well. Cordell made assignments of his lease to the land in controversy to two or three parties, and it is as to these segregated portions that a forfeiture is claimed. * * * It is our contention that, when a tract is segregated and assigned, it here becomes a separate lease as between the assignee and the lessor, without affecting the balance of the lease, and we insist that that was done in this case.” We cannot concur in the contention of counsel that an abandonment of the segregated and sub-leased land by the sub-lessees would entitle the lessor and owner to have the lease canceled as to such portions. The lease from Flannagan, the original lessor and owner, to Cordell was a lease for the development of the 90 acres in its entirety, and these sub-leases were for the purpose of development. The law in cases of this kind is accurately and succinctly stated in syllabus to Duke (Tex. Civ. App.) v. Stewart, 230 S. W. 485, as follows:
“Where owner leased land as-an entirety land by lease required lessees to develop the land for oil, without providing for development of any particular acre or tract thereof, the development- of a portion of the land by a sub-lessee accrued to the benefit of the lessee, precluding the owner from declaring lease forfeited as to another portion held by lessee or successors for nondevelopment thereof.” See also Gypsy Oil Co. v. Cover, 78 Okla. 158, 189 Pac. 540, 11 A. L. B. 129.
The case of Cox v. Sinclair Gulf Oil Co., 265 S. W. 196 (Tes. Civ. App.), upon which counsel rely to sustain their contention, as we read it, does not conflict with the doctrine above expressed, but rather sustains the same. In that case the action was by the lessor against all the assignees of segregated portions of the oil lease to cancel the entire lease because of nondevelopment and abandonment. The 16th syllabus to the case is as follows: “On failure of assignee of segregated portion of lease to prop erly develop, as required by implied covenants, lessor is entitled to cancel lease of assignee so in default, or entire lease, as to all assignees, where they all rely on development by the one in default to vest in them the right to thereafter drill for oil.” In the case at bar the action is to cancel the leases only as to the segregated portions sub-leased, and not the entire lease. As between 'the lessor, Flannagan, and Hughes, who claims title under him, and the original lessee, R. Y. M. Cordell, and those claiming under him, such an action will not lie, because there has been development on the tract not segregated and sub-leased, and, under the doctrine above stated, “the fee owner may not forfeit the lease in part only while it is valid as to the remainder.”
The court did not err in reforming the deed executed by Dr. Hughes to the Superior Oil Company. The facts on this issue are as follows: The deed was prepared by C. 0. Tate and sent to the 'Bank of Smack-over to be executed, and a voucher for $1,000' was sent to ihe bank to be delivered when the deed was delivered. The deed as prepared by Tate was in usual form, and in the granting clause conveyed an “undivided one-eighth interest in and to all oil, gas and other minerals in, under, and upon the following described land, lying in the county of Ouachita and State of Arkansas, to-wit: (Here follows a description of the lands containing the 16 acres in controversy). The deed recited that “it is subject, however, to a certain oil, gas and mineral lease executed by George W. Flannagan and wife on the 13th day of February, 1920, unto R. Y. M. Cordell,” etc. The deed as originally written granted to the Superior Oil Company the right to collect and receive under the aforementioned lease such undivided “one-eighth part and interest of all oil royalties and gas rentals due or that might become due under the aforementioned leáse. ’ ’ The appellant took the deed, and, without the knowledge of the bank, the escrow agent, or the grantee, changed the deed in the last paragraph thereof to read one sixty-fourth instead of one-eighth. The check was indorsed by the appellant, and lie collected the $1,000. The check bore the following* notation: “One-eighth oil, gas and minerals on Hughes Ey2 lot 1, NW%, 6-16-15.” The deed was made pursuant to an escrow agreement whereby appellant agreed to sell to the Superior Oil Company one-eighth of the oil, gas and minerals in, on and under the land described, the same constituting one sixty-fourth royalty on same. The deed was reformed by the trial court to carry out the manifest intention of the parties, which was that the grantor should convey to the grantee one-eighth of the oil, gas and minerals in, on and under the land described, constituting one sixty-fourth royalty on the same, whereas the deed as changed by the appellant would entitle the Superior Oil Company to collect only 1/500 twelfth royalty. Such was not the intention of the parties.
We find no error. The judgment is therefore affirmed. | [
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'Hast, C. J.
M. E. Stanley prosecutes this appeal to reverse a judgment of conviction against bim for the crime of involuntary manslaughter. Under the evidence adduced by the State, the jury would have been warranted in finding the defendant guilty of a higher degree of homicide. According to the evidence adduced by the defendant, the killing was done in self-defense. Inasmuch as no reversal of the judgment is urged because the evidence is not sufficient to support the verdict, we do not deem it necessary to abstract the evidence.
The first assignment of error relates to the admission of the evidence of Coy Davenport. The evidence ‘••hows that Roy Arrington was killed by a bullet'fired from a pistol in the hands of the defendant, M. E. Stanley. According to the testimony of Davenport, he heard a gun fired, and saw Roy Arring-ton sit down on the fender of a car. Arrington asked them to take him in the house, and they took him in there and put him on the bed. The witness then said: “Angelo Stanley said, ‘Father, what did you want to shoot Roy for? He is going to die.’ The doctor said, ‘He was coming on me with a knife, and I had to shoot him,’ and Roy said, ‘Every time you say I was coming on you with a knife you are telling a G-od damn lie,’ and he died a few minutes afterwards.”
We do not think the assignment of error of the defendant on the admission of this evidence is well taken. The statement of the witness shows that the defendant made no answer when Roy Arrington promptly denied the version of the affair given by the defendant, and denied that he was coming on the defendant with a knife, when the latter shot him. The evidence was in the nature of admission by silence on the part of the defendant, and, however- weak the inference of guilt which might be drawn from it was, under the circumstances, still the evidence itself was competent, and it was for the jury to say what inference might be drawn from it as a tacit admission of guilt on the part of the defendant. Thomas v. State, 161 Ark. 644, 257 S. W. 376.
It is next insisted that the judgment should be reversed because the court- erred in permitting the prosecuting attorney, in his opening- statement to the jury, to state that the defendant was tried and convicted about a year before and the case had been reversed by the Supreme Court. On this point, the record shows the following:
“Mr. W. H. Donham, of counsel for the State, in his opening statement to the jury stated that the defendant had been tried and convicted of this same offense about a year ago and the case had been reversed by the Supreme Court, and is now here for a second trial. (To which statement the defendant objected, which objection was by the court overruled, and exceptions saved by the defendant). Counsel for the State then stated that the defendant was convicted of involuntary manslaughter and was acquitted of second degree homicide and voluntary manslaughter. (To which remark to the jury defendant at the time objected; objection overruled, and exceptions saved by the defendant).”
• There was no error in the ruling of the court. Under our statutes, after the jury is impaneled and sworn, the prosecuting attorney may read to the jury the indictment, and state the defendant’s plea thereto, and the punishment prescribed by law for the offense, and may make a brief statement of the evidence on which the State relies. The object of the statement is to enable the court and jury to more readily understand the issues to be tried and the evidence subsequently adduced. Much discretion as to what may be stated by the prosecuting attorney is given to the trial court. The trial court should always see to-it that the prosecuting attorney acts in good faith in making his opening statement. McFalls v. State, 66 Ark. 16, 48 S. W. 492; Coates v. State, 101 Ark. 51, 141 S. W. 197; and Mode v. State, 169 Ark. 356, 275 S. W. 700. The record shows that Stanley was indicted for murder in the first degree and was convicted of involuntary manslaughter. He prosecuted an appeal to the Supreme Court, and the judgment of conviction was reversed. Stanley v. State, 171 Ark. 536, 285 S. W. 17.
Under these circumstances it was entirely proper for the prosecuting attorney, in his opening statement on the second trial of the case, to have made the remarks set out above. It was necessary to do so in order to inform the court and jury of the issues to be tried by them. The reversal of the judgment upon the former appeal operated as an acquittal of all degrees of homicide higher than involuntary manslaughter. Johnson v. State, 29 Ark. 34, 21 Am. Rep. 154; Ross v. State, 34 Ark. 376; and Youngblood v. State, 161 Ark. 144, 255 S. W. 572.
No other assignments of error are urged for a reversal of the judgment, and we find no prejudicial error in the record. The judgment will therefore be affirmed. | [
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McIIaney, J.
On April 32, 1924, the George F. Collins Company, an OMalioma Corporation, being’ indebted to appellant in the sum of $776.12, on account for freight, drew its check on the American National Bank of Sapulpa, Oklahoma, for said amount, payable to appellant, and delivered same to it. On April 21, 1924, appellant’s agent at Poteau, Oklahoma, took this check and others to the First National Bank of Poteau, and purchased exchange in the form of a draft for the total amount of said checks, on the Drovers’ National Bank of Kansas City, Mo., payable to appellant, and remitted same to appellant’s treasurer at Kansas City. On April 22, 1924, the First National Bank of Poteau closed its doors on account of insolvency, and a national.bank examiner took charge of its affairs, and, when said draft was presented to the Drovers’ National Bank in Kansas City, payment was refused on account of the failure of the First National at Poteau. The check of the George F. Collins Company and others were forwarded for collection and credit to the appellee, correspondent of the First National at Poteau, on April 21, where it was received and credited to the account of the Poteau bank on the morning of April 22, at a time prior to the receipt of information by appellee of said failure. About one or two o’clock on said date, after the receipt and credit of said check, appellee was officially notified by wire, by the examiner in charge, of the Poteau bank’s failure, and instructed not to credit or charge any additional items to its account. Appellee at this time still had said check of the George F. Collins Company in its possession, indorsed by appellant and the Poteau bank, and, instead of charging same back to Poteau and returning same to the examiner, it forwarded same to its correspondent in Oklahoma City, who, in turn, sent it to the bank on which it was drawn in Sapulpa, where payment was refused, the check protested, account payment stopped by the drawer at the request of appellant. Said check then went back the route from whence it came, dishonored, and finally reached appellee, whereupon it brought suit against the George F. Collins Company, as drawer, and appellant as indorser, of tlie check to recover the amount thereof. The Collins Company deposited the amount in court, and was discharged. A trial resulted in a verdict and judgment against appellant, and it has .appealed.
The first assignment of error urged for reversal of this case is that the court erred in giving appellee’s instruction No. 2 over appellant’s objection, which instruction is as follows:
“If you find that the check which has been introduced in evidence was indorsed and delivered by the First National Bank of Poteau, Oklahoma, to plaintiff in due course of business, and that the Poteau hank received credit therefor on its account with plaintiff, your verdict will be for the plaintiff; unless you further find that the plaintiff had knowledge of the fact, if it be a fact, that the said Poteau bank was insolvent at the time the check was deposited by defendant, the Kansas City Southern Railway Company, and knew that the Poteau bank had perpetrated a fraud on defendant, or that plaintiff had knowledge of such facts as would render the1 taking of the check an act of bad faith.”
We agree with appellant that this instruction is erroneous. It will he noticed that it -permits a recovery against appellant from the mere fact that it credited the amount of this check to the account of the Poteau bank, provided it had no knowledge of the insolvency of the Poteau bank at the time it acquired the check from appellant. In addition to this, it must have parted with value to the amount of the credit, else it could not be hurt, had lost nothing, and would be in no position to maintain an action against appellant for the amount of the check. It is true, as was said in Cox Wholesale Grocery Co. v. The National Bank of Pittsburgh, 107 Ark. 601, 156 S. W. 187, that, “when a check is taken to a bank, and the bank receives it and places the amount to the credit of the customer, the relation of creditor and debtor between them subsists, and not that of principal and agent; ’ ’ but it is also true that, if the check which haá been credited in the depositor’s account is'unpaid, the bank has the legal right to charge the amount of it back to 'the depositor’s account, where a sufficient credit still remains to cover it. By merely entering credit in the depositor’s account the bank has parted with nothing of value. Of course, if the. depositor checks out the amount of his credit in the bank, then the bank has parted with value and becomes a holder in due course for value of the instrument. In the case of Little v. Arkansas National Bank, 113 Ark. 72, 74, 167 S. W. 75, 76, this court said:.
“Appellants insist that a verdict should have been directed in their favor, and, in support of this position, they cite cases holding that, when a bank simply discounts a note and credits the amount thereof to the indorser’s account without paying to him any value for it, the transaction does not constitute the bank a pur: chaser for value- of the note. This appears to be a correct statement of the law, but this issue does not appear to have been raised in the, court below and no specific instruction to that effect was asked. ’ ’
While this statement may be obiter as to that case, it appears to us that it is a correct statement of the law. In the case of Ala. Groc. Co. v. First Nat. Bank, 158 Ala. 143, 48 So. 340, 132 Am. St. Rep. 18, it is said:
“So long as that relation (relation of debtor and creditor) continues, and the deposit is not drawn out, the bánk is held subject to the equities of the prior parties, even though the paper has been taken before maturity and without notice. ’ ’
In City Deposit Bank v. Green (Ia.), 103 N. W. 96, it is said:
“By giving credit to the indorser of the note on his deposit account, the bank, in effect, agrees to pay him that amount of money on- demand by check or order, and parts with nothing of value. When it receives notice nf defenses to the note, it is still in a situation, provided the amount thus- credited has remained undrawn hy the depositor, to return the note to him, and cancel - the credit.’.’
In the case of Union National Bank v. Winsor, 101 Minn. 470, 112 N. W. 999, 119 Am. St. Rep. 641, Ann. Cas. 204, it is said:
“ When a bank discounts paper for a depositor, and gives him credit upon its hooks for the proceeds of such paper, it is not a bona fide purchaser for value so as to he protected ag'ainst infirmities in the paper, unless, in addition to the mere fact of crediting the depositor with the proceeds of the paper, some other and valuable consideration passes. Such a transaction simply creates the relation of debtor and creditor between the. hank and the depositor, and, so long as that relation continues and the deposit is not drawn out, the hank stands in the same position as the original party to whom the . paper was made payable. By giving credit to the indorser on his deposit account the hank, in effect, agrees to pay him that amount of money on demand hy check, or order, and parts with nothing of value.- As long as the amount thus credited remains undrawn by the depositor,, the' bank, if it receives notice of the fraud, is still in a position to return the note to the depositor and cancel the credit. ’ ’
In the case at bar appellee had given the Poteau bank credit in its account for this- check. On the same date, and shortly after the credit had been made, it received notice of the insolvency of the Poteau bank, at a time prior to parting with possession of said check. At that time this and other similar checks had increased the Poteau bank’s credit balance, to $1,700. It had the legal right, at that time, to charge same back to said account and to return said' check’ to the examiner in charge of the Poteau bank. At that time it had notice of the probable infirmity of the title of the Poteau bank to said paper. It also had the right to forward said check to its correspondent in Oklahoma City to be presented by it to the bank on which it was drawn for collection. Blit, when it was returned to it, protested for nonpayment, it still had the right to charge the amount thereof back to the account of the Poteau bank, and if, in the meantime, it paid out any checks and charged same to the Poteau bank’s account, after knowledge of its insolvency, it did so at its own peril. The above instruction was therefore erroneous, because it allowed appellee to recover by merely crediting the Poteau bank’s account with the amount- of the check, without taking into consideration whether it had actually parted with value.
Appellee’s instruction No. 4 is erroneous for the same reasons that apply to instruction No. 2 just disposed of. We do not set this instruction out, as it embodies the same error as instruction No. 2.
Appellee’s instruction No. 5 was also erroneous in telling the jury that, if they found from the evidence that appellee credited the amount of the check on indebtedness to it by the Poteau bank and was authorized to do so, they should find for the plaintiff, unless it knew of the insolvency of the Poteau bank at the time. This instruction is abstract, as there was no evidence to support it.
Appellee'\s instruction No. 6 is also assigned as error. It is as follows:
“You are instructed that, as a matter of law, it is presumed that any person who is the holder of a negotiable instrument indorsed to him, acquired such instrument for. value; and in this case the burden of proof is upon the defendant, Kansas City Southern Bailway Company, to prove by a preponderance of the evidence that the plaintiff did not pay value for the check involved in this suit; and in this connection you are instructed that value, as used in this instruction, may include a credit on an existing indebtedness, or credit on a mutual account, or an advancement of extension of new credit, or a general credit to indorser’s checking account. ’ ’
This instruction placed the burden of proof on appellant to show that appellee did not pay value for the check. This was error, being contrary to § 7825, C. & M. Digest, which is § 59 of the Negotiable Instrument Law. This section is as follows:
‘ ‘ Every holder is deemed prima facie to be a holder in due course; hut, when it is shown that the title of any person who has negotiated the instrument was defective, the burden is on the holder to prove that he or some person under whom he claims acquired the title as holder in due course. But the last mentioned rule does not apply in favor of a party who became bound on the instrument prior to the acquisition of such defective title.”
It is not disputed that, at the time the Poteau bank acquired this check from appellant, it was hopelessly insolvent, and therefore perpetrated a fraud on appellant in accepting the check, knowing at the time that it was insolvent. Therefore, by negotiating the instrument to appellee, its title was defective, which placed the burden on appellee to prove that it acquired the title as holder in due course.
Section 52 of the Negotiable Instrument Law, § 7818, C. & M. Digest, is as follows:
“A holder in due course is a holder who has taken the instrument under the following conditions: (1) That it is complete and regular upon its face; (2) that he became the holder of it before it was overdue, and without notice that it had been previously dishonored, if such was the fact; (3) that he took it in good faith and for value; (4) that at the time it was negotiated to him he had no notice of any infirmity in the instrument or defect in the title of the person negotiating it.”
Subdivision 3 of this section requires that, in order to be a holder in due course, a person must show “that he took it in good faith and for value.” In Huff v. Iowa City State Bank, 134 Ark. 495, 204 S. W. 306, quoting from the syllabus, it is said:
“In an action on a note by a bona fide purchaser thereof for value, it appeared that the note was procured by fraud; held, it thereafter became the duty of the bond fide holder to establish by proof the sum paid for the note before he could recover, which sum would be the measure of his recovery.”
The last limitatidn in the above quotation was because of the statute of Iowa to this effect, which was the law of that case. In that case the court quoted from Tabor v. Merchants’ National Bank, 48 Ark. 458, 3 S. W. 805, 3 Am. St. Rep. 241, as follows:
“The production of the note and proof that the indorsement was made before maturity raised the presumption that the,. plaintiff had paid value for the note, that it was an innocent holder, and had acquired it in due course of business; but, if the proof subsequently offered by the defendant to establish their defense shows that the note, in its inception, was so infected by fraud as to destroy the title of the original-holder, the presumption of the payment of value was thereby overcome, and the burden of proof was shifted to the plaintiff to show that value was given for the note.”
For the errors indicated the judgment will be reversed, and the cause remanded for a new trial. It is so ordered. | [
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Kirby, J.
Appellant brought this suit for a broker’s commission for assisting in effecting a sale to the Southern Crude Oil Purchasing Coinpany of a mining lease, owned by John Dashko and others, for $250,000.
It is alleged that Nickel introduced John Dashko, who had authority to represent the other owners, to the officers of the Crude Oil Company, which resulted in its purchase of the property, and for his assistance in making such sale, under his agreement of employment, he was entitled to recover $12,500 for the services rendered.
Defendants denied all the allegations of the complaint, and that they had employed appellant, that he rendered no service whatever, beneficial to them, in bring ing about the sale of the property, and ‘that they were indebted to him in any sum whatever. ,
During the trial, upon a question being asked Dashko the answer to which might have resulted in some disclosures about what had been done with the money realized from this sale and affect materially his defense of other suits, he was permitted to decline answering the question, upon giving a bond to pay any judgment that might be rendered in the case against him.
The chancellor found: “That the plaintiff is not entitled to recover for commission sued for, but that he performed services for which he is entitled to compensation, and is entitled to the sum of $500 for such services so performed, and the court so finds,” and entered a decree • against John Dashko for $500 and costs, from, which this appeal is prosecuted.
Appellant contends that the chancellor’s finding that he was not entitled to a broker’s commission for making the sale or assisting in bringing it about is contrary to the preponderance of the testimony and contradicted by his finding that he rendered such service in making the sale as entitled him to recover $500 compensation, which finding, he insists, is equivalent to holding that he was entitled to recover a commission, and that, upon such finding made, he is entitled to a decree for the customary commission in making such sales, which the. undisputed testimony shows to be 5 per cent., notwithstanding, the finding that no commission was earned.
Appellees insist that there was no contract of employment, and that, if an agreement was made to pay a commission, it was'without consideration, and that appellant is estopped to claim a commission.
It is settled law that a broker is not' entitled to compensation for services unless rendered pursuant to an express or implied request of his employer, and cannot recover compensation for services voluntarily rendered without any employment, express or implied, as said in 4 ft. C. L. § 43: “ While a contract of employment may be. implied from subsequent acts of ratification on the part of the principal, the owner must say or do something- tending to prove that he accepted the broker as his agent in the matter — something more than merely selling the party whom the broker, while acting as a volunteer, brought to him.” See also Johnson v. Garrett, ante, p. 682. We think that the preponderance of the testimony discloses that Dashko did something more than “merely selling” the parties the broker brought to him, and certainly the decree supported that view.
The evidence shows that Nickel learned, after the gusher was brought in on the Dashko lease, that the Southern Crude Oil Purchasing Company wanted to buy it; that Nickel was engaged in the brokerage business at El Dorado; and he went immediately to the location of the well to find Dashko, and was told by Roy Baker there that Dashko was at Camden, attending court, and Nickel went, on there, at the suggestion of Baker, taking Baker with him. He was unable to see Dashko till after court adjourned, and, calling him to the car, he talked with him. Dashko was much excited about the well, and had to go immediately to the lease to arrange for a new storage. Witness told him it was important that he should see him about a matter of interest to him, Dashko, and Dashko agreed to see him as soon as he got to El Dorado. Dashko came into the G-arrett Hotel with Roy Baker, where Edgar Black and witness were waiting for him. He walked over to Dashko and told him that he wanted him to come down to the Southern Crude Oil office, as they were in the market to purchase his lease. Dashko replied that “I have a.deal on with the Humble, and have an engagement with Mr. Motter at the present time,” but that, when he got through with Mr. Motter, he would go down there. . “Bender was with me at the time. We waited possibly twenty minutes, and Dashko had not come down, and I suggested to Bender that he go up and see if he was still engaged, which he did, and in a few minutes Dashko and Bender and Motter came down the elevator, and Dasliko said he was ready to go down to the purchasing company’s office.”
On the way down witness asked Dashko what kind of a proposition the Humble had made, and he replied something under $200,000. Witness told him it probably was worth more than that, and he thought he could get more, and they agreed on a price of $250,000, on the way from the hotel to the Southern Crude Oil Company. They met there Mr. Hardin, Mr. Woodruff, and Mr. Dillahunty, and Nickel introduced Dashko to them. Dashko immediately told them about his lack of storage, and Dashko and witness looked over their maps to see where their 6-inch pipe line ran closest to the lease, and Hardin told Dashko, if he found it necessary, it would not take long to run a line to them. Hardin then asked Dashko if he Avould sell the property, and what he wanted for it, and Dashko replied that he Avould take $250,000, and they talked about so much oil and so much cash. Hardin appeared to think the price was rather high. Dashko Avas firm as to the price, and Hardin said he Avould like to have until 6 o’clock the following night to get confirmation from Shreveport. Dashko told him that he could not give him that long, that he Avanted quick action. Witness (Nickel) saAv that Dashko Avas closing the door for any further negotiations along that line, and called him out into the" hall, not knowing that he had a deal on Avith the Humble at this time, and told him that the proper way to handle the transaction would he to go hack and tell Hardin that he had his Avord out to the Humble people, and it would be necessary for him to go’back and see its agent, Mr. Motter, and tell him the trade was off, and to ask Hardin where he could reach him or get in touch Avith him in the next 15 or 20 minutes, Avhich he did, and Hardin replied that he Avould be at the Bandolph Hotel. Witness told Dashko, out in the hall, that that was as much as he could expect to get out of the property, and much more than the Humble offer, and witness thought it best for him to go back in and explain the situation to Hardin, AAdfich he did. The witness, Dashko and Bender immediately left the offices, and, upon reaching the street, Dashko asked Bender and witness if we thought they were serious about the offer, to which we both told him we felt positive they would carry out the deal if given until 6 o’clock the following night.
Dashko was very much elated over the proposition at the time. “Upon reaching the corner of the Chamber of Commerce the question of commission came up for the first time. I talked to Dashko about paying me a commission if the deal was consummated. He assured me, in Bender’s presence, that he would take care of me for my commission, as, if it was not for his friends, he would not he able to do any business. We had. now reached the Garrett Hotel, Bender leaving us on the street. Dashko said he would go up and see Mr. Hotter, the Humble Company’s representative, and tell him the deal was off.” Witness told him he would wait for him, and, when he came down, would call Hardin up. When he came down they walked from the Garrett to the Randolph Hotel. •They met Roy Baker in front of the Garrett, who went with them. Dashko put in a call for Hardin, and told him that he would wait until 6 o’clock the next night to say yes or no. “Leaving the Randolph Hotel, we then walked to the sandwich shop to get something to eat, and Dashko was then feeling very .good, as the deal was practically assured of going through. He told Baker about what had transpired, and repeated practically the same statement he had made earlier in the evening in regard to my commission, and then said that I did not have to worry, that if the deal went through he would take care of me, and I told him that was perfectly all right.”
Baker testified that, when Nickel asked Dashko who he should look to for his commission on the sale of the property, Dashko said' that he would take care of him about the commission, and that he need not bother about the commission. He told him that he appreciated his friends’ help, and always took care of them. He figured he would not be able to do anything without his friends ’ help. Nothing definite was said about the amount of the commission. “The deal had not gone through yet, and Nickel wanted to be protected on the commission, and asked Dashko whom he was to look to for the work he had done in the sale.”
Dashko stated that he did not agree to pay Nickel a commission, during the transaction, of 5 per cent, or any other amount, saying:
“I never said anything about a commission,' and never had any intention to pay a commission to any one, but I did say to Bender and Nickel that I appreciated their friendly assistance in helping close the deal and for introducing me to the Southern officials, and for that I would never forget, meaning that I would reciprocate some of these days the same.” * * *
“Later, when we came out of the office we ran into Baker, and, as we were walking across the street, Mr. Nickel mentioned something about what he was going to get out of it. He didn’t ask if he was working for a commission, or intended to get a commission. He said, ‘For myself, I wonder what I am going to get,’ and my answer to him was ‘For the assistance you gave me I never will forget that. ’ That was the words I used. It was never the intention in my mind to give him a commission.”
Nickel’s statement showing the service rendered and Dashko’s agreement to take care of his commission, if the sale was made for $250,000, is corroborated by three other witnesses, and Dashko himself admits that, during the negotiations, Nickel asked him what he was going to get out of it, and he replied that, for the assistance given.him, he would never forget it, but that he did not intend to give him a commission when this remark was made.
The chancellor’s finding that there was no agreement to pay a commission or from which such an agreement could be implied is clearly against the preponderance of the testimony, in our opinion. Neither do we think there was any showing of a condition that estoppéd Nickel from ■claiming the commission earned. Before the contract was finally made, Dashko told the president and attorney of the Southern Crude Oil Purchasing Company that he would not take the $250,000 if he had to pay a commission. The attorney then sent for Bender, whom he had asked in the first instance to get in touch with Dashko, to see about the purchase of the property. Nickel came up with Bender, whereupon he told Bender that Dashko would not pay a commission, and asked him, Bender, if he expected a commission, to which Bender replied that he did not. The attorney did this because he did not know whether Bender might not expect a commission and might want the company to pay it, if it was not received from Dashko. While it is true that Nickel was present when the conversation occurred, hut the questions were not addressed to him, nor was there any reason to think that he was expected to reply, since he had no agreement or understanding whatever with the purchasers about a commission, and, having been assured by Dashko that he would, be taken care of on his commission, if the sale was made for $250,000, the circumstances ¡did not require him to speak or disclose whether he expected to receive a commission or not, and Dashko, having promised to pay him a commission, could not escape the obligation to do so after the service was rendered, by such a proceeding. If he intended to do so it was incumbent upon him, having had the conversation or agreement with Nickel about the commission, to sa37' then to Nickel that he would not pay any such commission, if he had changed his mind about it. .
The undisputed testimony shows that 5 per cent, of the contract or sale price was the usual commission paid for such services, and the preponderance of the testimony shows an agreement on the part of Dashko to pay, or circumstances from which an agreement for the payment of a commission would necessarily be implied.
The chancellor erred in holding otherwise, and the decree must bo reversed, and the cause remanded with directions to enter a decree in favor of Nickel for a com mission of 5 per cent, of tlie sale price, $12,500, and also against the sureties on the bond given for the performance of the judgment for the amount thereof, and for such further necessary proceedings in accordance with the principles of equity and not inconsistent with this opinion. It is so ordered. | [
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McHaNey, J.
On January 1, 1924, T. W. Dean and wife were indebted to the Lincoln County Bank in a sum which they were unable to pay, and, on that day, executed and delivered to the bank a renewal note for $7,500, which was secured by a first mortgage on certain real estate, and a second mortgage on lot 14 in the north one-half of section 2, township 9 south, range 16 west. The mortgage bears date of January 1, 1924, but was not acknowledged until the 21st day of May, 1924, and was filed and recorded on the 22d day of May, 1924. In December, 1924, the indebtedness not having been paid at maturity, the Lincoln County Bank brought suit against the Deans to foreclose their mortgage, and, as to said lot 14, prayed that it be sold subject to the first lien of the Missouri State Life Insurance Company. The bank thereafter learned that appellant, T. H. Free, was claiming some interest in said lot 14, and it made him a party defendant in said action. Appellant’s interest in the matter relates only to said lot 14, and originated in the following’ manner: On September 27, 1919, T. W. Dean and wife executed a deed of trust on said lot 14 and other lands to secure a note to H. D. Palmer in the sum of $10,000. Dean thereafter" paid $4,000 of .the debt owing- to Palmer, leaving a balance due of $6,000, evidenced by three notes of $2,000 each, which, on March 20, 1920, he sold and indorsed to appellant, Free, a brother-in-law of Dean, together with the deed of trust securing said indebtedness, which had been recorded, but did not enter on the margin of the record of said deed of trust a notation of said assignment. This deed of trust constituted a first lien on five acres of land in lot 19 and a second lien on said lot 14, the Missouri State Life Insurance Company holding the first lien thereon. Dean paid the interest on this $6,000 loan to January 1, 1922, and also borrowed $2,500 additional from Free in 1921, of which a portion was repaid in September of that year, but, on January 1, 1922, he was indebted to Free in the total sum of $7,434.19, exclusive of interest. No other payments were made to Free by Dean thereafter, but, on January 17, 1922, Dean and his wife executed a warranty deed to Free to the five-acre tract in lot 19, which recited a consideration of $6,000. Valuable improvements were located on this five-acre tract, including a gin house, on which insurance was carried in the sum of $1,000, $1,700 on the gin machinery located therein, $1,000 on engine and $400 on a seed house. This conveyance was made, according to appellant, to enable him to secure insurance on the improvements, which had been canceled because of the mortgage, and that he held the title in his name as security for the loan, with the right on Dean’s part to pay it off and secure a reconveyance. However, the insurance which appellant secured on this property thereafter was made to him as mortgagee.
On August 29, 1924, Palmer entered a notation on the margin of the deed of trust assigned by him to Free, satisfying same as to said lot 14, and, according to his testimony, he satisfied the record as to lot 14 at the direction of appellant, Free; that the first mortgage to the Missouri State Life Insurance Company had become due and was up for reneAval by Dean, and that his second mortgage, transferred to appellant, stood in the way o'f a renewal of the first mortgage, and that he satisfied the record as to that lot at the direction of Mr. Free, so that the new mortgage to the Missouri State Life Insurance Company would continue to he the first mortgage; that Mr. Dean had told him to see appellant and that appellant would direct him to satisfy the mortgage, as it had never been assigned on the record to appellant, and that Dean also told him of his conveyance to appellant of the five-acre tract and improvements on lot 19. Appellant denies having authorized Palmer to 'satisfy the record, hut he admits that he told Mr. McPherson, the abstracter, to tell Palmer to satisfy the record as to lot 14, so that Dean could renew his first mortgage to the Missouri State Life Insurance Company. Under this state of facts the chancellor found that the satisfaction of the record as to lot 14 by Palmer was authorized, dismissed appellant’s intervention or cross-complaint, which sought to cancel the satisfaction of the record as to lot 14 and to declare his lien superior to that of the bank, and entered a decree of foreclosure in favor of the Bank Commissioner, who had in the meantime taken over the affairs of the Lincoln County Bank. From the decree against him appellant has appealed to this court.
The only question presented for our decision, as we view it, is the authority of Palmer, who was the cashier of the Lincoln County Bank, to make the entry of satisfaction on the margin of the- record as to lot 14, of the mortgage which he had transferred to appellant, but had not assigned to him on record. The record still showed Palmer as the mortgagee and the holder of the note from Dean to Palmer. If an entry had been made on the margin of the record of the transfer of the note and lien of the mortgage from Palmer to Free, then Palmer could not have satisfied the record, either in whole or in part, without a power of attorney entered of record so to do. But, since the record still showed Palmer to be the mortgagee and the owner of the note, he, with the authority of Free, could enter a proper satisfaction on the record. He says he satisfied the record at appellant.’s verbal direction. The law did not require a power of attorney or other written instrument from appellant to Palmer to satisfy the record. His verbal direction to do so is sufficient. The chancellor found “that the release of the lien on lot 14, in section 2, toAvnship 9 south, range 6 west, by T. H. Free’s authority and direction, was a complete satisfaction and restoration of the title of said lot in T. W. Dean, and said T. H. Free is estopped from asserting a lien prior to the lien contract by the Lincoln County Bank on said lot.”
The chancellor therefore found that the satisfaction entered by Palmer was .made with the authority and by the direction of appellant, and, while appellant denies that he authorized Palmer in person, he admits that he told McPherson to tell Palmer to satisfy, the record. The finding of the chancellor is supported by a clear preponderance of the evidence, and the decree is accordingly affirmed. | [
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.!-iíl!0TOjiPtoBfrs>//>Ji,»¡
íA.ppeliaut¡ ie <a ilkúdoTOuerrjáud á taxpayeriú 'the-¡White Riveii :L"eyÍ3eiDi'stLict'of<’Wo.odi1uf4 Píamenand Méíiroe!.counties; He■iiistiiated'lttós buit in théjcliancéry! couiít 'of -'Woodruff Ooxintyv iaiíthebSoiithh ern District, to enjoin the directors ioBsaidfdistildhff'ofa Üsstfing..iai4i.>,lMnldiú,|' iqt>. refuhding'Ponds- under«act No. ¡IB®! ofi'íhéí G'enejjal'iAssfeinDMyi-iof' ¡1923;; y?hichr/a,llo,w'Ml the hoárdilof''director's" ofi-.s-afid'1 district. tdífre-fimxiíifñeMhoimícfe yiithoififti.-any; firestfictiiohsoiwhatfeyet,-; alégúngu thafensaM aotohadllMeuik’epeatechihy'.'acf INoíí‘126, !oifii;the,iG;ehe]:al Assembly of 1927,, which allowed the districts in the State to refund their respective indebtednesses under certain restrictions, .provided fifty-one per cent, of the landowners in the particular distinct should evidence a desire to do so by petition.
A demurrer was sustained to the complaint and a consequent judgment rendered, dismissing same, from which an appeal has been duly prosecuted to this court.
• The only question presented by the appeal is whether act No. 126 of 1927 repeals Act No. 130 of 1923. Act No. 130 of 1923 is a special act and act No. 126. of 1927 is a general act. Both relate to the same subject, the earlier act applying to White River Levee District of Woodruff, Prairie and Monroe counties and the later act purporting to apply to all districts in the State. By reference to the later act it will be observed that it is exclusive in the sense that it covers the general subject-matter to which it relates, and, under the rule announced by this court in the case of Hampton v. Hickey, 88 Ark. 324, 114 S. W. 707, necessarily repeals the earlier act by implication, even if act No. 130 of 1923 is a special statute.
On account of the error indicated the decree is reversed, and the cause is remanded with directions to overrule the demurrer to the complaint, and for further proceedings not inconsistent with this opinion.
Mr. Justice Smith dissents. | [
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Wood, J.
The facts, as stated hy counsel for the appellant, are as follows:
On and prior to April 18, 1925, appellant was the owner and in possession of an unexpired lease on ten acres of land in Washington County, which was to continue so long as the strawberries growing thereon should produce a paying crop; on the 18th of April, 1925, this lease was sold under an execution levied out of the circuit court of Washington County upon a judgment against the appellant and in favor of the Mcllroy Banking Company. At this execution salé the appellee, H. K. Wade, became the purchaser of the unexpired lease; the sheriff executed to Wade a certificate of purchase.
On April 17, 1926, within a year from the date of the execution sale,.appellant paid into the office of the circuit clerk of Washington County the sale price of the lease, fifteen per cent, additional, and the cost of the action, for the purpose of redeeming the lease from the execution sale so made to Wade, .the clerk issued, a receipt for the money so paid, and appellant thereupon asserted his right to the possession of the leasehold.
After the expiration of one year from the date of the execution sale, and after the redemption by the execution debtor, H. K. Wade, the purchaser, with knowledge of the redemption, demanded and received from the sheriff of Washington County a sheriff’s deed conveying to him the leasehold involved. The exact date of this deed is uncertain, for the reason that the deed itself is not dated, but it was recorded, as shown by the transcript, on the 6th day of May, 1926; it does not appear to have been acknowledged. Thereupon the appellee brought this action for an injunction to restrain the appellant from interfering with the appellee in the possession of said leasehold. The chancery court in its decree held that a lease is a mere chattel and not subject to redemption, and granted the injunction prayed for.
For the purposes of our decision we accept the above as a correct and succinct statement of the facts. It thus appears that the only question for decision is whether or not an unexpired lease of land for agricultural purposes, when sold under execution, is subject to redemption under the laws of Arkansas. The statutes concerning the sale of real property under execution and the redemption from such sale are contained in §§ 4223 to 4333 inclusive, chapter 59, of Crawford & Moses’ Digest. In these sections the terms “real property,’’’ “real estate,” “land,” and “premises” are all used interchangeably and mean the same thing. The particular section under which appellant claims the right to redeem reads as follows:
“Section 4329. When any real estate, or any interest therein/ is sold under execution, the same may be redeemed by the debtor from, the purchaser, or his vendees, or the personal representatives of either, within twelve months thereafter. ’ ’
Section 6299, C. & M., declares that a judgment obtained in the courts therein named, including the circuit court, shall be a lien on the real estate owned'by the defendant in the county in which the judgment was rendered from the date of its rendition. We have no statute which, in specific terms, declares that a judgment lien on land or real estate includes, under these terms, likewise a leasehold interest in such land for any purpose, much less for agricultural purposes. Mr. Freeman says:
“A term of years in real estate was always, by the common law, regarded as a chattel. It was transferred as personal, and not • as real, estate. In this respect there was no difference between voluntary and involuntary transfers. Hence a leasehold interest in lands, for whatever term of years it may continue, must,. unless some statute directs otherwise, be levied upon and-sold as personal property. ’ ’ 1 Freeman' on Executions, § 119.
Many authorities are cited in note to sustain the text. ■ Among them is Barr v. Doe, ex dem. Binford, 6 Blackford 335, 38 Amer. Dec. 146, where, among other things, it is said:
- “A term of years is a chattel interest. Upon the death of the tenant it does not descend to his heirs, but goes to his executor. In the division of property into real and personal, it is classed among, the latter. And in'England, upon a fieri facias against the goods and chattels of the debtor, it is liable to be seized-and sold.” See also Coombs v. Jordan, 22 Am. Dec. 236.
Our own court, in Lenow v. Fones, 48 Ark. 557, speaking through Chief Justice Cockrill, at piage 565, 48 S. W. 56, 59, says: • *
“No proposition has been better settled, from the earliest days of the common law, than that a lease, of whatever duration, is but a chattel. It was at common law regarded within the definition of personal things, and, although it was denominated a chattel real to distinguish it from mere movables, it was not, when speaking with legal accuracy, considered as real estate. ’ ’
Now, in the absence-of a statute changing this rule of the common law and declaring that a leasehold interest in lands is an estate or interest in the freehold or land itself, the rule of the common law must obtain, and such leasehold interest be considered as personal property. Therefore the question recurs whether the words “or interest therein” in the above statute are sufficient to embrace a leasehold interest in lands for a term of years for agricultural purposes. We do not believe that these words have that effect or that they were so intended by the Legislature.
The language of the statute clearly shows that it was only intended to include the freehold and any interest- or ownership in the freehold itself. A leasehold interest may be so worded as to give the lessee, during the time of his lease, an ownership or interest in the land itself; but the lease under consideration is not so phrased. “At common law, and generally in the United States, all annual crops which are raised by yearly mam urance and labor, and essentially owe their annual existence to cultivation by man, termed ‘emblements,’ and sometimes ‘fructus industriales/ irrespective of their state of maturity, whether planted by the tenant or the owner of the soil, may be levied on as personal property. But, in several of the United States, execution levies are restricted to mature crops, and are not allowed as to unripe crops or as to growing crops not in a fit state to be gathered.” “Perennial plants and their ungath-ered products, such as trees, bushes, grasses, peaches, timber, fruit, etc., are incident to the soil and not subject to execution” (as personal property). 17 Cyc. 941, §■§ 3 and 4.
A tenant under a lease of lands for the purpose of growing crops has no ownership or interest in the land itself on which the crops are grown. Therefore, from a sale of such lease under execution the tenant has no right to redeem under the above statute. To be sure, those leases which convey to the lessee an interest and easement in the land itself, such as gas and oil, and other mineral leases, and leases for the purpose of cutting and removing timber and other natural products which are a part of the land itself, would fall under a different rule; and we do not mean to hold that the statute under review would not be applicable to such leases. We are not called upon to decide and do not decide that question, but merely mention it to show the distinction between those leases and the lease under review. See Standard Oil Co. v. Oil Well Salvage Co., 170 Ark. 729, 281 S. W. 360; Shreveport Pipe Line Co., v. Bennett, 172 Ark. 804, 290 S. W. 929; Clark v. Dennis, 172 Ark. 1096, 291 S. W. 807.
Section 4271, C. & M. Digest, provides: “Every unexpired lease of land shall be subject to execution and sale as real estate.” Learned counsel for the appellant contend that, under this statute, the lease in controversy was real estate, but we do not concur in this view. The preceding section (4270) prescribes and classifies the property, real and personal, that may be sold under any execution upon any judgment, order or decree of a court of record, and, after specifying certain personal property, it mentions, in the sixth subdivision, all real estate whereof the defendant in the execution is seized in law or equity on the day of the rendition of the judgment order or decree whereon the execution issued, or at any time thereafter.
Sections 43'23 to 4328 inclusive prescribe the manner of sale of real property under execution, and §§ 4341 et seq. prescribe the manner of sale for personal property under execution. The methods of procedure for the sale of real and personal property prescribed by these statutes are different. A consideration of these statutes convinces us that the purpose of § 4271, supra, was merely to declare that unexpired leases of land should he governed by the methods prescribed for the sale of real property, rather than the method prescribed for the sale of personal property mentioned in the statute. It was within the province of the Legislature to declare that unexpired leases of land, when subject to sale and execution, should be sold as real estate is sold, that is, after giving notice of the time, place, etc., the same as that required for the sale of real estate. But it will be observed that § 4271 does not declare that unexpired leases of land or real property are an interest in the real estate itself. It only provides that, in the execution and sale of such property, it should be governed by the same methods as are prescribed for real estate. Our conclusion with reference to this statute (§ 4271) is that it is not sufficient to convert an unexpired lease of land for agricultural purposes (which, as we have seen, is a chattel real) into real estate or real property. We do not believe that such was the purpose of the Legislature, and therefore the redemption statute invoked by appellant in this case has no application.
The decree of the chancery court is in all things correct, and it must affirmed. It is so ordered. | [
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Hart, C. J.
J. F. Jacobs, a citizen, taxpayer and owner of real property in the city of El Dorado, brought this suit in equity against said city and the mayor and members of the common council thereof, to enjoin them from issuing or selling bonds or making any contract towards the purchase and erection of a city hall. The chancellor found the issues in favor of the plaintiff, and a decree was entered of record in accordance with the prayer of his complaint. To reverse that decree this appeal has been prosecuted.
The record shows that, at the general election held on October 5, 1926, Amendment No. 15, giving cities of the first and second class the power to issue bonds for certain puruposes upon certain conditions, was adopted. On January 5,1927, pursuant to the provision of an ordinance to that effect, an election was duly held in the city of El Dorado, which is a city of the first class, to determine whether or not bonds should be issued for the purchase of a site and the erection of a city hall. A great majority of the votes cast at said election were in favor of issuing the bonds for the construction of the city hall.
The chancellor held that Amendment No. 15 was illegal and inoperative. No valid reason is assigned by counsel for the court so holding, and none can be perceived by us. It cannot in any sense he said that the amendment is too indefinite to be capable of enforcement. It provides that cities of the first and second class may issue, by and with the consent of a majority of the qualified electors of said municipality voting on the question at an election held for the purpose, bonds in sums and for the purposes approved by such majority at such election. The purpose of the election in question was for the purchase of a site and the construction of a city hall. Such purpose is expressly provided for in the amendment. It further provides that no bonds issued under the authority of the amendment shall bear a greater rate of interest than six per cent, per annum. The section also provides that such bonds must be sold at public sale after twenty days’ advertisement in some newspaper of a bona fide circulation in the municipality issuing the bonds. Provision is made for the levy and collection of a special tax, not to exceed five mills on the dollar, in addition to the legal rate permitted, for the purpose of paying said bonds and interest thereon. The amendment prevents such municipal corporations from granting financial aid towards the construction of railroads or other private enterprises, and specifically provides that no money raised by the sale of bonds shall ever be used for any other or different purpose than that specified.
Another section provides that the election shall be held at such time as the city council may designate by ordinance, which shall specifically state the purpose for which the bonds are to be issued, the total amount of the issue, the dates of maturity and the date of election, so that it shall not occur earlier than thirty days after the passage of the ordinance. It further provides that said election shall be held and conducted and the votes thereof counted and the result thereof determined under the law and in the manner now or hereafter provided for municipal elections, so far as the same may be applicable, except as’ herein otherwise provided. Provision is made for giving notice of the election by advertisement, and only qualified voters have the right to vote at said election.
An ordinance was passed by the city in conformity with the provisions of the amendment, and the election was held on the 5th day of January, 1927, at4he voting place in each of the four wards of the city of El Dorado. As we have already seen, a great majority of those voting at the election voted for the issuance of bonds for the purchase of a site and the construction of a city hall, and the provisions of the law in regard to holding and conducting said election were substantially complied Avith.
Complaint is made that the usual number of voters did not appear at the polls and vote at said election. No proof Ayas introduced, hoAvever, tending to show that any fraud was perpetrated in conducting the election either in casting the ballots, preparing the returns or determining the results of the election.. The mere fact that the usual number of voters did not appear and vote at the election cannot have the effect to avoid it. The amendment itself specifically provides that the result is to be determined by the majority of those voting on the question at the election and not by the majority of those Avho might have participated in the election.
Complaint is made of several irregularities in bold-ing the election. It is well settled, however, that election returns should not be rejected for any irregularity in the appointment of the officers of election, where it does not appear that the irregularity affected the result of the election. 20 C. J., page 90, and case-note. . In State ex rel v. Taylor, 108 N. C. 196, 12 S. E. 1005, 12 L. R. A. 202, 23 Am. St. Rep. 51, it was held that it is essential to the validity of an election that it shall be held under ¡áome proper authority, and conducted substantially in the manner prescribed by law. In the case at bar the record shows that all the requirements as to notice and other matters required by the amendment and by the ordinance enacted in conformity with the provisions of the amendment were substantially complied with. The election was held on the day advertised and in each of the four wards of the city of El Dorado.
Complaint is made that none of the officers appointed by the election commissioners as judges of the election appeared $nd held the election. So far as the record discloses, the regular election officers did not appear, and no election could have been held unless substitute judges took their places. Section 3729 of Crawford & Moses’ Digest provides the manner of supplying the vacancies where the regular election judges shall be absent at the time fixed for the opening of the polls. Here, no attempt is made to show that the persons holding the election were not elected to fill the vacancies caused by the absence of the regular judges, and no attempt is made to show that the votes were not honestly cast and counted or that any attempt was made to interfere with the freedom of action on the part of the voters.
Again, it is insisted that in one of the precincts the election was held at an unauthorized place. The election in that precinct was held at a polling place about two hundred feet distant from the building in which the elections for that precinct or ward were usually held. The changed polling place was on the same street of the city, and was rendered, necessary because the election judges could not have access to the regular polling place.
■ It is next contended that the election was invalid because the polls were not open as early as they might have been under statute. The delay in opening the polls may have been caused by the absence of the regular election judges and the necessity.of filling the vacancies caused by their absence. In any event, no attempt was made to show that any person was prevented from voting on this account. Each of the polls was in a house on one of the streets of the city, and every voter was given an opportunity to vote at the election. .
It is next insisted that private booths were not erected in the polling places as provided by the statute. Only one issue was to be voted on at the election, ánd the undisputed evidence shows that each voter was given an opportunity to retire to a part of the room where he could vote in secrecy and where no one could see how he marked his ballot. There was no electioneering going on at the polling places, and no attempt was made by those holding the election-to influence the voters in any way.
It is next insisted that the sheriff did not appoint deputies to attend and serve the election judges at the polling places. This defect was supplied by the election .judges appointing an officer for that purpose, and this constituted a substantial compliance with the statute. This is especially true when we consider that no attempt was made by any one to influence the voters.
In short, there is' no evidence in the record of any obstruction or hindrance caused by those holding the election which in anywise interfered with the expression of the voters in casting their votes according to their own free will, and there is nothing, as a consequence, which prevented a fair election. .
The facts with regard to the passage of the ordinance bring the action of the council within the rule announced in Young v. Gurdon, 169 Ark. 399, 275 S. W. 890. In that c'ase it was held that, under Crawford & Moses’ Digest, requiring that “all bills and ordinances of a general and permanent nature shall be fully and distinctly read on three different days unless two-thirds of the members composing the council shall dispense with the rule,” the adoption of a resolution by unanimous vote of all the members of the council dispenses with such requirement.
Other matters are urged upon us for a reversal of the-decree, but we do not deem them of sufficient importance to require a separate discussion and review. Suffice it to say that we have carefully considered the briefs of counsel and are of the opinion, for the reasons above given, that the decree of the chancellor was erroneous. It will therefore be reversed, and the cause will be remanded with directions to the chancery court to dismiss th'e complaint of the plaintiff for want of equity. It is so ordered. | [
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Mehaeey, J.
Heinie Henderson, the appellant, was convicted at the April term, 1927, of the Ouachita Circuit Court of the crime of having a still in his possession, and the indictment charges that the crime was committed as follows: The said defendant, on the 18th day of April, 1927, in Ouachita County, Arkansas, did unlawfully and feloniously have and keep in his possession a still and stillworm, such as may be used for the manufacture of distilled spirits, without registering the still with the proper United States officer.
R,. D. Newton testified, in substance, that he was deputy sheriff of Ouachita County, and knew the defendant, and that, as deputy sheriff, he went to the home of Heinie Henderson with A. W. Ellis, S. W. Padgett, B. M. Milner and Zack Horton. That they had information that the defendant was engaged in the liquor business, and they went to his house, and it was just getting daylight. There was a negro sleeping in a tent back of the house, and by his bed were some old overalls, which made witness think he was running a still. Witness asked this negro what he was doing, and he said he was working for the defendant. The defendant and his brother came out of the house, and there was another man that witness did not know, and Slim Jackson. Witness said they made a search of the place and found a lot of empty fruit jars and some eight-ounce bottles and one or two kegs. The negro took them up to the still; took them through the woods around some trails a mile or two from the house. It was a copper still, would hold probably one hundred gallons, and there were 46 or 48 barrels of mash at the still, but they did not find any liquor. The still was complete • in every way. Witness said they then went back, and brought defendant and his brother and a negro to town. Did not see any houses but the defendant’s and his still.
A. W. Ellis, the sheriff, testified, in substance, to the same facts testified to by Newton. He testified about following the old negro and being taken by him to the still, and the old darkey told him he was working for the .defendant. That witness returned the following day to defendant’s house and made a search there, and found some burners like the one at the still. The still bore evidence of having been operated. The burners that they found were rusty. The tent that the negro was in was about 20 feet .from the corner of defendant’s house. It was furnished with two or three beds, a dresser, and an old rug. It was about 16 by 18 feet. Nobody was sleeping in there but the old negro.
Noah Goff, the old negro, also testified that, when Mr. Ellis and Mr. Newton came to the house, he was in the tent sleeping. That he had just come there. Had worked three days for the defendant. Defendant had hired him to work for him, and defendant was to pay him $4 a day for his labor, and he went to work for him at the' still. Defendant said it was his still. That he did not know how to run a still. That he was at the still Thursday, Friday and Saturday, three evenings, and was sent there by defendant, and defendant was paying him. He worked at the same still that he took Mr. Ellis and Mr. Newton to. Had never worked at a still before. He worked around the still, and put some mud around the still, and knew that they were making liquor there. He also cut some wood.
The above is the substance of the testimony introduced by the State, and it is unnecessary to set it out in detail.
The old darkey testified that he was employed by the defendant to work at the still, and did work at the still, and defendant told him that the still belonged to him. The officers testified, in substance, that the old negro showed them the still, and then in their search they found some burners, jars, kegs, etc.
Joe A. Scarboro, justice of the peace, and witness for the defendant, testified, in substance, that the defendant was tried in his court and bound over, and this witness stated that the old negro, Noah Goff, testified that he had been hired by defendant or some one to cut wood, and he started to work, and some time afterwards some one told him he would have to go over and work at the still, and he went to some still. That the person who told him to go was some one he did not know. The old negro testified that he was sure that the defendant had never mentioned the still to him. On cross-examination he said there was enough testimony to bind the defendant over. That he did it because he thought it ought to be investi gated. Witness said lie did not reduce the old negro’s testimony to writing; that he was just telling what he remembered about it. Witness said he also bound the negro over, and, when time came for the examining trial, he asked about him, and nobody seemed to know, and some one told witness that the case against the negro had been dismissed.
John B. East, a witness for the defendant, testified that he had been a deputy United States Marshal about four and one-half years, and knew the defendant, and that, before the defendant moved to the place where officers searched, he had seen a number of fruit jars and beer bottles there. It looked like a typical beer joint. That was before defendant moved there. That after defendant moved there it did not look the same, but that he had seen liquor there. Defendant told witness that he was farming, and had a corn crop. His crop was mostly corn and beans.
D. A. Braswell, witness for the defendant, testified that he was constable, and that he had seen lots of %-inch pipe and quite a few bottles and jars around the place before the defendant moved there, and that he also saw them while the defendant lived there. It looked about the same after he went there. '
After the evidence was introduced and argument of counsel, the jury found the defendant guilty, and assessed his punishment at two years in the State Penitentiary. Thereafter the defendant filed motion for a new trial, which was overruled, and exceptions saved, and the defendant appealed to this court.
No objections are made to the instructions given by the court and no objections to the evidence, but the appellant insists that the ease should be reversed because Goff, the negro, was an accomplice, and that there was not sufficient corroboration of the testimony of - Goff to justify submitting the case to the jury.
The statute with reference to an accomplice is: “A conviction cannot be had in any case of felony upon the testimony of an accomplice, unless corroborated by other testimony tending to connect the defendant with the commission of the offense; and the corroboration is not sufficient if it merely shows that the offense was committed and the circumstances thereof. Provided, in misdemeanor cases a conviction may he had upon the testimony of an accomplice.” Crawford & Moses’ Digest, § 3181.
While the evidence corroborating the testimony of the negro is very slight, still a.majority of the court is of the'opinion that, even if the negro witness'was an accomplice, the corroboration is sufficient to justify the court in submitting the question to the jury. • And the evidence for the State, if believed by the jury, warranted it in finding that the appellant was in possession of the still, and operated it.
An accomplice is one who could himself be convicted of the crime charged against the defendant, either .as principal or accessory. That means convicted of the crime being investigated — the crime of possessing a still. If the testimony of the negro is true, he was an accomplice in operating the still and manufacturing liquor, for he worked lat the still knowing that that was what they were doing, and he thereby aided and assisted in the operation of the still and the manufacture of whiskey. But certainly it cannot be said from the testimony in this case that the negro witness aided or assisted in any way in possessing the still. He was merely, according to the testimony, a laborer, and had nothing to do with the possession or control of the still. And, if this is true, he could not be convicted of possessing the still, and he is therefore not an accomplice.
This court has held that two or more persons may be indicted and convicted for possessing a still, but it has never held that one who was simply hired to do work and had no control of the still at all could be convicted of possessing a still.
‘ ‘ The general test to determine whether a witness is or is not an accomplice is, could he himself have been indicted for the offense, either as principal or accessory? If he could not, then he is not an accomplice. * * * A person who steals property and one who afterwards receives it from him knowing it to be stolen, are guilty of separate offenses, ancl, unless more than this be shown, neither is an accomplice in the offense of the other.” State v. Gordon, 117 N. W. 483, 105 Minn. 217, 15 Ann. Cas. 897.
This negro witness, if he were an accomplice in making the whiskey, in manufacturing whiskey, and in operating the still, this would be a separate offense from possessing the still. And, while he would be an accomplice if the defendant were charged with manufacturing whiskey, he is not an accomplice in the crime charged, that of possessing a still. And therefore the defendant could be convicted on his testimony alone, without any corroboration, if the jury believed his testimony.
Alice Boyd was convicted in the Kentucky court upon the charge of violating the Kentucky statute which made it a felony to write, print, sell, etc., lottery tickets and gift enterprises wherein money or other things of value were disposed or were pretended to be disposed of. She asked a reversal, among other things, because she contended that the evidence was not sufficient to authorize a conviction. And she contended that the court erred in giving an instruction, under the provision of the Code, to the effect that a conviction cannot be had upon the testimony of an accomplice, and the court said that that section had no application.
“An accomplice is one of several equally concerned in the commission of a felony, or one connected in some way with the crime charged. Jennie Doherty was guilty, under the statute, for buying a lottery ticket. She was in no wise guilty under § 2573, which prescribed appellant’s offense and punishment, and Jennie Doherty was made a competent witness by § 2579, and she was not an accomplice.” Boyd v. Commonwealth, 132 S. W. 423, 141 Ky. 247.
“As we said in People v. Coffey, ‘At common law the jury had the right to convict upon the uncorroborated testimony of an accomplice, and it is only by reason of the statute that it is not allowed here. The statute cannot be construed in a loose or popular sense, but must be interpreted and accepted as recognized by law writers, and as it was evidently intended by the Legislature when it made the bribe-taker and the bribe-giver each guilty of a different crime.” People v. Ruef, 114 Pacific 54, 14 Cal. App. 576.
‘The Court of Appeals of the Second Circuit stated:
“A majority of the court think that his presence and participation in the manufacture was not enough to show that he was in possession, either of the still or the alcohol. It is equally possible that a companion or third person was the boss, as he put it. A servant is not ordinarily in possession.” De Gregorio v. United States, 7 Fed. Rep., 2d Series, 295.
“Hired servants cannot be joined as co-defendants. Their services in manufacture do not convert the possession and control of their employer into the joint possession, custody and control of the servants and.the employer within the meaning of the law. The crime implies more than physical presence and the laying on of hands, and includes unlawful custody and control.” Blakemore on Prohibition, 3d ed. 520.
The only evidence in the record against the witness Goff is that he was hired by appellant to work for him. He was merely a servant. Nobody saw him at the still except when he took the officers out and showed it to them, and his services as a laborer or servant did not convert the possession or control of the appellant and did not make him an accomplice of the appellant.
An accomplice is one who assists or is concerned in some way with the crime charged, the crime being investigated. The crime being investigated in this case was the crime of possessing a still, and not the manufacture of liquor. The witness Goff was an accomplice in the manufacture of liquor, 'because he did work at the still and thereby aided and assisted in the manufacture of the liquor, But manufacture is a distinct crime from pos session, and he did nothing, so far as the record shows, that indicated that he had any possession or control or that he did anything else except to work as a servant for the appellant.
It is not sufficient that a witness was engaged with 'the person charged in an offense other than the one for which he is being tried, but the evidence, in order to make him an accomplice, must show that he aided and assisted in the particular crime charged and being investigated, and not in some other crime.
■ The person who bought the lottery ticket violated the law, hut the crime of purchasing a lottery ticket was a different crime from selling a lottery ticket. A person was charged with receiving stolen property, indicted, and tried for it. Two boys testified that they stole the property and sold it to the defendant. They were guilty of the crime of stealing. Defendant was guilty of the crime of receiving stolen property,-but the court held that they were not accomplices because the crime they committed was larceny and the crime that defendant committed was receiving stolen property.
We therefore conclude-that the witness Groff was not an accomplice and that a conviction could be had against the appellant without any corroborating testimony if the jury believed the witness. We have already said, however, in this case that there was evidence sufficient to •corroborate the testimony of the witness Groff. The evidence in this case was sufficient to justify the jury in finding the appellant guilty as charged, and their finding of fact is conclusive, and the judgment is therefore affirmed.
Smith, J., concurring. | [
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Humphkeys, J.
Appellants brought suit against appellees for $790.23, the value of materials alleged to have been furnished by them and' used in the construction of a residence for M. R. Owen and Bessie Owen, on lot 1 and a part of lot 2, Eldridge - Court, in the city of Wynne, and to establish and foreclose a materialman’s lien on said property to pay same.
The following defenses were interposed to the suit:
First, that the amount sued for was fully adjudicated in a suit in the circuit court of Cross County between J. W. Roane and appellants herein. Second, that materials were not purchased from the appellants herein, but were purchased from the Cole Manufacturing Company of Memphis, Tennessee, and guaranteed by appellants. herein. Third, that the purchases were made directly from the Cole Manufacturing Company in three separate and distinct contracts, and that the material-man’s lien was not filed within the time required by law.
The cause was submitted to the court upon the pleadings and testimony, which resulted iu a decree dismissing appellants’ complaint, and the cause is before, us on appeal for trial ele novo.
Appellants were farmers operating a plantation store on their farm at Twist in said county. M. R. Owen and Bessie Owen owned and resided on the lots in question in. Wynne,-and J. W. Roane was the contractor and carpenter who built the residence for them. Pie entered into a contract with appellants to build them a house on tlieir plantation at the same time he contracted with Owen to construct his residence. Appellants were- lumber dealers in another State, and were in a position to buy materials from the Cole Manufacturing Company in Memphis at dealers’ prices, so it was agreed between appellants and J. W. Roane that they would buy a part of the materials for constructing both houses on their own account. J. W. Roane furnished the estimates for the materials which they were to purchase for each house to Clarence Twist, one of the appellants, who went to Memphis and arranged for .the purchase thereof. Three orders were sent in to the Cole Manufacturing Company for the materials used in the construction of the Owen residence. The first order was for doors, windows and similar stuff, amounting to about $450; the second consisted of three or four windows, and the third for a stairway. The second and third orders were made by the contractor, J. W. Roane, without the consent or knowledge of appellants, who canceled the orders as soon as they received notice that they had been made. At the solicitation of J. W. Roane, who promised to bring a check over right away to cover the cost thereof, they reinstated the order. J. W. Roane did not take them the check as he promised. All of the material which was purchased from the Cole Manufacturing Company was used in the construction of both houses and was charged to appellants and paid by them. The small order for windows was shipped last and received by J. W. Roane on March 1, 1923. J. W. Roane admitted that all of the items charged on appellants’ account against him and M. R. Owen and Bessie Owen, made the basis of lien filed and this suit, were used in the construction of the Owen house. ’ M. R. Owen testified that he moved into the house on March 1, 1923, and that all of the windows and. doors were in at that time. In other words, he testified that the house was completed when he moved into it. He did not testify what hour he moved in on the first of March, so it was possible for the contractor to have placed the windows in the house on the morning of March 1 before Owen occupied it. The small hill of windows was the last item charged on the account as of date February 27, 1923. The lien was filed on May 9, 1923, at 10 o’clock a. m.
(1). The defense of res judicata is not sustained by the evidence. It is true that, in the suit brought by J. W. Roane against Twist Brothers on account for constructing their home, Twist Brothers filed a counterclaim embracing the items of material furnished by them to Roane to build the Owen house, but, according to the face of the judgment rendered in that case, the counterclaim was withdrawn and the items, totaling $790.23, were stricken from the complaint and not submitted and considered. The judgment recites: “This cause coming on to be keard this 13th day of November, 1923, J. W. Roane appeared by his attorney, S. W. Ogan, and defendants by attorneys T. E. Lines and T. H. Caraway. The counterclaim of Twist Brothers for $790.23-is withdrawn, and said item is stricken from the complaint and not submitted. The remainder of the complaint and counterclaim of Clarence Twist for $431.95 went to trial, and, a jury being called, J. E. Hargis and eleven others of the regular panel, who returned into open court the following verdict: ‘We, the jury, find for the plaintiff for the sum of $100. J. E. Hargis, foreman.’
“Wherefore it is by the court considered, ordered and adjudged that the counterclaim of Twist Brothers for $790.23 be and the same is hereby withdrawn, and the same is stricken from the complaint and not considered herein, and that the plaintiff, J. W. Roane, do have and recover of and from Ira P. Twist, Clarence Twist and John F. Twist, as Twist Brothers, the sum of $100 ($100) and all costs herein expended.”
We do not think that Twist Brothers were compelled to present their claim against J. W. Roane in that suit, as it did not pertain to their contract with him for building their own house. Tt was a separate and distinct contract, and the subject of separate suits. Had it been a matter growing out of and embraced in a single con tract, they could not have split the action and made two out of it. They had two contracts with J. W. Roane, one to build a house for themselves and another'to furnish him certain materials with which to construct a house for the Owens. The maintenance of the two suits was not therefore a splitting of a single cause of action.
(2). We think one who buys materials on his own account and furnishes them to a contractor to build a house for another, even if delivered by the original vendor directly to the contractor at his request, from time to time, is entitled to a materialman’s lien under the statute, and is in no sense a mere guarantor of the account. The record reflects that Twist Brothers purchased materials amounting to $790.23 on their own account to be used by J. W. Roane in the construction of the Owen residence, and that they paid the account to Cole Manufacturing Company when requested to do so. J. W. Roane had nothing to do with the purchase of the materials from Cole Manufacturing Company further than to send in the order in Twist Brothers’ name, as he needed said materials in the construction of Owen’s house. The materials were not charged to Roane or Owen by the Cole Manufacturing Company or paid for by either of them. The long and short of it was that Twist Brothers purchased the materials outright from Cole Manufacturing Company and furnished them to Roane, as contractor, to be used in the construction of Owen’s house.
(3). The record does not reflect that the materials were purchased under three separate contracts. The fact that they were ordered and shipped at different times does not establish that each lot was purchased under separate contract and not on an open and running account. As we read the record, the materials were ordered to be shipped at different times, but bought on open account and credit of Twist Brothers. It is true that Twist Brothers canceled the second and third order because the contractor was getting behind with them on the contract to build their own house, but, on his prom ise to bring them a check, they reinstated tbe order. Even if the materials bad been purchased on separate contracts from Cole Manufacturing Company, they were furnished by Twist Brothers to the contractor on open account on a single contract to furnish materials for the construction of the Owen residence at original cost for cash. We think the decided weight of the evidence shows that the items of the account dated February 27, 1923, and delivered to the contractor on March 1, following, were used in completing the Owen residence. The offer was made to appoint an efficient man to view the house and ascertain whether the windows which were last shipped had been placed therein, and he refused to allow the inspection.This is a very strong circumstance tending to corroborate the reiterated statement of J. W. Roane that the items charged on the account were used in the construction of the house. Treating these items as the last, materials furnished on open account on a single contract, the lien was filed within the time allowed by law.
The account includes a profit over the cost price of .15 per cent. The agreement was that the material should be furnished at cost for cash, so, when the contractor failed to pay cash, we think it allowable and justifiable for appellants to add a reasonable profit, and we do not think the added amount is unreasonable.
On account of the error indicated the decree is' reversed, with directions to enter judgment for the amount claimed and to declare and foreclose a lien against said lots to pay same. | [
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Smith, J.
Suit was filed November 24, 1926, by the North Arkansas Highway Improvement District No. 2 to enforce the collection of the delinquent 1926 road taxes due on certain lands in the district in Fulton County. Notice of the delinquency was given in the manner and form provided by § 26 of act 473 of the Acts of 1917 (volume 2, Acts 1917, page 2181), this being the act under which the district was organized.
Appellants, who are the owners of lands in the district, filed a demurrer to the complaint of the improvement district, which was overruled. They thereupon filed an answer in which they alleged that the taxes or revenues arising from the collection of the taxes for the year 1926 or any prior years could only be used by the commissioners of the district for the purpose of paying installments of bonds and interest thereon maturing against said district, and that, by virtue of the provisions of act No. 11 of the Acts of 1927, the State of Arkansas had taken over and assumed the payment of all due and past due installments of bonds and interest thereon due by the district, and there was therefore no necessity for the collection of further taxes.
It was also alleged that the commissioners had failed to institute suit to enforce the payment of the delinquent taxes for the years 1923 and 1924, amounting to $3,464.68, and it is insisted that the commissioners are without authority to institute suit for the 1926 taxes until they have first brought.suit to enforcé the payment of the prior delinquent taxes and applied the proceeds of that vSuit to the discharge of the obligations of the district. A demurrer to this answer was sustained, and defendants stood on their answer, and have appealed.
We think the demurrer was properly sustained. In the orderly administration of the finances of the district, suits to enforce the payment of the 1923 and 1924 taxes should have been instituted before the suit to enforce the 1926 taxes was brought. There is no allegation, however, that the commissioners do not intend to enforce the payment of the 1923 and 1924 delinquencies. On the contrary, the notice of the 1926 delinquency contains the recital that “for the information of the taxpayers a list of delinquent lands for the years 1923 and 1924” is also published, and we must assume that the commissioners will yet collect these delinquent taxes by snit for that purpose, if necessary.
The question of the authority to levy taxes for the year 1926, while prior delinquent taxes remained uncollected, was'raised in the case of North Arkansas Highway Imp. Dist. No. 2 v. Rowland, 170 Ark. 1168, 282 S. W. 990, the present appeal being; in effect, a continuance of that litigation. The former appeal Was a proceeding to mandamus the clerk of the county court of Fulton County to extend the taxes against the lands in the district in that county for the year 1926. It was there- insisted, as it is here, that the commissioners had not brought suit to enforce the payment of the 3923 and 1924 taxes, but Ave said in the opinion on the former appeal that this could be compelled at the suit of any interested party.
The fact that other landowners have defaulted in the payment of the taxes for a prior year does not excuse the refusal of appellants to pay for a subsequent year. All can be required to pay, and, Avhile the procedure of the commissioners is not to be approved, there is no lack of power on their part to institute this suit. Indeed, § 26 of the act of 3917, supra, imposes the duty on the commissioners of instituting suit to enforce the payment of delinquent taxes.
There is no showing that the total proceeds of suits to enforce the payment of all delinquent taxes Avill not be required to discharge the outstanding obligations of the district. The only allegation of the answer relating to this subject is the one that, by act No. 11 of the 1927 session of the General Assembly, the. State has taken over all the bonded obligations of the improvement district. The ansAver does not allege that there Avere no other obligations in addition- to the bonded indebtedness.
Appellants are mistaken, however, as to the effect of act No. 11 of the Acts of 1927. Section 3 of this act provides that: “The (Highway) Commission shall each year, beginning with the year 3.927, allot to each road district in the State hoav having outstanding bond issues an amount equal to its bonds maturing during the year.” The act contains no authority for paying bonds which matured prior to the beginning of the year 1927.
Act No. 112 of the Acts of 1927 is entitled “An act to provide for the collection and disposition of taxes in road improvement districts,” and by § 1 thereof it is provided that “funds derived from taxes in road improvement districts shall be used by each district to pay its bonds, interest and other valid and outstanding indebtedness which matured prior to January 1, 1927. The balance, if any, shall be used to pay bonds and interest maturing after January 1, 1927, or for construction, repairs and maintenance, subject to the restrictions hereinafter set forth, which are intended to govern the expenditure of such funds.”
Section 6 of act 112 requires that “the commissioners of all road districts shall, as soon as practical,^ collect the delinquent taxes which were due and payable prior to January 1, 1927.”
The manifest purpose of the two acts of 1927 to which we have referred is to require all improvement districts to collect all taxes delinquent prior to January 1,1927, and for the State to pay only such bonds or interest thereon as mature after that date.
We conclude therefore that the demurrer to the answer was properly sustained, and the decree so ordering is therefore affirmed. | [
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Kirby, J.
«fTlais appeal is prosecuted from a judgment of allowance of a claim, $1,037, of appellee, daughter of Mrs. M. C. Baker, deceased, against her estate for nursing and caring for the deceased from March 11,1923, to March 11, 1925. The claim, was first presented to the administrator, by him referred to the probate court, and,' on December 31, 1925, the day of the hearing in the probate conrt, an amended claim was filed showing that claimant had paid ont of the funds of deceased for the services of other persons $53, the amount of her claim being placed at $1,042. The probate court order recites findings as follows:
“ * * * Deceased was more than 80 years old, and was very seriously affected with mental disability; on the 18th of December, 1922, the claimant was appointed by the probate court as guardian of the estate and person of deceased; was administering to deceased under a tentative agreement between the heirs of deceased and herself to the effect that she would be compensated for her services, and that said agreement extended until the death of ■ deceased. Further finds deceased was, during the last two years of her life, an invalid, and required attention day and night, and, while there was no court, order authorizing the employment of a nurse, it was necessary that deceased have said service, and that claimant rendered said service during last illness of deceased, and that said service was rendered by claimant with the full knowledge and consent of all the heirs, but no definite amount had been fixed.”
The court then allowed the claim in* full for $1,037, and, on January 25, 1926, appellant, John F. Baker, petitioned to be made a party, and filed his affidavit and bond appealing from the allowance of the claim.
In the circuit court the appellants answered denying:
(1). That claimant is entitled to the sum claimed.
Alleged:
(2). That claimant entered the home of deceased, taking her with her, obtained guardianship for deceased, taking possession of real and personal property, the home being of the value of $2,000.
(3). That claimant during all these years held possession of said property, renting parts of farms, utilizing the balance, which continued until after the date of death of deceased, without intimation that any agree ment was entered into for compensation for services; that the parties resided together and had all tiling’s common, only that claimant and her husband were in authority under the guardianship.
(4). That said guardian had requested of the probate court an allowance of certain sums out of the estate, claiming commissions, but she has not intimated, during all these years, the claim filed herein.
(5). Alleging that claimant had no intention, in the lifetime of deceased, to make such charge, and' neither was there any intention on the part of deceased to pay for the services, but they were gratuitous, and that claimant had already received a greater sum than due her, because of the rents and personal property. Also, during this guardianship, claimant could not legally bind the estate in any contract for a greater sum than the income.
The appellee denied the truth of the objections, and exceptions made, and that the administrator had joined in the appeal; denied that his attorney had authority to appeal from the order of the allowance of the claim, which he had himself approved and allowed. •
The testimony shows the conditions as recited by the probate court in its allowance of the claim, and is in conflict in many respects, but it all tends to show that appellee was not expected by any one to stay at her mother’s and render the services needed without compensation. Some of them thought she should go. to live with and take care of her mother for 25 acres of land, rent free, and a contract was written up, but was never executed by all the heirs. Appellee agreed to try such arrangement for the first year, but throughout her testimony insists that she was only making this claim for the two years’ service last rendered to her mother, ending at her death.
Mrs. Graham, sister of the claimant, - lived about three miles from her mother’s place, and she and her husband had begged Dora to move over there, as her mother had gotten so she could not cook for herself, and was living alone; stated that the next year after her sister bad moved into her mother’s home, Mr. Baker (John) started to write a contract. “They wanted all of ns to come over and try to fix it np. They conld not get together; jnst like they are now. He wanted her to have 25 acres of land rent free, and wanted me to sign. I wonld not do it. I told her (claimant) if at the last there was anything coming to me from the- estate she was welcome to it. I still say that. I supposed they all (the heirs) wanted to do right. Dora stayed there ahont five years, and I told her, if she conld not take care of mother, that I had the money to see that she was looked after, and wonld pnt it np.. When I visited mother, I thought she was taking good care of the farm also. I still do.”
Witness said her mother was not able to take care of herself, and appellee did,not want to leave her own home, and they begged her to go to her mother, who was living alone, and no one else offered to take.care of her mother. “Brother Will said he thought the girls ought to do it, and Dora not having any children, we thought Dora was the one to stay with our mother. When mother first began to lose her mind, I went to see her often. * * * John1 took the team off. She had $300 in the bank, and John drew it out, after the day we were all there, and she did not know us. I was there as many times as I could go, the last two years of my mother’s life. She was in an awful bad condition; she was in bed part of the time, and, after she fell and broke her hip, she conld not turn over for nine months. For a year and a half before she died it was necessary to wait on her just like she was a little baby. The bedclothes had to he changed every morning of the world, and her clothes were -to change too. At last she got so had she wonld tear her clothes off. Sometimes it -was necessary to he up with her all night. Appellee never neglected mother. It was necessary to do the washing every day, and Dora •did it or hired it done, which she paid out- of her own money. ’ ’
Appellee testified that she went, in 1919, to take care of her mother, Mr. and Mrs. Graham, Mrs. Jones and one of her mother’s brothers requesting her to do so; that she cared for her till the day of her death, March 11,1925; that she only got rent for the year 1924, allowed by the judge, $100, and that it was used for her mother’s benefit. That she was her guardian from 1922 to her death. Said that when she first went there they wanted her to agree to stay for 25 acres of land rent-free; told John she would try it one year, the first one, and they thought if we could get him to do anything it would be all right; he was the hardest pne to get to do anything. Witness believed she signed the contract and took the land they allowed, but that was all long before the two years for which the claim for services was made. Admitted filing a claim in probate court for $14.95, as guardian, paid out of her own money for the benefit of her mother; and to the question, “Why did you not file the claim of $1,037 at that time?” answered, “I thought they would all be white enough to pay me what was right and proper without setting up this claim. ’ ’ Said that the last two years of her mother’s life it was necessary to care for her just like a baby; that she had to wash for her, sometimes twice a day. “That the last two years she slept with her hand in mine, or my hand over her, so-if she moved I would know it; that is the condition in which we slept. ” Said her mother was more feeble after she broke her leg, which happened on June 12, 1924; and that the agreement for having 25 acres of land rent-free was for the years 1919 and 1920, or the first two years she was on the place. That she makes no claim for anything back of the last two years, and that all she did was for her mother’s welfare.
The guardianship letters were introduced, showing the appointment by the .probate court of appellee as guardian of the person and estate of her mother, an insane person, on December 18, 1922.
Appellants insist that the court erred in the refusal to give their requested instructions and in giving cer tain instructions over tlaeir objections, and also that the evidence is not sufficient to support the verdict.
A careful examination of the instructions given and refused shows that all correct instructions refused were, covered by the charge or instructions given by the court, which fully and correctly declared the law defining the issues in accordance with this court’s announcements in Lewis v. Lewis, 75 Ark. 191, 87 S. W. 134, and William v. Walden, 82 Ark. 136, 100 S. W. 898.
Neither do we find any merit in appellant’s contention that the claim for services rendered could not be allowed against the estate of the deceased, under the statute (§ 5058, C. & M. Digest) providing that the guardian shall not be allowed in any case, for the maintenance and education of'the ward, more than the clear income of the estate, unless upon an order first made permitting such expenditure. This statute has no application to the guardianship or estates of insane persons.
All the testimony tends to show, in'fact there is nothing in the record indicating to the contrary, that it was neither intended nor expected by any of the interested parties that appellee should render this indispensable service without remuneration or compensation therefor, and the assiduous and faithful care bestowed by this daughter upon an invalid and insane mother is little compensated by the amount1" allowed, which is altogether reasonable.
No error appearing in the record, the judgment is affirmed. | [
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Smith, J.
Three separate suits, which were later consolidated, were brought against W. H. Lusby to recover balances of accounts for goods, wares and merchandise sold by the plaintiffs tó the defendant. The suits were brought in the municipal court of Little Bock, and from judgments in favor of the plaintiff the defend ant appealed to the circuit court, where the causes were consolidated and tried as a single case.
The correctness of the accounts sued on and the original liability therefor is not denied by the defendant, but a present liability is denied on the ground that there was a composition and settlement of these and all other accounts due by the defendant to his various creditors; but plaintiffs offered testimony, which is not disputed, showing the original liability of the defendant for the amounts sued for in each of the three cases.
The plaintiffs offered in evidence, and in opposition to the plea of composition, the record of the proceedings in the bankruptcy court in the matter wherein the defendant had filed a voluntary petition in bankruptcy.
Appellee had been engaged in the retail drug business, and he filed a voluntary petition in bankruptcy, and accompanying this petition was a list of his creditors, with the addresses and amounts due each. Upon this petition defendant was adjudged a bankrupt on August 2,1922. Thereafter the referee in ¡bankruptcy sent to each creditor the following notice: “You are notified that the first meeting of the creditors of W. H. Lusby of Little Rock, Arkansas, who was duly adjudged a bankrupt on August 2, 1922, on a petition filed August 2, 1922, will be held before Charles G. Waters, referee in bankruptcy, at room 110, Fulk Building, in the city of Little Rock, Arkansas, on August 21, 1922, at 10 o’clock a. m., where claims may be presented, properly verified for allowance, trustee appointed, bankrupt examined, proposed sale of assets acted upon, and such other business transacted as may properly come before the meeting.”
But, before this meeting of the creditors, which was appointed for August 21, 1922, was held, there was filed with the clerk of the court in which the bankruptcy proceeding was pending, on August 17, 1922, a motion by the defendant, Lusby, to dismiss his petition. This petition contained the following recitals: “Comes the petitioner, W. H. Lusby, and asks to dismiss his petition filed in this cause, and for cause says: . That he has made satisfactory settlement with all Ms creditors except-, and that he is ready and willing to make satisfactory settlement with them. He attaches hereto and makes a part of his motion the agreement he has with his creditors. Wherefore, yonr petitioner, W. H. Lusby, asks that his petition he dismissed.”
The agreement with the creditors referred to reads as follows“This agreement, made this 14th day of August, 1922, by and between W. H. Lusby and the undersigned creditors, or attorneys representing creditors, with full power to act, witnesseth: For and in consideration of the sum of fifteen hundred dollars ($1,500) agrees to execute a full and complete release of any and all claims against the said W. H. Lusby, and further agrees to a dismissal and to dismiss any and all suits now pending against W. H. Lusby. It is distinctly understood ánd agreed by and between ourselves that we will accept our pro rata share to which we may be entitled under the law in full satisfaction of any and all claims against the stock of drugs, sundries, toilet articles, patent medicines, and all other items not classed as fixtures, and to deliver a full and • complete release to W. H. Lusby, against any claims of whatsoever kind or nature.” This agreement was signed by a number of creditors, but was not signed by either of the plaintiffs- here.
On August 22, 1922, the defendant sent to each of his creditors the following notice: “On August 2 the writer, trading as Lusby’s Drug Store, filed in the district court a petition in voluntary bankruptcy, a compromise offer was submitted to a majority of the creditors and accepted, accordingly a motion was filed on the 17th day of August to dismiss the petition, which was recommended by the district court referee to the court. The agreement, which was signed by a majority of creditors, is based on the proposition to accept $1,500 in full satisfaction of any and all claims and to accept whatever pro rata they would be entitled to under the law. By- this method we are able to secure a larger pro rata and to save a considerable portion of the court cost. Kindly advise me if you have any objections, and wbo represents you here, so your portion may be handed him upon the execution of an assignment of claim. I regret the necessity of this action, but feel that I acted for the best interests of all parties. Kindly accept this as notice of the procedure indicated. (Signed) W. H. Lusby.”
On September 27 the referee mailed to the creditors the following notice: “.You are notified that W. H. Lusby, of Little Rock, Arkansas, has filed a petition in the United States District Court at Little Rock, Arkansas, asking for a composition with its creditors on this the 27th day of September, 1922, and said petition has been referred to Charles C. Waters, one of the referees of said district, and, in accordance therewith, a meeting of creditors is hereby called to consider offer of composition on the 9th day of October, 1922, at 11 o’clock in the forenoon, in the office of the referee, 110 Pulk Building, in the city of Little Rock, Arkansas.”
On September 28 the referee sent to the creditors the following additional notice: “Disregard notice mailed September 28,1922, In re W. H. Lusby, bankrupt, and be advised as to the following notice: You are notified that W. H. Lusby has filed a petition in the United States District Court at Little Rock, Arkansas, asking that said court vacate its order of adjudication and also to dismiss W. H. Lusby’s voluntary bankruptcy petition as filed August 2, 1922. The district court has ordered the referee to call a meeting of said W. H. Lusby’s creditors to meet for the purpose of accepting or rejecting said petition, and the referee herewith calls a meeting of the creditors for October 9, 1922, at 11 o’clock in the forenoon, at the office of the referee, 110 Fulk Building, in the city of Little Rock, Arkansas.”
It does not appear that the meeting of which notice was there given was ever held, but it does appear that, on August 17, 1922, the referee entered upon his records a notation of the filing of the petition of the bankrupt on that date, and it was there recited that: “Now therefore it is recommended by the referee that the petition for setting aside the adjudication and dismissing the petition be granted and allowed. Without objection the motion to dismiss is to be treated also as a motion to vacate the adjudication of bankruptcy.” (Signed by the referee).
On the 14th of October, 1922, the referee filed with the clerk of the United States District Court the follow-iny report and recommendations : ‘ ‘ The referee reports that he gave all the creditors mentioned in the bankrupt’s petition a full ten-days’ written notice that there would be a meeting of the creditors held in the office of the referee in the Fulk Building in the city of Little Rock, Arkansas, at 11 o’clock a. m. October 9,1922. No creditor appeared at said meeting. W. H. Lusby, the bankrupt, did appear for said meeting, and showed that he had made satisfactory settlement with all of his creditors, and requested a recommendation by the referee to the court that the adjudication declaring him a bankrupt be vacated. The referee sees no reason why this request should not be granted, and therefore recommends to the court that the adjudication declaring the said W. H. Lusby a bankrupt be vacated, and that said petition be dismissed. ’ ’
This report was indorsed by the presiding judge of the United States District Court as follows: “Let the case be dismissed.” And no other order appear to have been made by the court.
A receiver was appointed in the case, but no trustee was ever elected, and the receiver explained what was done as follows: “I can explain that. Mr. Lusby filed a petition in bankruptcy; Judge Trieber was absent, and it was referred to Judge Waters as referee, who adjudicated him a bankrupt and appointed myself as receiver. The sheriff had closed up the store, and I went over and got the keys from Mr. Sibeck, in the sheriff’s office, and what money was on hand, and took it into the bankruptcy court, and inventoried the assets, and was going to ask for an order of sale, but Mr. Lusby and his 'attorney came into court and asked the sale not to be made for the fact he was going to make a settlement with the creditors. He was going to petition the court to have the bankruptcy proceedings dismissed, which was done at a later date. At the meeting of the creditors no action was taken; in fact no creditors appeared except Mr. Lusby and a few lawyers — I don’t remember who, right now, and they agreed then to withhold any action as to the election of a trustee until such action was taken by Mr. Lusby on dismissing his petition in bankruptcy; and he filed a petition to dismiss the bankruptcy proceedings, which was granted by Judge Trieber. There had been no sale of the assets whatever, and, after the petition in bankruptcy had been dismissed, and I had received — I do not remember how much, but I had received a certain sum of money to be pro rated to certain creditors, which I did pro rate, but that was acting as trustee merely by consent of the different attorneys who represented the creditors, and that had nothing to do with the bankruptcy.”
The receiver further testified that there was no composition at all, and that the bankruptcy proceedings was dismissed because the petitioner filed a petition asking that this be done, and that the “agreement (for the settlement) did not go into effect until after the petition in bankruptcy had been dismissed.”
The receiver was asked: “Didn’t the court know of this agreement, and that is the reason he dismissed it?” The witness answered: “They (the creditors) agreed to this settlement outside of the bankruptcy court, and that is the reason the petition in bankruptcy was dismissed.”
The receiver further testified that he distributed the money paid him by Lusby, but he paid money only to those creditors who had agreed to the proposed settlement, and the plaintiffs here were not among that number, and nothing was paid them. He further testified that “I did not pay out any money acting under the bankruptcy court whatever,” and further that “he was acting as trustee merely by the consent of the different attorneys who represented creditors, and that had nothing to do with the bankruptcy, ’ ’ and that the money paid out by him “was all pro rated after the. 'bankruptcy adjudication had been dismissed by Judge Trieber.”
The trial court made the following finding: “I will render judgment for the amount of the composition; as to the rest, I think they are estopped from collecting it. Judgment will be for the percentage of the claim.”
We have set out rather extensively the proceedings of the bankruptcy court as they were certified by the clerk of the United States District Court, and also the testimony in relation thereto, because it is insisted that there was a composition in bankruptcy with the creditors.
Appellee cites us to §§ 597 and 600 of the chapter on Bankruptcy, in 7 C. J. page 346. These sections read as follows:
“Section 597. The effect -of a composition is to supersede the bankruptcy proceedings and to reinvest the bankrupt with all his property free from the claims of creditors, without any further act by the trustee or by the court.”
‘ ‘ Section 600. The composition binds creditors who proved their claims or whose debts were scheduled and who had notice of the offer of composition, although they did not prove their claims; but an unscheduled creditor is not bound unless he had notice of the bankruptcy proceeding prior to the time when the application for confirmation was filed.”
The error in appellee’s contention is that there has been no composition in bankruptcy. The record which we have set out shows a settlement with certain creditors, but this settlement binds only the parties thereto. Appellants were not parties thereto, and are therefore not bound, unless there was, in fact, a composition as is provided for in the bankruptcy act.
Speaking of the nature of a composition proceeding, the Supreme Court of the United States, in the case of Cumberland Glass Mfg. Co. v. DeWitt & Co., 237 U. S. 447, 35 S. Ct. 636, 59 L. ed. 1042, said:
“The nature of composition proceedings is nowhere better stated than by Judge Lowell in In re Lane, 125 Fed. Rep. 772, 773 (D. C.), in which, it is said: ‘ The case of composition is in some respects exceptional. It is a proceeding voluntary on both sides, by which the debtor, of his own motion, offers to pay his creditors a certain percentage of their claims in exchange for a release from his liabilities. The amount offered may be less or more than would be realized through distribution in bankruptcy by the trustee. The creditors may accept this offer or they may refuse it. For the purpose of the composition all the creditors are treated as a class, and the will of the majority is enforced upon the minority, provided the decision of the majority is approved by the court. Except for this coercion of the minority, the intervention of the court of bankruptcy would be hardly necessary. Section 12-e (30 Stat. 550, U. S. Comp. St. 1901, p. 3427) provides: ‘Upon the confirmation of a composition, the consideration shall be distributed as the judge shall direct, and the case dismissed. Whenever a composition is not confirmed, the estate shall be administered in bankruptcy as herein provided.’ Composition is thus treated, even in the act, as in some respects outside of bankruptcy. ’ ’
It thus appears that a composition, to be binding-on all the creditors, requires confirmation by the court. Here there was no confirmation of the composition. The court was not asked to confirm, and the only action taken by the court was to dismiss the entire proceeding, and, when this was done, the debtor’s attitude was and is that of one who made a private settlement with his creditors, and those creditors are barred — and those only — who participated in and became parties to this settlement. Appellants did not participate and therefore are not barred. International Shoe Co. v. Pinkus, 173 Ark. 316, 292 S. W. 996.
It follows therefore that, under the undisputed testimony, judgment should have been rendered for the plaintiffs for the amounts of their accounts; and, as the case appears to have been fully developed, judgments will be rendered here accordingly. | [
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Smith, J.
Appellee filed in the municipal court of the city of Blytheville, an affidavit averring the following facts: That the defendant, Dan Ashcraft, was indebted to him in the sum of $39.02, for work and labor done on 1,066 feet of piling; that said piling was made for the defendant Ashcraft under a contract with Eoy McKay who sold the piling to one -Hughes. Ashcraft, McKay and Hughes were all made defendants, and it was prayed that plaintiff have judgment against said defendants for $39.02, and that he have an attachment against the piling, the product of his labor, to enforce his lien as a laborer.
An attachment was issued as prayed,' commánding that the piling be seized, and that the defendants be required to answer plaintiff?s claim.'- It does not appear that the attachment was ever served, and the judgment rendered in municipal court contains no reference to it. A controverting affidavit was filed by McKay which denied any indebtedness to plaintiff, or that plaintiff was entitled to a lien on the piling. The judgment rendered in the municipal court recites merely that upon a trial, judgment was awarded in favor of the plaintiff for the amount sued for, against McKay and that appeal was prayed and granted. Upon the trial of this appeal in the circuit court, judgment was again rendered against McKay in favor of plaintiff for $39.02, and from that judgment is this appeal.
Testimony was offered at the trial in the circuit court sufficient to sustain plaintiff’s claim for a laborer’s lien on the piling, had it been seized under the attachment, but the sale of the piling to Hughes by McKay had apparently defeated that relief.
Much of the testimony offered at the trial from which is this appeal, by the plaintiff, was objected to upon the ground that it sought to establish a different cause of action from that sued upon. The theory upon which the cause was submitted to the jury is reflected by the following instructions given over the objection of McKay:
“Gentlemen of the jury, in this case the plaintiff, Jesse L. Millner, sues to recover the sum of $39.02 which he claims is due him for making certain piling for one Dan Ashcraft.”
No objection was made by plaintiff to this statement of the case.
Another instruction given over McKay’s objection reads as follows: “If you find from the evidence in this case that after the piling was made that the defendant •McKay did agree with the plaintiff Millner to make payment for same to him after said piling had been inspected and the amount due ascertained, then you will return a verdict for the plaintiff. Otherwise, your verdict will he for the defendant. ”
It will he observed that this instruction is predicated upon the hypothesis that McKay agreed, after the piling was made, to pay for the labor and it was not therefore an original promise in consideration of which labor was performed.
Plaintiff testified that he had been employed by Ash-craft to get out, or make, the piling, some to he paid for at 3 cents per 1,000 feet, other at 4 cents per 1,000 feet, and that he was to be paid when McKay inspected the piling; that Ashcraft gave him one order on McKay, but he was given no order for the labor for which he had not been paid. Plaintiff testified that McKay told him he would pay an order from Ashcraft to anyone, and that he presented one such order and it was paid. Plaintiff’s testimony is somewhat equivocal, and he was asked by the court: “Did I understand you to say that you went to Mr. McKay and that he agreed to pay you, to hold your money and pay it to you directly?” and the answer: “That is what I asked of him and he didn’t refuse, hut just his answer I don’t remember just what it was. ’’ This conversation occurred after the labor had been per formed and when given its highest probative value amounts to nothing more than a promise on McKay’s part to pay plaintiff what Ashcraft owed him. The plaintiff had previously testified when asked “Did you have ’any conversation with Mr. McKay about the pay?” he answered, “Yes, sir, I saw him and told him to keep my money, and also told Dan, and told him to leave it with Koy (McKay).” This language is susceptible to no construction other than that McKay had agreed to pay not what he owed plaintiff, but what Ashcraft owed plaintiff.
McKay requested the court to charge the jury that such a promise, if made, was in effect an undertaking to pay the debt of another, and was therefore within the statute of frauds, and not being in writing could not be enforced. This instruction should have been given and for the error in refusing to give it, the judgment must be . reversed.
The testimony appears to establish the fact that McKay, by selling the piling -to Hughes, had converted property upon and against which plaintiff was entitled to enforce a laborer’s lien. But even so, he cannot hold McKay liable in this action for so doing. Such- is the effect of our holding in the following cases: Barrett v. Nichols, 85 Ark. 58, 107 S. W. 171; Reavis v. Barnes, 36 Ark. 575; Judge v. Curtis, 72 Ark. 132, 78 S. W. 746. In the first of these cases, the headnote reads as follows:
“A demurrer should be sustained to a complaint in an action at law begun in the common pleas court which states a cause of action that is cognizable in equity only, as where it alleges that defendant disposed of cotton upon which plaintiff held a laborer’s lien.”
If plaintiff elects to proceed further at law, he must show an agreement in writing on McKay’s part to pay the debt due plaintiff by Ashcraft. Par. 2, § 6059, Pope ’& Digest.
If plaintiff elects to sue for the "conversion of property on which he had a lien, he must sue in equity, the only court having jurisdiction to grant' that relief.
The judgment is, therefore, reversed and the cause remanded for further proceedings, if plaintiff so elects. | [
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Smiti-i, J.
At the 1941 session of the General Assembly, Act No. 391 was passed entitled: “An Act to Create the Employment Security Division in the Department of Labor; . . .” Acts of 1941, p. 1098, et seq. This legislation superseded and by § 21 thereof expressly repealed two prior Acts on the same subject, these being Act 155 of the Acts of 1937 and Act 200 of the Acts of 1939 amending Act 155. This litigation challenges the constitutionality of Act 391 as being violative of both the state and federal constitutions. The grounds upon which Act 391 is attacked would have been equally applicable to the question of the validity of the prior legislation. This Act 391 extends from page 1089 to page 1154, both inclusive, of the Acts of 1941, but the disposition of this appeal does not require an analysis of its provisions, and we shall refer only to those provisions of the Act which it is urged render it unconstitutional.
As is well known, and as .was said in former opinions hy this court, construing the legislation which Act 391 supersedes, the Acts were passed to conform to the federal legislation on the same subject, which- imposed certain taxes upon employers of labor with certain exceptions -not important here to consider. This federal legislation imposed a tax which was collectible throughout the nation whether tlx.e states thereof enacted legislation supplementary and complementary to it or not, hut permitted those states which did pass such legislation to retain a fixed portion of the taxes, all of which would otherwise have been payable to the federal government. Buckstaff Bath House Co. v. McKinley, Commr., 198 Ark. 91, 127 S. W. 2d 802. It is said that, thus induced, all the states have passed legislation on the subject, and it is said also that the constitutionality of such legislation Iras been uniformly upheld by both the state and federal courts, at least against such attacks as are made upon Act 391.
It is here urged that the Act violates the equal protection and due process clauses of the 14th Amendment to the Federal Constitution, but this contention is definitely and adversely disposed of by the opinion of the Supreme Court of the United States in the case of Carmichael v. Southern Coal & Coke Co., 301 U. S. 495, 57 S. Ct. 868, 81 L. Ed. 1245, 109 A. L. R. 1327, and also upon the appeal to that court from the decision of this court in the Buckstaff case, supra, to which case further reference will later be made, where it was said: “We agree with the Supreme Court of Arkansas that the state had jurisdiction to impose the tax in question.” Buckstaff Bath House Co. v. McKinley, Commr., 308 U. S. 358, 60 S. Ct. 279, 84 L. Ed. 322.
In our opinion in the Buckstaff case, supra, it was said that “we must first determine whether collection of the taxes levied hy Act 155 (of the Acts of 1937) is a legitimate exercise of the state’s governmental functions.” After citing and reviewing the decisions of the Supreme Court of the United States in the cases of Stewart Machine Company v. Davis, 301 U. S. 548, 57 S. Ct. 883, 81 L. Ed. 1279, 109 A. L. R. 1293, and the Carmichael case, supra, we said: “Although constitutionality of the Arkansas statute is not directly questioned in the appeal before us, this is the first case reaching this'court in which payment of the tax is involved. Necessarily if we hold that appellant must pay the' state’s demand, we have upheld the validity of Act 155. For this reason the decisions quoted from have been cited. ’ ’ It was held that the tax must be paid, thereby upholding the constitutionality of the Act.
The opinion in the Carmichael case, supra, involved the constitutionality of a statute of the state of Alabama, which was there upheld, and in the footnote to the opinion of this court in the Buckstaff case, supra, there appears the statement that, “the Arkansas Unemployment Compensation Law is said to be almost identical with the Alabama law.”
The case of McKinley, Commr. of Labor, v. R. L. Payne & Son Lbr. Co., 200 Ark. 1114, 143 S. W. 2d 38, arose under and involved the construction of certain portions of amendatory Act No. 200, of the Acts of 1939, and it was there said: “. . . But the constitutionality of this particular Act was definitely settled in the case of Buckstaff Bathhouse Co. v. McKinley, Commr., supra.”
It is argued that neither of these opinions by this court is conclusive of the constitutionality of Act 391 of_ the Acts of 1941, for the reason that the objections to the constitutionality of Act 391 here raised were not raised or considered in either of the prior cases arising under Act 155 of 1937 and Act 200 of the Acts of 1939.
This is true, and we, therefore, consider the objections to Act 391 of the Acts of 1941. But before doing so we will dispose of a motion made in the court below and insisted upon here. This appeal is from the decree of the court below dismissing the case for lack of jurisdiction, and an objection to the jurisdiction sustained by the court below was and is that this is a suit against the state and is, therefore, in contravention of § 20, art. V, of the Constitution, which provides that "the state of Arkansas shall never he made defendant in any of her courts.” The purpose of this suit is to restrain the officers provided for by Act 391 from discharging the duties imposed upon them by the Act in the collection of the taxes which it imposes, and it is, therefore, insisted that the suit is in effect one against the state, although the state is not a nominal party.
Among the other and latest cases cited in support of this contention is that of Page v. McKinley, 196 Ark. 331, 118 S. W. 2d 235, which, in turn, cites our leading cases on the subject. That was the case in which it was sought to enjoin the State Treasurer from paying warrants issued by the Auditor of the State in favor of certain county assessors, who had agreed that a per cent, of their official fees, payable to the state, should be paid to the plaintiffs who sought to enjoin the State Treasurer from paying these warrants to the assessors, with whom they had contracted. We held that the action was in effect an equitable garnishment against the State Treasurer, relating to funds belonging to the state, and was, therefore, a suit against the state. We there quoted and approved a statement from 59 C. J. 307, reading as follows: "Accordingly it is well settled, as a general proposition, that, where a suit is brought against an officer or agency with relation to some matter in which defendant represents the state in action and liability, and the state, while not a party to the record, is the real party against which relief is sought so that a judgment for plaintiff, although nominally against the named defendant as an individual or entity distinct from the state, will operate to control the action of the state or subject it to liability, the suit is in effect one against the state and cannot be maintained without its consent . . .”
This opinion in the Page ease, supra, cites a number of our opinions on this subject and among others the case of Pitcock v. State, 91 Ark. 527, 121 S. W. 742, 134 Am. St. Rep. 88, which may bo termed our leading case upon the subject. This Piteock case overruled the previous decision of this court in the ca'se of McConnell v. Arkansas Brick Company, 70 Ark. 568, 69 S. W. 559, which, related to the same contract, one' for the hire of state convicts. It was held in the McConnell case that the suit was not one against the state, while in the Pit-cock case it was held that the suit was against the state. After reviewing a number of cases, including decisions by the Supreme Court of the United States, it was said of these cases that: “The only distinction found in these cases is that where the suit is against an officer to present him from doing an unlawful act to the injury of the complaining party, such as the taking or trespass upon the property belonging to the latter, the former cannot shield himself behind the fact that he is an officer of the state; and also where the officer refuses to perform a purely ministerial act, the doing of which is imposed upon him by statute. In either s of such cases • a suit against such an officer is not a suit against the state.”
The instant suit is predicated upon the theory and allegation that certain officers, under the purported authority of an Act which is unconstitutional and, therefore, void, are about to take the plaintiff’s property by imposing a tax, which when imposed becomes a lien upon it. But if the relief prayed is granted no obligation is imposed upon the state. It is, therefore, not a suit against the state. - The opinion in McCain, Commr. of Labor, v. Crossett Lumber Co., 206 Ark. 51, 174 S. W. 2d 114, cites a number of cases to the same effect.
It is argued that inasmuch as the Act creates a Department of Labor which is placed under the supervision of an officer designated as the Commissioner of Labor, who is charged with the enforcement of the provisions of the Act, it is violative of the following provisions of our Constitution, to-wit: Section 1, art. IV; § 1, art. V; §• 1, art. VI; art. VII, and % 9 of art. XIX.
We will consider these objections to Act 391 collectively, but before doing so we may say here, as was said in the case of Bush v. Martineau, 174 Ark. 214, 295 S. W. 9, that: “Before proceeding to a discussion of the issues raised by this appeal, we deem it proper to premise our remarks by two fundamental rules of construe tion announced and adhered to throughout the history of this court. First, that the Constitution is not a grant of enumerated powers to the Legislature, not an enabling, but a restraining act (Straub v. Gordon, 27 Ark. 625), and that the Legislature may rightfully exercise its powers subject only to the limitations and restrictions of the Constitution of the United States and of the state of Arkansas. (Citing cases) . . . Second, that an Act of the Legislature is presumed to be constitutional, and will not be held by the courts to be unconstitutional unless there is a clear incompatibility between the Act and the Constitution; and further, that all doubt on the question must be resolved in favor of the Act. (Citing cases).” These propositions have been announced in all of the many cases in which we have been called to pass upon the constitutionality of legislative action.
Section' 1, art. IV, of the Constitution provides that the powers of the government shall be divided into three distinct departments, legislative, executive and judicial. Section 1, art. V, vests the legislative- powers of the state in a General Assembly, consisting of a Senate and House of Representatives. Section 1, art. VI, provides that the executive department of the state shall consist of a Governor, Secretary of State, Treasurer, Auditor and Attorney General, and authorized the establishment of the office of Commissioner of State Lands, a power which has been exercised. By the sixth amendment to the Constitution the office of Lieutenant Governor was created. Article VII of the Constitution vests the judicial power in certain courts there named.
In our opinion, Act 391 does not offend against any of these provisions. It does create an administrative agency chárged with the duty of enforcing its provisions, but it does nothing more, and we do not find in the provisions of the Constitution above referred to or elsewhere in the Constitution any inhibition against the employment of such an agency for such a purpose. To do so would greatly and , we think, unduly restrict the power inhering in the General Assembly to create agencies of this character. The General Assembly, in the exercise of its legislative power, lias found it necessary to create a. number of such agencies, to the functioning of which many of the same constitutional objections have been unsuccessfully interposed, nor do we think the legislation is violative of § 9 of art. XIX of the Constitution.
An early and frequently cited case is that of Lucas v. Futrall, 84 Ark. 540, 106 S. W. 667. That case involved the constitutionality of an Act of the General Assembly creating the office of superintendent of the School for the Blind whose tenure of office, compensation and duties were fixed and defined by the Act creating the office. It was said that the Constitution had made it the duty of the General Assembly to provide by law for the support and education of the deaf and dumb and the blind, and for the treatment of the insane, and that the Legislature, therefore, had the power necessary to effectuate those purposes. Dealing specifically with the blind, it was there said: “Therefore, if the Legislature saw fit to create a public office under this authority, it would not be violating § 9 of art. XIX of the Constitution, which forbids the General Assembly to create any permanent state offices not provided for in the Constitution, as the mandate to provide for the education of the blind necessarily carried with it the power to create what offices the Legislature might deem necessary to cany out the power conferred.”
^The police power which resides in the state as a sovereign exists without express constitutional grant, and may be used in any manner not prohibited.
In the exercise of this power the General Assembly, 'at its 1913 session, passed Act 96, creating the State Board of Health and Vital Statistics, which Act was attacked upon the ground that it delegated legislative as well as police powers to the board and created permanent state offices. This Act authorized the board-to make rules and regulations pursuant to which its functions should be performed. None of the objections to the Act was sustained, although two members of the court were of the opinion that the Act was violative of § 9 of art. XIX of the Constitution in that it created permanent state offices; but the majority held otherwise.
For all practical purposes, this question has been considered as settled by the opinion in the case of Greer v. Merchants’ & Mechanics’ Bank, 114 Ark. 212, 169 S. W. 802, which construed and upheld Act 113 of the Acts of 1913, pages 462, et seq., creating the State Banking Department. Section 1 of this Act provided that for and during the period of 12 years there is created a department to be known as the State Banking Department. It was insisted that notwithstanding this limitation of 12 years, the Act was violative of § 9, art. XIX, of the Constitution. It was said-'in the opinion that after diligent search by the learned counsel in that case, they had failed to find a provision similar to § 9 of art. XIX in the Constitution of any other state,, and the court was, therefore, without the aid of any decision by any other court. We quote somewhat extensively from that opinion, as we think, its reasoning is applicable and controlling here. It was there said:
“ (1) The framers of the Constitution obviously did not intend to place an absolute prohibition against the creation by the Legislature of offices not expressly provided for. The prohibition only reaches to the creation of permanent state offices. That being true, the question arises, who is to be the judge of the question of permanence of an office, or the necessity for its temporary existence. The answer to this question, we think, results in the solution of the difficulty presented in this case. Observing the general rules of interpretation in determining whether a given constitutional provision is mandatory, or whether it is merely directory and cautionary to the Legislature, we are of the opinion that this provision falls within the latter class. The command is to the Legislature itself, and it necessarily involves the power to determine the necessity for creating a temporary office, and to determine whether the work to be done is of a temporary or permanent nature.”
It was there further said: “We attach little, if any, importance to the provision of the statute limiting the time to twelve years, for we think that the Legislature has the power to determine whether an office to be created is permanent or temporary, whether expressly declared in the Act or not. If it is created as a temporary office, we must assume that the Legislature found it to be such. The creation of the office implies a determination that it is temporary, and not permanent.
“There can be no irrepealable laws which depend for existence entirely upon the legislative will, and any office created by the Legislature is temporary in the sense that it is subject to the legislative will, and may be abolished at any time.
“Those who take such temporary offices as may be created by the Legislature do so with notice of the' in'secure tenure and the acceptance of the office creates no contract with the state. Humphry v. Sadler, 40 Ark. 100. ’ ’
The opinion in this Greer case stated that the 1913 General Assembly, which passed the Act creating the State Banking Department, had also- created several other new departments, and that power has been exercised by subsequent sessions of the General Assembly until today we have 44 governmental agencies and departments.. These were created as the state grew and its interests became more varied and the state’s welfare, in the opinion of the General Assembly, required the legislation. Separate appropriations are made for these agencies and departments, the best known and most important of which are: the Insurance Department, the Oil and Gas Commission, the State Purchasing Agent, the Agricultural and Industrial Commission, the State Health Commission, Banking Department, Department of Labor, the Auditorial Department, the State Board of Education, State Forestry Commission, State Geologist, Public Utilities Commission, Bond Refunding Board, Basic Science Board, Arkansas Corporation Commission, Fish and Game Commission, Flood Control Commission, State Planning Board, Soil Commission, Department of Revenues, and State Police Department. Others are of less importance except to persons affected.
It would be revolutionary to declare the Acts creating .these departments and agencies unconstitutional, and would not be done if any doubt existed as to their constitutionality.
This legislation does not, as learned counsel for appellant insists, infringe upon the provisions of the Constitution dividing our government into three departments, nor has it created permanent state offices in violation of the Constitution. It was said in the opinion in the Buckstaff case, supra, that this legislation was enacted pursuant to the-police power of the state, and so with the other legislation above referred to. Having this power, the General Assembly has the right to create such offices and agencies as are necessary to its exercise. Lucas v. Futrall, supra; Little River Board of Education v. Ashdown Special School District, 156 Ark. 549, 247 S. W. 70; Helena Water Co. v. Helena, 140 Ark. 597, 216 S. W. 26; Gentry v. Harrison, 194 Ark. 916, 110 S. W. 2d 497; Arkansas State Highway Commission v. Dodge, 181 Ark. 539, 26 S. W. 2d 879.
Inasmuch as we think Act 391 is constitutional, the decree from which is this appeal must be affirmed, and it is so ordered.
Holt, J., nonparticipating. | [
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Griffin Smith, Chief Justice.
Mary Welday, sixty-one years of age, and William Rippe, twelve years older, were, prima facie, married at Pocahontas May 22, 1943.
In 1941 the Probate Court for St. Louis County, Missouri, made a finding that Rippe was so far disordered in mind as to endanger his person, and the person an'd property of others. It was directed that he be apprehended and confined in the St. Louis County Hospital subject to further orders of the Court. In a later adjudication of insanity, Orval C. Sutter, Public Administrator, was appointed guardian of Rippe’s person and estate. Shortly thereafter the guardian was directed to place his ward in The Shaver Memorial Home, where he remained from December 18,1941, until May 21, 1943.
In a Chancery suit at Pocahontas, Sutter alleged that Rippe was abducted from the Home and brought to Randolph Countjr by Mary Welday, where a marriage ceremony was performed at a time when Rippe was incapable of understanding what was being done.
When the Missouri Probate Court was informed of what had taken place, Sutter, as guardian, was directed to take possession of Rippe “wherever he may be found.” Suit for annulment followed. Rippe was named as a party plaintiff.
In preliminary hearings it was admitted by appellee that she had been married twelve times — four times to one man, other than Rippe. Appellant’s contention is that she is a matrimonial adventuress who “shops around” 'for more than solvent husbands and attaches herself for profit. It is alleged that Rippe was worth more than $50,000. Records indicate the estimate is conservative.
The Court made an order that Rippe pay $500 as an attorney’s fee, $450 as suit money and expenses of procuring expert testimony, and $100 per month for the maintenance of appellee. The guardian was directed to make application to the Missouri court for authority to pay the sums awarded. The right of Sutter to proceed further was conditioned upon compliance with the order.
Since perfection of Sutter’s appeal, death of his ward has been suggested and admitted. The question is, Has the guardian a right to have the issue. determined ?
Section 1252 of Pope’s Digest provides that in all cases where suit may be instituted, and either plaintiff or defendant may die pending the same, it shall be lawful for the court before which such suit may be pending, on motion of any interested party, to appoint a special administrator, in whose name the cause may-be revived, and said suit or suits shall progress, in all respects, in his name with like effect as if the plaintiff or defendant (as the case may be) had remained in full life.
This statute has been held applicable to the Supreme Court. Anglin v. Cravens, 76 Ark. 122, 88 S. W. 833.
There are opinions to the effect that, in the absence of a statute, death of a lunatic “represented by his committee” abates when death occurs pendente lite, “. . . as the committee thereby becomes functus officioSuch a suit, it is said, may be revived and proceeded with in the name of the lunatic’s personal representative or heirs, but any proceedings had after his death before revival are void. See Paxton v. Stuart, 80 Va. 873; Richmond v. Adams National Bank, 152 Mass. 359, 25 N. E. 731.
In Straight v. Ice, 56 W. Va. 60, 48 S. E. 837, the holding was that a suit in the name of a committee of an insane person to recover a debt may be revived in the name of the administrator of the insane person, on his death.
The holding in Strickland v. Strickland, 80 Ark. 451, 97 S. W. 659, was that while death terminates a divorce suit, yet where property rights depend upon the correctness of a divorce decree, and an appeal, has been taken from it, it is the duty of the appellate court to review the decree in order to settle the property rights. Compare Johnson v. Bates, 82 Ark. 284, 101 S. W. 412.
While in the case at bar property rights are indirectly affected, the trial court did not decree divorce.
Since no motion to revive has been filed, we do nqt decide whether a guardian’s suit to avoid the marriage of his ward can be revived; nor do we pass upon any of the other issues presented. Our conclusion is that the suit, in its present form, should abate. It is so ordered.
The institution is also called Halls Ferry Memorial Sanitarium. | [
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Robins, J.
Appellee, Kate Demby Robling, instituted in tbe lower court forcible entry and detainer proceedings against appellant, Mrs. R. Wall, to obtain possession of a three-acre tract in tbe suburbs of Hot Springs, Arkansas. A jury being waived, tbe lower court, after bearing testimony offered by both parties, rendered judgment in favor of appellee for possession of tbe land in controversy. To reverse that judgment this appeal is prosecuted.
On appeal from tbe findings of tbe court in a case of tbis kind we must give to tbe evidence adduced on bebalf of tbe prevailing party tbe strongest probative force that it will reasonably bear. St. Louis Southwestern Railway Co. v. Morgan, 144 Ark. 641, 215 S. W. 589; Holt v. Brackville, 158 Ark. 642, 250 S. W. 33; Prairie County v. Harris, 173 Ark. 1182, 295 S. W. 725. When viewed in the light of this rule it may be said that the evidence in this case established that this unimproved tract had been at one time owned by appellee’s father, Mike Newman, who conveyed it to Paul Battazzi in 1904; that shortly afterwards Battazzi turned the land over to Newman, directing him to use it and pay taxes on it; that Newman died in 1926, after having been in possession of the land continuously up to his death; that after his death appellee took possession and remained continuously in possession until appellant took possession in 1943; that Mike Newman, appellee’s father, paid taxes on the property from the time Battazzi turned it over to him, up and until Newman’s death, with the possible exception of one year; that appellee continued thereafter to pay the taxes thereon up until 1932, and tried each year after 1932 to pay them, but found' that they had been paid by some other person; that appellee had the land enclosed with a fence and had rented it to Earl Warford; that appellant cut appellee’s fence, let appellant’s cattle into the enclosure and warned appellee’s tenant against turning her (appellant’s) cattle out.
Appellant claimed the right to occupy the property under a lease thereof executed to her as lessee by Albert Diodati on March 1, 1943. Diodati assumed to act as agent for Paul Battazzi by virtue of the following written instrument said to have been signed by Paul Battazzi, dated at New Orleans June 14, 1912: “.Before me, Paul Battazzi, I agree to let Mr. Albert Diodati to be my agent. I give him power to collect rents in every house under my name and suit and be suit. Also repair the houses in case whomere necessary. ’ ’ There was no testimony introduced to show the whereabouts of Battazzi, but there was a statement by one witness, based on hearsay, to the effect that he was dead.
In forcible entry and detainer proceedings no question of the title to the land is involved. It is simply a statutory remedy to restore the possession of one who is forcibly disseized, and it is no defense to such an action that the defendant charged with, the forcible entry is actually entitled to possession. Littell v. Grady, 38 Ark. 584; Logan v. Lee, 53 Ark. 94, 13 S. W. 422; Douglass v. Lamb, 157 Ark. 11, 247 S. W. 77; Black v. Handley, 158 Ark. 640, 240 S. W. 411.
There was substantial evidence tending to prove that appellee was in peaceful possession of the property and that appellant forcibly took possession thereof. Therefore the lower court properly ordered that possession he restored to appellee; and it was not necessary for the lower court, nor is it necessary for us on this appeal, to determine whether the alleged power of attorney was sufficient to grant authority to Diodati to execute the lease relied on by appellant.
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McFaddin, J.
This appeal necessitates the determination of whether a resulting trust exists in real estate, and also whether limitations, laches, or estoppel bar the enforcement of the trust.
Miss Lorine Lumpkin worked-in a bank in Marion, Arkansas, as teller and bookkeeper; and Dr. Otis Harbour was a veterinarian, residing in Marion, Arkansas, but engaged in the practice of his work in Memphis, Tennessee. When they married in February, 1930, she was thirty years of age and he was forty years of age. They lived together as husband and wife until 1942. We will hereafter refer to them as Mrs. Harbour and Dr. Harbour.
At the time of the marriage Dr. Harbour had no' property. He had his employment in the stock yards in Memphis (from which he was paid on a basis of services nerformed), and had a bank account of $291.80; but owed a balance on the engagement or wedding ring. Mrs. Harbour had her position in the bank at Marion (at a salary of $150 per month); owned $500 in bank stock (that paid dividends until after 1936); received fees as notary, public (that amounted to as much as $161 at the time’of one deposit); owned a house (in Lawrenceburg, Tennessee) from which she regularly received rents varying from $18.50 to $25 per month; and had a bank account of $250 at the time of the marriage; and she owed no debts. So, to the marriage partnership Dr. Harbour brought only the expectancy of earnings, but Mrs. Harbour brought the dowry.
Mrs. Harbour continued to work in tbe bank until after 1936 and her salary was increased to $175 per month sometime about 1934. She was in charge of all of the deposits and accounts in the bank. Since Mrs. Harbour worked in the bank Hr. Harbour entrusted to her the depositing of his money and the making of various bank accounts; and in the period of time from 1932 to 1936 they had six bank accounts being:
(1) Otis Harbour (a regular checking account on which each party wrote checks).
(2) Otis Harbour, savings account (which was closed out and became the Otis Harbour special account).
(3) Otis. Harbour, special account (which'was used in lieu of the savings account).
(4) Otis Harbour, farm account (in which rents were deposited and from which advances were made to tenants, and in which the rents from the tenants were deposited).
(5) Lorine Harbour, checking account (her personal checking account).
(6) Lorine Harbour, savings account (her personal savings account).
Some of these accounts were opened at different times, but each plays a part in the story. The principal account was the Otis Harbour checking account. In 1934, the parties decided to buy a farm and they looked for a good investment, and soon located the splendid farm of 196.15 acres here involved, and then being sold by the Tennessee Joint Stock Land Bank'at a distress price. The deed was taken in the name of Dr. Otis Harbour. The total purchase price was agreed to be $13,730.50. On March 26, 1934, Dr. Harbour paid $1,000 earnest money (by check on Otis Harbour checking account), and signed a contract to pay $2,730.50 in cash and to execute notes totaling $10,000 whenever the title could be delivered. The purchasers were to receive the 1934 rents. On October 15, 1934, the title was approved, and Dr. Harbour paid the $2,730.50 (by a check on the Otis Harbour checking account), and executed the notes totaling $10,000. These' notes were secured by purchase money mortgages on the land. Mrs. Harbour signed the mortgages, but did not sign the notes, and did not in any way become personally liable for the. payment of the $10,000. The notes were paid on or before March 30, 1936, and all the payments were from the Otis Harbour checking account.
Financial fortune smiled on the Harbours because each was energetic and thrifty; and a prosperous and happy married life could have easily resulted; but it did not. They separated in 1942 in Memphis; and Mrs. Harbour has pending, in Tennessee, a suit for divorce and alimony. We here point out that the divorce action between the parties is pending -in another state, and that this case concerns only the alleged trust property in Arkansas. No question was raised in the lower court, or here,.as to jurisdiction in this case; and since the “res” (land) is in Arkansas, and since the parties have come into the Arkansas courts, we proceed to adjudicate the case on it's merits. Leñar on Conflict of Laws, §§ 26, 36 and 118.
In 1943, Mrs. Harbour filed this suit to have a trust declared in her favor for an undivided one-half interest in the lands and for partition to segregate her interest. Hr. Harbour denied any trust, and pleaded limitations, laches, estoppel and the statute of frauds. The trial court found for Mrs. Harbour and decreed her to be the equitable owner of an undivided one-half interest in the lands, and appointed commissioners to make partition; and from that decree Dr. Harbour has appealed. The record is voluminous and the exhibits are numerous and detailed; but through it all, there is the wife’s contention that she is entitled to one-half -of the land in fee, and there is the husband’s denial of the asserted claim.
To sustain the decree of the chancery court, appellee claims:
(1) That the money which paid for the land was from a “joint account,” and therefore the title was joint in equity; and (2) if this court should hold against the “joint account” theory, then, to the extent that the money of the wife went into the purchase of the land— to that extent, at all events — the wife is entitled to a beneficial trust interest in the land. We proceed-to an examination of these contentions as well as the other questions in the case.
I. “Joint Account” Theory
Mrs. Harbour claims that the Otis Harbour checking account was a “joint account” owned equally by Dr. Harbour and herself; and that since all the checks, which paid for the farm, were drawn on the “joint account” therefore she is the owner of one-half interest in the farm. This “joint account” theory cannot be sustained as that term is used in the statutes, cases, and books on banks and banking. The Arkansas statute on “joint accounts” is § 727a of Pope’s Digest, and it is predicated on the fact that the deposit shall be made “in the name of such depositor and other person.” Our statute presupposes that a “joint account” will be a two-name account. This statute was discussed by this court in Black v. Black, 199 Ark. 609, 135 S. W. 2d 837. In the case of Ferrel, Administratrix, v. Holland, 205 Ark. 523, 169 S. W. 2d 643, there was involved the “joint account” in building and loan certificates.. In 7 Am. J. 299, there is a discussion of joint deposits and accounts; and the discussion begins with the assertion: “Bank accounts may be established in the name of two or more persons.” To the same effect see 9 C. J. S. 595. The basic legal conception of a “joint account” means that it be in two or more names. That essential does not exist in the account here involved, since the account stood only in the name of Otis Harbour.
But Mrs. Harbour contends that it was agreed between herself and Dr. Harbour that she was to have an undivided half interest in the account regardless of the name in which it stood. In other words,-she contends that even if it was not a “joint account” as regards the bank, still it was a “joint account” as between husband and wife. The obvious counter-question as to this contention is: if the account was joint between the parties, and if all of their resources were to be pooled and owned “fifty fifty,” then why did they have so many different accounts? Mrs. Harbour worked in the bank and had charge of all the deposits and accounts in the bank. As a bank teller and bookkeeper, she certainly knew that to make a “joint account” so far as the bank was concerned, there would have to be two named persons. She' wrote most of the bank deposit slips where the funds were deposited to the Otis Harbour checking account. She had a separate checking account of her own and also a separate savings account. This shows that Mrs. Harbour knew of the distinction in accounts, and that all of the income of husband and wife was not pooled into the Otis Harbour checking account. If she and Dr. Harbour had intended that the Otis Harbour checking account was to be a “joint account,” as that term is used in the statute, then she owed it to the bank, of which she was an employee and stockholder, to post the account as “Otis and Lorine Harbour,” so that the bank would know that it was a “joint account”; this she did not do. Dr. Harbour admitted that his wife could write checks on his account at any time, but insisted that it was not a “joint account.” Mrs. Harbour said that they agreed that it was a “joint venture.” Thus, only the two interested parties testified as to this angle of the case; and the actual bank records, and Mrs. Harbour’s conduct show conclusively that this was not a “joint account” in law or in fact. The chancery court adopted the “joint account” theory, and on that theory rendered a decree awarding Mrs. Harbour one-half interest in the lands. This decree was erroneous.
II. The ‘‘Trust” Theory
Mrs. Harbour next claims an equitable interest in the land by reason of a resulting trust: that- is, she says it was agreed between herself and Dr. Harbour that her money was to go into the Otis Harbour checking account; and that they would buy a farm and pay for it from that account; and that to the extent that her money actually weiit into the purchase price of the farm — then—to that extent — she is entitled to a beneficial'interest in the land as a resulting trust. There is merit to this contention.
Of course, no express trust can be claimed by Mrs. Harbour because there was no instrument in writing declaring an express trust, and § 6064 of Pope’s Digest prevents an express trust being shown by parol testimony. But there are other trusts that may be shown by parol testimony. In Pomeroy’s Equity Jurisprudence, 3rd Ed., § 987, in stating the classification of trusts, it is said:
“All possible trusts, whethe'r of real or personal property, are separated by principal line of division into two great classes: '
“(1) Those created by the intentional act of some party . . . which are called express trusts;-
“(2) Those created by operation of law ... — implied, or resulting, and constructive trusts.”
Section 6065 of Pope’s Digest removes resulting, implied and constructive trusts from the statute of frauds and allows oral .testimony to be admitted to prove these. McGuire v. Ramsey, 9 Ark. 518; Richardson v. Taylor, 45 Ark. 472; Camden v. Bennett, 64 Ark. 155, 41 S. W. 854; Grayson v. Bowlin, 70 Ark. 145, 66 S. W. 658; Crosby v. Henry, 76 Ark. 615, 88 S. W. 949. In Bray v. Timms, 162 Ark. 247, 258 S. W. 338, in stating that parol evidence might be introduced to show a trust by operation of law, we said: “Were the rule otherwise, a statute which was intended to prevent fraud would, in many cases, be a potent instrument of fraud.”
So, with the parol evidence before us we proceed to see if the resulting trust was .shown. In Spradling v. Spradding, 101 Ark. 451, 142 S. W. 848, we said: “When land is purchased in the name of one person, and* the consideration is paid by another, or where the title to land, inherited by one, is placed in the name of another, it is an established rule of equity that a trust in favor of the true and beneficial owner arises which a court of chancery will declare and enforce against the person in whom the dry legal title alone rests. Brit a determination of the question as to whether or not such trust results from the transaction depends entirely upon the intention of the parties themselves.”
In Kerby v. Feild, 183 Ark. 714, 38 S. W. 2d 308, Ch. J. Hart said: “In order to constitute a-resulting trust, the purchase money or a specified part of it must have been paid by another or secured by another at the same time, or previously to the purchase, and must be a part of the transaction. In other words, the trust results from the original transaction at the time it takes place and at no other time, and it is founded upon the actual payment of money and upon no other ground. Red Bud Realty Co. v. South, 96 Ark. 281, 131 S. W. 340, and Reeves v. Reeves, 165 Ark. 505, 264 S. W. 979. This rule is so well settled in this state that no further citation of authorities to support it or reasons for its adoption need be discussed.”
The case of Kline v. Ragland, 47 Ark. 111, 14 S. W. 474, affords strong support for Mrs. Harbour. In that case the title was taken in the husband ’,s name and he alone signed the notes for the deferred purchase price. Nevertheless, to the extent that the wife’s money went into the purchase price as agreed at the time of fixing the title, to that extent, the husband was held to be a trustee for her. So, here, Mrs. Harbour may show by oral testimony- that her money went into the original purchase price and subsequent payments under ah agreement, prior to the fixing of the legal title, that she was to have a beneficial interest in the lands; and .a resulting trust to that extent should be decreed for her. There is a wealth of cases from our own court on trusts each with some facts somewhat similar to, and some facts somewhat different from, the case at bar. Some of these cases are: Watson v. Murray, 54 Ark. 499, 16 S. W. 293; Castleberry v. Castleberry, 202 Ark. 1039, 155 S. W. 2d 44; Lisko v. Hicks, 195 Ark. 705, 144 S. W. 2d 9; Clark v. Clark, 191 Ark. 461, 86 S. W. 2d 937; Hunt v. Hunt, 202 Ark. 130, 149 S. W. 2d 930; Stacy v. Stacy, 175 Ark. 763, 300 S. W. 437; Milner v. Freeman, 40 Ark. 62. For general statements, see: 65 C. J. 71, 397 and 414; 26 R. C. L. 1214, 1219, 1222, 1224, 1229;- and annotation in 38 Ann. Cas. 625.
Of course, the trust must be established by evidence that is clear, cogent and convincing. Stacy v. Stacy, 175 Ark. 763, 300 S. W. 437; Kerby v. Field, 183 Ark. 714, 38 S. W. 2d 308; 65 C. J. 440. But the evidence on behalf of Mrs. Harbour meets that test. She testified that shortly after the marriage she began putting her salary in the Otis Harbour checking account, because it was so agreed, and because Dr. Harbour thought it would be better, as he wanted the money in his name; that they both wanted the farm, and agreed on its purchase, and they made the payments out of the Otis Harbour account; that funds of both of them paid for the farm; that the title was put in Dr. Harbour’s name because he Avanted it that Avay, but that it Avas agreed that it was to be theirs together, and Avas to be their home, and he always called it “our place”; that she would not demand that the legal title be jointly shown, because the ownership was understood between them in advance, and she had the utmost confidence in Otis Harbour. They each made a will leaving all to the survivor. The title letter of the attorney who approved the title was addressed to “Dr. and Mrs. Otis Harbour.” A. J. Lump-kin (brother of Mrs. Harbour) testified that many times,. both before and after the purchase of the farm, Dr. and Mrs. Harbour, in his presence, discussed buying the farm together; and that after the purchase of the farm Dr. Harbour always called it “our farm.”
While Dr. Harbour testified that he had no intention of being a trustee for 'his Avife, still his testimony affords great support, and only slight contradiction, if any, to the trust theory. Dr. Harbour" refused to deny any part of the testimony of A. J. Lumpkin. Dr. Harbour admitted that he and his Avife “might” have discussed between themselves the placing of her money in his name; he knew all the time that her money was going into his account, and when he wrote the checks to pay for the farm he intended to nse any funds that might be in his account; and he could not deny that some of her money actually went into the purchase of her farm. Finally he admitted that he and his wife looked at the farm together before it was purchased, and that they agreed to build their home on this land; and that, about the time of the purchase of the land they each made a will, leaving all to the survivor. There were other facts and circumstances in the record; and every fact and circumstance supports the contention of Mrs. Harbour that Hr. Harbour is a trustee for her benefit, to the extent that her money actually went into the purchase of the land. The evidence in this case justifies a finding that it was contemplated by both of the parties, at the time of the purchase of the land, that Mrs. Harbour should furnish part of the purchase money and should own an interest in the land corresponding to the share, of the purchase money contributed by her at the time the land was bought and afterwards. This is a resulting trust.
It is true that in Remshard v. Renshaw, 102 Ark. 309, 143 S. W. 1092, and in Gordon v. Claridy, 142 Ark. 184, 218 S. W. 195, we held that where the wife’s money did not purchase a definite interest or a determinative aliquot part of the property, we would declare a lien- on all of the properly to the amount of her funds going into the purchase, rather than to declare a resulting trust in the property for her to the amount that her funds bore to the net price of the property. But the rule of those cases does not apply here. In the Bemshard case there was a mere loan by the wife. In the Gordon case, the proof showed that the new acquisition was made before the wife sold her lands, and before she had any money to invest; so she could not have made a payment antecedent to the vesting of title. In neither of those cases was there any agreement, antecedent to the vesting of title, that the wife was to have an interest in the lands; whereas, in the case at bar there was such an agreement and that agreement, with the other facts in the case, makes this a case of resulting trust. The case at bar is different from the ordinary case of a husband using his wife’s money. Here the wife had a regular monthly in come in addition to other property; and there was (1) an agreement between the parties to mingle a portion of funds for investment, and (2) an investment actually made with the mingled funds in pursuance to the agreement made prior to the'fixing of the title. "
It is clear that Dr. Harbour could not have furnished all of the purchase price, alone. The total purchase price was $13,730.50; and of this amount $12,730.50 together with interest, was paid in the period of time from October 24, 1934, to March 30, 1936. The rents for 1934 were $991.03 and for 1935 were (gross) $1,915.22. Copies of Dr. Harbour’s State and Federal Income Tax Returns were introduced in evidence, and the figures therein are not denied by him. He did not have sufficient income to have paid for the farm. When we' take these admitted figures, it is clear that some of his wife’s money was used. Just how much of her money went into the purchase of the farm we are unable to determine without the services of an accountant; and that is a matter for the trial court. Since the chancery court did not decide the case on the resulting trust theory, but on the “joint account” theory, (as we have previously noted), we think the better practice in this case is to remand to the chancery court to decide on the record made, and any other evidence subsequently offered by either party, just how much of Mrs. Harbour’s money went into the purchase of the farm.
Therefore we hold that to the extent that Mrs. Harbour’s money went into the purchase of the farm, to that extent, Dr. Harbour was a trustee for her; and to the extent that his money went into the purchase of the farm he was, to that extent, a beneficial owner; and to the extent that the rents, and profits from the furnish account, and other income from the farm, went into the purchase money, the same should be proportioned between the parties as their respective capital investment stood at the times the rents and other items were received. Mrs. Harbour, of course, has the burden of proving the definite amount of her money that definitely went into the purchase price of the place-at the time each payment was made.
III. Limitations, Laches and Estoppel
Having found that a resulting trust exists, it remains only to consider these pleas made by Dr. Harbour against the enforcement of the trust. The evidence shows that after the trust arose Dr. Harbour continued to speak of the farm as “our farm”; that Mrs. Harbour wrote checks for the furnishings to the tenants and received and deposited the rents; and that until 1941 the rents and profits from the land were just as much under the control of Mrs. Harbour as under the control of Dr. Harbour ; and that she was just as much in possession of the property as he was; so under these facts there was no repudiation by Dr. Harbour of Mrs. Harbour’s beneficial interest in, and use of, the property.
As regards limitations, we find no merit in the plea. It is true that in Board of Education v. Morgan, 182 Ark. 1110, 34 S. W. 2d 1063, it was stated that the statute of limitations usually runs against implied, constructive and resulting trusts from the inception of the trust. But even in that case it was recognized that there were exceptions to such rule of limitations. The resulting trust here involved clearly falls within such an exception, even if resulting trusts may be said to be in the same category with implied and constructive trusts in regard to the statute of limitations. In 34 Am. J. 143, after stating that limitations runs against implied trusts and constructive trusts from the inception of the trust, the following is stated as regards resulting trusts:
“It is generally held, however, that the rule does not apply to a resulting trust which has every element that operates to take an express trust out of the statute and prevent it from running against the trust until after it has been -effectually repudiated; and it has been declared that as long as there is a continuing and subsisting equitable trust acknowledged" or acted upon by the parties, the statute of limitations does not apply, but if the trustee denies the right of his cestui que trust, and the possession becomes adverse, lapse of time from that period may constitute a bar in equity. Thus, when a resulting trust arises from the purchase by a husband in his own name with his wife’s money, it has been held that the statute of limitations begins- to run -in favor of the husband, and against the wife, at the time of the conveyance, if there is no recognition of the wife’s rights; but if her rights are recognized, the statute of limitations begins to run in favor of the husband and against the wife at the time when the husband begins to hold adversely.”
And to the same effect see 37 C. J. 908 where it is said:
“. . . and the statute of limitations does not run' in favor of the trustee of a resulting trust, which most frequently arises where one person pays the consideration for a purchase and title is taken in the name of another, until the trustee disavows the trust or asserts some right to the property inconsistent with it, and the cestui que trust has knowledge of such disavowal or assertion, or, from the circumstances, ought to have learned of it.”
As regards laches: the same facts as first mentioned in this section defeat that plea made by Dr. Harbour. In 26 B. C. L. 1365, it is stated:
“Laches cannot be imputed to one who seeks to enforce a resulting trust in real property, where his right to use and possess the same has never been questioned, since his possession is notice to the world of all his rights. A cestui que trust, who avails himself of the proceeds of the fund of which he is the beneficiary according to the terms of a trust determinable at his pleasure, cannot be charged with laches because he does not avail himself of his additional right to bring the trust to an end. .. . . The mere fact that a wife who furnishes the money to purchase real estate, the title to which is taken in the name of her husband, does not bring an action against him during his lifetime to compel a conveyance to herself, is not such laches as will bar the action, where they live together upon the property and he repeatedly promises to-convey the title to her. ’ ’
And in 65 C. J. 1027-8 in discussing- laches in enforcing a resulting trust it is stated:
. . there may be no laches ... as where, during the period of the delay, he, (the beneficiary), has been in possession, or joint possession with the trustee, of the property, or has been exercising acts of control and ownership over the property. Time does not commence to run against the beneficiary of a resulting trust, so as to render the doctrine of laches applicable, until the trustee disavows or repudiates the trust and such disavowal or repudiation is fully and unequivocally made known to the beneficiary.”
As regards estoppel: we find no facts justifying that plea b3r Dr. Harbour. No silence on the part of the wife caused any change of position by Dr. Harbour. Watson v. Murray, 54 Ark. 499, 16 S. W. 293; Brownfield v. Bookout, 147 Ark. 555, 228 S. W. 51; Slaughter v. Cornie Stave Co., 172 Ark. 952, 291 S. W. 69; Union Indemnity Co. v. Benton Lumber Co., 179 Ark. 752, 18 S. W. 2d 327.
For the reasons herein stated, the decree of the chancery court is reversed, and the cause remanded with directions to declare a resulting trust in the property 'for Mrs. Harbour and to fix the amount of her trust interest under the directions contained in this opinion, and for further proceedings not inconsistent with this opinion.
Smith and Holt, JJ., dissent. | [
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Griffin Smith, Chief Justice.
Walter Westbrook, by contract made in December 1937, became retail distributing agent for Arkansas Fuel Oil Company.
Judgment for $442.96 was rendered against West-brook February 24, 1941. Complaint upon wbicb that judgment was based alleged continuous indebtedness by open account, approximate amount of which was $800 January 26, 1938. A year later Westbrook’s resignation was requested.
Tbe litigation resulting in tbis appeal was begun December 21, 1942, when tbe Company filed .suit against Westbrook and bis wife, Wincie; also against J. W. Bagley and bis wife, Eugenia, and others. It was alleged that Walter bad fraudulently disposed of assets, tbe act having tbe effect of rendering him insolvent. Specifically, it was charged that tbe judgment debtor bad conveyed to tbe Bagleys three lots in tbe City of Nashville, Arkansas, and that tbe Bagleys bad thereupon conveyed to Mrs. Westbrook. Walter’s deed was dated January 26, 1938, the recited consideration being $850. Tbe following day tbe Bagleys conveyed to Mrs. Westbrook for, prima facie, $850.
In addition to bis duties as distributor, Westbrook operated a filling station where be sold tbe Company’s products at retail. Bagley bad been Westbrook’s employe from 1933 to 1936. After 1936 be rented from West-brook and operated a filling station on tbe lots wbicb form tbe subject-matter of tbis suit, and was so renting in January 1938.
Bagley denied there was an agreement that after receiving the Westbrook deed there should be reconveyance to Westbrook or bis wife. He testified that consideration for the transaction of January 26 was $1,000 —not $850 as shown by tbe deed. Explanation was that Walter owed him $150. Actual payment was “. . . part cash and part checks- — I don’t remember bow much cash and bow much checks.”
On cross-examination Walter insisted that be paid $500 in cash and $350 in checks, — “or tbe other way; one of the two — it .was about half and half. He never did cash the check; I tore it up.”
Bagley testified that following the purchase on January 26th, Walter appeared at the station early the next morning and told him Mrs. Westbrook wanted the property for a building place. — “He talked on about it and just wondered if I would cancel the deed and sell it to him or to her: any way to get it back in her hands so she would be satisfied.” Bagley says that he, being anxious to accommodate, and not wanting to have trouble “between the families,” agreed to make the deed to Mrs. Westbrook. . ‘
Walter Westbrook’s version is that the first transaction was Iona fide, that it was a “legal sale.” He also contends that the account on which judgment was rendered was his personal obligation as distinguished from an obligation as distributor. The difference, he said, was that in January, 1939, he owed the Company for charges made to him personally representing supplies received at the filling station. His line of credit at the station was $800. — “A year or two later they took judgment. ” '
■ Mrs. Westbrook testified she had property of her own and was not accountable to her husband for certain inherited funds. After joining Walter in sale of the lots to the Bagleys she “studied about it all night” and came to the conclusion she would repurchase, if possible. When told, as a witness, Bagley had testified that at the time the property was deeded back “. . he (Bagley) paid Walter the same checks and money he had received the day before,” her answer was, “Well, possibly so; possibly some checks and some money. I don’t know just exactly what the transaction was between Walter and Mr. Bagley. I lmow my part of it: . . . I paid $850 in cash. ’ ’
If it be conceded that Walter Westbrook did not owe the oil company on his accoujit as distributor, evidence is convincing that he had been continuously in arrears on the filling station account. His own testimonjr was that when discharged (January, 1939) he owed the Company a personal account, the amount being $405, and “. . . a year or two later they took judgment for it. ’ ’
Westbrook also testified that those who purchased from'the Company through the distributor agency had individual lines of credit with the Company, and these accounts were not charged to him.
In April, 1937, the Company wrote letters, demanding payment of $1,023.69 (some of which may have been distributor items) and threatening to close Westbrook’s account unless satisfactory arrangements were made. December the first (same year) he was told that while monthly payments equaled monthly charges, his delinquent balance was $700 or more. Mention was made of an understanding “some time ago” that the indebtedness should be reduced substantially each month.
December 4, 1937' — less than two months before Bagley undertook to buy the lots — Westbrook wrote the Company asking it to “glide along” with him for the next four or five months. He closed with a request that the Company “be as easy as possible for a few months, and I will keep the account current. ’ ’
We cannot escape the conclusion that when West-brook made his deed to Bagley he owed an amount equal to the sum for which judgment was taken, and the balance never fell below this figure. It is also clear, from Westbrook’s statements, and from inferences drawn from the testimony of others that the transfer rendered West-brook insolvent.
Westbrook’s testimony regarding the method of payment contradicts his wife, who swore she paid $850 in cash. Nor is there explanation of Bagley’s act in deeding the property back, as he terms it, and not collecting $150 alleged to have been dne him. Of course Bagley could have elected to continue carrying the debt; but it seems strange that, having paid $850 in-cash and checks, and having canceled an old account, he should apparently forget all about it and turn the property back to Westbrook for the exact amount alleged to have been paid. But our decision is not controlled by this inconsistency, if such it is. There are many circumstances pointing to the practical conclusion that there was no intent Bagley should have the property. Instead, he appears to have lent his name and assistance to West-brook’s scheme to denude himself of assets.
Our view is that the Chancellor erred in that part of the decree in which it was found that the Bagleys and Mrs. Westbrook were innocent purchasers. Reversed, with directions to cancel the deeds. The cause is remanded for further proceedings not inconsistent with this opinion.
Westbrook executed bond conditioned upon the faithful discharge of duties assumed under the written contract. Sureties were Grady H. Ward and J. W. Bagley. •
The deed was executed jointly by Walter Westbrook and his wife, the latter having relinquished dower, homestead, etc. It was filed for record February 9, 1938.
Filed for record February 12, 1938.
It may be observed that in the first reference to the amount claimed to have been paid other than with cash, Bagley mentioned “checks” — plural. The second reference is to “it,” as though a single check were given and held by Westbrook, then returned.
The Court found that the bond did not cover sales made by Westbrook through his filling station, but was restricted to distributor transactions; hence sureties were released. This is conceded by appellant.
The property was mortgaged to a loan association. Its security is not affected.
The account sued on was $505.32. With interest it was $442.96.
A condition of the bond was that Westbrook should not credit parties other than those approved by the Company, “nor shall he receive credit for sales made to approved customers beyond the amount approved by the credit department.” | [
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McPaddin, J.
This appeal comes from a judgment in an action in ejectment filed by appellee against appellants.
Jas. H. A. Baker was the owner of certain property in the city of Bussellville, subject to the life estate of Martha Bryant. On April 10, 1930, Baker contracted to sell his interest in said property to Lawrence Bryant for $443.92, payable, $100 cash, and’ the balance in four annual payments, evidenced by four interest-bearing notes. The contract provided in part: “It is agreed and understood that upon the failure of the said Lawrence Bryant to pay any of said notes upon maturity date, then all of said notes and deferred payments become due and payable, and any sums paid by him shall be considered rentals. The said Lawrence Bryant agrees to keep the taxes and insurance premiums paid, and his failure so to do shall be sufficient notice to the said Jas. H. A. Baker to pay said sums, and any sum or sums so paid by him shall constitute a lien upon the premises until the same shall have been repaid to him by the said Lawrence Bryant.” The above quotation is the only language in the contract containing any provision as to forfeiture of Bryant’s rights upon failure to make prompt payments.
Lawrence Bryant went into possession of the premises, and so remained, either personally or through his tenant (co-appellant, G-us Williams), at all times to and including the trial in the court below. Bryant paid the $100 cash mentioned in the contract, and also paid a total of $139.39 at subsequent times. The life tenant, Martha Bryant, died on September 14, 1939. Baker first filed an action in unlawful detainer against the tenant, Gus Williams, but dismissed that action without prejudice ; and on April 10, 1942, Baker filed this present action in ejectment in the circuit court, alleging that he (Baker) was the owner and entitled to the immediate possession of the premises, and prayed for judgment for possession and for damages. Gus Williams disclaimed any interest, save as tenant of .Lawrence Bryant; and the latter filed pleadings denying Baker’s right to recover, and praying that his (Bryant’s) title be quieted.
The case was tried before the circuit court without a jury, and resulted in a judgment for Baker for posses sion and for $180 for three years’ rent. The learned circuit judge gave a written opinion, which is in the record and has been very helpful to this court, and which opinion concludes with this language: ‘ ‘ Judgment will therefore be entered for plaintiff, as set forth in these pleadings, for possession of the premises in question and for damages as herein designated. There are certain equities involved which should 'be adjudicated, but only in an equity court. Judgment for plaintiff for possession and rents, would not, in the court’s opinion, preclude the defendant from instituting a suit to redeem upon proper showing and proof. See Cleveland v. Aldridge, 94 Ark. 51, 125 S. W. 1016.” Prom the order overruling the motion for new trial, Bryant and Williams have appealed, presenting the questions herein discussed:
I. Transfer, to Equity. Appellants say, in their brief, that the circuit court should have transferred the cause to chancery. We have searched the- entire record, and we fail to find where either party made any motion to transfer to equity, or filed any demurrer or other pleading that might be treated as a motion to transfer to equity.
There was no reversible error on the part of the circuit court in failing to transfer to equity, when no motion to transfer was made. Edwards v. Wallace, 108 Ark. 574, 158 S. W. 1073; Pratt v. Frazer, 95 Ark. 405, 129 S. W. 1088; Collins v. Paepcke-Leicht Lbr. Co., 74 Ark. 81, 84 S. W. 1044; Organ v. Memphis & L. R. R. R. Co., 51 Ark. 235, 11 S. W. 96; Horsley v. Hilburn, 44 Ark. 458.
II. The Judgment for Halter for Possession. When Baker and Bryant made the contract, whereby Baker agreed to sell, and Bryant agreed to buy, the property, and Bryant executed notes for the deferred payments, the transaction was the same, in law and equity, as if Baker had made Bryant a bond for title. We have repeatedly held that the relation between the parties in a bond for title is the same as mortgagor and mortgagee; and that a mortgagee — on condition broken — may main tain ejectment proceedings to recover possession. In Cleveland v. Aldridge, 94 Ark. 51, 125 S. W. 1016, Mr. Justice Hart, speaking for this court, said: “The object and purpose of this suit, as shown by the pleadings, was to try the title to the land in controversy, but the undisputed evidence shows that W. O. Cleveland went into possession of the land in controversy under a contract for the purchase thereof, and that the purchase price remains due and unpaid. . . . Where possession of land is given under an executory contract for the purchase thereof, and the purchase mo.ney is due and-unpaid, the vendor may, by ejectment, recover possession of the land for the purpose of applying the rents and profits to the payment of his debt. Smith v. Robinson, 13 Ark. 533; Fears v. Merrill, 9 Ark. 559, 50 Am. Dec. 226; Newsome v. Williams, 27 Ark. 632.”
And in Higgs v. Smith, 100 Ark. 543, 140 S. W. 990, Chief Justice McCulloch, speaking for the court, said: ‘ ‘ It has been settled by many decisions of this court that, where the owner sells lands to another and executes a bond for title, ‘the effect of the contract is to create a mortgage in favor of the vendor, upon the land, to secure the purchase money, subject to all the essential elements of a mortgage, as effectually as if the vendor had conveyed the land by an absolute deed to the vendee and taken a mortgage back to secure the purchase price. ’ Smith v. Robinson, 13 Ark. 533; Moore v. Anders, 14 Ark. 628, 60 Am. Dec. 551; Hardy v. Heard, 15 Ark. 184; Harris v. King, 16 Ark. 122; Lewis v. Boskins, 27 Ark. 61; Holman v. Patterson’s Heirs, 29 Ark. 357; McConnell v. Beattie, 34 Ark. 113; Robertson v. Read, 52 Ark. 381, 14 S. W. 387, 20 Am. St. Rep. 188; Strauss v. White, 66 Ark. 167, 51 S. W. 64; Stubbs v. Pitts, 84 Ark. 160, 104 S. W. 1110.
“It has also been uniformly held that the remedies of the vendor, after failure of the vendee to pay in accordance with the stipulation of the contract, are to proceed at law for recovery of the- debt, or to sue to recover possession for the purpose of collecting rents and profits, or to proceed by a bill in equity to foreclose the equity of redemption and sell the lands for the payment of the debt, and also that the vendee has the right to proceed by bill in equity to redeem. Smith v. Robinson, supra. See, also, Cooper v. Phillips, 157 Ark. 525, 249 S. W. 12; Jones on Mortgages, 8th Ed., § 891; Wiltsie on Mortgage Foreclosures, 5th Ed., § 6; Glenn on Mortgages,^ 74.”
In this case, the parties stand as though Bryant had mortgaged the premises to Baker for the payment of money, and had then defaulted' in the payment of the ■obligation; and it, therefore, follows that so much of the judgment as awarded Baker possession of the premises was in keeping with numerous decisions of this court, because a mortgagee may maintain ejectment to secure possession after the condition of the mortgage is broken.
III. Bryant’s Pleas of Adverse Possession and Limitations.
As regards Adverse Possession: Bryant admitted that he entered the property as the vendee of Baker, so the possession of Bryant was not adverse in its inception; and there is no proof of explicit disavowal or disclaimer of that holding and assertion of adverse claim brought home to Baker. Therefore, the plea of adverse possession is without merit in this ejectment action. Tillar v. Clayton, 76 Ark. 405, 88 S. W. 972; Cleveland v. Aldridge, 94 Ark. 51, 125 S. W. 1016; Little Rock & Ft. S. Ry. Co. v. Rankin, 107 Ark. 487, 156 S. W. 431. See, also, Annotation in 1 A. L. R. 1329.-
As regards Limitations: Even if the statute of limitations (§ 9465, Pope’s Digest) could be successfully pleaded in an ejectment action (which we find it unnecessary to decide in this case), nevertheless, the proof here shows that appellant Bryant, by his attorney, made a payment on the indebtedness in 1937, which was less than five years before this ejectment action was filed; so limitations could not be successfully invoked under the facts.
IV. The Judgment for Rents. The circuit court rendered judgment for Baker for possession, and also for rents for tliree years. The plaintiff had prayed for damages, but the only damages claimed were the rental value of the premises. No damage for waste was alleged or shown. We hold that so much of the judgment as awarded rents was in error. Baker’s right to possession was to enable him to become a mortgagee in possession, and thereby apply the rents and profits against the indebtednéss. He could not in the same suit take possession from the mortgagor, and then have judgment for rents for three years previous, because the rents, as such, were not included in the mortgage. The right of Baker to possession as mortgagee under condition broken was not final until the judgment of the circuit court. The judgment fixed his right to possession, and he could not recover rents prior to that judgment: Sections 4658ff and § 4651 of Pope’s Digest, relating to three years’ rents in ejectment cases, do not refer to mortgagees obtaining possession, but refer to owners against adverse claimants. In Deming Investment Co. v. Bank of Judsonia, 170 Ark. 65, 278 S. W. 634, we pointed out that the rents were not mortgaged merely by a mortgage of the lands, and that rents belonged to the mortgagor until possession be taken from him, either by decree or by a receiver appointed pendente lite. See, also, Ward v. Jackson, 180 Ark. 865, 23 S. W. 2d 261.
In Jones on Mortgages, 8th Ed., § 827, in discussing the mortgagor’s right to rents, the rule is stated: “So long as the mortgagor is allowed to remain in possession, he is entitled to receive and apply to his own use the income and rents from the mortgaged estate. ‘The rents and profits are not pledged; they belong to the tenant in possession, whether the mortgagor or a third person claiming under him.’ He is not liable for rent. His contract is to pay interest, and not rent. Although the mortgagee may have the right do take possession upon a breach of the condition, if he does not exercise this right, he cannot claim the profits. ... A mortgagee of real estate, before entry and notice to the tenants, has no right to demand or receive the rents and profits of the mortgaged property.” -See, also, Wiltsie on Mortgage Foreclosures, 5th Ed., § 561; Glenn on Mortgages, § 33.4; Polhill v. Brown, 84 Ga. 338, 10 S. E. 921; 36 Am. Jur. 833.
Thus, so much of the judgment of the' circuit court as awarded rents to Baker, is reversed.
V. Baler’s Hypothecation of the Notes. Bryant claimed' that Baker had hypothecated the notes and never recovered all of them, and that Bryant had settled some of them with the pledgee. There is no need for us to explore this question, because we are affirming only so much of the circuit court judgment as awarded Baker the right to possession of the premises. He thus becomes a mortgagee in possession. Either he may file a suit in the chancery court to terminate that relationship, or Bryant may file a bill to redeem. In either suit, proof. of the pledge or other disposition of the notes, any 'payment thereof, and any and all other matters would be pertinent issues, which would go to determine the then present indebtedness, if any — concerning which we express no opinion here. In short, Bryant is not prejudiced from raising the hypothecation issue in the chancery court.
The circuit court expressed the query as to why the parties pursued this cumbersome proceeding of ejectment and a later suit in equity, when a chancery foreclosure in the first-instance would have disposed of all issues in one suit. The query remains unanswered, but we agree with the circuit court that the parties elect their remedy and the courts adjudicate the rights.
To conclude: So much of the judgment as awarded Baker possession of the premises, is affirmed; so much of the judgment as awarded Baker a judgment for rents, is reversed and dismissed.
This being a law ease, and the judgment being reversed on a substantial issue, it follows that the costs of the appeal are taxed against the appellee. Section 2375, Pope’s Digest; Stevenson on Supreme Court Procedure, p. 64. | [
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Holt, J.
Appellant, Everett Jelks, sued appellee, Ruth Jelks, for divorce February 13, 1942, and on the same day a decree was rendered in his favor. The decree was rendered in vacation, but was rescinded by the court, for the reason that the trial court found that fraud had been practiced in procuring the divorce decree. Since this was a proceeding in vacation, the decree of divorce could not have become effective until it was entered of record and that action, as indicated, has not been and will not be taken. There is, therefore, no decree of divorce.
Section 2817 of Pope’s Digest provides that a chancellor by consent of parties may “try any cause and deliver opinions ... . , and make and sign decrees in vacation,” and that “such decrees, and all other orders and decrees which a chancellor may make in vacation, shall be entered and recorded on the records of the court in which the causes, or matter, is pending, and shall have the same force and effect as if made, entered and recorded in term time, and appeals may be had therefrom as in other cases.”
In construing Act 82 of the General Assembly of .1913, which is now a part of § 2817, supra, this court, in Red Bud Realty Company v. South, 145 Ark. 604, 224 S. W. 964, said: “Under this statute a vacation decree does not become effective until it is signed-and entered of record, and until it is so entered, it can not be appealed from, therefore, the time allowed for taking an appeal runs from the date of entry. In this respect a vacation decree differs in effect from one -rendered in term time. In the very nature of things, a judgment pronounced by a judge in vacation does not, before entry, have the force and effect of a judgment pronounced by a court duly assembled at the time and place prescribed by law, unless the statute in express terms gives it such force.” See, also, McConnell v. McCord, 170 Ark. 839, 281 S. W. 384.
Since appellant is a soldier in the armed forces of the United States, the court below continued his suit for divorce and it will not be disposed of except upon appellant’s motion until his discharge from the service. (Soldiers ’ and Sailors ’ Civil Relief Act of 1940. Oct. 17,1940, c. 888, § 1, 54 Stat. 1178, 50 U.S.C.A., § 501 et seq.)
January 4, 1943, the court made an award to appellee for the support and maintenance of herself and their five-months-old baby “pendente lite and until further orders of this court.”
Inasmuch as appellant is the moving party here and has filed suit for divorce against his wife, temporary alimony may be awarded during its pendency and will be payable until the court below orders otherwise, and appellee would, under these circumstances, be entitled to the allowances without show of merit on her part. This court so held in Slocum v. Slocum, 86 Ark. 469, 111 S. W. 806 (quoting the headnote), “While, in a suit for divorce brought by a wife, she must make a showing of merit before the court will make her an allowance of temporary alimony and suit money, the court does not require such showing where the husband sues the wife, or brings a cross-bill, asking a divorce in a suit instituted by her.”
The allowances to appellee are not shown to have been excessive and will not be disturbed or changed by this court until action thereon has been taken by the court below, and that action brought before this court for review.
Finding no error, the decree is affirmed. | [
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Smith, J.
Appellant filed a complaint against appellee in which he alleged his ownership of lots 231, 232, 233, 234 and 235-, Bedford’s Addition to the City of Wynne, under a deed from Page K. Austell, the widow of S. L. Austell, and that appellee had entered into possession of these lots under a deed from the State Land Commissioner, based upon sale of the lots to the State for the nonpayment of the taxes due thereon, which sales were alleged to be void for various reasons, and he prayed the cancellation of the Commissioner’s deed as.a cloud upon his title. He also prayed judgment for the rental value of the property and for certain damages done it. This deed to appellee is numbered 68184, and recites that all the lots there described had forfeited to the State for the nonpayment of the 1924 taxes, except lot 232, which had been sold to the State for the 1930 taxes.
Several preliminary motions were filed, some of which were disposed of, others not, but an answer was finally filed, in which the validity of the tax sale and the Land Commissioner’s deed, based thereon, was alleged and the plaintiff’s title and his right to question this deed was denied.
Without any allegations in the pleading relating to it, another deed to appellee from the State Land Commissioner was offered in evidence. This deed bears the date of June 9, 1938, and conveys lots 237, 238, 239, 240 and 241 of Bedford’s Addition, and recites that it is based upon the forfeiture of these lots to the State for the nonpayment of the 1933 taxes due thereon.
There appears in the record a decree in a proceeding by a road improvement district against delinquent lands, which shows a redemption of certain of the lots above described by appellant from sales for improvement district taxes. The relevancy of this decree does not appear, and so also with certain court orders' in other cases which are not shown to have any relation to the litigation.
There appear in the record decrees in three separate confirmation proceedings, brought by the State to confirm sales of land to the State. The first of these is dated May 25, 1931, and its recital, so far as any of the lots herein described are concerned, is that the cause was continued as to these lots. Further proceedings in relation to these lots do not appear. The second of these decrees is dated-February 24, 1937, and confirms the State’s tax title to lots 232, 233. The last of these decrees is dated January 24, 1938, and confirms the State’s title to lot 23-9.
The tax sales were attacked upon four grounds, the first three of these being as follows:
“1st: No certificate was annexed to the list of forfeited lands from the collector to the clerk;
“2nd: That no warrant was issued from the clerk to the sheriff for such sale;
“3rd: That no notice of such sale was posted or published as required by law.”
These are irregularities which would invalidate a sale, but none of them affect the power to sell. It is defects such as these which confirmation proceedings are brought to cure.
The fourth attack upon the sales is that these were made for school taxes, which had not been voted on or levied. The last attack may be disposed of by saying that the brief abstracts no testimony tending to sustain this allegation.
The decree from which is this appeal quiets the title of appellant to lots 231, 234, 238, 240 and 241, and quiets that of appellee to lots 232, 233, 235, 237 and 239. It does not appear from the abstract of the record contained in the brief how this conclusion was reached. It will be observed that appellee’s title is quieted to three of the lots in one of the Land Commissioner’s deeds to him, and to two of the lots in the other deed; while appellant’s title is quieted to two lots in one of the Commissioner’s deeds and to three lots in the other.
The record is in a condition most confused, and it is very doubtful whether, if our rules required or permitted us to explore the record, we could determine whether the decree is correct or not. But there has been no sufficient compliance with Buie 9 of the Court to enable us to pass upon the case, and the appeal will be dismissed for that reason. | [
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McFaddin, J.
This case is a sequence to North Little Rock Water Co. v. Water Works Commission of the City of Little Rock, 199 Ark. 773, 136 S. W. 2d 194, decided by this court on January 29, 1940.
For many years prior to 1936 the Ai’kansaw Water Company was a public utility supplying water to the inhabitants of 'the cities of Little Rock and North Little Rock. The plant and wells of the company were located on the Little Rock" side of the Arkansas River, and the water was transported to North Little Rock by a pipeline on the Broadway bridge which connected the two cities. In 1936, the City of Little Rock purchased the plant, wells, distribution system and all other properties of the said company situated on the Little Rock side of the Arkansas River; and, as a part of the contract of purchase, the city agreed to supply to the Arkansaw Water Company, or its successor, at a point on said Broadway bridge, enough water so that said company could continue to sell and distribute water in North Little Rock. The contract price to be paid the city for said water was agreed to be five cents per thousand gallons for a period of time, and four cents a thousand gallons thereafter for tlie full time of twenty years from tlie date of the contract.
On February 17, 1936, the city of Little Rock adopted Ordinance No. 5311, agreeing to the contract of purchase; and also Ordinance No. 5312 entitled: “For the sale of water to Arkansaw Water Company for supplying North Little Rock and fixing the rates to be paid therefor”; and this Ordinance No. 5312 provided in part: “The city contracts with the Arkansaw Water Company to supply and sell to Arkansaw Water Company for the period of twenty 'years from this date all water needed' by said company to supply its consumers in the City of North Little Rock and its vicinity, at the following rates: five cents per thousand gallons during the period the city is required to pump water so supplied from the Arkansas River and wells; and four cents per thousand gallons from and after the time the proposed Alum Fork supply is placed in service . . .”
. In order to obtain the funds to pay the Arkansaw Water Company, and to secure the additional and better source of water from the Alum Fork, the City of Little Rock issued bonds under Act 131 of 1933, as amended; and on March 16, 193-6, the city passed Ordinance No. 5316, which provided for the bond issue, etc., and fixed (as provided by the said act) the minimum rates to be charged for water until the bonds were retired. This ordinance, in article three thereof, contained a full schedule of water rates on a graduated scale, beginning with the first 6,700 cubic feet per month at thirty cents per one hundred cubic feet; and concluding with these rates, as the lowest: “For the excess of any quantity over 1,333,300 cubic feet per month, 3.75 cents per hundred cubic feet. For each thousand gallons per month furnished to railroads and other public utilities, four cents. ’ ’
On or about April 1,1936, the Arkansaw Water Company delivered the contracted properties to the City of Little Rock; and the city, either directly, or through the Water Works Commission (created under Act 215 of 1937) has operated the water distribution system in Little Rock up to the present time. In the contract ordinance (No. 5311) and in the rate ordinance (No. 5312), the Arkánsaw Water Company was empowered to assign its rights to a successor company; and the appellee, North Little Rock Water Company, is the said successor company.
From April 1, 1936, to April 22, 1939, the City of Little Rock or its Water Works -Commission (the present appellant) supplied water to the North Little Rock Water Company according to the rates in Ordinance No. 5312, 'and received due payment therefor. On the last mentioned date (April 22, 1939), the City of Little Rock passed Ordinance No. 5712 which repealed Ordinance No. 5312 and put into effect a new schedule of water rates. This new schedule in Ordinance No. 5712 was exactly the same schedule as that contained in Ordinance No. 5316, except that the last bracket of rates in Ordinance No. 5712 was: “For the excess of any quantity over 131,400 cubic feet per month the rate of 6.75 cents per one hundred cubic feet.” In other words this new ordinance struck out the 3.75 cents rate, and the four cent per one thousand gallons rate, as contained in Ordinance No. 5316, and repealed all of Ordinance No. 5312. In the case of North Little Rock Water Co. v. Water Works Commission of the City of Little Rock, 199 Ark. 773, 136 S. W. 2d 194, (decided January 29, 1940), the Ordinance No. 5712 was upheld by this court.
Thereafter (on July 9,1940) the Water Works Commission of the City of Little Rock instituted this present action in the Pulaski Circuit Court as an action to recover for alleged undercharges from June 1, 1937 (when the Water Works Commission took over from the City of Little Rock the operation of the Little Rock Water Works), to April 22,1939 (the effective date of said Ordinance No. 5712). The theory of the plaintiff (appellant) was and is, that the North Little Rock Water Company was never entitled to the five-cent and four-cent rate fixed in Ordinance No. 5312, and that the rate that should have been charged for all of this time was another and higher rate, as fixed by Ordinance No. 5030 passed April, 1933. The amount of the alleged undercharge was stated in the complaint as being the difference between the rate in Ordinance No. 5030 and what the North Little Rock Water Company had paid under Ordinance No. 5312; and this difference aggregated $16,123.17.
The cause was tried before the circuit court without a jury; and, from a judgment for the defendant, the plaintiff has duly prosecuted this appeal/
Many interesting questions are presented in the able briefs filed by counsel on each side; but we find it necessary to consider only the following points in reaching our decision.
I. Ordinance No. 5030 Was Repealed by Ordinance No. -5312 and Ordinance No. 5316.
On August 13, 1923, the City of Little Rock adopted Ordinance No. 3290 being: “An ordinance fixing the schedule of rates and charges for water service furnished b}’ the Arkansaw Water Company to the City of Little Rock and the inhabitants thereof, and for other purposes.”
Section I of said ordinance stated: “That the schedule of rates and charges for water service furnished by the Arkansaw Water Company to the City of Little Rock and inhabitants thereof, be, and the same is hereby, fixed as hereinafter set forth . . .” Section 2 of said ordinance contained the schedule of rates and charges being a graduated downward rate scale from the highest bracket, of thirty cents per hundred cubic feet for the first six thousand seven hundred cubic feet of water used per month, to the lowest bracket of 6.75 cents per one hundred cubic feet for any quantity in excess of 264,700 cubic feet per month. In other words § 1 of the Ordinance No. 3290 stated that the purpose of the ordinance was to fix the rates and charges for water service that might be furnished by the Arkansaw Water Company; and § 2 of the ordinance contained the schedule of rates and charges. Section 1 of Ordinance No. 3290 was never amended or repealed until the City of Little Rock took over the water distribution system. Section 2 of Ordinance No. 3290 was amended by Ordinance No. 4356 in J uly, 1928; and that ordinance in turn was amended by Ordinance No. 5030 in April, 1933, which last ordinance contained the rate in effect in April, 1936. But when Ordinance No. 5030 is read along with § 1 of Ordinance No. 3290 it is clear that Ordinance No. 5030 prescribed the rate to be charged by the Arkansaw Water Company, and not by the City of Little Rock to the Arkansaw Water Company. When the City of Little Rock took over the distribution system in Little Rock, then these ordinances,. Nos. 3290 and 5030, were rendered entirely inapplicable, because the city operated under the rates set forth in Ordinances Nos. 5316 and 5312.
Thus, it should require no argument to show that Ordinance No. 5326 and Ordinance No. 5312 became the governing ordinances when the City of Little Rock went into the water business; and what the city had authorized and permitted the Arkansaw Water Company to charge was merely a matter of historical interest (but with no further application). The taking over of the distribution system by the city and the establishment of the water rates to be charged by the city (as was done in Ordinances 5316 and 5312) certainly repealed and rendered inapplicable any ordinances concerning rates that the Arkansaw Water Company could have charged customers.
The decision on this point destroys the cornerstone of the structure of the appellant’s argument, because the only yardstick for measuring the alleged undercharges was the difference between the rate contained in Ordinance No. 5030 and the rate contained in Ordinance No. 5312 (which was higher than the lowest bracket in Ordinance No. 5316). In holding that Ordinance No. 5030 was rendered inapplicable by Ordinance Nos. 5312 and 5316, as we do, we leave appellant no basis for any claim of an undercharge, because if the rates in Ordinance Nos. 5312 and 5316 did not apply during the period covered by this litigation then there was no applicable rate and therefore there could be no undercharge.
II. The Repeal of Ordinance No. 5312 by Ordinance No. 5712 Was a Legislative Recognition by the City Council of Little Roch of the Interim Validity of Ordinance No. 5312.
We are supported in our conclusions, as above announced, by the subsequent history of Ordinance No. 5312 in the Little Rock City Council.
As previously stated, appellee received and paid for water by the rates provided in Ordinance No. 5312, from April, 1936, to April, 1939, when Ordinance No. 5712 was adopted by the City of Little Rock. In this Ordinance No. 5712 there were fourteen paragraphs of factual recitals preceding the enacting clause. Paragraph eight of said factual recitals reads: “That the Little Rock Municipal Water Works is now supplying water to the North Little Rock Water Company, successor in interest to the Arkansaw Water Company, under a contract at a flat rate of four cents per thousand gallons.”
And paragraph nine' of the factual recitals is: “ That the contract rate of four cents per thousand gallons to the North Little Rock Water Company is inadequate, unjust, and unreasonably low, and does not yield the Little Rock Municipal Water Works sufficient compensation to cover the cost and expenses of supplying said water and ■ a reasonable depreciation and return upon the property used and useful in supplying the service. ’ ’
And factual recital No. 2 in said ordinance is: “The schedule of rates now in effect and applicable to water furnished all consumers of the Little Rock Municipal Water Works is what is known as a**step-rate,’ with the exception that the rate applicable to water furnished to railroads and other public utilities, for which water said schedule provides a flat rate of four cents per thousand gallons.”
Based on these factual recitals, and others, the City Council ordained a schedule of water rates where the lowest bracket was 6.75 cents per hundred cubic feet for any quantity in excess of 131,400 cubic feet per month, and § 2 of said ordinance repealed all ordinances, rate schedules and agreements at variance with the new rate schedule.
These detailed quotations show that Ordinance No. 5712 was passed by the council in its legislative capacity to repeal this Ordinance No. 5312 entirely and also to repeal so much of Ordinance No. 5316 as established a flat rate of four cents per thousand gallons to railroads and other public utilities. The Ordinance No. 5712 did not declare void Ordinance No. 5312, but merely amended it, just as one legislative enactment may amend a previous legislative enactment. There is no language in Ordinance No. 5712 indicating any intention to make its provisions retroactive; and no such contention is here urged. In fact, all parties here concede that the rates stated in Ordinance No. 5712 were effective only from April 22, 1939, and that the.North Little Rock Water Company has paid such rates for water received since that date.
III. Ordinance No. 5312 Was Not Void Ab Initio. It Provided the Chargeable Rates Until It Was Repealed.
Appellant claims that the Ordinance No. 5312 was void ab initio, and says that this court so held and declared in North Little Rock Water Company v. Water Works Commission of the City of Little Rock, 199 Ark. 773, 136 S. W. 2d 194. We find no such language in that opinion, nor do we find any language from which such an inference should be drawn. We said: “The law forbids a utility operating as such from discriminating between its customers. It must furnish its service to all alike, upon identical terms. This proposition is not disputed by either of the parties to this litigation, and no citation of authority is required to support it.”
And again, in discussing the way the discrimination was handled we said: “The purpose and effect of Ordinance No. 5712 was to terminate a discrimination which, from the allegations of the complaint, appears to exist in favor of the water company, and to place all users of water on the same basis by making the rates dependent upon quantity of water used.”
These two quotations should suffice to show that Ordinance No. 5312 was a rate ordinance, and that after three years’ experience it was found to result in discrimination, and was repealed by Ordinance No. 5712 which later ordinance recognized the existence of the former ordinance and repealed it just as any act of a subsequent legislature may amend or repeal the act of a previous legislature; and the effect of such subsequent amendment or repeal is not to declare the prior act to be void ab initio.
But counsel for appellant says that this court in North Little Rock Water Co. v. Water Works Commission (supra) held that Ordinance No. 5312 was void ab initio; and counsel cites the following language in that opinion in the effort to sustain such contention.
“Now, it is alleged that in consideration of the rate made it, the water company reduced its sale price and waived its claim for severance damages. But such contracts for discriminating rates are unenforceable. Our own case of Bryant Lbr. Co. v. Fourche River Lbr. Co., 124 Ark. 313, 187 S. W. 455, definitely settles that question. There a timber owner granted a right-of-way for a railroad over its timber lands in consideration of a preferential rate for hauling its timber by the railroad as a common carrier. The contract for this preferential rate was held void as being contrary to public policy, the legal principle applied being that a carrier must render service without discrimination as to rates.
“The contract for this preferential rate is void as being contrary to public policy, for the reason that there may be no discrimination as to the rates charged for its service. ’ ’
Preliminary to a consideration of appellant’s argument on this quotation, it is well to examine the case cited in the quotation (Bryant Lumber Co. v. Fourche River Lumber Co., 124 Ark. 313, 187 S. W. 455) and also to examine the North Little Bock Water Company case (where the quotation is found) to see how these cases arose. An examination will show the distinction between the situations in those two cases and the situation in the case at bar. In each of the adjudicated cases the plaintiff, in instituting the litigation, relied on a contract giving' a preferential rate, and in so relying the plaintiff had asked the aid of the judicial process to enforce the preferential right in the contract. In each of the adjudicated cases this court held that the contract for the preferential rate was void and could not be the foundation of a right enforceable in the courts on behalf of that plaintiff. In the case at bar the Water Works Commission of Little Bock is not claiming a preferential right under'a contract, but is seeking to use these cases as authorities for its contention that a rate ordinance (No. 5312) is void ab initio. The mere statement of the situation furnishes the answer to appellant’s argument. Cases holding that a contract afforded no right for judicial relief are vastly different from a case (the one here) involving the legality of a rate ordinance enacted by the City Council in its legislative capacity.
It will be observed that we said in the quotation above: “The contract for this preferential rate was void:” That language was far different from saying that Ordinance No. 5312 was void ab initio. The contract for the preferential rate was void in that no enforceable right by the North Little Bock Water Company could be predicated thereon in any judicial tribunal. But the ordinance was a legislative enactment of the City Council separate from the contract; and continued as the legislative enactment, fixing the rate until the city by its subsequent enactment repealed its previoiis legislative enactment. Ordinance No. 5312 was a rate ordinance and continued in force until repealed; and from the time of its enactment in 1936 until its repeal in 1939 (by Ordinance No. 5712) it was never challenged in any court and never declared discriminatory. And the findings of fact in Ordinance No. 5712 could have no retroactive effect. Tims Ordinance No. 5312 was valid until held void, and was enforceable by the city until repealed; and until so repealed it furnished, along with Ordinance No. 5316, the only applicable rate fixed by the City Council for the water delivered to the North Little Eock Water Company.
So we reach the conclusion that the city properly collected the water rates fixed by Ordinance No. 5312 from the North Little Eock Water Company during the time that the- said ordinance was'in force, and, therefore, there was and is no undercharge for water during that period of time.
It, therefore, follows that the judgment of the circuit court was correct, and is in all things affirmed. | [
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McIíaNEy, J.
Counsel for appellants have stated the case correctly as follows: “Anna W. Giller, the appellee, in the year 1923 executed an oil and gas lease to the appellants,' J. H. McFarlane and Ed Hollyfield, thereby leasing and letting unto the said McFarlane and Hollyfield 80 acres of land in Union County, Arkansas, for a consideration of $25,000 in cash and $100,000 payable out of 7/16 of the first oil and gas produced, saved and marketed from the leased premises. Hollyfield and McFarlane entered upon the leased premises and produced therefrom a large quantity of oil and gas. These products were marketed to various pipe-line companies and refineries. As provided by the severance tax law, the pipe-line companies and refineries received such oil and gas, deducted 2y2 per cent, of the purchase price thereof and paid such amount to the State of Arkansas as a severance tax.
“The various pipe-line companies and refineries receiving said oil paid the sum of $97,500 of the purchase moijey paid for the first oil or gas produced, saved and marketed from the leased premises, $2,500 (or 2y2 per cent.) being remitted to the State of Arkansas as severance tax. After these payments were made, the appellants refused to- make further payments to appellee. Appellee has instituted this suit, and contends that the sum of $100,000 payable from oil is not such an interest in oil as is taxable under the law.
“The sole question involved in this appeal is whether deferred money payments to be made from the production of oil and gas is such an interest as would be chargeable with the tax.”
Demurrers to the separate answers filed were sustained, and, appellants declining-to plead further, the court entered judgment against them for $2,500 and interest from May 9, 1925, at 6 per cent., and decreed a lien in favor of appellee on 7/16 of the oil and gas and on 7/16 interest in thq lease, and ordered same sold to satisfy said debt, from which comes this appeal.
The contention of appellants is that, since the consideration for the oil and gas lease executed by .appel-lee to appellants, McFarlane and Hollyfield, in addition to' the $25,000 cash paid, is the agreement “to pay the lessor (appellee) the further and additional sum of $100,000, payable out of 7/16 of the first oil and gas produced, saved and marketed from said leased premises, as arid when said oil and gas and either of said products are marketed by lessees, payments for said 7/16 of such-oil and gas to be made by the pipe-line company or other purchaser thereof direct to the lessor for credit on said purchase price until fully paid, and for which payments the lessor shall have and does hereby reserve a lien on said undivided 7/16 of all the oil and gas produced from said lands, until said purchase price shall have been fully paid,” appellee held such an interest in the oil produced- therefrom as would make her liable for the severance tax. This contention is based on § 8 of act 318 of tlie Acts of 3913, known as the Severance Tax Act, which is as follows:
“Tax due from severer. Except 'as otherwise in this section provided, the making of said reports and the payment of said privilege taxes shall be required of the severer or producer actually engaged in the operation of severing natural products, whether as owner, lessee, concessionaire or contractor.
“The reporting taxpayer shall collect or withhold out of the proceeds of the sale of the products severed the proportionate parts of the total tax due by the respective owners of such natural resources at the time of severance.
“And in the case of oil and gas, such production as shall be sold or delivered to any pipe-line company and transported by it through pipes connected with the oil or gas well of the owner, shall, notwithstanding such sale or delivery, be liable for the tax herein levied.
“Every producer actually operating any oil or gas well, quarry or other property from . which natural resources are severed, under contract or agreement requiring pa3unent direct to the owners of any royalty, excess royalty or working interest, either in mone}7- or in kind, is hereby authorized, empowered and required to deduct from any such royalty or other interest the amount of the severance tax herein levied before making such payment.”
This section of said act has been construed by this •court in Miller Lumber Co. v. Floyd, 169 Ark. 473, 275 S. W. 741, as follows:
“Section 8 provides that the payment of said privilege taxes shall be required of the severer or producer actually engaged in the operation of severing natural products, whether as owner, lessee, concessionaire or contractor.
“It is apparent then that the owner of lands who cuts down trees for the purpose of building fences or repairing and constructing- houses and other improvements on the land from the timber thus severed from the soil, is exempted from paying the tax..It is equally evident that, when the timber severed from the soil is sold, it falls within the terms of the act, and the tax must be paid by some one. To illustrate: If the owner of timber lands desired to sever it for the purpose of clearing the land and putting it in cultivation, and hired other persons to sever the timber for him, he would be required to pay the severance tax. If the owner should lease his land to another person for a designated number of years in order to have his lessee clear the land and put it in cultivation, and if the consideration for the lease, in whole or in part, was that the lessee should have the timber so removed from the land, the severance tax would have to be paid by such lessee. It will be noted that the language of the act is specific on this subject, and provides that the severer, or'producer, as he is called, shall pay the tax. The act is very broad and comprehensive, and is levied upon all persons engaged in severing the timber from the soil for sale or commercial purposes, regardless of the purpose for which it is done.”
By way of comparison and further illustration, the court further said:
"Where a landowner makes a contract with another person to cut and remove the timber from his land for sale or commercial purposes, the owner must pay the severance tax; for such contractor and his servants who actually sever the timber act for the owner in the premises, and their act of severing the timber is the act of the owner.”
It will be noted, from the language of the lease above quoted, that appellee sold the whole lease, and not a part of it; that the $100,000 was to be paid to her in money as the oil and gas were produced, saved and marketed; that this was a part of the purchase price in money for the lease; that she did not retain in the lease any title to the leasehold, or to the oil and gas produced therefrom, but only a lien on 7/16 thereof until the purchase price is paid in full, except the usual 1/8 royalty interest, about which there is no controversy. Manifestly she is not required to pay the severance tax, as contended by appellant, under the plain and unambiguous language of the lease, or the law, and under the construction placed on the. act by the decision of this court heretofore cited.
The decree of the chancery court is correct, and it is accordingly affirmed. | [
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Mehaffy, J.
This suit was begun in the Pulaski Circuit Court by appellee as assignee of M. P. McDonnell to revive a judgment for $1,528.81 obtained by said M. P. McDonnell in March, 1922, against S. E. Morgan, M. B. Morgan and F. J. Dove, doing business as Morgan Construction Company.
■ S. E. and M. B. Morgan filed answer, pleading, among other things, that a compromise settlement had been effected, whereby M. B. Morgan had agreed to pay and appellee had agreed to accept the sum of $820 as a compromise settlement and satisfaction in full of said judgment. M. B. Morgan contended that he was not a partner nor in any way interested in the Morgan Construction Company, and that he was never served with summons, and knew nothing whatever about the suit or about any .judgment having been taken against him until proceedings were begun in Union County.
The parties agreed to waive a jury and submit the matter to the court sitting as a jury, and, after the testimony had been taken, the court took the matter under advisement, and thereafter made the following findings:
“1. That M. B. Morgan was a partner with S. E. Morgan and F. J. Dove, and therefore liable for the debt due M. P. McDonnell, which had been assigned to John D. Shackleford, therefore the judgment against M. B. Morgan should not he set aside.
“2. That the said J ohn D. Shackleford entered into an agreement with S. E. Morgan on behalf of M. B. Morgan by the terms of which M. B. Morgan would pay and John D. Shackleford would accept $820 in full settlement of the judgment for the larger amount. This agreement was never executed, but M. B. Morgan was ready and willing to perform Ms part, namely, the payment of $820, the amount due under the agreement, and tendered same. Shackleford refused ■ to accept this amount in settlement after the agreement was made.
“3. Theré was no consideration for this ¿greóment. It is claimed that the trip to El Dorado by S.'R. Morgan and his attorneys constituted- a consideration, but it does not appear from the testimony that the agreement was a prerequisite to this trip. Therefore, this court holds as a matter of law that there was no consideration for the agreement to remit the remainder of the judgment, and that the plaintiff, John D. Shackle-ford, should have the full amount of the judgment against M. B. Morgan and S. R. Morgan.”' ■
The court'rendered judgment reviving the original judgment as to S. R. and M. B. Morgan,' gave the defendants T5 days within which to file their motions for a new trial; motions for a new trial were duly filed, and thereafter said motions for a'new trial were overruled by the court, exceptions were saved, and appeal taken to this court. ■ ' ■
The appellee wrote the following letter to his son at El Dorado:
“January 4, 1926.
“Dear Marshall: I guess I have allowed Morgan to talk me out of some of my McDonnell judgment. But after all it is probably the best I can do at present."
“I am agreeing with him to have you dismiss the case pending down there on payment to you of $820. This is to' be in full satisfaction of the McDonnell judgment. Make them give you the cold green, so there will be no hereafter about it, and let me hear from you.
“You are on the ground, and know the situation better than I do. If you think we can get more out of it— hold him up and make him come across. I am' going' to leave it to you.
“I am, As ever.” ■
We agree with the trial court that-Shackleford and Morgan entered into an agreement by which Morgan was to pay and Shackleford was to receive $820 and satisfy the judgment. Morgan contended that he was not interested in the construction company, and that he was never served with process and was therefore not liable for any amount. The evidence shows that Dove was a bankrupt, and evidently Mr. Shackleford was unable to collect the judgment from S. R. Morgan. At any rate it had not been collected, and M. B. Morgan was contending that he was not liable, for the reasons above mentioned.
There was a bona fide dispute as to the liability of M. B. Morgan, and the parties had the right to make a new contract, and the only question is whether there was a sufficient consideration to support the new contract. We think it wholly immaterial whether Mr. Shackleford at El Dorado, as agent of appellee, was authorized to accept settlement, and wholly immaterial whether he was the agent. According to our view of the ease, the agreement was made between Mr. Shackleford and Mr. Morgan just as the circuit court found. We do not agree with the trial court, however, that there was no consideration to support the contract. Appellee concedes that, if the $820 had been paid and had been accepted in full satisfaction, then it would be an executed settlement and therefore binding, but he contends that it is not binding because it was not executed.
This court in a recent case quoted with approval the following statement made by the United States Supreme Court in Chicago, Milwaukee & St. Paul R. Co. v. Clark, 178 U. S. 353, 20 S. Ct. 924, 44 L. ed. 1099:
“ The result of modern cases is that the rule only applies when the larger sum is liquidated and when there is no consideration whatever for the surrender of a part of it, and while the general rule must be regarded as well settled, it is considered so far with disfavor as to be confined strictly to cases within it.”
And continuing, this court said:
“ While our own court has adhered to the ride, it has recognized exceptions to it. One of these is that part payment of a liquidated indebtedness by a third' person is sufficient consideration for its acceptance by the creditors in .the discharge of the entire debt.” Martin v. State ex rel. Saline County, 171 Ark. 576, 286 S. W. 873.
A sufficient consideration to support the agreement, as we have already said, we think exists in this case, and we do not think it depends so much upon the question of accord, and satisfaction, but is a rescission of the former contract by mutual consent of the parties, and the entering into a new agreement by which Morgan, who claimed he did not owe anything, agreed.to pay $820 and Shackle-ford .agreed to accept it in settlement. ,
“The parties to a contract of any kind, whether written or verbal, may at any time rescind or terminate it by their mutual consent and agreement, and either'restore ■each other to the status quo or fix their respective rights and liabilities upon the abrogation of the contract. As remarked by the Supreme Court of Pennsylvania, ‘it-may be doubted if any business man in the State is so ignorant of law as not to know that the parties to a contract may rescind it at any time by mutual act and consent.’ The right to do this is not at all dependent upon any provision to that effect in the contract itself, but is based on the principle that whatever the parties have power to bind themselves to by contract they may release themselves from by subsequent contract. • And it is likewise immaterial whether the contract to be rescinded is exe-cutory or executed. It may be abrogated, if the parties so agree, before it is performed, or after partial performance, or even after complete execution. Further, it is open to the parties, if they will so agree, to change or modify the terms of their contract without rescinding it entirely. * * * So long as a contract remains executory, a mutual agreement of the parties to rescind it requires no new or independent consideration, for the release of each of the parties from his duties and obligations under the existing contract is a sufficient consideration for his agreement to release’the other. *• * * But, if the parties agree not merely to rescind the existing contract, but make a new contract'with reference to the same subject-matter, tlie new contract taking’ tire place of' the old, the substitution of the one for the other is a sufficient consideration to support the new agreement.” Black on Rescission and Cancellation,' 1233 et seq.
Since we have concluded that the agreement made between the parties is binding on both parties, it becomes unnecessary to determine the other question, because, whether Morgan wa's a partner or not and whether he wás served or not, there was a judgment against him, and, to get that judgment satisfied, he entered into an agreement to pay $820, and he is bound to pay that amount whether he was interested or not and whether he was served or not.
' The trial court was correct in holding that an agreement had been made, but erred in holding that there was no consideration and that' it was therefore void. The cause is- therefore reversed, and remanded for further proceedings not inconsistent with this opinion. | [
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Humphkeys, J.
This is an appeal from judgments in favor of appellees, Gr. E. Hydrick, for $1,836.35, and Mrs. Gr. E. Hydrick for $163.65, against appellant, rendered in the circuit court of Cross County, for damages sustained by each for the loss of their home and certain personal property caused by fire resulting from the alleged negligence of appellant in making a delivery of gasoline.
Appellant denied the allegation of negligence contained in the complaint, and the cause was sent to the jury, over its objection and exception, on the issue of negligence. At the conclusion of the testimony appellant requested the court to direct the jury to return a verdict in its favor, upon the alleged ground that the proof failed to show, directly or substantially, that the fire which destroyed the property originated from sparks or heated pieces of carbon emitted by the motor of the truck in which the gasoline was delivered by appellant’s employee to appellees. The court refused to peremptorily instruct a verdict in its favor, and appellant contends for a reversal of the judgment on that account. The rule is that a verdict of a jury will not he disturbed by this court on appeal if there is any substantial legal evidence to support it, when viewed in its most favorable light to appel-lee and when given its highest probative value with all inferences reasonably deducible therefrom. Hall v. Jones, 129 Ark. 18, 195 S. W. 399; Arkansas Land & Lumber Company v. Fitzhugh, 143 Ark. 122, 219 S. W. 1022; Standard Oil Company of Louisiana v. Gill (Ark.), 297 S. W. 1020.
The testimony in the instant case, when viewed in its most favorable light to appellees and given its strongest probative force, is, in substance, as follows:
Appellees requested appellant to make a delivery of gasoline to the home of appellees, who sent A. L. Bridges, one of its drivers, with a Ford truck equipped with a gasoline tank to make the delivery. Upon arriving at the premises of appellees, Bridges found that the tank into which he was to deliver the gasoline was situated inside of appellees ’ barn, eight and one-half or nine feet from the entrance. He hacked his truck up to and about one foot inside the entrance to the barn and drew the gasoline from his truck tank through a faucet on the rear thereof into a 5-gallon gasoline can, and conveyed it to the container of appellees, which was a 54%-gallon standard oil drum. In filling the drum he ran it over, spilling about a quart of gasoline on the dirt floor, which sloped toward the front. He brought more gasoline than was ordered, and put what the mlain drum would not hold into an open-top bucket, which he also ran over, and placed it on top of the main drum, leaving the gasoline exposed. There were quite a lot of chips and shavings lying on the floor near the drum or tank. Bridges then cranked the car, and allowed the motor to run while he wrote a receipt and gave it to Eva May Hydrick, a littfe girl ten years old, who brought the check to him for the gasoline. Fire broke out in the barn about five or six minutes after Bridges drove away, which was discovered by Eva May Hydrick, who had been sent to the barn by her mother to see if the cow had been turned out.
William Baugh qualified as an expert, and testified as follows:
“A. Well I-have had a right smart experience— drove cars and drove tractors — and an engine that stands idle a-running for a while will throw out hot carbon and is liable to set anything afire. Q. Now, Mr. Baugh, where, in what part, and from what part of the car would those hot sparks and burning carbon come? A. Come from the exhaust. Q. You know where the exhaust is located .on a Ford truck? A. Yes sir, it- is near the rear axle. Q. Describe where is the muffler on that exhaust? A. The muffler is nigh'the rear axle. Q. I am speaking about the exhaust pipe! A. The exhaust pipe runs into the muffler. Q. Does the exhaust pipe run out of the muffler! A. No sir. Q. Did you ever look into one of those mufflers? A. Yes sir. Q. TIow are they constructed on the inside? A. That is double on the inside, and the exhaust has got to go through and make a return in there. Q. What makes sparks fly out of the back end of a Ford car? A. Carbon. Q. Suppose the carbon has been removed out of a car within a reasonable length of time, say a week or ten days, would carbon come out of that car! A. Yes sir, carbon will collect in any gasoline engine in a very short time. Q. I will ask you, Mr. Baugh, suppose a car was in proper condition, would those sparks have a tendency to drop straight down from the end of the muffler or would the explosion of the muffler have a tendency to throw them back? A. Well, that would depend on the way the motor was pulling. If the motor was pulling hard, the harder the motor was pulling the further back it would throw those sparks. Q. Suppose a truck, like the Standard Oil Company truck, was at á dead stand, and went to start on a» pull, would that engine be pulling harder to start than it would after it got started? A. It would be pulling harder when it started than when it got started. Q. Would it be more liable to throw.sparks back when it was pulling hard than when it was after it was moving off? A. It would be more liable to throw sparks when it was getting started than it would when it was moving off on the road. ’ ’
The testimony of William Baugh was corroborated by G-. E. Hydrick, who himself had had a great deal of experience in operating arid repairing automobiles and trucks.
No other believable theory of the origin of the fire was advanced and sustained by the proof.
In stating the case as favorably to appellee as possible, the writer has drawn largely upon the statement furnished by learned counsel for appellant, with the addition of William Baugh’s and Gr. E. Hydride’s testimony, which Avas not referred to by them. We haye added the testimony of these expert Avitnesses because their evidence furnishes a basis from which the jury might have reasonably inferred that the fire originated from sparks or heated pieces of carbon which could have been emitted by the motor through the exhaust pipe and muffler, when the car was started, which could have fallen on the chips and shavings, causing them to blaze and ignite the gasoline. Counsel for appellant earnestly contend that it is contrary to the very naturS of things that a spark thrown amongst rubbish saturated with gasoline would have smoldered for five or six minutes before causing a blaze. Chips or shavings saturated with gasoline will not blaze any quicker than if not saturated with gasoline. It takes a blaze to ignite gasoline. A spark or piece of heated carbon might not create a blaze in- a pile of shavings for some time. It might smolder until a gust of wind fanned it into 'a flame. We ciannot say that the verdict rests upon conjecture and speculation. No other believable theory was advanced for the origin of the fire. Bridges spilled gasoline on the floor that had shavings and chips on it, and left several gallons of gasoline exposed in an open-top bucket; he then cranked the car and allowed the motor to run while writing a receipt, after which he started the car. According* to the expert testimony, sparks and heated carbon may have been emitted when the car started that could have fallen into the shavings and chips and started the fire. This would haAre been a reasonable .inference, in view of the fact that the fire Avas discovered only five or six minutes after Bridges left and when no other belieAuible theory for the origin of the fire Avas proved.
We think there is sufficient legal evidence in the record to sustain the verdict. The judgment is therefore affirmed. | [
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Hart, C. J.,
(after stating the facts).l"!
The Camp Pike Military Reservation lies within the boundaries of Pulaski County, Arkansas, and the principal question presented for decision by this appeal relates to the power of the State and its subordinate tax ing agencies to levy and collect taxes pursuant to the State laws upon personal property situated within said military reservation.
Counsel for appellee seek to uphold the decree of the chancellor denying the right of the State and its subordinate agencies to levy and .collect such taxes upon the authority of Concessions Co. v. Morris (Wash.), 186 Pac. 655. In that case it was held that the Camp Lewis Military Reservation, which was donated hy Pierce County to the United States by consent of' the State Legislature, excepting only the right to serve criminal and civil process therein, from the exclusive control of Congress, is without the State in both a jurisdictional and territorial sense, and personal property located thereon is not taxable under the State laws.
We do not agree with the reasoning of the court in that case, and are of the opinion that'it is contrary to the trend of the decision of the United States Supreme Court bearing on the question as well as to the weight of authority in the State courts. The true rule governing cases of this sort is stated by the Virginia Supreme Court of .Appeals in Nikis v. Virginia, 131 S. E. 236, 46 A. L. R. 219. In that case the court held to be subject to ia State license tax a mercantile business carried bn in a railroad station situated on land ceded to the Federal Government for an approach to an interstate bridge. It was there recognized that the State could not tax land or buildings situated thereon which had been ceded by the State to the United States, but it was expressly held that personal property situated in buildings upon said land owned by third parties was liable to be taxed by the State and county in which it should be found. In discussing the question' the court said:
"That, the right of a State to tax the property of others located upon lands owned by the United States, although it cannot' tax such lands, will not be held to be abandoned by the State except for the most compelling reasons, is quite manifest from several decisions of the Supreme Court of the United States.”
In that case the G-eneral Assembly of Virginia ceded the land to the United States for abutments and approaches of a proposed bridge across the Potomac River. The State retained concurrent jurisdiction with the United States over such lands for the execution- of legal process and the discharge of such other legal functions within the same as may not be incompatible with the consent given in the act. The act also, provides, that the land acquired and the abutments and approaches of. the bridge should be exempt from taxation by the. State and county in which they were situated.
The Camp Pike Military Reservation was acquired by the United States under the provisions of an act of the Legislature of 1903. Acts of 1903, page 346. Section 1 of the act provides that the State of Arkansas consents to the purchase to be made by the United States of any site or ground for the erection of any armory or arsenal, etc., and that the jurisdiction of the State within and over all grounds thus purchased by the United States is ceded to the United States. The section provides that the grant of jurisdiction shall not prevent execution' of any process of the State, civil or criminal, upon any person who may be upon said premises. Section 2 .provides that the State releases her right to,tax any such site, grounds or real estate and all improvements which may be thereon and thereafter erected thereon, during the time the United States shall be and remain the owner thereof.
Thus it will be seen that, by the terms of the act itself, it was not intended by the State to part with jurisdiction for the purpose of listing personal property of third persons in the reservation for assessment and taxation: The grant by the State expressly cedes its right to tax the land and buildings granted to the United States, and this of itself indicates an intention to reserve jurisdiction for taxation over the property of third persons located on such reservation. The United States accepted the grant upon the terms indicated and, by its acceptance, acknowledged that there was no occasion for the State to cede exclusive jurisdiction to the United States or to éxempt from State taxation tlie property of third persons situated upon the reservation, which was not used by the United States as a public agency or instrumentality for carrying out the purpose of the grant.
In Noble v. Amoretti, 11 Wyo. 230, 71 P. 879, it was held that State taxation of the stock of goods of a licensed Indian trader located upon an Indian Reservation is not a tax upon an agency of the general Government and is not a burden upon commerce with an Indian tribe. It was further held that personal property, including the stock of goods of a licensed Indian trader, located within the limits of the Shoshone Indian Reservation, and employed in the business of' such trader, is subject to taxation under the laws of the State in the same manner and to the same extent as all other like property within the county.
In Oscar Daniels Co. v. Sault Ste. Marie, 175 N. W. 160, 208 Mich. 363, the Supreme Court of Michigan held that a statute of that State ceding all right and title of the State of Michigan to a canal and public works thereon to the United States, and retaining jurisdiction for the service of civil and criminal process, cedes less than exclusive jurisdiction, and the ceded territory is not out of the State, in so far as taxation of private property is concerned. We think this holding is in accord with our own decisions and the trend of the decisions of the Supreme Court of the United States bearing on the question.
In Ex parte Gaines, 56 Ark. 227, 19 S. W. 602, it was held that the estate of the lessee of land belonging to the United States situated on the Hot Springs Reservation was not exempt from taxation. The court said that the interest of the lessee in the land was not the property of the United States and was not a means employed by Government to obtain a governmental end. It is true that, in that case, the decision was also based upon an act of Congress giving the consent of the United States to the taxation of personal property under the laws of the State of- Arkansas on the Hot Springs Reservation. It will be noted, however, that the trend of reasoning in that case is in accord with the reasoning in the- Virginia and Wyoming cases above cited.-
In Cassels v. Wilder, 23 How. 61, it was held that property on a United States military reservation is subject to taxation by, a. Territory. In Thomas v. Gay, 169 U. S. 264, 18 S. Ct. 340, 42 L. ed. 740, it was held that an •act of the Legislature of Oklahoma Territory providing for the taxation of personal property of persons other than Indians was-a legitimate exercise of the Territory’s power of taxation, and, when enforced in the taxation of cattle belonging to persons not resident in the Territory, grazing upon Indian reservations therein, does not violate the Constitution of the United States. In Wagoner v. Evans, 170 U. S. 588, 18 S. Ct. 730, 42 L. Ed. 1154, in Foster v. Pryor, 189 U. S. 325, 23 S. Ct. 549, 47 L. Ed. 835, and in Catholic Missions v. Missoula County, 200 U. S. 118, 26 S. Ct. 197, 50 L. Ed. 398, this decision was approved and followed. To the same effect, see Rice v. Hammond, 19 Okla. 419, 14 Ann. Cas. 963, 91 P. 698; County of Cherry v. Thacher, 32 Neb. 350, 49 N. W. 351, and Cosier v. McMillan, 22 Montana, 484, 56 Pac. 965.
The doctrine of these cases sustains, we think, the authority of Pulaski County to tax the personal property of third persons situated on the Camp Pike Military Reservation, where the property, is not used as a governmental agency, and where it would be otherwise subject to taxation under the laws of the State.
It is also claimed by counsel for appellee that the tax cannot be collected because the assessment was not made in the manner provided by law. It is urged that the assessment was not made by- the assessor -with the assistance of the township board in accordance with the provisions of act 147 of the Acts of 1919, providing for the taxation and valuation of taxable property in the State as construed in Hutton v. King, 134 Ark. 463, 205 S. W. 206. The act has been incorporated in Crawford & Moses’ Digest, commencing with § 9887. Section 9910 of Crawford & Moses ’ Digest, which is § 16 of said act 147, provides for the manlier of listing property erroneously left off the tax-roll. The property in question was not assessed by the 'Surplus Trading Company for the year 1922 and was left off the tax roll. Subsequently the tax assessor was notified of the omission to list the property by the clerk, and placed a value of $100,000 on the personal property of the Surplus Trading Company, and designated the same as delinquent. Under the provisions of the section of the statute last above referred to it was the duty of the assessor to place a value upon prbpertv which, for any reason, had been omitted from the tax-roll, and the township board had no duty to perform in the matter.
Again, it is insisted that said act 147 was repealed by act 477 passed by the Legislature of 1919'. This act contains twelve sections, and it is only necessary to say that it had nothing whatever to do with the original or primary assessment of property. ■ The only power given is with reference to the equalization of the valuation of all property which has been properly assessed.
• Again, it is contended by counsel for appellee that there was an overvaluation placed upon the property of the Surplus Trading Company for the year 1922. The record shows that, on April 21, 1922, the Surplus Trading Company purchased from the United States 87,143 blankets situated on the Camp Pike Military Reservation in Pulaski County, Arkansas, and paid therefor the sum of $138,492.65. These blankets were sold afterwards by the Surplus Trading Company to various persons at a profit. It was the duty of the Surplus Trading Company to assess its property situated in Pulaski County, Arkansas. Beal-Doyle Dry Goods Co. v. Beller, 105 Ark. 370, 150 S. W. 1033. Not having done so, it became the duty of the assessor to assess the property under the provisions provided for the manner of listing property erroneously left off the tax-roll. The valuation placed - upon the property by the assessor Avas $100,000. If tlie Surplus Trading Company thought that the assessor had placed an excessive valuation upon the property, when -.compared' with the value placed upon similar property, it should have pursued the remedy provided for its relief under the statute. Having failed to pursue this remedy, the courts cannot give any relief. Clay County v. Bank of Knobel, 105 Ark. 450, 151 S. W. 1013, and eases cited. In State v. Little, 94 Ark. 217, 126 S. W. 713, 29 L. R. A. (N. S.) 721 we quoted with approval from well-known authorities on taxation the following: “The courts, either of common law or equity, are powerless to give relief ag’ainst the erroneous judgments of assessing bodies, except as they he especially empowered by law to do so.”
■ It-was-there said that the text quoted is a rule of general application. Under the principles of law above decided, we are of the opinion that the assessment of 1922 must stand, and that the sheriff had a right to institute an action for the collection of the assessment and penalty.
The case with reference to the assessment for 1928 stands on a different footing. The testimony in the case with reference to the ownership of the property is very voluminous, but we are of the opinion that the record plainly shows that the United States sold all the rest of the property belonging to it, situated on the Camp Pike Military Reservation, to an honorary commission' appointed by the Governor of the State of Arkansas for the benefit of the Arkansas National Guard, and that said honorary commission appointed the Surplus Trading Company as its agent to sell said property. The title' to the property was in said honorary commission, and the Surplus Trading Company was to advance the money necessary for the payment of the purchase price to the United States. After the Surplus Trading Company bad been reimbursed for the purchase money advanced by it, it was to receive half of the profits for selling the property .and for advancing the purchase price. This is the effect of our decision upon the same state of facts in Adkins v. Kalter, 171 Ark. 1111, 287 S. W. 388. The assessment was made by the assessor in 1923 on certain moneys deposited in various banks in tlie eity of Little Rock to the credit of said honorary commission. The assessment was made by the assessor upon the theory that - part of the money belonged to the Surplus Trading Company and it had failed to assess the same as required by law. Under the facts stated, as we construe them, this money deposited in the various banks in Little Rock to the credit of the honorary commission did not belong to the Surplus-Trading Company at the time the assessment wás made. It belonged to the honorary commission, as trustee for the benefit of the Arkansas National Guard, and was, on that account, the property of the State.- It is true that, the Surplus Trading Company had earned a portion of it by its services in the matter, as above stated, but it did not actually have any right to the money until the honorary commission settled with it and paid it for its services. Until that was done, the case would stand like that of any other agent who had performed services for his principal and had collected money for him, but had not yet been paid for his services. Under this state of the record we have the case of an illegal assessment and not one of excessive valuation or an erroneous assessment. The assessment being absolutely void,- the assessor had no right to make it. ■ As we have already seen, the suit was brought by the collector to recover taxes from the Surplus Trading Company, and it was proper for the chancellor to grant all relief, legal or -equitable, to -which the parties in the lawsuit were entitled. Fulcher v. Dierks Lumber & Coal Co., 164 Ark. 261, 261 S. W. 645.
The result of our views is that the chancellor should have held the assessment for the year 1923 to be illegal and void, and properly restrained the sheriff from collecting any amount of taxes from the Surplus Trading Company under it. The chancery court, however, erred in holding that the sheriff and collector was' not entitled to. recover the taxes for the year 1922 and the penalties provided by the statute, as indicated in the opinion. -
Therefore the decree will be reversed, ánd the cause will be remanded with the directions to allow the sheriff and collector to recover against tlie Surplus Trading Company the amount of taxes and penalties for the year 1922. It is so ordered. | [
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Kirby, J.
Appellant bring-s this appeal from a judgment recovered ag’ainst it by appellee upon an accident policy for the sum of $212.50, the amount sued for, and interest, penalty, and $50 attorney’s fees.
It is claimed for reversal that the verdict is not supported by the testimony and that the court erred in refusing to give its instruction No. 1.
From the testimony it appears that appellee was returning from a trip in Oklahoma in a Ford car with his family, and stopped on his way home on July 23,1925, in Fort Smith, at the home of his brother-in-law. About 2 or 3 o’clock in the afternoon he took his own and the children of his brother-in-law for a ride, crossing the free bridge into Oklahoma.
About 5 o ’clock he had car trouble, and had to crank the car. It back-fired and jerked, and threw him on the radiator, and the crank struck him on the right side of the abdomen. Within 20 or 30 minutes he was able to crank the car and return to Fort Smith, where he stayed that night, and had no doctor attending him. The next day, with the assistance of his wife, he drove the car from Fort Smith to. his home in Dardanelle, drove down town from his residence, bought some groceries, went to his barber shop, and returned home and ate a little supper. About 8 o’clock on that evening of July 24, after supper, he became unconscious, and remembered nothing further until he found himself in the hospital the next evening, where an operation was performed for acute appendicitis. He was in the hospital 21 days, and totally disabled for 30 to 31 days after leaving the hospital, and went back to work on September 14.
The operating physician testified that the rupture was from a pns formation; he also said the condition was produced by trauma or injury, that he knew of the lick or accident before the operation, and that the pns causing the rupture could have formed within 48 hours after the blow was received; also that 10 cases out of every 152 of appendicitis are caused directly from a bruise or lifting.
Other physicians testified — one that it was not possible for sufficient pus to form to rupture the appendix within 48 hours after the injury was received, unless it was already infected; the other was doubtful about it.
Appellant insists that the judgment is hot supported by the testimony; that it was physically impossible for the insured to have been injured as he claimed to have been, and for such injury to have caused the appendicitis.
The .jury found, however, from the testimony that the appellee was struck in the side by the crank, when the engine back-fired, while he was cranking the car, not an impossible occurrence; and the physician who operated successfully removing the ruptured appendix knew of the injury, and -said it caused the acute appendicitis, and that the appendix was long and extended down over the brim of the pelvis, being’ a factor in causing the appendicitis to result from the trauma. One of the other physicians said it was not possible for it to do so, and the third was doubtful, inclining to the view that the injury could not have caused formation of the pus, rupturing the appendix, -within the time.
We cannot say therefore that the verdict is not supported by substantial testimony, nor, when medical men differ about the matter, that it is contrary to natural or scientific principles, or that it has been demonstrated that the verdict is based upon what is untrue and what could not be true.
No error was committed in refusing to give requested instruction No. 1, telling the jury that the insured could not recover for total disability caused by appendicitis developing two days after tbe accident, if there was an accident. There is no provision in the policy herein requiring that the total disability must result and continue from the date of the accident, as was the case in Southern Surety Company v. Penzel, 164 Ark. 365, 261 S. W. 920, relied upon by appellant, and the jury could have found that the insured was totally disabled from performing any and every kind of duty pertaining to his occupation from the date of the injury.
We find no prejudicial error in the record, and the judgment is affirmed. | [
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Humphbeys, J.
This is the second appeal in this case from a judgment in favor of L. W. Bobbitt for $2,500, and in favor of L. W. Bobbitt, guardian, for $22,500, and for a general statement of the issues and facts herein we refer to the opinion reversing the cause on a former appeal, reported in 168 Ark. 1019. The evidence responsive to the real issues involved which was introduced on a retrial of the cause is not materially different from the evidence adduced on the first trial. Some additional evidence, largely of an expert nature, was introduced by both parties relative to the proper and improper method of constructing electric light plants, the use of detectors to discover g'rounded wires, and their effectiveness, and the character, condition and operation of the detector installed in this particular plant, and whether proper inspection had been maintained in the operation of the plant. The additional expert evidence introduced by appellant tended to show both proper construction and inspection of the plant, and that the wire connecting the high tension wire and the guy-wire was foreign to and an unnecessary .wire either in the construction or operation of the plant. The additional expert evidence introduced by appellees tended to show that such a wire might have been placed in the position it was to ground static electricity carried by the high tension wire so as to protect workmen who might be extending the line. Additional evidence was- also introduced by appellant tending to show that no authority was given to its employees to place the foreign wire in the position it was found, -and to show that it was not attached by its employees.
The court reversed the judgment on the former appeal on account of the refusal of the trial court to give appellant’s requested instruction No. 14, set out in the former opinion, which was a correct declaration of law applicable to the disputed issues of fact in the case not clearly covered in the other instructions given by the court as a guide to the jury. In reversing and remanding the cause for a new trial this court announced the law applicable to the facts as follows:
“Appellant contends that the instructions given by the trial court as a g'uide to the jury were erroneous because they placed the burden upon appellant to justify or excuse itself from transmitting the current of electricity through its guy-wire which burned the child. Under the circumstances of the injury a prima facie ease of negligence on the part of appellant was made, which entitled appellee to go to the jury, and placed the burden on appellant to justify or excuse its negligence. The undisputed evidence revealed that the child received the injury from coming in contact with appellant’s guy-wires, while playing near the roadside, which should not have been carrying electricity, in the proper operation of the plant. This guy-wire was under the control and management of appellant. Southwestern Tel. & Tel. Co. v. Bruce, 89 Ark. 581, 117 S. W. 564; Commonwealth Public Service Co. v. Lindsay, 139 Ark. 283, 214 S. W. 9; Arkansas Light & Power Co. v. Jackson, 166 Ark. 633, 267 S. W. 359. It was appellant’s current of electricity which burned the child, and it could not excuse itself by simply showing that the current was connected to the guy-wire from its tension wire through a foreign wire attached to the two by some third party. It was required to do more than that to exculpate itself from the prima facie case 'of negligence made by proof of the injury and the manner thereof. It must be shown, in addition, that it used ordinary care to discover and remove the foreign wire. 9 R. C. L., pp. 1215, 1217 and 1218.”
“ While the burden in the whole case rested upon appellee, after a prima facie case was made, the instructions given by the court correctly placed the burden upon appellant to justify or excuse its negligence. The instructions given by the court, in so far as they covered the issues involved, were substantially correct, and impervious to attack by general objections.”
. On the retrial of the cause the court instructed, the jury, at the request of appellees, in substance, as before, and, at the request of appellant, in accordance with the law announced by the court in reversing the former judgments.
Appellant contends for a reversal of the judgments upon the following grounds:
1. Permitting the reading of the testimony of Ellis and Whittle at a previous trial. 2. The giving of instruction numbered 2, requested by plaintiffs. 3. The giving of instruction numbered 5, requested by plaintiffs. 4. The refusal to give instruction numbered 3, requested by defendant. 5. The refusal to give instruction numbered 8, requested by defendant. 6. The refusal to give instruction numbered 9, requested by defendant. 7. The refusal to give instruction numbered B, requested by defendant. 8. The refusal to give instruction numbered 12, requested by defendant. 9. That the verdict was excessive.”
(1). It is argued that the court erred in admitting the testimony of Andy Ellis and Jesse Whittle, given on a former trial, because it was not shown that Jesse Whittle was a nonresident, and, if both were nonresi dents, it was not sliown that tlieir depositions could not have been taken in time for the trial. Nineteen days before the trial a subpoena was issued for these witnesses and placed in the hands of the sheriff of Jefferson County. Pour days thereafter the following return was made upon the subpoena by the sheriff: “After diligent search and inquiry I am unable to locate the within named Andy Ellis and. Jesse Whittle in Jefferson County, Arkansas, as I am therein commanded. S. P. Yanis, sheriff. B. W. Vick, D. S.”
B. W. Yick testified that both witnesses were out of the State; that he learned that Andy Ellis was up north-, around Chicago, and Jesse Whittle was somewhere in Louisiana. B. Gf. Wilkerson testified that' he received information from Andy Ellis’ wife, from a letter that he had written to her, that he was in Kansas City, either Kansas City, Missouri, or Kansas City, Kansas, he did not remember; that he could not recall the address he saw on the letter. One of the attorneys for- appellant agreed that Jesse Whittle was in the penitentiary in Louisiana, but neither he nor the attorneys for appellees knew the length of time he had been in the penitentiary. The record fails to disclose that appellees or their attorneys knew of the absence of the witness prior to the return made by the sheriff of the subpoenas, or ascertained or could have ascertained their addresses in time to take depositions in the case.
This court is -committed to the doctrine that secondary evidence is admissible in the same case between the same parties if the witness who testified originally is beyond the jurisdiction of the court, without the procurement or connivance of the party seeking to introduce the testimony, and if the address of the witness was not or could not, by reasonable diligence, have been obtained in time to take his deposition, provided the adverse party had an opportunity to cross-examine the witness when his original evidence was given; and it is within the sound discretion of the trial court to determine whether the proper foundation had boon laid to admit the secondary evidence of an absent witness. Clinton v. Estes, 20 Ark. 216; Shackleford v. State of Arkansas, 33 Ark. 539; McTighe v. Herman, 42 Ark. 285; Rail way Co. v. Henderson, 57 Ark. 402, 21 S. W. 878; Vaughan v. State, 58 Ark. 353, 24 S. W. 885; Kansas & Texas Coal Co. v. Galloway, 71 Ark. 351, 74 S. W. 521; Wimberly v. State, 90 Ark. 514, 119 S. W. 668. We cannot say that tlie discretion of the trial court was abused in admitting' the secondary evidence upon the proof offered as preliminary to its introduction.
(2). Instruction No. 2, given by the court at the request of appellees, is assailed as fatally defective, on specific objection, because the court assumed therein that electricity is a silent and dangerous agent. It is common knowledge that electricity is a silent and dangerous commodity, so the court did not err in assuming such to be the fact. The law recognizes that electricity is silent and dangerous without a finding to that effect by a jury. No prejudice could have resulted to appellant on account of the assumption by the court of a known and accepted fact.
(3). Five specific objections were made to the giving of instruction No. 5, requested by appellees, which instruction is as follows: “The defendant, Pine Bluff Company, is claiming that the connection between its high tension wire and its guy-wire was made by a connecting wire which was placed between the two wires by some person other than an employee of the defendant company.. Now the burden is upon the Pine Bluff Company'to show that said connecting wire was actually placed there by some other person than an employee of the defendant company, and .even this would be no defense against its liability in this case unless it has also shown that the dangerous condition of its guy-wire could not have been detected by the exercise of ordinary and reasonable care in time to have prevented the injuries sustained by Lawson Bobbitt.”
The first four specific objections assailed the instruction because it placed the burden upon appellant to show that “said connecting wire was placed there by some person other than an employee of the defendant company.” We think that the only effect of the instruction was to tell the jury that it was not only necessary for appellant to prove the defense it had interposed, that the connecting wire was placed there by an outsider and not by an employee, but, in order to exempt it from liability, must also shoiv that the dangerous condition of its guy-wire could not have been detected by the exercise of ordinary and reasonable care in time to have prevented the injury.
The former opinion rendered in this case clearly placed the burden upon appellant to exculpate itself from the prima facie case of negligence made by proof of the injury and the manner thereof. Appellant had no right to set up a defense that was hard to prove and then escape on the ground that it was next to impossible to make the proof. Appellant complains that the instruction was peremptory. We think not; but, if peremptory, the trouble was not in the instruction but in appellant for setting up a defense which it was unable to sustain by proof. Appellant also complains that the instruction was erroneous because the court refused to modify it so as to read “an employee of the company while in the discharge of his duty. V If an employee of the company tied the connecting wire in while not in the discharge of his duty he was in that respect and to that extent a third party or an outsider, and could not bind appellant by an act beyond and outside of his apparent scope of authority. We do not think the refusal of the court to so modify the instruction rendered it erroneous.
Appellant also complains that the word “actually” used in the instruction necessarily required it to prove that some particular person, by name, tied the connecting wire. We do not think such burden was necessarily placed upon appellant by the use of the word “actually,” for it might have been shown that the connecting wire was placed there by a crew of workmen, or some unknown person.
(5, 8). The court did not err in refusing to give instructions Nos. 8 and 12 because both ignored the obligation resting upon appellant to exercise ordinary care to have discovered the connecting wire and remove the danger.
(6-7). The refusal to give requested instructions Nos. 9 and B did not constitute reversible error because" they were fully covered by instructions Nos. 7 and 11, requested by appellant.
(9). This brings us to a consideration of whether the verdict and judgment in favor of L. W. Bobbitt, as guardian of Lawson Bobbitt, is excessive.
Appellee’s counsel have summarized the evidence relative to the character of the injury and pain and suffering entailed thereby, and we adopt it, in the main, rather than to set out the testimony of each witness. Lawson Bobbitt was burned in five different places; two in the hack of the head so that the skull was visible, one on his back, one on the calf of the right leg that did not heal for three months, and one four inches above to four inches below the knee on the left leg, leaving a part of the bone exposed. The burn on the left leg did not heal for nearly two years. The scar tissue which eventually covered the burn on the left leg has broken down on two or three occasions, and, when it breaks down, pus forms and runs out, necessitating dressing it twice a day. The. injury rendered him unconscious for a period of twenty-four hours, and he remained in the hospital for more than two weeks, and. suffered intense and excruciating pain for many months after. For more than two years he was in the daity care of one of his physicians, and his wound required dressing twice a day. All of the flesh sloughed out of the burns on the head and left leg. His mother remained in the room with him for many months, sleeping and eating by his side. He was extremely nervous, and still cries out frequently in his sleep. He was delayed in entering school for a year on account of the injury, and has to be carried to and from school by his mother. His left leg is smaller than his right leg, and he will always be a cripple. It is necessary for him to wear a brace. Lawson testified that he would break his ankle if he attempted to walk without a brace. He was six years of age when injured, was bright, and could learn easily. At the time of the last trial he had sufficiently recovered to walk, jump and play when he had his brace on, and could ride a pushcart and bicycle.
' Dr. McMullen testified that, in his opinion, the boy’s leg would gradually improve and eventually he would be able to walk without a brace. Dr. Lowe testified that the boy’s limb would improve gradually until it became normal, and that he would be able to engage in any of the useful occupations that boys usually enter.
In view of the fact that Lawson’s wounds have all healed permanently, except the wound on. the left leg, and that it is gradually improving, and the fact that he has recovered the use of his leg to a marked extent, and, in the opinion of Drs. McMullen and Lowe, will eventually be able to walk without the use of a brace and to enter any of the useful occupations, a majority of the court is of the opinion that the judgment is excessive, and should be reduced to $12,500, under the precedent established in the case of Aluminum Co. of North America v. Ramsey, 89 Ark. 522, 117 S. W. 568; Williams v. Fleming (Mo. Sup.), 284 S. W. 794, 46 A. L. R. 1220. The Chief Justice and the writer do not concur in the view of the majority in this respect. We are of the opinion that the nature of the injury, the intense suffering and pain it entailed, when considered in iconnection with the fact that he will be a cripple all liis life, justifies the amount of the recovery.
The judgment in favor of L. W. Bobbitt in his own right for $2,500 will be affirmed, and, if a remittitur is entered for $10,000, the judgment in favor of L. W. Bobbitt, as guardian, will be affirmed for $12,500; otherwise said judgment will be reversed, and the cause remanded for a new trial. | [
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Hart, O. j.,
(after stating the facts). From our state-3nent of facts it will be seen that the question to be determined upon this appeal is whether or not the board of assessors, of District No. 349 was authorized to make the assessment of benefits for the Marshall Street Annex or whether the new. board, composed of Alley, Wells and Laird, was authorized to make such assessment. The issue as to whether the assessment made by either of the boards is correct in amount is not raised by the appeal.
It is the contention of counsel for appellant that, under our statutes, the assessment of benefits for the Marshall Street Annex should either have been made by the bóárd of assessors- of the original district or by the commissioners thereof. We do not agree with counsel for appellant in his contention in either respect. While the precise question has not been passed upoii by this court, the trend of our decisions bearing on the question is against the contention of the counsel for the appellant. The Legislature of 1909 passed an act providing that, whenever a majority in value of the owners of property adjoining any improvement district now existing or hereafter created in any city or town shall desire to be added to any such improvement district, it shall 'be lawful for the council of the city or town, upon a petition signed by a majority in value- of the owners of the property in such territory proposed to be annexed, to pass an ordinance annexing the same. Acts of 1909, page 744.
This act was -before this court for consideration in White v. Loughborough, 125 Ark. 57, 188 S. W. 10. The validity of the statute was attacked upon the ground that it did not provide for a hearing of the landowners upon tlie assessment of benefits, and, for that reason, deprived them of their property without clue process' of. law. - The court said that the annexation act ivas an instance of the Legislature declaring; a right and referring- to-other existing laws for the¡ remedy, which method of legislation does not' offend against that provision of' the Constitution which declares that “no law shall be revived, amended, or, the provisions thereof extended or .conferred by reference to its title only.” '
The Legislature of 1919 again passed a statute providing for the annexation of territory to improvement districts in cities and towns. Q-en. Acts of 1919, p. 218. This act is § 5733 of Crawford & Moses’ Digest. It read's, in part as follows:
“The finding of the council shall be expressed in an ordinance, in case it is in favor of the petitioners, and in that event the territory sought to. be annexed shall become a part of the improvement district,' and the improvements petitioned for shall be made by the commissioners. The commissioners shall make the assessment for said improvement on the territory annexed under the provisions of this act on the same basis as if said territory was included in the original district.”
This act came -up if or consideration before us in Poe v. Street Improvement District No. 340, 159 Ark. 569, 252 S. W. 616. It was there contended that the act was ia reference statute and violative of the clause of the State Constitution just referred to. The reason for the constitutional provision ■ in' question was that-a legislative act which purports-only to- insert certain words or to-substitute one phrase -for another is calculated to confuse1 and mislead. An act, however, which is complete in itself and by its language grants some power, is not in conflict with “the constitutional provision, although it may refer to some other existing-statute f.or the purpose of pointing-out the procedure in executing the power. Hence it was said' that the annexation act of 1919 was not violative of this provision of the Constitution because it referred to the act relating to the formation of original improvement districts for the carrying out of the power conferred by the annexation act. It was pointed out that the annexation act was not a reference act, and, because of the fact that provision is made in the statute referred to for the landowners to have a hearing upon the assessment of benefits, the annexation act is not in violation of the State or Federal Constitution.
In the Poe case just referred to the court used this language:
“In other words, when the territory is annexed under the provisions of act No. 280 (5733 supra), then the improvements in the annexed territory are to be made by the commissioners of the district according to the provisions relating to municipal improvement districts as contained in §§ 5656-5701 of Crawford & Moses’ Digest. These provisions meet all the objections enumerated in the complaint and urged by learned counsel for the appellant in their brief to the statute under review as not constituting due process. They afford ample protection to the property owners of the annexed territory.”
Again, the court said:
“The appellant contends that, under the doctrine of these cases, the act under review is likewise void. But not so, because this act does make provision for the assessment of benefits in the annexed territory, under the same provisions of law as are applicable to the territory in the original district. The act contemplates that the commissioners, after the territory is annexed, shall cause the assessors of the district to make the assessment for the improvement of the territory annexed on the same basis as the original territory was assessed. This act does not have the effect of creating a new district, but only annexes territory to the original district and makes such territory, when so annexed, a part of the original district, and provides- for the assessment of benefits in the annexed territory according to the provisions of the law applicable to the territory in the original district. Where such is the case, it cannot be said that no provision is made for the assessment of benefits in the territory annexed. McCord v. Welch, 147 Ark. 363, 227 S. W. 765.
The language used by the court in the eases in construing both the annexation act of 1909 and , that of 1919 shows that the court had in mind that the due process clause of the State or of the Federal Constitution was not violated because the annexation act intended that the assessment of benefits should be made under the provisions of the statute relating to the formation of original improvement districts, and that this statute affords the landowners ample opportunity to have a review of the assessment of benefits made by the board of assessors.
After due consideration of the whole matter, we are of the opinion that the language quoted above from § 5733 of the Digest does not mean that the board of commissioners of the original district must make the assessment of benefits for the annexation district. If the language' quoted should be given this restricted and literal interpretation, it is evident «that no provision would be afforded the landowners for review of the assessments^ If it should be said that it was the intention of the lawmakers that the provision of the statute relating to the formation of improvement districts iii the beginning-should apply to the annexation of territory to the original district, then it would be more in conformity with their intention to say that the annexation statute intended to apply the whole of the act relating to the. assessment of benefits for the original district to the annexation district. There is nothing in § 5733 from which it might be inferred that the framers of the statute intended that the' commissioners should make the assessment, but they should.be governed by the statute relating to the original formation of districts in so far as obtaining a review of the assessments of benefits for the landowners. We think it is more in accord with our previous decisions and with the intention of the lawmakers to hold that the language quoted from § 5733 means that the commissions shall1 cause the assessment- of benefits for said annexation improvement to be made on the same basis as if said territory was included in the original district. In other Avords, it meant that the commissioners of the district should cause the property in the annexation district to he assessed by the same instrumentality and in the same Avay that property was assessed in the original district.' Under the statute relating to the formation of improvement districts, provision is made for revision of assessments by the board of assessors upon the requirement of the commissioners. Crawford & Moses ’ Digest, § 5664. [
No provision of the statute, however, provides for the retention of the board of assessors in office for any other purpose. In the case at bar the city council appointed a new board of assessors to make the assessment for the Marshall Street Annex. It is presumed that they did this with the knowledge that the board of assessors for the original district had finished its work and was no longer in existence. Under § 5657 of. Crawford & Moses’ Digest, as soon as the board of improvement shall have formed its plan and shall have-ascertained the cost of the improvement, it shall report the same to the city or town council, which shall appoint three electors of-the city or town, who shall constitute a board of assessment of the benefits to be received by the land in the district. In like manner it is contemplated that, when plans for the annexation district are formed by' the commissioners, the council would have power to appoint a new board of assessors to make an assessment for the annexation district if it should find that the old board had finished the original assessment, and its action in the matter will not be reviewed. The conclusive presumption is that it considered that the old board of assessors had performed its function and had ceased to exist, except for the purpose of. revision under § 5664. Hence the city council had the authority to appoint a new board, and the assessment of benefits made by the new board Avould be valid and binding in the absence of a showing that it was arbitrarily made or was subject to review for inequality, or is confiscatory or tlie like.
Our conclusion of the whole matter is that the chancellor erred, under the facts presented by this record, in holding that the assessment of benefits made by Alley, Wells and Laird should be vacated. It follows therefore that the decree upon the cross-appeal must be reversed, and the case will be remanded with directions to dismiss the complaint for want of equity. It is so ordered. | [
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McHaney, J.
Appellants are residents and electors of Common School District No'. 40, of Benton County, Arkansas, and constitute a majority of the electors residing in said district. They filed a petition with the county board of education of Benton County, praying that said district be dissolved, and that all of the territory in said district be annexed to the Rogers Special School District, which adjoins District No. 40. A remonstrance was filed with the county board of education, objecting to its jurisdiction, on certain grounds, but same was overruled and an order made and entered dissolving District No. 40, effective April 24, 1926, and attaching all of the territory therein to Rogers Special School District. An appeal was taken to the circuit court, where, on a trial before the court, the petition to dissolve and annex was denied, which amounted to a quashing, or a reversal, of the order of the county board of education, on the ground that the board of directors of Rogers Special School District had not joined in the petition to dissolve and annex, as provided by law. From this judgment petitioners have appealed to this court.
Appellants rely for a reversal of this case on § 8869, C. & M. Digest, which is as follows:
“The county boards of education shall have power to dissolve any school district now established or which may hereafter be established in its county, and attach the territory thereof, in whole or in part, to an adjoining district or districts, whenever a majority of the electors residing in such district shall petition the court so to do. ’ ’
This is § 1 of the :act of April 1, 1895. Construing this section in the case of Hughes v. Robuck, 119 Ark. 592, 179 S. W. 163, this court held that county boards of education have the authority to dissolve special as well as common school districts, with the limitation that such action shall not impair the obligation of contracts. And it was further held in that case that it was not necessary for the petitioners to designate the district to which the dissolved territory should be attached.
'But there is another section, § 8949, of the Digest relating to this' subject, the last sentence of which reads as follows: “The county board shall annex contiguous territory to single school districts, under the provisions of this act, when a majority of the legal voters of said territory 'and the board of directors of said single district shall ask, by petition, that the same shall be done.”
These two sections are not in conflict. The first confers the authority upon the county board, and the next provides the procedure by which the authority conferred upon the county board may be exercised when territory of a common school district is proposed to be annexed to a single or special school district. In McCray v. Cox, 105 Ark. 47, 150 S. W. 152, this court held that the county court is authorized to annex contiguous territory to a single school district when a majority of the legal voters of said territory and the board of directors of a single school district request it so to do. School Districts 14 and 58 v. Henderson, 146 Art. 338, 226 S. W. 517.
This court has never held that territory of common school districts may be annexed to a single or special school district without the consent of the board of directors of the special school district.
It is therefore the opinion of this court that a common school district can only be dissolved and its territory annexed to a special school district when both a majority of the electors residing in the common school district and the board of directors of the special school district shall jointly petition the county board so to do. The judgment of the circuit court is therefore correct, and it is accordingly affirmed. | [
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McHaney, J.
Appellees, who are the son, the administratrix and the widow of' Luther H. Smith, deceased, brought two separate actions against appellants, the truck owner and its driver, to recover damages for personal injuries to Jim W. Smith in one, and damages for the estate and for the widow for the death of Luther H. Smith, in the other."- The cases were consolidated for trial and are briefed as one case here.
On July 1, 1943, Luther Smith and his son, Jim W. Smith, were riding in a wagon drawn by a mule traveling toward Benton, on highway No. 67, well on their own side of said highway, when they were overtaken by a heavily loaded truck and trailer, owned and operated by appellants, and undertaking to pass same, struck said wagon, totally wrecking same and severely injuring Jim W. Smith and fatally injuring Luther H. Smith, from which he died on the following day. The negligence alleged in each case was that said driver failed to keep a lookout, failed to slow his truck down or to stop it, and failed to drive said truck around said wagon. The answers were general denials and pleas of contributory negligence. Trial resulted in verdicts and judgments as follows: For Jim W. Smith, $5,000; for the estate of Luther H. Smith, for conscious pain and suffering, $2,500; for the widow, $7,500. This appeal followed.
It is first argued for a reversal that the court erred in refusing to direct a verdict for appellants on their request so to do. We cannot agree. While there were no eyewitnesses' to this tragedy, other than the driver of the truck and trailer, and one Kesterson who was six hundred yards away, there are several facts which are undisputed and other circumstances, from which negligence on the part of the driver of said truck might reasonably be inferred by the jury, if not from the testimony of Boss, the driver of the truck, himself. The accident occurred on highway 67, about a mile west of Benton, near a filling station, at about 7 p. m. of July 1, 1943. The Smiths, father and son, were riding in a one-horse wagon, to which was hitched an elderly-mule. They were going home after a day’s work in a field near by. They were traveling very slowly, on their right-hand side of the road, on a straight stretch, and it was daylight with the sun still shining at 7 p. m. Jim Smith, the survivor, testified he did not know.the truck was coming, did not know of its presence, was thrown off the wagon and knocked unconscious for a shoi’t time' and did not know how the accident occurred. There was no warning given of the approach of the truck. The wagon was hit from behind at a time it was on its own side of the road and skid tracks of the truck showed it was on the right-hand side of the road. All the harness on the mule was stripped off except the bridle and the mule was injured. Other witnesses testified to similar facts and circumstances showing the location of the skid marks, the destruction of the,wagon and that the wagon was caught up under the right hind power wheels of the truck and carried with it as it left the road, crossed a ditch and went into a fence, as we understand it, on the right-hand side of the road going east toward Benton. Boss, the truck driver, said he had a load of 14,000 pounds of machinery on the trailer, going to Bauxite, was driving 25 or 30 miles per hour, and when he saw the wagon he pulled over to the left side of the road to go around the wagon. Then, he said the mule “swayed” and he applied his brakes which caused his truck to go into the wagon. He said the mule had swayed to the left and was right over the black line in the center of the highway. “He acted like he got scared and like he was going to bring the wagon in front of me. ’ ’
Whether the mule veered or swayed to the left, or continued to plod his weary way down his own side of the road was a question of fact in dispute, and the jury had the right to believe the witnesses for appellees and to reject that of the driver, Ross.
As said by this court in Hines v. Betts, 146 Ark. 555, 226 S. W. 165, to quote headnote 2: “In considering whether the court should have directed a verdict for the defendant, every fact and inference of fact favorable to the plaintiffs which the jury might believe to be true must be accepted as true, and every fact unfavorable to the plaintiffs which the jury might reject as untrue must be rejected.”
There are many facts and circumstances from which the jury could infer negligence, such as the position of the tracks made by the truck, failure of the driver to signal his approach and desire to pass, applying his hydraulic brakes at a time when he was only 10 or 15 feet from the wagon, knowing it would cause the load to swerve to the right, failure to exercise due care to have his truck under such control as to pass the vehicle in front of him ivith the superior right-of-way without danger.
This case is comparable' to that, of Ward v. Haralson, 196 Ark. 785, 120 S. W. 2d 322, where we said: “This case is more nearly like that of Madison-Smith Cadillac Co. v. Lloyd, 184 Ark. 542, 43 S. W. 2d 729, where we held that ‘the law of the road is that the automobile in front has the superior right to the use of the highway for the purpose of leaving it on either side to enter intersecting roads,’ and that a driver in the rear who fails to observe such rule is guilty of contributory negligence. While there is no question of turning off the highway into an intersecting road in the case at bar, we think the principle stated there applicable here with more force, since the truck was proceeding straight ahead on its own right side of the road, and the car in the rear must recognize the superior right of the truck to so proceed on its own way, and so manage his own car as to cause no injury under the penalty of being chargeable with negligence. ’ ’
So, here, the wagon was proceeding slowly down thé road, perhaps at some three or four miles per hour, when the truck undertook to pass it going in the same direction at 25 to 30 miles per hour, or about ten times as fast as the wagon, and we think it was the duty of the driver to recognize the superior right of the Wagon to so proceed on its way, and to so manage his truck as to cause no injury under the penalty of being chargeable with negligence. We, therefore, conclude that the court properly refused the request for a directed verdict.
Another argument is directed against the giving of instruction No. 1 in each case; This argument is based on the assumption that the evidence was insufficient to 'support the alleged negligence. Since we have found that there was sufficient evidence to take the case to the jury, this assignment necessarily fails.
It is finally argued that the judgments in both cases are grossly excessive. In the case of Jim Smith, he sustained injuries that were severe and painful, but we fail to find that such injuries are permanent or that they render him totally and permanently disabled. He was injured on July 1, 1943, was taken to the hospital where he remained about .one week. He brought this suit on July 15, 1943,. and the case was tried and judgment entered on September 27, 1943, trial having begun on the 25th. He admitted he had already recovered to such extent as to be able to engage in his usual business as a carpenter and had earned as such as much as $1 per hour for such work. Dr. Blakely said he had a fractured rib and that he might be kept from his work by his injuries for two months. Dr. Carruthers who examined him thoroughly and made X-ray pictures found no broken bones. Under this state of the record we think a judgment in excess of $2,500 is grossly excessive.
As to the judgment of $2,500 for the administrator for conscious pain and suffering prior to the death of Luther Smith, we think there was some substantial evidence that decedent was conscious for a goodly portion of the- time between injury and death. Dr. Blakely, describing his condition when brought to the hospital said: “. . . he was pretty well knocked out. I would say he was in a semi-conscious condition, groaning and expressions in his face were rather painful expressions and at times he seemed to try to say something, but he never did speak, but would groan. ... I would say it was pain, judging from the groans and expressions on his face.” Other witnesses, the nurse and Mrs. Smith, gave testimony indicative of consciousness. We think the evidence, although meager, sufficient to justify the jury in finding that lie suffered consciously. No contention is made as to the amount of this recovery. •
As to the judgment in favor of the widow for loss of contributions by the death of her husband in the sum of $7,500, we agree that this amount is excessive. Luther Smith was nearly 69 years of age and had a life expectancy of slightly less than nine years. He was a small tenant farmer and farm laborer. In 1942, he worked six acres on the Charley Couch place to cotton, corn and potatoes. In 1943, he worked about nine acres and did farm labor for Mr. Thomas at 40 cents per hour. While Jim Smith and his mother estimated his annual income at $2,000 per year, their testimony of the details of how he earned it is very unconvincing and unsatisfactory. The instruction on the measure of damages for the widow limited it to the contributions he would have made to her, but did not require them to be reduced to their present value. No objection was made to the instruction, but the jury may have been misled into giving a larger sum than warranted by the evidence. We think any judgment in excess of $5,000- would be grossly excessive.
If appellees will, within 15 days remit the amounts herein pointed out as excessive, the judgments will be affirmed for the net amounts. Otherwise, the judgments will be reversed, and the causes remanded for a new trial. | [
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Holt; J.
The property involved here is embraced in Street Improvement District No. 508 of Little Bock, Arkansas, and title thereto was acquired by the district October 19, 1938, under foreclosure proceedings for delinquent benefit assessments.
Title thus remained in the district until February 7, 1944, when the property was sold and conveyed to appellee, W. D. Cammack, for a consideration of $1,500.
While the title to this property remained in the district, it was forfeited and sold to the state for the nonpayment of general taxes, assessed against it and claimed to be due for tbe year 1939. Thereafter, on August 17, 1943, tbe state, by deed, sold and conveyed a part of tbe property to appellant, J. L. Baiers, and December 13, 1943, sold and conveyed tbe remainder of tbe property to Baiers, who then went on tbe property, wbicb was then unimproved, assembled material, and began making improvements.
February 9, 1944, appellee, Cammack, brought this action in wbicb be alleged ownership of tbe property, and sought to enjoin appellant from going upon tbe property and making any improvements thereon, prayed that appellant be ordered to remove all materials and improvements, and that bis, appellee’s, title be quieted.
Appellant’s answer was a general denial and, by way of cross complaint, sought to recover for all improvements and in addition, tbe purchase price wbicb be paid tbe state for tbe property. Upon a bearing, tbe court found “that the title to tbe property hereinafter described was vested in Street Improvement District No. 508 of Little Bock, Arkansas, at tbe time tbe same was purchased by defendant from tbe State of Arkansas, that said sale from tbe State of Arkansas to defendant was void, and that tbe assessment and tbe forfeiture of said land for tbe nonpayment of state, county and city taxes, for tbe year 1939', were void; that plaintiff succeeded to tbe title of said Street Improvement District No. 508 on February 7,1944, and was at tbe time of tbe filing of this cause tbe rightful owner thereof,” and ordered and adjudged that “tbe assessment of state, county and city taxes for tbe year 1939, tbe forfeiture to tbe State of Arkansas, tbe two deeds of tbe State of Arkansas to defendant (appellant)” were all void and of no effect, canceled tbe deeds and quieted appellee’s title to tbe property. Tbe decree further recited that appellant “shall have a lien against said land for tbe sum of $98, as compensation for labor performed on said land from February 7,1944, to and including noon of February 10, 1944. ’ ’ From tbe decree comes this appeal.
. The question here, says appellant, is “whether or not appellant is entitled to recover from appellee the purchase price paid hy appellant to the State of Arkansas for the land . . . and for improvements placed thereon in good faith by appellant. ’ ’ We think the decree of the trial court was, in all things, correct. It is conceded here that the two state tax deeds to appellant were void. When the property was forfeited and sold to the state for the 1939 taxes, title was in Street Improvement District No. 508 of Little Rock, a. governmental agency, and not subject to tax assessments for state and county purposes. The state had no title to convey in the property to appellant and he acquired none.
In the recent case of Cutsinger v. Strang, 203 Ark. 699, 158 S. W. 2d 669, this court said: “The state deed which the appellant received was ineffective to convey title to him for the reason that the title to the property involved was in Street Improvement District No. 2 at the time of its alleged forfeiture to the state for nonpayment of the taxes for 1933. It has long been held in this state that while title to property is in an improvement district by virtue of foreclosure proceedings, the district is exercising a governmental function, and no state and county taxes accrue during this time, the failure to pay which would authorize a tax sale of the property. See Robinson v. Indiana & Arkansas Lumber & Manufacturing Co., 128 Ark. 550, 194 S. W. 870, 3 A. L. R. 1426; Central Clay Drainage District v. Raborn, 203 Ark. 465, 157 S. W. 2d 505. The forfeiture and sale of the land being void, the subsequent action of the state in quieting title thereto did not cure these defects, and the state had no title to convey to the .appellant under the circumstances. ’ ’
In Robinson v. Indiana & Arkansas Lumber & Manufacturing Co., supra, this court said: “Thus it will be seen that the levee district acquired the land in the exercise of its governmental functions, and during the interval between its purchase and resale of the lands, they were not subject to taxation.”
Appellant was not entitled to recover from appellee the amount which he paid to the state for the two void deeds executed to Mm by the state, since the title to the property at the time the deeds were issued to him was in a governmental agency, the street improvement district, and Act 269 of the Acts of 1939 relied upon by appellant does not control here.
' Also, we think it clear, as the trial court held, that appellant could not recover under the betterment statute (§ 13884, Pope’s Digest) for improvements made on the property while the title was in the district, a governmental agency. He could, however, recover for improvements after the property reverted to private ownership, February 7, 1944, when the title passed to appellee by deed from the district. For improvements made subsequent to February 7, 1944, he was allowed $98.
In Martin v. Roesch, 57 Ark. 474, 21 S. W. 881, it was held in effect that the betterment statute does not apply to land, title to which is in a governmental agency, and there this court said: "The lands for the payment of
taxes on which the bona fide occupant is entitled to be reimbursed are obviously private lands, public lands being exempt from taxation,” and "the purchaser acquires all the interest and estate of the state in the land, including the improvements on it.” See, also, City of Little Rock v. Jeuryens, 133 Ark. 126, 202 S. W. 45.
Finding no error, the decree is affirmed. | [
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Bobins, J.
To reverse a decree of the lower court granting appellee an absolute divorce and divesting appellant of all marital interest in the property of appellee, appellant prosecutes this appeal.
. These parties were married in 1903. They were the parents of six children, all of whom are now of lawful age. On July 1, 1934, appellant and appellee separated. In his suit for divorce, instituted in 1943, appellee alleged that appellant was guilty of such cruelty (consisting of fussing and nagging) toward appellee as to render his life intolerable and that they had lived separate and apart for more than three years before the filing of the suit. These allegations were denied by appellant.
While appellee testified that his wife fussed and nagged at him, there was no corroboration whatever of this charge, and it was not sustained by the chancellor, who based his decree on a finding that “the parties have lived separately and apart for more than three years last past.’’
Only one witness, W. D: Daniels, a son-in-law of these parties, was introduced on behalf of appellee. While Mr. Daniels testified in general terms that appellant and appellee had not lived together since 1934, he corroborated in some degree the testimony of appellant as to a temporary reconciliation in 1942.
Appellant testified that in July, 1942, after they had been living apart for several years, appellant and appellee agreed to and did, for a short time, resume their relation as husband and wife; that he came to her home at this time and spent the night, occupying the same bed with her and that marital intercourse occurred on this occasion; that she would have continued to live with him, hut for the fact that she discovered after.the reconciliation that he was paying undue attention to another woman.
R. H. Banks, a neighbor, testified that in July of 1942 he saw appellee at appellant’s home; that appellee’s car was there “about dark”; that he saw appellee early the next morning come out of appellant’s house, get in his car and leave.
Appellee did not deny spending the night at his wife’s home in July, 1942, but testified: “I slept in the back room.” He did not deny that he had sexual intercourse with his wife while spending the night in her home at that time.
Thus the net effect of the testimony is: Appellant testified positively that the matrimonial relations between her and appellee were resumed in July, 1942, in pursuance of a reconciliation; appellee’s witness, Daniels, corroborated her to some extent by testifying that he knew that such a reconciliation was being discussed; and appellant admitted that he spent two nights in the same house with his wife in July,. 1942, without specifically denying that he had intercourse with her while there on that occasion.
We hold that a clear preponderance of the evidence supports appellant’s contention that the continuity of the separation was broken by “cohabitation” in July, 1942.
The statute relied on by appellee herein (sub-division seven of § 2 of Act No. 20 of the G-eneral Assembly of Arkansas, approved January 27, 1939) authorizes the granting of a divorce “Where either husband or wife have lived separate and apart from the other for three consecutive years, without cohabitation(Italics ours.) We held in McClure v. McClure, 205 Ark. 1032, 172 S. W. 2d 243, that the word “cohabitation” in this act was used by the Legislature in its popular sense, and meant “sexual intercourse.”
Since the evidence established that within three years before the institution of this suit one or more acts of marital intercourse between the parties occurred, appellee failed to prove separation without cohabitation for three years, as he was required by the statute to do.
The decree of the lower court is accordingly reversed and this cause is remanded with directions to dismiss appellee’s complaint for want of equity. | [
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Smith, J.
Mrs. Eleanor M. Hope was a resident of Shreveport, Louisiana, at the time of her death on August Í2, 1939. She had previously, on September 18, 1936, executed a last will and testament, duly attested, in manner and form provided by the first four paragraphs of § 14512, Pope’s Digest. She was the owner of real estate, at the time of her death, in this state, and we held in the case of McPherson v. McKay, 205 Ark. 1135, 172 S. W. 2d 911, that this will could be admitted to original probate in this state, without having been probated in the state of her residence. On July 7,1939, Mrs. Hope executed a holographic will, with no attesting witnesses. Each of these wills -made a complete, but different, disposition of her property. On August 14, 1939, the holographic will was admitted to probate in the state of Louisiana, and an authenticated copy of that proceeding was filed in Columbia county, Arkansas, where the lands of testatrix are located, for probate in this state under § 14534 of Pope’s Digest.
The authenticated' copy of the proceedings in the probate of the holographic will in Louisiana reflect that the proof of the handwriting of testatrix was made by Minna Binkley and Sterling Stewart, the latter being a beneficiary under the will to whom a three-twentieths interest in the lands of the testatrix was devised. The holographic will named Roy B. McPherson as executor, and it appears from the pleadings praying and opposing the probate of the holographic will that the testatrix owned no property in this state other than the real estate.
The probate of the holographic will was resisted, and denied, upon two grounds: (1) That it was riot proved to have been so executed as to be a valid will of lands in this state, and, (2) that it could not be pleaded in bar of the prior will, which had already been admitted to probate, and from that order and judgment is this appeal.
The review of this action requires the consideration and construction of certain sections of the Chapter on Wills, appearing in Pope’s Digest. The first of these is the fifth paragraph of § 14512, which reads as follows: “Fifth. Where the entire body of the will and the signature thereto shall be written in the proper handwriting of the testator or testatrix, such will may be established by the unimpeachable evidence of at least three disinterested witnesses to the handwriting and signature of such testator or testatrix, notwithstanding there may be no attesting witnesses to such will; but no will without such subscribing witnesses shall be pleaded in bar of a will subscribed in due form as prescribed in this act.”
It will be observed that this paragraph requires that the execution of a holographic will be established bjr the unimpeachable evidence of at least three disinterested witnesses to the handwriting and signature of the testatrix. The proof in Louisiana was made, not by three, but by o'nly two, witnesses, and only one of these could be called disinterested,- the other being a legatee and beneficiary under the will. This paragraph further provides that no will without the subscribing witnesses for which paragraph four of § 14512 provides, shall be pleaded in bar of a will properly subscribed.
. We are not concerned with the effect to be given to the probation of the holographic will in Louisiana upon the property of the testatrix in that state. The question for our decision is what is the will of the testatrix in relation to. her property in this state, and that question must be decided in accordance with the laws of this state, and not those of Louisiana. Section 156, Leflar on Conflicts of Laws; § 907, Jones on Arkansas Titles. It was said in the opinion in the case of Crossett Lumber Co. v. Files, 104 Ark. 600, 149 S. W. 908, that, “the general rule, without any diversity of opinion, is that the alienation, transmission and descent of real estate is governed by the laws of the country or state in which it is situated. (Citing cases).” See, also, Selle v. Rapp, 143 Ark. 192, 220 S. W. 662, 13 A. L. R. 494; Robertson v. Robertson, 144 Ark. 556, 223 S. W. 32.
The cause was heard on the petition of the executor named in the holographic will, and the response of the administrator appointed upon the probation of the prior will, and there appears to be no dispute as to the facts, which are, that a will executed and attested as required by the laws of this state was admitted to probate, under the authority of our opinion in the case of McPherson v. McKay, supra, and so far as the record before us reflects, there was and has been no contest of that order.
Has this prior will been revoked? Section 14519, Pope’s Digest, provides how a will may be revoked, and reads as follows: “No will in writing, except in cases hereinafter mentioned, nor any part thereof, shall be revoked or altered otherwise than by some other will in writing, or some other writing of the testator, declaring such revocation and alteration, and executed with the same formalities with which the will itself was required by law to be executed, or unless such will be burnt, torn, canceled, obliterated or destroyed, with the intent and for the purpose of revoking the same, by the testator himself, or by some other person, in his presence, by his direction and consent, and when so done by another person the direction and consent of the testator,.or the fact, of such destruction, shall be proved by at least two witnesses.”
It was held in the case of Newboles v. Newboles, 169 Ark. 282, 273 S. W. 1026, that an instrument to revoke a will must be executed in conformity to the statutes; and in the case of Ledwidge v. Taylor, 200 Ark. 447, 139 S. W. 2d 238, we quoted, with approval, the following statement of the law from § 255 of Page on Wills: “The great weight of authority supports the view taken in the reported case that regardless of intention a will cannot be revoked except in the manner provided by-statute.”
The only act of the testatrix indicating.an'intention to revoke her will, which has been duly probated, was in the execution of the holographic will; but, as has been said, this holographic will was not executed in a manner to be effective under the laws of this state, but, even so, it could not be pleaded in bar of the will subscribed in due form as provided by § 14512, Pope’s Digest.
In the case of Parker v. Hill, 85 Ark. 363, 108 S. W. 208, the facts were that a testatrix executed a will in manner and form provided by law. 'She later attempted to execute a holographic codicil, which was admitted to probate, and there was no appeal from the judgment of probate, jand because of that fact it was insisted that under the provisions of § 8030, Kirby’s Digest, now appearing as § 14531, Pope’s Digest, the probate was conclusive until the probate order was superseded, reversed or amended. It was held, however, that the probate of a holographic will would not be given the effect of revoking a prior will which was duly attested, and that a holographic will, not attested, would not be held to re voke any part of a prior will which was duly attested by attesting witnesses, although the holographic will was intended to be a codicil to the prior will.
For the reversal of the judgment from Avhich is this appeal, appellant invokes the provisions of § 14534, Pope’s Digest, which reads as follows: “Probate of will of non-resident. When a will of a non-resident of this state, relative to an estate within this state, has been proved without the same, an authenticated copy thereof, and the certificate of probate thereof, may be offered for probate in this state. When such copy is so offered, the court to which it is offered shall presume, in the absence of evidence to the contrary, that the will was duly executed and admitted to probate as a will of personalty in the state or county of the testator’s domicile, and shall admit such copy to probate as a will of personalty in this state; and if it appears from such copy that the will was proved in the foreign court of probate to have been so executed as to be a valid will of lands in this state by the law thereof, such copy may be admitted to probate as a will of real estate. Civil Code, § 513, subdiv. 5.”
But it does not appear that this will was so executed as to be a valid holographic will under the laws of this state, and, had it been, it would not have been effective under the fifth paragraph of § 14512, Pope’s Digest, herein above quoted, to revoke the prior will executed as required by the first four paragraphs of that section.
Certain it is that a person cannot have two valid last wills and testaments which make conflicting dispositions of the testator’s estate. The holographic will was not executed as a codicil to the prior will, but, even so, it would have been ineffective in so far as there was a conflict between the two .wills. This is the point expressly decided in Parker v. Hill, supra.
We conclude, therefore, that § 14534, Pope’s Digést, above quoted, did not authorize the admission of the holographic will to probate, and the judgment so holding must be affirmed. | [
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Griffin Smith, Chief Justice.
Dantzler sought to enjoin the County from working a road through his land, contending it was private property. The highway had not been designated by court order. Only question for our determination is whether the 'Chancellor’s finding that use had been hostile and adverse for seven years was supported by a preponderance of the testimony.
Evidence is but sketchily abstracted. A map is discussed, and we are referred to the transcript for its meaning. What the drawing would disclose in aid of appellant’s contention is presented adjectively, rather than visually.
Appellant testified that in February, 1942, he destroyed a bridge. Over his protest the County reconstructed it in August of the same year. No one, said appellant, was authorized to travel this road. He began complaining of trespassers five or six years before suit was filed, and thought there had not been general travel over the land prior to that time. Other witnesses were certain common use went back ten or twelve years; “twenty,” one said.
If we accept testimony given by appellant and by others in his behalf, prescriptive rights had not been acquired; hut if appellee’s witnesses are to be believed, the converse is true. Even though it is quite clear that only a few people had need of the highway, we are not convinced that the Chancellor erred in declining to restrain the defendant below.
Affirmed. | [
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Robins, J.
H. J. Sternberg filed ejectment proceedings in the circuit court against appellee, I. M. Smith, on July 9, 1942, to recover the northwest quarter of the southwest quarter of section twenty-eight, township fourteen, north, range one, east, in Craighead county, Arkansas. After the death of Sternberg, which occurred on January 10, 1944, the cause was revived in the name of appellants, St. Louis Union Trust Company and William F. Sternberg, as co-trustees of H. J. Sternberg’s estate, and Edna W. Sternberg, his widow. Appellee filed answer and motion to transfer to equity, which was granted. The chancery court rendered decree establishing appellee ’s title to the land, but declaring a lien thereon in favor of appellants for the amount expended by Sternberg in purchasing the land and in paying taxes thereon. Appellants seek to reverse this decree.
Sternberg claimed title to the land by virtue of a deed executed by the Cache River Drainage District to him conveying this land on January 5, 1939. The land- was conveyed to the drainage district hy the commissioner of the chancery court by deed executed on October 6,1928, in foreclosure proceedings brought by the district to collect delinquent taxes due the district for the year 1928. Appellee asserted title to the land by adverse possession, claiming that he and his predecessors in possession had held the land adversely for more than seven years.
Gr. W. Brown acquired title and went into possession of this land in 1909. He cleared and put in cultivation approximately thirty acres, built a house,*barn and fence, and made other improvements. Brown died in 1934 and his widow, Janie Brown, in the same year, married Fred Merrell, and she and Fred Merrell thereafter lived on the land until about March 9, 1937. The land was forfeited and sold to the State of Arkansas for the taxes of the year 1925 and was certified to the state in 1928.
In the early part of 1937 Fred and Janie Merrell decided to move away from the land. Appellee, who was living in the neighborhood, according to appellee’s testimony, paid the Merrells $50 to give him possession of the land. According to the testimony of the Merrells appellee paid them $50 to advise him when they moved away from the place. Fred Merrell testified: “Q. Did you know about the condition of this title to the land involved here at the time you moved off of it? A. I knew it was state land. Q. You knew it was forfeited to the state? A. Yes, sir. Q. Did Smith know that? A. Yes, sir, absolutely.” Janie Merrell testified: “Q. Do you know about the arrangement he made about going on the place ? A. He came up there and gave us $50 and wanted us to let him know when we were going to move. We were going to move anyway. Q. Did you know it was forfeited to the state?- A. Yes, sir. Q. Did Mr. Smith know that? A. Yes, sir, we told him.” Immediately after the Merrells moved away from the land appellee moved on the land. No deed or other writing conveying the land was executed by the Merrells to appellee.
On December 20, 1938, appellee applied to the state and received a donation certificate covering this land. Appellee, however, failed'to make the proof necessary to procure a donation deed within the statutory period, and his donation certificate was canceled by the commissioner of state lands on May 20, 1941. On January 22, 1943, H. J. Sternberg obtained from the state redemption deed for the land.
The sole question in this case is whether the lower court correctly upheld appellee’s asserted right to the land by reason of his claim of adverse possession thereof for more than seven years before the bringing of the suit.
Appellee did not move on the land until March 9, 1937, and the suit having been brought on July 9, 1942, his own possession existed for a period of only five years and four months. In order therefore for appellee to establish adverse possession it was necessary for him to tack his possession to that of Fred Merrell and Janie Merrell, his predecessors in possession. While there was no privity of title between the Merrells and appellee, there was a privity of possession-between'them, because, under the proof, appellee was let into possession by the Merrells; and privity of possession is sufficient to authorize the tacking of possession in a case of this kind. Wood on Limitations, vol. 2, § 271, p. 1312; Wilson v. Rogers, 97 Ark. 369, 134 S. W. 318; Horseman v. Hincha, 138 Ark. 415, 211 S. W. 385.
But it was essential to a successful maintenance of a plea of adverse-possession by appellee that not only appellee’s possession be shown to be adverse, but that the possession of his predecessors, to which it was necessary to tack his own possession,-likewise be proved to be adverse. “As a general proposition an adverse occupant cannot tack the possession of a prior occupant to perfect adverse title in himself where predecessor did not or could not claim the land adversely . . .” 2 C. J. S., Adverse Possession, § 132, p. 697. There was no testimony as to the character of the Merrill’s possession except that of Mr. and Mrs. Merrell, and we can deduce from tlieir testimony only that they realized that there was an outstanding title to the land and that this was the reason why they abandoned it. This attitude of the Merrells was not consistent with an adverse holding of the land by them.
In the case of Kirby v. Boaz, 103 Tex. 525, 131 S. W. 533, the Supreme Court of Texas said: “But an abandoned possession could not have such effect (effect of adverse holding) in favor of him who held and then abandoned it . . . and therefore not in favor of others who seek to avail themselves of it as evidence of their title.” “Possession taken when a prior occupant abandons . . . cannot be tacked. ’ ’ 1 Am. Jur. 880. Dealing with a somewhat similar situation this court, in the ease of Steward v. Scott, 57 Ark. 153, 20 S. W. 1088, said: “The appellant had adverse possession of the land himself only about six years, and, as his vendee (vendor) Harrell did not claim the land, or expect to try to hold it, his possession was not adverse, because it was not hostile. It follows, therefore, that there was no adverse possession by the appellant and Ms vendee (vendor) for seven years, the period required to form the statute bar. The appellant could not add the time his vendee (vendor) was in possession to his adverse holding, because adverse possession is determined by the quo animo it begins and continues, and must continue for the full period prescribed by the statute, and it must be hostile.”
Since the possession of the Merrells, as shown by their own testimony, was not adverse, but was merely at sufferance and in anticipation of an abandonment of the land by them, appellee could not tack thereto his own possession of the land for less than six years and thereby establish adverse possession for the statutory period. The lower court therefore erred in sustaining appellee’s plea of limitation, and for this error the decree of the lower court is reversed and this cause is remanded with directions to enter a decree in favor of appellants for possession of the land and for such amount for rents as may be proper and equitable under the evidence. | [
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McHaney, J.
This is a petition for a writ of mandamus. Petitioners are the collateral heirs at law of Guy Keeney who died intestate in Port Smith, Arkansas, in 1939, and they are the defendants in a certain action pending in the Arkansas Chancery Court, Southern District, presided over by respondent, as chancellor, wherein the plaintiffs are three of the collateral heirs at law of the late Angie Merritt Keeney, wife of said Guy Keeney. The action was begun by plaintiffs in said court on December 15,1942, and up to this time, although, after much delay, plaintiffs in said action have taken their testimony by depositions before a stenographer, such depositions have not been transcribed, or if transcribed have not been filed. Several motions of defendants, petitioners here, for dismissal for failure of plaintiffs to take and file their depositions, in accordance with orders of the court so to do, have been overruled. The prayer of the petition for mandamus is that this court direct the respondent to dismiss the action because of the failure of plaintiffs to proceed in an orderly way to bring the case to trial.
On oral argument counsel for the respective parties agreed for this court to award a consent writ of mandamus, to the respondent, directing him to require plaintiffs and their counsel to file their depositions with the clerk of said court on or before June 26, 1944, and, if requested so to do, to issue a rule on the stenographer to compel the transcribing and filing of the depositions for plaintiffs, under penalty of dismissal of the action with prejudice for failure of plaintiffs to file same on or before said date; to require defendants and their counsel to take, have transcribed and filed their depositions in said cause on or before July 24, 1944, under penalty of having, said'cause submitted to' said court for final decision on the testimony of plaintiffs alone; to require plaintiffs to take, transcribe and file any rebuttal testimony they may wish to “take on or before July 31, 1944; and to require a submission of the cause to respondent for final decree-on or before August 7, 1944.
The clerk will issue the writ as directed herein, and the respondent is directed to tax the costs of this proceeding, as certified by the clerk of this court, against the plaintiffs in the court below. | [
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Holt, J.
May 7, 1938, appellees filed suit to foreclose the lien of two deeds of trust covering certain land and other property in Union county. Following service of summons, appellants filed answer July 20, 1938, and thereafter, on September 27, 1938, appellant, J. P. Harris, filed farmer-bankruptcy petition under the provisions of § 75 of U. S. Bankruptcy Act, (U.S.C.A. Title 11, § 203 (s)). March 24, 1939, appellant’s bankruptcy petition was dismissed by the district court of the United States, and on May 1, 1939, the Union chancery court, second division, entered a decree of foreclosure in the action, supra, filed by appellee May 7, 1938. On January 23, 1940, the IT. S. district court, by proper order, reinstated the farmer-bankruptcy petition of appellant, J. P. Harris, filed September 27, 1938, and on April 3, thereafter, entered an order granting the bankrupt a period of three years for financial rehabilitation. May 12, 1943, thereafter, on motion of appellees, the IT. S. district court made the following order:
“Now upon consideration of the motion of secured creditor for permission to proceed with mortgage foreclosure, and of debtor’s petition for extension of time, and the waiver in open court by attorneys for debtor and secured creditor of reappraisement of the property involved, it is, by the court, ordered that the debtor be granted until and including November 1, 1943, to pay into the registry of this court the unpaid balance of the principal of the mortgage debt due the secured creditor, The First National Bank of El Dorado, Arkansas, namely the sum of $5,900.01, plus interest thereon at the rate of ten per cent. (10%) per annum from November 22, 1942, to the date of said payment, and it is further ordered that if said debtor does hot pay into the registry of the court on or before said November 1,1943, said sum of $5,900.01, plus interest thereon at the rate of ten per cent. (10%) per annum from November 22, Í942, to the date of said payment, said secured creditor, The First National Bank of. El Dorado, Arkansas, is permitted to proceed with the foreclosure sale of the property mortgaged to it in the action now pending in the Union (county, Arkansas) chancery court, second division, and therein styled N. C. Marsh, Trustee, et al., Plaintiffs, v. J. P. Harris, et al., Defendants, being case No. 6067 on the docket of said court, and as authority for its right to proceed with such foreclosure sale, may file a certified copy of this order in said chancery court.”
December 6, 1943, appellees, by appropriate proceedings in the Union chancery court, secured an order directing the sale of the property in question to satisfy the balance due on appellees’ judgment, which the court found to be $5,900.01, with interest. We quote from the court’s decree the following: “There is filed in court a certified copy of the order of the El Dorado division of the district court of the United States for the western district of Arkansas, and authorizing plaintiff to proceed with its foreclosure in the chancery court of Union county, Arkansas. Defendants file a motion to the jurisdiction and same is overruled, whereupon, defendants file a second motion on the merits, and said second motion is overruled; and, from a consideration of said motion and said pleadings, with exhibits thereto, all of which were duly filed, from which and the evidence adduced before the court on hearing, the court finds, ’ ’ etc.
This appeal followed.
For reversal, appellants say: “There is no authority granted under the provisions of § 75 of the Bankruptcy Act for the delegation of jurisdiction to the state chancery court, after the filing of petition for adjudication under subsection (5), whereby power can be given to the state chancery court, or any of its .officers or commissioners, to take charge of the properties of the bankrupt estate by the Act of Congress placed in the possession, custody and control of the conciliation commissioner, and referee, and administer, sell, or dispose of the.same.”
We cannot agree with this contention of appellants. The authorities seem to agree that the U. S. district court has the authority to order the trustee in bankruptcy to relinquish any claim to property covered by mortgage lien of a creditor when it appears that no equity would remain to the bankrupt after satisfying the secured creditor’s-claim, or where the property might become burdensome in the hands of the trustee for the bankrupt, and also to order the secured creditor to proceed with foreclosure in the state court. This authority is found in § 75 (s), paragraph 3, of the Bankruptcy Act, supra, which provides: “If, however, the debtor at any time fails to comply with the provisions of this section, or with any orders of the court made pursuant to this section, or is unable to refinance himself within three years, the court may order the. appointment of a trustee, and order the property sold or otherwise disposed of as provided for in this title.” See Donald v. San Antonio Joint Stock Land Bank of San Antonio, (C.C.A. 5) 100 Fed. 2d 312; Large v. Metropolitan Life Ins. Co., (C.C.A. 4) 103 Fed. 2d 593; Borchard, et al., v. California Bank, et al., (C.C.A. 9) 107 Fed. 2d 96; McFarland v. West Coast Life Ins. Co., et al., (C.C.A. 9), 112 Fed. 2d 567; and Federal Land Bank of Berkeley, et al., v. Nalder, (C.C.A. 10), 116 Fed. 2d 1004.
In 6 American Jurisprudence, p. 727, § 336, the text writer says: “Moreover, the implication from the language of the cases warrants the. conclusion that the so-called ‘exclusive jurisdiction’ of the bankruptcy court in proper, cases does not ipso facto oust the jurisdiction of the state court or invalidate proceedings had thereunder ; and . . . where the bankruptcy court grants permission for the institution of the proceedings in the state court, the latter court has jurisdiction and right to entertain a suit to foreclose a lien and proceed to sale thereunder. ’ ’
Appellants also contend that the decree of foreclosure of May 1, 1939, by the Union chancery court is void and of no effect. We think, however, that this contention is untenable for the reason that at the time this decree was made, appellant’s bankruptcy petition had for some time prior thereto been dismissed by the U. S. -district court, and this dismissal restored the power of the state court to proceed in the foreclosure proceedings. We so held in the recent case of Jones v. The National Bank of Commerce of El Dorado, ante, p. 613, 182 S. W. 2d 377. There we quoted with approval from Union Joint Stock Land Bank of Detroit v. Carl Byerly, 310 U. S. 1, 60 S. Ct. 773, 84 L. Ed. 1041, wherein it was said: “Although the state court’s jurisdiction was superseded by that of the bankruptcy court, it again attached upon the dismissal of the bankruptcy case, and, thenceforward, as respects the foreclosure suit, and the state court’s procedure, it was as if no bankruptcy case had ever existed.”
Appellants also argue that the Union chancery court was without authority to make its order of sale of December 6, 1943, because “the condition precedent to juris diction in the state chancery court under the conditional order of said {IT. S.) district court, has not been shown.
It will be noted, however, from this order, supra, that it was made after consideration of the pleadings, exhibits and “the evidence adduced before the court on hearing.” In the absence of evidence to the contrary— and we find none — we must assume here that the court’s order was supported by proper proof.
There is an additional reason why the decree of the trial court was correct. It appears that appellants did not appeal from the order of the IT. S. district court of May 12, 1943, supra, and regardless of the validity of that order, appellants are now too late to complain.
In Bernards v. Johnson, 314 U. S. 19, 62 S. Ct. 30, 86 L. Ed. 11, the Supreme 'Court of the United States held (headnote 6): “A state court has jurisdiction to proceed with the foreclosure of mortgages on farm land as to which a proceeding is pending under § 75 of the Bankruptcy Act, where the orders of the bankruptcy court leave the mortgagees free to prosecute foreclosure, and no application for review or timely appeal from such orders is filed by the bankrupt,” and in the opinion, it is said: “The orders and decrees entered by the bankruptcy court, if valid, relieved the respondents, as mortgagees, of any disability to pursue their foreclosure suits arising out of the pendency of the bankruptcy proceedings and left them free to prosecute the foreclosures in the state courts. However erroneous the challenged orders, the remedy for their correction was by timely application for review or timely appeal.”
Finding no error, the decree is affirmed. | [
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McHaney, J.
Reese Preston Pye died in Drew county, Arkansas, on September 8, 1941, unmarried and without issue. The primary question presented by this appeal is whether the following instrument in the handwriting of said decedent should have been admitted to probate as a holographic will :
“Mch. 10th, 1929
“This is merely a copy of a letter that I have sent to .
Lillie Higgason.
“My Dear Lili:
‘ ‘ While I was sick in the hospital recently, I thought of things that I felt like I should have already done or attended to for of course I didn’t know whether I would get well or not so I promised myself that if I ever got well and able again, I would not put off doing a few -things that I felt like I should do.- Now Lillie since I have made you my beneficiary in all my insurance I want you, in event that I should die any time soon, to collect all my insurance and if I have any money left anywhere I would waiit you to get it all together and divide it equally among, vour mother, Eddie, Mattie Myrtise’s heirs, Bill, Lauree and yourself. I would also want any and all money that might be collected for any property that I might have an interest in, to be divided the same way. Now in case of my death any time soon, I would want Myrtise’s part or part of it anyway, to go towards paying some of the expenses of her sickness and death but, should those bills be already paid, I would want it to go to Ned and Olive, Ned to take charge of it, and let Olive have her’s as he saw fit. Of course I would want all of my personal debts paid first thing, and some day I want a little tomb put at my little baby’s grave. I would have had it done long ago if I could have done it myself.
“Now I feel like this is about as near fair to my brothers and sisters as I could do it, and I’m just doing this so in case I should die anytime soon you would know how I would want my little mite disposed of and I have confidence enough in you that I am satisfied you will do it like I have suggested.
“I feel now that I would prefer being buried at Old Beulah.
“Yours,
“Reese Preston Pye.”
Said instrument was sent by decedent to Mrs. Lauree Wilson at El Dorado, Arkansas, with a letter to her elated. Marcia 22, 1929, addressed to “Dear Lauree,” and reading: “I am sending you a copy of a little document that I have sent to Lili. I have felt for some time that I should do this. You may read it if you want to and it will explain itself. I am sending you the copy to keep so in case anything should happen to me some of the rest of you would know what I have written her to do.
“I know it might sound kinder silly to you all, but it will give an idea of what I would want done if anything should happen to me. Of course I want to live as long as possible, but we don’t know what might happen to us this day in time.
“It has been raining here for several days, but it looks pretty and clear today. ■
“I am thinking of going to Houston for a few days. May go tomorrow.
“I wrote you a letter a day or two ago so will close for this time.
“Love to all,
“Reese.”
Appellants and appellees are the collateral heirs of decedent, Mrs. Wilson and Miss Higgason being his nieces, the latter having been appointed administratrix of his estate, on the representation that he died intestate, by the Drew probate court.
The trial court refused to admit said instrument to probate, although it was in the genuine handwriting of decedent, so established by evidence as required by law.
Assuming for the purposes of this opinion without so deciding, that said instrument is testamentary in character and that it is not a copy within the holding of this court in Dodd v. Holden, 205 Ark. 817, 171 S. W. 2d 948, still we are of the opinion that the writing here offered was properly rejected for probate as a will for the reason it was a contingent or conditional will, wherein the contingency or condition did not happen as provided therein. Contingent wills are those “drawn to take effect only upon the happening of a specified contingency; . . . Such a will is operative if .the contingency happens or' occurs, but its operation is defeated by the failure or nonoccurrence of such contingency, . . . ” 68 C. J., “Wills,” § 256D. In 28 R. C. L., p. 166, § 121, it is said: “A conditional or contingent will is one to become effective upon the happening of a specified condition or contingency. When a will is limited in its operation by conditions that defeat it before the death of the testator it is void unless republished by the testator. Once defeated by its own limited conditions, its mere possession and preservation by the testator until his death does not amount to a republication.”
There are many cases similar to Walker v. Hibbard, 185 Ky. 795, 215 S. W. 800, 11 A. L. R. 832, which holds, to quote lieadnote 3', that: “An instrument executed by a woman before going to the hospital, directing an aunt to see that in case anything happened ‘that everything I have in the world goes to Gr.,’ and ‘if there is anything around the house you want of course it is yours’ was a contingent will, and never became effective, where the testatrix completely recovered from the operation to which she was about to submit.” For a list of cases in which particular language used in a will was held to make the will contingent or conditional see note 70 (b), 68 C. J., p. 631, and for language held not to make will contingent, see note 70 (c) same page.
The will here involved, assuming it to be a will, was dated March 10, 1929, and the decedent did not die until September 8, 1941, nearly twelve and one-half years later. During several of the last years of his life he lived with appellee, Miss Higgason. It will be noticed that in said instrument, he tells Miss Higgason, “I want you, in event that I should die anytime soon, to collect all my insurance” and other money, get it all together and divide it as directed. Again, in that same paragraph, he said: “Now in case of my death anytime soon, I would want,” etc. In the next paragraph he again said: “. . . and I’m just doing this so in case I should die any time soon you would know,” etc. Thus it appears that three times he impresses upon his niece, to whom said letter was addressed, that his property was to be divided or distributed, as therein directed, only in case of his death “anytime soon.” The effectiveness of the whole will and of all its precatory requests was dependent-upon the contingency or condition of his death ‘ ‘ anytime soon.” Having thereafter'lived twelve and one-half years, many of the last of-which were with appellee, Miss Higgason, can it be said that he died “anytime soon,” after March 10, 1929? Webster defines “soon” as: “2. With reference to an implied time or the present; shortly after; before long; with reference to a given time, shortly; in a short time; as, the odor soon disappears; results will soon be evident; soon after sunrise; it took place soon afterwards.” Other definitions are given, but this one seems appropriate. The word “soon” as used in a contract to convey land by quitclaim deed, to be performed soon, was held to mean within a reasonable time. Sanford v. Shephard, 14 Kan. 228. See Words and Phrases, Per. Ed., p. 488. The phrase “at anytime” has frequently been held to mean within a reasonable time. See Words and Phrases. It seems to us necessarily to follow that the phrase or words “anytime soon” means within a short time, and that the decedent must have intended the writing here to become effective as a will only in the event of his death within a short or reasonable time after March 10, 1929, and not having died until September 8, 1941, the writing was ineffectual as a will.
Affirmed.
McFaddin, J., disqualified and not participating. | [
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Griffin Smith, Chief Justice.
Appellant, sixty-eight years of age, was charged by information with having had carnal knowledge of Maxine Wells. The crime is alleged to have occurred December 15, 1943. Maxine testified that she would be fifteen in July, 1944. In returning its.verdict of guilty and assessing punishment at a year in the penitentiary, clemency was recommended. The Court, acting within its discretion, disregarded the recommendation and rendered judgment.
The appeal questions sufficiency of the evidence.
Without entering into a detailed discussion of essential testimony, involving lascivious conduct,' it is sufficient to say that the verdict is supported by substantial testimony. Affirmed. | [
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Holt, J.
Mrs. Hazel Sullins, on behalf of herself and her four minor children, was granted an award of death benefits under the Workmen’s Compensation Law (Act 319 of 1939) by the commission on account of the death of her husband, S. L. Sullins, which she alleged resulted from injuries received by him arising out of and in the course of his employment. The commission’s award was affirmed on appeal to the circuit court. This appeal followed.
For reversal, appellants contend “that there is not sufficient competent evidence in the record to warrant the making of the award, because the injuries from which Sullins died were solely caused by his intoxication, Sullins was so intoxicated as to be incapable of performing his duties and could not be said to have been acting in the course of his employment, and the commission’s finding that the accident was caused by the employment, rather than by other possible causes equally compatible with the evidence, rests altogether upon speculation and conjecture.”
Section 5 of the act provides: “Every employer subject to this act shall in accordance therewith secure compensation to his employees and pay or provide compensation for their disability or death from injury arising out of and in the course of employment, without regard to fault as a cause for such injury; provided, that there shall be no liability for compensation under this act when the injury has been solely occasioned by intoxication of the injured employee while on duty or by willful intention of the injured employee to bring about the injury or death of himself or another.” And § 24 provides: “In any proceeding for the enforcement of a claim for compensation under this act, there shall be a- prima facie presumption, .. . . (4) that the injury did not result from the intoxication of the injured employee while on duty, etc. ”
The facts most favorable to the commission’s findings and award are: August 6, 1942, S. L. Sullins, the deceased, and James Hargis, employees of appellant, Elm Springs Canning Company, at about 10 o ’clock a. m., left Fayetteville in one of appellant’s empty trucks to go to Memphis, Tennessee, for a load of empty tin cans. Sullins, who had been in the employ of the canning company for about four years, was 48 years of age, and Hargis was 17 years of age. The distance to Memphis via Little Rock was about 325 miles. Sullins drove to Clarksville, where he was relieved by Hargis, who drove to Little Rock. At Little Rock Sullins again resumed driving and drove to DeValls Bluff, where he got out of the truck and phoned to Memphis to the Continental Can Company and informed it that they would be there shortly to receive the cans. They reached DeValls Bluff at-about 8 p. m., and at this point, two strangers, “hitchhikers,” were invited to ride by Sullins, and he and the two hitchhikers got in the rear, or tiailer part of the truck. Hargis resumed driving until they reached the weighing station near Brinkley. At this point, Sullins again resumed driving, but after proceeding for a few miles, Hargis took over and Sullins got back in the trailer' with the hitchhikers. At about 10:30 p. m., Hargis heard a knocking signal from inside the trailer, stopped the truck, and was told by the two hitchhikers, who had gotten olrt of the truck, that Sullins “had gone out the back end of the truck, ’ ’ and that Sullins had said before going out, “Turn out the lights,” and “I’ll turn out the lights. ’ ’ The truck had no doors or end-gates at the back. Hargis found Sullins back several hundred yards by the side of the highway, so severely injured that he died shortly thereafter. The two strangers disappeared and their testimony was not available.
One of the principal reasons that appellant, Canning Company, put two men on the truck was to provide for alternate driving. A pallet of quilts had been provided in the trailer, where one might sleep or rest while the other drove. Before leaving Fayetteville, Sullins obtained a half-pint of cherry liquor, which he drank. At Mountainburg, he procured a pint of apricot' liquor, which he consumed before reaching Little Rock, and at Little Rock, obtained another pint of apricot liquor, and according to the testimony of young Hargis, Sullins had consumed about three-fourths of this last pint of liquor by the time they reached DeValls Bluff.
Here we adopt the following summation of Hargis’ testimony by the commission: “Hargis testified that when Sullins got in the back of the truck near Brinkley he did so for the purpose of resting or sleeping, but the witness did not see the accident as he was driving the truck and does not know liow the deceased met his death, but when Sullins got in the trailer with the hitchhiker boys at DeValls Bluff, he seemed fairly normal and was able to drive the truck fairly well; that when the deceased attempted to again drive the truck near Brinkley he weaved the truck some and did not act too normal, but did not seem to be drunk. When asked why the deceased weaved the truck, witness stated, ‘We were talking and I was trying to get him to let me drive. I knew we were getting close to Memphis and I knew he had been drinking. He drove across the line two or three times and I got him to stop. He stopped the truck on the left side of the pavement.’ Witness testified that during all the trip from Fayetteville to DeValls Bluff while the deceased drove, he drove the truck all right, and that he would not say that Sullins was not able to have driven the truck on into Memphis; that getting on the wrong side of the pavement could have been due to intoxication and could not have been due to intoxication. . . . that at DeValls Bluff, Sullins, in the interest of the employer, called the Canning Company at Memphis telling the Canning Company that they were coming in for a load of cans; that he intended that Sullins should drive back from Memphis. . . His final opinion was that the deceased was somewhat intoxicated but not drunk. ’ ’
The testimony further showed that the deceased had driven all the way from Fayetteville to Clarksville and again from a point about 15 miles west of Little Bock to DeValls Bluff, or he had driven about two-thirds of the way from Fayetteville to the point of the accident.
The issues presented primarily present questions of fact for our determination. At the outset, we must bear in mind certain rules of construction placed upon the Workmen’s Compensation Law by this court. “Findings of fact made by the Workmen’s Compensation Commission are, on appeal, given the same verity as attach to the verdict of a jury, and this applies on appeal to the circuit court as well as to the Supreme Court from the circuit court.” J. L. Williams & Sons, Inc., v. Smith, 205 Ark. 604, 170 S. W. 2d 82, headnote 2.
£ ‘ In testing the sufficiency of the evidence before the commission, the circuit court, on appeal from the commission, and this court, on appeal from the circuit court, must weigh the testimony in its strongest light, in favor of the commission’s findings.” Hughes v. Tapley, Administratrix, 206 Ark. 739, 177 S. W. 2d 429.
“Likewise, all courts are agreed that there should be accorded to the Workmen’s Compensation Act a broad and liberal construction, that doubtful cases should be resolved in favor of compensation, and that the humane purposes which these acts seek, to serve leave no room for- narrow technical constructions. . . We quote from the decision of the Montana court in Wirta v. North Butte Mining Co., 64 Mont. 279, 210 Pac. 332, 30 A. L. R., 964: ‘The word “employment,” as used in the Workmen’s Compensation Act, does not have reference alone to actual manual or physical labor, but to the whole period of time or sphere of activities, regardless of whether the employee is actually engaged in doing the thing he was employed to do. ’ ’ ’ Hunter v. Summerville, 205 Ark. 463; 169 S. W. 2d 579.
As indicated, § 24 of the act makes a prima facie presumption against the injury resulting from intoxication. The burden is clearly upon appellant to show, by the testimony, that Sullins’ death resulted solely from his intoxicated condition. The commission found that his death was not caused solely by his intoxication and that it grew out of and in the course of his employment. After a careful review of all the evidence, we cannot say, as a matter of law, that there was no substantial evidence upon which the commission based its findings and award to appellees.
The rule where the defense of intoxication is used is stated in 71 C. J., p. 770, § 483, as follows: “Under a statute requiring compensation, except when the injury results solely from the intoxication of the injured employee while on duty, if intoxication of the employee is relied on as a defense, it must be made to appear that the accident which resulted .in the injury for which compen sation is sought was caused solely and exclusively by the intoxication of the employee.”
We think the word “solely” as used in § 5 of the act, supra, means exclusive of all other causes. Webster defines “solely”: “exclusively; to the exclusion of other purposes; entirely; wholly,” and as indicated, we cannot say, as a matter of law, that appellants have met the burden which required them to show that Sullins ’ death was caused solely by his intoxication.
At the time the deceased, Sullins, went into the trailer of the truck to rest on the quilts which his employer had provided for that purpose, he had, according to the testimony, driven the truck approximately two-thirds of the distance from Fayetteville. It thus appears that, notwithstanding his drinking, he had done his full share, if not more, of the driving and had not failed to perform any duty, for his employer, which he was called upon to perform. At DeValls Bluff, Sullins, in furtherance of the interest of his employer, sought out a telephone and informed the Memphis branch of the Continental Can Company that the truck was coming in for a load of cans. Just how the deceased fell out of the truck, the evidence does not disclose. There was no eyewitness. To assume that his intoxication was the sole cause of his falling from the truck and resultant death would be a presumption in the teeth of a statutory presumption to the contrary.
As we have indicated, the burden is clearly upon appellant to show that intoxication was the sole cause of Sullins’ fall and resulting death, and we cannot say, as a matter of law, that there was no substantial ■ evidence to support the commission’s finding that appellant has failed to overcome the burden imposed. Accordingly, the judgment is affirmed. | [
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Holt, J.
The primary purpose of appellees in this suit was to cancel a quitclaim deed.
October 26,1922, J. A. Morris, as owner, by warranty deed, conveyed to his brother, R. J. Morris, “The west half of the southeast quarter of section eleven (11) township nineteene (19) S. range 21 west, containing in all eighty acres more or less. It is understood and agreed that the seller retaines % of the minerals and mineral rights in and to said lands. It is further agreed that the seller releases all wright in so far as to all lease contracts to the said lands.” This land was, at this time, subject to an oil and gas lease executed by J. A. Morris and wife to Columbia County Development Company. By mesne conveyances, Bert McMahen,- October 27, 1933, acquired the land under the description contained in the deed from J. A. Morris to R. J. Morris, supra.
■September 29, 1941, J. A. Morris and wife executed to H. O. Barnett, a quitclaim deed whereby they conveyed, for a consideration of $10, “the mineral interests which they reserved in deed from themselves to Robert J. Morris, dated October 26, 1922.” This quitclaim deed is the one in question here. Following .its execution, appellees brought this suit to cancel this deed, alleging fraud and misrepresentation on the part of H. O. Barnett in its procurement, and inadequacy of the purchase price. It was further alleged that Barnett, immediately following the procurement of the quitclaim deed, conveyed a part of the interest, which he alleged he acquired under the deed, to third parties. There was a prayer for cancellation of the quitclaim deed and an accounting in the event the third parties were found by the court to be innocent purchasers for value.
Bert McMahen intervened, asserted his claim to all surface rights and all mineral rights, except one-half of the non-participating royalty interest in and to all the oil, gas and other mineral royalties which might be produced and saved from the land. Appellants answered with a general denial, specifically denying all allegations of fraud, deceit, misrepresentation, and inadequacy of purchase price, denied that the quitclaim deed should be canceled, and “further requested that their title to an undivided one-half interest in and to all the oil, gas and other minerals should be quieted in” them.
On the issues presented, the trial court (and here we quote from the decree) “finds that October 26,1922, J. A. Morris and Flossie Morris, were the owners in fee simple of the W % of SE % section 11, township 19 south, range 21 west, Columbia county, Arkansas, and on same date conveyed said land to Bobert J. Morris and reserved to themselves one-half of the minerals and mineral rights, but at same time released to the grantee the leasehold rights, that is, the right to lease the land for discovery and development of the minerals and mineral rights in said land without any right in grantors to participate in the purchase price of the lease. It appears and the court finds that by mesne conveyances the intervener Bert Mc-Mahen, became the owner of the surface rights, one-half of the minerals and mineral rights, and the leasehold rights in said 80 acres of land, and plaintiffs owned 40 acres of the mineral rights less the right to lease same, that is the mineral interest so reserved was subordinate and subject to such lease rights.
“The plaintiffs, September 29,1941, were.the owners in fee simple of an undivided one-half of the minerals and mineral rights in said land, less the right to lease said land and minerals for discovery and development, and plaintiffs herein claim only an undivided one-half of the minerals and mineral rights in said land, subject and subordinate to the lease right of the intervener, Bert'Mc-Mahen. September 29, 1941, the defendant, H. C. Barnett, for a grossly inadequate consideration and through fraud, obtained a quitclaim deed from plaintiffs to their minerals and mineral rights in said land, * * *. The defendant, H. C. Barnett, and wife, Mrs. H. C. Barnett (Effie Barnett), on same date conveyed by deed to defendant, S. J. McCollum, for $35 an undivided one-fourth interest in and to all the oil, gas, distillate, and other minerals in said 80 acres of land, it being the intention of said H. C. Barnett and wife to convey twenty so-called mineral acres, and said S. J. McCollum was an innocent purchaser, but the interest obtained by him was subject and subordinate to the right of the intervener, Bert Mc-Mahen, to lease said,land for discovery and development of the minerals in said land. * * * The said H. C. Barnett and wife, October 6, 1941, deeded to defendant, Harry Spooner, herein found to be an innocent purchaser, for $100' an undivided one-sixteenth interest in and to all of the oil, gas, distillate, and other minerals in and under and that may be produced from the said 80 acres of land. The intention of the grantors being to convey five mineral acres, * * * but said deed was subject and subordinate to the right of the intervenor, Bert McMahen, to lease said land and minerals for the discovery and development of oil, gas or other minerals in the same.
“The said quitclaim deed from plaintiffs to defendant, H. C. Barnett, having been obtained by fraud and an inadequate consideration, the same should be and is hereby canceled, * * * The plaintiffs, their heirs and- assigns, are the owners of fifteen acres of the minerals and mineral rights, the defendant, S. J. McCollum, and his assigns are the owners of twenty acres of the minerals and mineral rights, and Harry Spooner, his heirs and assigns, are the owners of five acres of the minerals and mineral rights in said land, but all such interests are subject and subordinate to the right of the intervener, Bert McMahen, to lease said minerals and land for discovery and development. * * * The twenty-five (25) acres of minerals and mineral rights, less the lease right, conveyed by defendants, H. C. Barnett and wife, to S. J. McCollum and Harry Spooner, at the time were of the reasonable market value of $15 per acre, and such sales by defendants, H. C. Barnett and wife, Effie Barnett, defrauded and damaged plaintiffs, J. A. Morris and wife, in the sum of three hundred and seventy-five ($375) dollars. ’ ’
After allowing appellants credit for $10, the consideration stipulated in the quitclaim deed in question, the court awarded appellees $365 damages. From the decree comes this appeal.
Appellants relying upon the long established rule of this court that a written instrument may not be set aside on the grounds of fraud in its procurement, except by clear, satisfactory, cogent and convincing testimony, a mere preponderance thereof not being sufficient, argue that the testimony relied upon by appellees here falls short of the quantum of proof required, and relied strongly upon Stephens v. Keener, 199 Ark. 1051, 137 S. W. 2d 253.
The record reflects that in the forenoon of the day the quitclaim deed in question was executed by Morris and his wife, Barnett, who was in the abstract business, went to appellees’ home and according to Morris’ testimony, represented to him in effect that Bert McMahen’s title to the land in question was “messed up” and that a quitclaim deed from appellees was necessary to clear the title so that it could he leásed by Bert McMahen. He further testified that he and McMahen were good friends, that he did not wish to be contrary and was glad to help straighten out the title, that he, Morris, knew that he only had a royalty interest and that McMahen must first lease the land before he, Morris, would be paid anything on his royalty. 'Barnett returned to town, prepared the deed and returned to appellees’ home in the afternoon with Mr. Barrow, a notary public. He further testified that he did not read the deed, that it was not read to him, did not know what it contained, that he was sick, suffering from pellagra and other physical infirmities, including very weak eyes. He could not read without glasses and was very nervous and had transacted no business for ten years. Morris’ wife and son tended to corroborate this testimony of Morris.
The evidence further disclosed that there was no grantee'mentioned in the deed when Morris and his wife signed. The grantee’s name was added later by appellant. Morris further testified that Barnett told him it was necessary that some consideration be paid in order to make the deed valid, that he accepted a check from Barnett for $10, which hé later cashed, that he had no intention of conveying his royalty interest in the land.
The notary public testified that Mr. Morris and his wife stated to him, when they signed the deed, that they understood what they were signing and that the deed was read to appellees.
H. C. Barnett testified that he read the deed to appellees and that he was buying all the interest that they had in the property and that no fraud or deception was indulged in by him in procuring the deed.
There was ample testimony to support the court’s finding that appellees’ royalty wa's worth $15 per acre. Kenneth Maloch, Grady Maloch and Bert McMahen all so testified.
We do not attempt to set forth all the testimony. It suffices to say that after a careful review of the record, we have reached the conclusion that appellees have met the burden of proof imposed upon them and that the court’s findings and decree on all issues were correct and should be affirmed.
While it is not shown that appellee, Morris, was mentally incompetent to execute the deed in question, we do think the evidence shows that he was in á very -weak physical condition, the consideration paid to him was grossly inadequate, and that he was induced to execute the deed on the false and fraudulent representations of appellant, Barnett, that the deed was necessary to clear the title of appellee’s friend, McMahen. We think the gross inadequacy of the purchase price, coupled with appellee ’s physical weakness, misunderstanding of the purpose of the deed and imposition of appellant, sufficient to warrant the cancellation of the deed.
In Luther v. Bonner, 203 Ark. 848, 159 S. W. 2d 454, this court said: ‘ ‘ Mere inadequacy of price, standing by itself and independent of other circumstances, is not sufficient to set aside a transaction. But inadequacy, accompanied by other circumstances (e. g., weakness of understanding in the grantor or grantee; fraud, imposition, mutual mistake, or standing in a relation of influence) may readily make out a case of fraud; and it is said that if the inadequacy be so gross and manifest that it cannot be stated to a man of common sense without shocking the conscience and confounding the judgment, it suffices, of itself (in the absence of adequate explanation) to prove that a fraudulent advantage was taken, as it shows that the person did not understand the bargain he made, or that he was so oppressed he was glad to make it, knowing its inadequacy.”
And in Grismore v. Utley, 159 Ark. 479, 252 S. W. 16, Justice Hart quoted with approval from Gammill v. Johnson, 47 Ark. 335, 1 S. W. 610: “When the representation is made of a fact that has nothing to do with opinion, and is peculiarly within the knowledge of the person making it, the one receiving it has the absolute right to rely upon its truthfulness, though the means of ascertaining its falsity were fully open to him. It does not lie in the mouth of the declarant to say it was folly in the other party to believe him.”
We are also of the opinion that the court below properly construed the reservation in the warranty deed dated October 26, 1922, from J. A. Morris and wife to R. J. Morris. As has been indicated, the court found that Bert McMahen, successor in title to R. J. Morris, the grantee of J. A. Morris, acquired an undivided one-half interest in and to the oil, gas and other minerals together with the surface and leasehold rights, which, say appellants, was in effect to hold that “McMahen owned all the land, and all the mineral rights except one-half of the % royalty interest in the minerals that might he produced therefrom and that Bert McMahen had the exclusive right to lease said lands and receive and collect all money paid for the % royalty and interest.”.
While the reservation referred to is not as plain as it might have been in this regard, any ambiguity was removed by ample testimony disclosed in the record. In case of ambiguity, the rule is well established that testimony may be introduced to ascertain what the parties really intended by the language employed in the instrument. In Swayne v. Vance, Executor, etc., 28 Ark. 282, this court held: “(Headnote) Where there is an ambiguity in the language of a deed, the court may resort to extraneous circumstances to ascertain what the' parties really intended by the language employed; not for the purpose of changing the contract or agreement, but for the purpose of ascertaining"what the parties referred to and intended at the time of making the writing. ’ ’'
Finding no error, the decree is in all things affirmed.
Knox, J., not participating. | [
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McHaney, J.
Appellants, husband and wife, brought this action of unlawful detainer against appellee for the possession of lot 7, block 43, Wright’s Addition to the city of Little Rock. They alleged that they were the owners of said property, having purchased same on November 12, 1942; that appellee was a tenant in possession of said property at the time of their purchase and had refused to surrender the possession of said property to them, after due notice to him so to do. Appellee’s answer denied ownership in appellants and denied the relation of landlord and tenant. He asserted that Virdella Hankins, mother of appellant, Vernice Hilliard, was the owner and appellee was her tenant; that she had tried to remove him from the premises through the OPA, but had been refused this right; and that thereafter she conceived the idea of transferring said property to appellants, her daughter and son-in-law, by an alleged deed which is void, and made solely for the purpose of evading the ruling of the OPA.
Trial resulted in a verdict and judgment for appellee, and this appeal followed.
An action of unlawful detainer presupposes the relation of landlord and tenant. We have several times held that such an action will not lie unless that. relationship exists. Section 6035 of Pope’s Digest and cases there cited. If appellants are "not the owners of said property, the relation of landlord and tenant could not exist, and, hence, the action would not lie. The court instructed the jury.that if they found from a preponderance of the evidence that Yirdella Hankins is, in fact, the true owner *of said property, and that the deed executed by her on November 12, 1942, was, in fact,, the result of a collusive agreement between her and appellants, without intent to pass the title to said property, but solely to hold for her benefit, then they should find for appellee. As stated above the jury found for appellee, and, necessarily, that appellants were not the owners. That finding is based oh substantial evidence. The deed recited a consideration of one dollar and love and affection, was dated and acknowledged November 12, 1942, but was not filed for record until January 7, 1943. Virdella Hankins continued to exercise acts of ownership over the property after the date of her deed, such as receiving the rents and demanding possession. On December 19, 1942, she wrote appellee a letter demanding possession in which she said: “I want my house, I am moving in on you if you don’t move out.”
The motion for a new trial raises only the sufficiency of the evidence to support the verdict and judgment, and we think it is sufficient.
Affirmed. | [
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Knox, J.
Ill feeling has developed between appellants and appellees, who reside next door to each other. At different times various members of the appellee clan have addressed opprobrious language to various members of the appellant family. While the scene of these exchanges is not definitely alleged, it may be inferred that appellees gave vent to their feeling from the vantage point of their own premises, while the persons addressed were on property which was appellants’ home. The question presented by this appeal is whether equity should restrain appellees from further molesting appellants. The matter was disposed of in.the trial court on demurrer. The complaint to which a demurrer was sustained reads in part as follows: “1. The plaintiffs, C. P. Smith and Louise Smith, are the owners of property at 1620 South S street in the city of Fort Smith, Arkansas, and have lived and resided in said property for a period of ten years. The plaintiffs, Juanita Smith and Doris Smith, are their children and live and reside with them.
“The defendants occupy the property at 1622 South S street in the city of Fort Smith, Arkansas, said prop erty being- directly east of tlie property of these plain- • tiffs; that said property is separated by a picket fence four feet high which is built on or near the property line.
“From on or about the 8th day of April, 1943, the defendants and each o.f them, acting in concert and conspiring together have annoyed, molested, threatened, defamed, ridiculed and abused the plaintiffs and each of them in that they have unjustly and falsely accused their daughter, Velma Beecl, in their presence and in the presence of neighbors of misconduct and applied to her vile, opprobrious and scurrilous epithets; that the defendant, Etta Studdard, since said date, and on numerous occasions cursed and abused the plaintiff, Louise Smith, and the defendant, Lula Hamm, was present at the time, acquiescing in and yrging her to do the plaintiff, Louise Smith, bodily harm.
“On the 7th day of December, 1943, the defendant, Etta Studdard, drew a .22 caliber rifle on the plaintiff, Louise Smith, and threatened to take her life and ordered her not to return to her back yard and that the defendants, Kirby S. Hamm, Lula Hamm and Etta Studdard, have continuously urged the defendants, Kirby Hamm, Jr.,.and Paul Hamm, to beat up and do bodily harm to Doris Smith, a girl of fifteen years of age; that all of the defendants have continuously. and at various times cursed, ridiculed and abused the plaintiffs and applied to them profane names in the presence of their friends and neighbors, to their disgrace and humiliation.
“All of the overt acts on the part of the defendants above mentioned have been committed by; or acquiesced in, by all of the defendants acting together in conspiracy to molest, ridicule and defame the plaintiffs in the quiet and peaceable possession of their home.
“3. The plaintiffs further state that they have not connived at or given the defendants any just or legal excuse or cause for their conduct, but have at all times remained upon their property and are without fault in the premises.
‘ ‘ 4. Plaintiffs further state that' they attempted all lawful methods to keep the defendants from further molesting and annoying them in that they have reported their actions to the office of the prosecuting attorney, but they have at all times failed to get any relief through these efforts and that they have no adequate remedy at law and therefore bring these proceedings in equity and that, unless the defendants, and each of them, are enjoined and restrained from further molesting, annoying, defaming, ridiculing, threatening, cursing and abusing the plaintiffs and coming upon their property, the plaintiffs will suffer irreparable injury and. damage.
“5. The plaintiffs further state that the defendants and each of them are threatening to continue the annoyance, molestation and threats to do bodily harm to the defendants and that the court should issue herein a temporary restraining order forthwith and without notice. In support of said temporary restraining order, they attach hereto the affidavits of Maggie Schuler and Hallie Cross and make them a part of this complaint.
“Wherefore, the plaintiffs pray that the court issue forthwith and without notice a temporary restraining order, restraining the defendants and each of them, from further molesting, annoying, threatening, ridiculing .and defaming, or in any Avay interfering with the plaintiffs in the peaceable and quiet possession of their home and that, upon hearing had, the court permanently enjoin and restrain the defendants, and each of them, from the acts set out in the restraining order, for their costs and for all proper and equitable relief.”
Appellants contend that the conduct of appellees constitutes a nuisance, which injures their property and that equity therefore has jurisdiction. The use of opprobrious language has under certain conditions been considered a nuisance. 39 Am. Jur. 366, Anno. 48 A. L. R. 89; Mackenzie v. Frank M. Pauli Co., 207 Mich. 456, 174 N. W. 161, 6 A. L. R. 1305; Bernard v. Finkbeiner, 147 N. Y. Sup. 314, 162 App. Div. 319.
' The fact that appellees’ conduct was of a character to constitute a nuisance is not within itself sufficient to authorize the use of the extraordinary process of injunction for the abatement thereof.
In the case of State v. Vaughan, 81 Ark. 117, 98 S. W. 685, 7 L. R. A., N. S. 899, this court had occasion to consider the prop'er use of injunctions to restrain nuisances, Chief Justice Hill, quoting with approval from In re Debs, 158 U. S. 564, 15 S. Ct. 900, 39 L. Ed. 1092, declared that before a court of equity could enjoin a nuisance either, public or private “There must be some interferences actual or threatened with property or rights of a pecuniary nature. ’ ’ In the case of Lyric Theater v. State, 98 Ark. 437, 136 S. W. 174, 33 L, R. A., N. S., 325, Mr. Justice Frauenthal, speaking for the court, said that the jurisdiction of courts of equity to enjoin nuisances “is interposed solely for the protection of property and civil rights ... In the absence of an injury to property or to civil rights the chancery court has no jurisdiction” in such cases.
Quite frequently in earlier cases, as in this case at bar, the acts complained of were violative of criminal statutes, which subjected the perpetrator thereof to criminal prosecution. This conflict of jurisdiction has given the courts a great deal of difficulty. The rule finally arrived at with respect to the matter is succinctly stated in 28 Am. Jur. 339, Injunctions, § 150, as follows: “It is in the prevention of invasion of, injury to, or destruction of property or property rights that the remedy by injunctions is generally granted, and it is no obstacle to injunctive relief in such cases that the acts complained of may be of a criminal character. However settled may be the proposition that equity will not intervene by injunction to restrain acts that are merely criminal, this does not preclude injunctive relief against the commission of criminal acts which cause irreparable injury to the complainant’s property or pecuniary rights, even though the acts complained of are committed by public officers. In order, however, to obtain relief by injunction against the commission of acts of a criminal character, on the ground of injury to the property rights of an individual, the court will require that the complainant clearly show' such facts and circumstances in the particular case as will justify the court in granting the relief desired.
“There is a manifest distinction between enjoining an individual from committing a crime and enjoining the owner of property, or its possessor, from allowing his property to injure others. Although equity will not restrain acts of a criminal character, it will restrain the unlawful use of property, even though such use is an offense against the laws of the state or the. ordinances of the community. The court, in such cases, does not interfere with the enforcement of the criminal laws, nor does it interfere to prevent the commission of crime, although that may incidentally result, but it exerts its force to prevent individual property from being destroyed, and ignores entirely the criminal features of the act. In affording relief in such cases, it may incidently enjoin the commission of a crime. The remedy given is purely preventive; the defendant is not punished for what he has done. In granting this relief, the constitutional right of trial by jury is not infringed, -on the theory that disobedience of the injunction will constitute contempt which may be. punished summarily. Even though courts will enjoin criminal acts which violate some personal or property right, they will not assume jurisdiction where the results of the injunction on the plaintiff’s property rights are not determinative, but inferential only. ’ ’
The determinative test of the right of courts to interfere in cases like the one at bar is whether the acts complained of work an irreparable pecuniary injury to property or pecuniary rights of the complaining party.
The complaint here fails to directly allege any such injury or damage, and such cannot reasonably be inferred from the facts which are alleged. True it is that the allegations disclose that appellants are being annoyed, and are being disturbed in. their home. This annoyance, however, is directed against them personally and is not directed against their property. Doubtless appellants would be subjected to the same opprobrium wherever they might come in contact with appellees, and likewise when appellants are absent from their home appellees doubtless refrain from such conduct in the vicinity thereof. The sale value of the property is in no way affected, because there is no reason to assume that a purchaser would be subjected to the same annoyance.
Cases where injunctions have been issued to prevent odors and noises from interfering with the use of private property have little or no application. In those cases such odors and noises resulted from a use to which the adjoining property had been put, and it was manifest that they would be continued regardless of who occupied the neighboring property. So there was proof of a continuing injury to the neighboring property itself.
We have been cited to only two cases where courts of equity have enjoined as a nuisance the use of opprobrious language, and our investigation has revealed no other. These cases are Bernard v. Finkbeiner, 147 N. Y. Sup. 514, 162 App. Div. 319, and MacKenzie v. Frank M. Pauli Co., 207 Mich. 456, 174 N. W. 161, 6 A. L. R. 1305. In the first of these cases it was held that an injunction was proper to prevent the occupants of property adjacent to a theater from continuing to engage in outbursts of loud, profane and obscene language, which could easily be overheard by persons attending the theater. In the second case it was held the'congregating of employees of a factory in an adjoining alley and the use of loud, profane and indecent language by them to the annoyance of occupants of neighboring property was a nuisance which should be enjoined.
The two cases last mentioned, as well as the case at bar, are border line cases. In neither the New York nor the Michigan case, however, was there any suggestion that opprobrious acts followed the persons of the occupants of the property rather than being associated with the propertj7- Itself. The loud, profane and obscene conversations would continue regardless of who owned or occupied the theater, or the property adjacent to the factory. Therefore, direct pecuniary injury was being inflicted on the adjacent property in these two cases, since its market value was thereby being reduced.
The allegations concerning acts past and threatened upon which the prayer for injunction is founded are set out in par. 2 of the complaint. The overt acts alleged are (1) that appellees have falsely accused Velma Reed, a daughter, of misconduct;. (2) that on numerous occasions they have cursed and abused Louise Smith, and on one occasion threatened to shoot her, and (3) that the older members of the Hamm clan have from time to time urged the two younger members thereof to do bodily harm to Doris Smith, another daughter, and (4) from time to time each and all of the appellees have cursed and abused each and all of appellants. The daughter, Velma Reed, evidently does not reside on the property and is not a party to this litigation. All of the acts complained of appear to be more in the nature of personal trespasses than irreparable injury to property. Davis, etc., Mfg. Co. v. Los Angeles, 189 U. S. 207, 23 S. C. R. 498, 47 L. Ed. 778.
In the case of Hill v. Carter, 182 Ark. 1007, 33 S. W. 2d 371, the pastor of a colored church alleged that the defendants had physically restrained and prevented him from entering his church and conducting services, and sought an injunction against threatened recurrence of. the act. A demurrer was sustained and we affirmed, saying: “The .court correctly sustained the demurrer as the complaint failed to state a cause of action. Appellant alleges that he is the legal pastor of the Pine Bluff Colored Baptist church and he seeks to enjoin the appellees, who, so far as the complaint discloses, are not connected with said church either as officers or members, from interfering with him as pastor. He alleges that they had prevented him from holding services, which might amount to a misdemeanor, such as disturbing the peace, but chancery court will not ordinarily enjoin the commission of a crime. Lyric Theatre v. State, 98 Ark. 437, 136 S. W. 134, 33 L. R. A., N. S., 325.”
A comprehensive annotation relating to equity jurisdiction to enjoin crimes and criminal prosecutions is found at 35 Am. St. Rep. 670, and we quote a brief paragraph therefrom as follows:' “So far as a succinct and comprehensive rule can be gathered from the cases, which are far from being harmonious, it may be stated thus: Equity will not interfere to prevent the commission of criminal acts, if the injury which will result to property therefrom is merely a consequence, however natural and inevitable, of such acts; but if the acts, although criminal in the sense that the state has imposed a penalty for their commission, are primarily and essentially an injury to property, preventive relief may be- granted within .the same limits and under the same conditions as where the element of criminality is entirely absent, that is, an injunction will not issue unless the damage threatened is irreparable and the evidence is clear and convincing. ’ ’
The fact that reports made to law enforcement officers of appellees ’ action have produced no relief does not confer jurisdiction on courts of equity. 28 Am. Jur. 337. Furthermore, appellants need not depend upon the prosecuting attorney to institute criminal prosecution, they may cause such proceedings to be commenced by filing an affidavit with a magistrate. Section 4163, Pope’s Digest. Likewise, the provisions of § 4185 of Pope’s Digest afford a remedy to one who has been threatened.
The demurrer was properly sustained, and the decree is affirmed. | [
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McFaddin, J.
This case presents the question, whether municipal property has been so used as to lose its right of exemption from taxation under art. XVI, § 5, of the Arkansas Constitution.
Pursuant to Act No. 131 of the General Assembly of 1933, and amendments, the City of Fort Smith (located in Sebastian county) purchased lands in Crawford county and constructed a lake and waterworks plant for the purpose of furnishing the inhabitants of Ft. Smith an adequate supply of water. This lake is about twenty-five miles from Ft. Smith. The taxing authorities of Crawford county placed a valuation on a part of the property for tax purposes, and attempted to levy and collect a tax based on that valuation. The City of Ft. Smith obtained an injunction, enjoining appellants herein, as the officials and taxing authorities of Crawford county, from levying or attempting to collect any tax on the property so owned by the City of Fort Smith; and from that injunction there is this appeal, in which appellants make the contentions which we list and discuss.
I. Appellants contend that the■ city of Ft. Smith has entered the field of a public utility, because the City is 'supplying water to (a) the City of Alma, (b) the City of Van Burén; and (e) Camp Chaffee.
Appellants cite art. XVI, § 5, of onr Constitution, reading (as to what property is exempt from taxation), in part, as follows: “Public property used exclusively for public purposes.” Appellants recognize the force of the. holding of this court in Hope v. Dodson, 166 Ark. 236, 266 S. W. 68, to-wit: “It is generally held that a waterworks system owned and operated by a municipality is public property devoted to a public .use, and, as such, entitled to exemption from taxation.” But appellants claim that all of appellee’s property in Crawford county is not being used exclusively for public purposes; and appellants state their contention in this regard in tbe following language: “In order to secure its water supply, appellee constructed its dam and plant in tbe northern part of Crawford county, more than twenty-five miles from tbe city. This, we concede, it bad a right to do, but only for one purpose, and that was supplying-its citizens water within tbe corporate limits. When it went beyond this, it was no longer using tbe property exclusively for tbe public purpose for which tbe waterworks was designed. True, this and other courts have held that in connection with this purpose, mere surplus water may be disposed of, but it has never been held that tbe municipality can spread out into tbe general utility field and then escape liability . . .” (i. e., liability of taxation on tbe property). Appellants thus concede, in this section of their argument, that appellee’s property would be exempt from tbe taxation here sought to be imposed except for tbe contracts to furnish water to (a) Alma, (b) Van Burén, and (c) Camp Chaffee. We proceed to examine these situations:
(a) Alma. In tbe case of McGehee v. Williams, 191 Ark. 643, 87 S. W. 2d 46, this court bad before it tbe contract whereby tbe City of Ft. Smith was to sell surplus wafer to Alma; and Chief Justice Johnson, speaking for this court, said: “We conclude, therefore, that tbe City of Ft. Smith has tbe power in law to sell its surplus water to inhabitants located without tbe city limits, and to this end has power and authority to execute a contract. ’ ’ That case detailed the proximity of the Ft. Smith pipe line to the city of Alma, as well as other physical facts. There has been no substantial change in the situation from the time of that case to the time of the trial of the present case. In North Little Rock Water Co. v. Waterworks Commission of Little Rock, 199 Ark. 773, 136 S. W. 2d 194, we again commented on the Alma-Ft. Smith water situation.
A city may sell surplus water without losing its right to tax exemption as public property used exclusively for public use. In 3 A. L. R. 1445, there is an annotation on* whether public property is taxable where income is received incidental to public use; and the rule is stated: “Asa general rule, it may be said that where the primary and principal use to which the property is put is public, the mere fact that income is incidentally derived from its use does not affect its character as property devoted to public use.” The annotation is supplemented in 129 A. L. R. 485, and also in 101 A. L. R. 790, where the case of Hope v. Dodson, 166 Ark. 236, 266 S. W. 68, is cited to sustain the above-quoted rule.
In the case of Anoka County v. City of St. Paul, 194 Minn. 554, 261 N. W. 588, 99 A. L. R. 1137, the city of St. Paul supplied water from its municipal waterworks to the cities of West St. Paul and South St. Paul, each of which was a separate municipality. The Minnesota constitution has substantially the same language regarding tax exemption as the Arkansas constitution — i. e., public property used exclusively for public purposes. The county of Anoka sought to collect a tax from the waterworks of the city of St. Paul, because the city was selling water to the other two, named, municipalities. Even though the Supreme Court of Minnesota held that the city of St. Paul might be carrying on a private business when it sold the water to the other municipalities (to which extent we do not go in this decision), nevertheless the Supreme Court of Minnesota said: “It is argued that since the city was in part at least engaging in a private business, the land, upon which this waterworks was located was not used ‘exclusively’ for a public purpose, and hence the entire waterworks should be taxed. We do not agree. The word ‘exclusively,’ as here used, means ‘substantially all’ or ‘for the greater part.’ The word must be given a practical construction.” In that case the Supreme Court of Minnesota held that the City of St. Paul had not lost its. right to tax exemption on its waterworks. We likewise conclude that the sale of water by the City of Ft. Smith to Alma did not deprive the City of Ft. Smith of its right to tax exemption on its properties in Crawford county.
(b) Van Burén. The record shows that the twenty-seven inch pipe line from the lake to Ft. Smith passes through the City of Van Burén. In 1986, the City of Ft. Smith made a contract with the Water Improvement District of Van Burén to sell surplus water to that improvement district for a period of two years. Since the expiration of the written contract, the Improvement District has continued to receive water on a month-to-month basis. In all other respects, except as mentioned, the Van Burén situation is identical with the Alma situation; and we hold that the same result follows in this case.
(c) Camp Chaffee, In preparation against, or because of, World War II, the United States Government constructed, and now maintains Camp Chaffee, a large Army Camp about fifteen miles from Ft. Smith; and the City of Ft. Smith entered into a contract with the United States of America to furnish the Government with water at the Camp. This necessarily required that pipe lines be laid to the Canip, and that various other expenditures be made — some of which may not be serviceable to Ft. Smith if the Camp is abandoned. Appellants contend that since the City of Ft. Smith is selling water to the United States and has constructed a line therefor, then the City of Ft.- Smith has entered the “public utility field,” and its waterworks plant is no longer exempt from taxation, because it is not used exclusively for public purposes. We do not agree with this contention of the appellants.
'The words “public purposes” mean use by the public generally, as distinct from proprietary use. Camp Chaffee was built and is being used for a public purpose in the broad national sense. The City of Ft. Smith, Crawford county, the entire State of Arkansas and the entire nation, are interested in the successful outcome of the national effort of which Camp Chaffee is a part. There, American soldiers have been, and are still being, mobilized and trained to fight for and defend our country. What greater public purpose could be stated? Providing water for Camp Chaffee in time of war is a public purpose the same as providing water for the citizens of Ft. Smith. In time of war and national emergency, as now, the welfare of the nation is always a public purpose. As was well said by the Supreme Court of Wisconsin: “The common defense of the nation can only -be successfully maintained by cooperation of the states; hence, when a war is waged by the nation, those supporting it are performing service as well for their respective states as for the nation.” State v. Johnson, 170 Wis. 218, 175 N. W. 594, 7 A. L. R. 1617. See, also, State v. Smith, 235 Wis. 443, 293 N. W. 161.
So: to appellants’ first point — that Ft. Smith, by furnishing water to Alma, Van Burén, and Camp Chaffee has entered the public utility field, and thereby lost its right to tax exemption — we see no merit.
II. Appellants contend that the swimming-pool, bath house, concessions and cottages below the dam are not used for public purposes within the meaning of the Constitution, and are, therefore, taxable.
Appellants say in their brief: “After the construction of the dam, under a WPA grant a large swimming-pool and large bath house were constructed upon a tract of land which appellee had acquired wholly below the dam; admission fees were charged to swim in the pool, and other charges were made in connection with the use of the bath house, towels, etc.; cold drinks, sandwiches, and such articles, were sold at the bath house and about the swimming-pool; a coin-operated music machine was operated. It is apparent that all of these things were separate and apart from, and had no relation to, the supplying of water. In addition to these things, a number of cottages have been erected upon this land below the dam, and title thereto is in Ft, Smith. ’ ’ The record before us reveals that after the dam was completed, there was a “deep hole” in the creek below the dam; and this hole was made into a swimming-pool with very little excavation; and thus the ever-present temptation to sightseers to swim in the lake was overcome by providing a swimming-pool below the lake. A bath house was built at the swimming-pool. There was the necessity of building a road across the creek below the.dam, to be used in lieu of the road that the lake had flooded above the dam. All these items were put into a WPA project to secure aid from the U. S. Government. In the course of the project, and to use the required “man hours,” the land below the dam was beautified. The National Youth Administration built some cottages in the área.
All the area below the dam was placed under the control of the Parks Board of the city of Ft. Smith; and has all the time been handled as a public park. The facilities are open to the public at large, and are patronized by the people of Crawford county, as well as by people from elsewhere. A small admission charge is made for use of the swimming-pool, in order to defray towel expense, etc.; cold drinks and sandwiches are sold by a concession; hut from all of the admission charges and concession money, the city of Ft. Smith has never made any profit; in fact, it still lacks several hundred dollars of receiving back its original outlay for towels.' If any profit should ever be received, it will go back into maintenance, etc.
We are convinced that the chancery court was entirely correct in finding that the area below the dam was in the nature of a public park, and maintained for public purposes. In Hope v. Dodson, 166 Ark. 236, 266 S. W. 68, Mr. Justice Hart, speaking for this court, said: ‘ ‘ Public parks are essential to the health; comfort, and pleasure of the, citizens of a city. It is, therefore, generally held that public parks, maintained at the public expense, are within the terms of constitutional provisions exempting from taxation public property used for public purposes. 3 McQuillin on Municipal Corporations, §§ 1115, 1154; Dillon on Municipal Corporations, 5th Ed., <§.§ 976, 1096; Owensboro v. Commonwealth, ex rel. Stone, 105 Ky. 344, 49 S. W. 320, 44 L. R. A. 202; Laird v. Pittsburgh, 205 Pa. 1, 51 Atl. 324, 61 A. L. R. 332; People, ex rel., v. Chicago, 51 Ill. 17, 2 Am. Rep. 278; and People, ex rel., v. Detroit, 28 Mich. 228, 15 Am. Rep. 202. See, also, Norman v. Kentucky Board of Managers, 93 Ky. 537, 20 S. W. 901, 18 L. R. A. 556.”
In Hannon v. Waterbury, 106 Conn. 13, 136 Atl. 876, 57 A. L. R. 102, the Supreme Court of Errors of the State of Connecticut held that a municipality was acting in its governmental capacity in operating a swimming-pool; and the court said: “Public parks, playgrounds, swimming-pools, and public baths or bath houses, are all examples of municipal functions undertaken for the public benefit, and, unless maintained for. the corporate profit of the municipality, are within the rule of governmental immunity. Bolster v. Lawrence, 225 Mass. 387, L. R. A. 1917B, 1285, 111 N. E. 722. The charge of a small fee covering a part of the cost of the maintenance of the pool in paying a supervisor, instructors, janitors, and the like, while the municipality furnished the buildings, the swimming-pool, the apparatus and equipment in connection therewith, the coal, electricity, water, chemicals, and other necessaries for the maintenance of the pool, did not except the maintenance of the pool from the rule of governmental immunity. The city was not deriving a profit from this small fee, the charge was a mere incident of the public service rendered in the performance of a governmental duty.”
Without lengthening this opinion by the citation of other authorities, we conclude that the use of the property below the dam, as a swimming-pool, bathhouse, and public park, did not destroy the status as tax-exempt property under art. XVI, § 5, of our constitution.
Finding no error, the decree of the chancery court is in all things affirmed. | [
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Robins, J.
On his plea of “not guilty” to an information charging him with rape appellant was tried by a jury and found guilty of assault with intent to rape. To reverse judgment entered on the jury’s verdict this appeal has been brought.
No brief has been filed on behalf of appellant. The only' error complained of in his motion for new trial was that the verdict was contrary to the law and the evidence.
A careful review of the record discloses that the verdict was supported by substantial testimony and that no errors prejudicing appellant occurred in the trial. The judgment of the lower court is accordingly affirmed. | [
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Holt, J.
July 29,1943, appellant, Chester Fitzhugh, was convicted of the crime of involuntary manslaughter, and the jury fixed his punishment at nine months in the state penitentiary. From the judgment comes this appeal.
For reversal, appellant contends that the trial court erred in giving the state’s instruction No. 8; in giving appellant’s instruction No. 2 after modifying same, and in refusing to give appellant’s instructions Nos. 3 and No. 4.
A brief summary of the material facts most favorable to the state is as follows:
At about 12 o’clock on the night of June 17, 3943, appellant’s one-half ton Ford truck collided with a Chevrolet automobile driven by J.. C. Forthman on paved highway No. 67, south of Malvern, in front of Central High School. The collision was discovered by employees from a nearby aluminum plant. Upon investigation, these employees found that the cars had collided head on, on the left side of the highway and came to rest just off the left side of the pavement. The Forthman car was going north, and the Ford truck was going south and was on the wrong side of the highway when the collision occurred. Appellant was f-ound on the right side of the front seat of tlie truck seemingly in a stupor or drunken condition. Several empty beer bottles were in the truck. Pinned under the wreckage of the Chevrolet car was discovered Mr. Forthman, seriously injured. "With considerable effort they extricated him and laid him temporarily on the ground near the pavement. Forthman died from his injuries about one hour later at a hospital. Appellant got out of his car, staggered some and upon seeing Mr. Forthman lying on the ground said: “This has got me.” Frank Ault, deputy sheriff, who reached the scene shortly after the collision occurred, testified that the beer bottles in appellant’s truck smelled fresh. He did not think appellant was as .drunk as he acted. On questioning appellant at the sheriff’s office some three or four hours after the collision, appellant said that he had not seen Clarence Davis since the day before.
Appellant’s contention was that he was drunk at the time of the collision and remembered nothing about it, that he was not driving his truck at the time, but that Clarence Davis was driving. Appellant admitted that the truck belonged to him and that he was riding on the front seat at the time of the collision. Clarence Davis denied being with appellant or that he, Davis, was driving the truck when the collision occurred.
Instruction No. 8, about which appellant complains, is as follows: “You are instructed that even though you find from the evidence in this case that the defendant, Chester Fitzhugh, was not the driver of the truck mentioned in evidence at the time of the collision mentioned, but do find beyond a reasonable doubt that he was standing by, aiding and abetting in any unláwful operation of the said truck, and that as a result of such unlawful operation, if any, the death of J. C. Forthman was caused, then you are instructed to find the defendant guilty. ” We think this was a correct instruction on appellant’s theory of the case" and the facts presented.
Under the criminal laws of this state (§§ 2934 and 2935 of Pope’s Digest), any one who stands by, aids abets or assists another in the perpetration of a crime is deemed to be an accessory and shall be punished as principal offender. Section 3276 of Pope’s Digest provides: “The distinction between principals and accessories before the fact is hereby abolished, and all accessories before the fact shall be deemed principals and punished as such. ’ ’
Appellant argues, however, that “Involuntary manslaughter is a killing without any premeditation, deliberation, malice aforethought, or design, and certainly no man could stand by, aid, abet, or assist another in the commission of a crime that the principal had no idea he was about to commit. ’ ’
In 26 American Jurisprudence, p. 199, § 59, the text writer in discussing “Accessory. Before the Fact in manslaughter” says: “Manslaughter may result from the doing of an unlawful act or as the result of gross negligence in the performance of an act otherwise lawful, consequently, one who procures' another to use a dangerous agency which causes death may be guilty as accessory before the fact.” In support of the text, there is cited the case of State of Rhode Island v. George W. McVay, et al, 47 R. I. 292, 132 Atl. 436, 44 A. L. R. 572, from the Rhode Island Supreme 'Court, in which it was held that one may be guilty as accessory before the fact to the crime of involuntary manslaughter, and in the opinion it is said: “Manslaughter may consist, among other things, of doing an unlawful act resulting in unintentional killing, such as violation of motor vehicle laws ’ ’ . . . “Malice, in its legal sense, may exist without actual intention of any mischief if the killing is the actual consequence of careless action.”
We think the jury would have been warranted in finding from all the facts and circumstances presented that the truck in question belonged to appellant; that he was on the front seat at the time of the collision, and that if not actually driving, was sitting beside the person who might have been driving; that appellant was not so drunk, but that he knew what was happening, knew that the truck, a dangerous instrumentality, was being driven on the wrong side of the road (§ 6714, Pope’s Digest) in an unlawful manner, and was, therefore, an accessory and Dunishable as principal.
“On the trial of an accessory, whether the testimony as’to the accessory’s knowledge of the principal’s offense is sufficient to justify a conviction is a question for the jury.” 23 C. J. S., p. 621, § 1125. We think, therefore, that the court committed no error in giving instruction No. 8.
Appellant’s instruction No. 2, as modified, is as follows : “The mere fact that you find beyond a reasonable doubt from the evidence in this case that Chester Fitzliugli was riding in the truck that collided with the Forth-man car, which resulted in the death of Mr. Forthman, that in itself is not sufficient to convict the defendant, but you must further find beyond a reasonable doubt that the defendant was driving the truck in an unlawful or drunken and intoxicated condition, or was standing by, aiding or abetting in the unlawful driving of the car, which caused or brought about the death of the said Mr. Forthman.” Appellant says': “The defendant objects generally to the action of the court in modifying his said instruction No. 2 by striking out the word ‘manner’ following the word ‘intoxicated’ in the seventh line of said instruction, and substituting in its place the words ‘ condition, or was standing by, aiding or abetting in the unlawful driving of the car’.” We think there was no error in modifying the instruction and giving it as modified. What we have just said in regard to instruction No. 8 applies as to this instruction.
Appellant’s requested instruction No. 3, which the court refused to give, is as follows: “You are instructed that unless you believe beyond a reasonable doubt that the defendant, Chester Fitzhugli, was driving the truck which collided with the car driven by the said Forth-man, at the time of this alleged collision, and which resulted in the death of the said Forthman, it will be your duty to find the defendant not guilty.” We think the court was correct in refusing to give this instruction for the reason that this instruction required the jury to find that appellant must have been actually driving the truck at the time it collided with the car driven by Mr. Forth-man before they could convict him. This instruction was clearly in conflict with instructions Nos. 8 and No. 2, sttpra, and properly refused.
Appellant’s requested instruction No. 4, wliicli was refused, is as follows: “You are instructed that if any of the instructions given by the court, if there is no evidence, direct or circumstantial, upon which to base that instruction, then in that event you will disregard that instruction.” The effect of this instruction is to tell the jury to disregard any abstract instruction, or any instruction, given, without evidence to support it. Since we find that all the instructions given related to some issue and were properly given, the court did not err in refusing this instruction.
Finally, appellant contends that the official court reporter, Mrs. Frances Copeland, grossly overcharged him for her services in preparing the bill of exceptions. He asks that we determine what fees or charges the reporter is entitled to receive for her services in this connection. We cannot. decide this question here for the reason that Mrs. Copeland is not a party to this suit.
Finding no error, the judgment is affirmed. | [
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Robins, J.
The prosecuting attorney of the second judicial district of Arkansas filed in the circuit court a petition as provided for in Chapter 134 of Pope’s Digest of the laws of Arkansas alleging that a beer parlor, dance hall and liquor store operated by appellants, J. F. Futrell and Tom Craft, was a public nuisance and asking that the operation of same be enjoined.
A temporary order enjoining the operation of the beer parlor, dance hall and liquor store was made by the circuit judge, on presentation of the petition. The case coming on for final hearing on February 12, 1942, appellants, Futrell and Craft, appeared and by their counsel stated that they “confess judgment and make no further defense to the application for a permanent injunction herein.” The court thereupon rendered judgment finding that ‘ ‘ the Black River Camp, including the liquor store, beer parlor, dance hall and outbuildings” was a public nuisance and ordered that the temporary injunction previously issued be made permanent, and further ordered that all the buildings “be closed and not hereafter be used for any purpose whatever for a period of twelve months except by order of the court.”
On June 11, 1942, appellant Futrell filed a petition requesting a modification of the judgment so as to permit the use of the building for “legitimate” purposes. Apparently no action as to this petition was taken at the time.
On January 19, 1944, appellant Futrell filed a petition setting up that he was owner of the property involved herein and that on December 20, 1943, the sheriff of Clay county, acting under orders of the prosecuting attorney, placed padlocks on all the buildings situated on said premises. The prayer of the petition was that the sheriff be restrained from interfering with the use of said buildings and that he be directed to remove the padlocks therefrom. To this petition the prosecuting attorney filed a response setting up that the “court issued a permanent padlock order against the defendants and the premises mentioned in said petition, and that said padlock order is still in force and effect.”
The case was tried upon a stipulation which inter alia recited that on June 1, .1943, Futrell had leased the premises to J. J. Steel for one year; that Steel had procured proper licenses to sell wine and beer on the premises and was, on December 20, 1943, operating a dance hall and selling wine and beer with certain fixtures of his own, and that on said date the sheriff removed these fixtures, padlocked all doors and placed on the buildings certified copies of the order of court dated February 12, 1942.
The court entered an order denying the petition; from which order this appeal is prosecuted.
The statutory authority to close up and prohibit the use for any purpose of buildings in which there is maintained a nuisance such as is here involved is contained in §§ 10913 and 10921 of Pope’s Digest of the laws of Arkansas, which empower the court to close a building pending the hearing of the petition for abatement, and §§ 10916 and 10924 which provide that, where an order of abatement has been violated, the court may, in addition to punishing the offender by fine, or by fine and imprisonment, for violation of the order, order the padlocking of the premises involved for a period of one 3mar. Under the statutes referred to the court may enjoin perpetually the maintaining of the nuisance in a building, but the court has no power under the statute to order the closing of the building for any length of time, except during the period'from the granting of the temporary order until the final hearing of the petition for abate.ment, and except b3^ way of additional punishment for violation of the court’s order enjoining the nuisance. In the case at bar, though there may have been a violation of the valid portion of the court’s order (that part forbidding the operation of the dance hall and the sale of beer and wine), there has been no proceeding in court to inquire into or to punish such violation.
The court, in directing that the buildings on the premises be closed and not used for any purpose for a period of twelve months, exceeded the powers granted to it under the statute, because, at the time this order was made, there had been no contempt proceedings. Furthermore, on December 20, 1943, the last date on which the sheriff padlocked the doors, the twelve months’ period, during which the buildings were ordered closed for all purposes, had expired, so that, viewed from any standpoint, this action on the part of the sheriff was unauthorized.
It is urged by appellant that the order forbidding the operation of the dance hall and the sale of liquor and beer was ineffective as to the tenant Steel, because he was not a party to the original proceeding. This contention cannot be sustained. The court found that the operation of the dance hall, beer parlor and liquor store on the described premises was a nuisance and enjoined same. This was a perpetual order and, unless modified by the court, continued in force, regardless of any change in the ownership or possession of the property. “Where the decree is not only in personam against defendant in the injunction suit, but also operates in rem against specific property, or against a given illegal use of such property, the decree is a limitation upon the use of the property of which all subsequent owners, lessees, or occupants must take notice.” 46 C. J. 800. “An injunction restraining the defendant and all other persons from keeping or maintaining a nuisance on certain premises is considered one in rem, which is binding upon subsequent owners, tenants, or occupants, of which they must take notice at their peril . . . ” 39 Am. Jur. 448.
The order of the lower court is accordingly reversed and the cause is remanded with directions to the lower court to enter an order, denying the prayer of appellant to modify that part of the original order under which the operation of the dance hall, beer parlor and liquor store is enjoined, but modifying the original order so as to eliminate therefrom all parts thereof under which the use for any purpose of the buildings on the premises is forbidden, and the lower court should direct the sheriff to remove from the buildings the padlocks placed thereon by him.
MoFaddin and Knox, JJ., concur. | [
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McFaddin, J.
This appeal presents questions concerning foreign judgments, creditors’ suits, and trusts.
The Maryland Casualty Company recovered judgment in personam in the United States District Court for the Southern District of Texas against Mrs. Anne Wood Loclier for $13,000, and a nulla bona return was made on the execution issued 'on that judgment. The judgment and return were duly authenticated under the United States statutes. (U.S.C.A. Title 28, § 687.) Thereafter, this present suit was filed by the Maryland Casualty Company in the nature of a creditors ’ suit, or equitable execution, in the chancery court of Crawford county, Arkansas, based on the unsatisfied Texas Federal judgment and return evidenced by the authentication previously mentioned. The defendants named in this Arkansas suit were Mrs. Locher, individually, and Dell Miller, Harry Wood and D. L. Hodges, as Trustees under the wills of Norma Wood, deceased, and Margaret Wood, deceased. The complaint alleged that the administration of each of the estates had long been closed and Mrs. Locher was beneficiary of one share in each trust estate for and during her natural life and that the trustees of the two wills were handling the trust funds of the estates and were making annual payments to Mrs. Locher of all of her share of income; and the complaint prayed that the annual pajunents going to Mrs. Locher should be paid to the Maryland Casualty Company during the life of Mrs. Locher until the Texas judgment should be satisfied. The complaint alleged the non-residency of Mrs. Locher and her insolvency and the absence of any property belonging to her in the State of Arkansas. Mrs. Locher was served with summons in the State of Texas under the provisions of § 1374 of Pope’s Digest. She made no appearance or defense in this case. The three trustees were personally summoned and made the defenses which we will discuss herein. Mrs. Locher testified by deposition taken on behalf of the trustees.
The Crawford Chancery Court found that the balance due on the Texas judgment was $12,042 with interest at 6 per cent, from October, 1940; and that Mrs. Locher was a citizen of Texas and had no property in Texas or elsewhere subject to execution or attachment except her equitable interest in the trust here involved; and that under the wills involved Mrs. Locher was entitled to receive for her life the income from one share in the trust; and that this was not a spendthrift trust. Accordingly the chancery court enjoined the trustees from paying to Mrs. Locher any of the future net income of her share of the trust and decreed that the trustees should pay the future income of Mrs. Locher’s share of the trust, during the lifetime of Mrs. Locher. to the Maryland Casualty Company until the said judgment of $12,042 should have been paid in full. From this decree the trustees (appellants) have brought this appeal. Six questions are presented either directly or inferentially; and we proceed to state and discuss them.
. I. Is A Cause of Action Stated?
At the outset we have a creditor’s suit based on a foreign judgment. Does the foreign judgment have to be domesticated before a creditor’s suit can be maintained? In 14 Am. J. 689 in the discussion of creditors’ suits the general rule is recognized: “The prevailing-rule is that a foreign judgment is not sufficient to support a creditor’s bill to reach assets of the defendant which cannot be reached in proceedings at law, and that, in the absence of statute to the contrary, the creditor is required to set forth in his bill a judgment in the jurisdiction where the suit in equity is brought or to show that it is impossible to obtain such a judgment in any court within such jurisdiction.”
But in continuing the discussion of the same subject there are mentioned, in the same authority, several recognized exceptions and some of these exceptions are (1) impossibility or impracticability, (2) where judgment dispensed with by statute, and (3) nonresidence or absence of the debtor. On the first of these exceptions it is stated in 14 Am. J. 695: “The general rule that equity will not enforce a demand by creditor’s bill until a judgment has been obtained and an execution issued thereunder and returned unsatisfied, or at least partially unsatisfied, is not applied without exception; its application is limited by the reasons which support it. The impossibility, impracticability, or futility of exhausting- the remedy at law has been held to be a sufficient excuse for not doing so.”
The second exception to the rule is stated in 14 Am. J. 695 as follows: “In some jurisdictions the necessity of a previous judgment as a condition precedent to obtaining equitable relief under a creditor’s bill is dispensed with by statute. A statute_ authorizing bills by creditors to reach and apply to the payment of a debt any prop erty right, title, or interest, legal or equitable, of a debtor, which cannot be attached or taken at execution in a suit at law against such debtor, has been construed to authorize the creditor to proceed without first obtaining judgment. Such statutes, being remedial, are given a liberal construction to effect the object designed.” Our own case of Riggin v. Hillard, 56 Ark. 476, 20 S. W. 402, 35 A. S. R. 113 is cited to sustain the text.
On the third exception (nonresidence of defendant), the rule is stated in 14 Am. J. 697 as follows: “The weight of authority supports the view that nonresidence or absence of the debtor, as where he is a fugitive from justice, obviates the necessity of a prior judgment at law, at least where such nonresidence or absence renders it impossible or impracticable to obtain such a judgment and there is no adequate remedy by which the debtor’s property can be reached. The theory underlying the rule is that a prior judgment is required in any case merely because it is the best evidence that the creditor has exhausted his remedies at law, and that where the non-residence or absence of the debtor has rendered it impossible to obtain this evidence, equity may act upon other evidence which it finds is sufficient to show that the creditor has no adequate remedy at law. Equity does not permit a nonresident debtor to escape payment of the just claim of a resident creditor because his absence from the jurisdiction prevents the creditor from obtaining a personal judgment against him, and there is no other adequate remedy at law to reach the debtor’s property. ’ ’
Among other authorities cited to sustain the text there is the annotation in 38 A. L. R. 272. See, also, 21 C. J. S. “Creditors’ Suits,” § 45. We think that the case at bar comes within one if not all of the three exceptions to the general rule as has been pointed out. These exceptions would dispense with the necessity of first obtaining any judgment. So even if we consider the Texas judgment as mere evidence of indebtedness, we reach the conclusion that the Texas judgment and the nulla bona return thereon and the proof of Mrs. Locher’s insolvency and absence from this state dispense with the necessity of a domestic judgment; and to that extent a cause of action was stated.
II. Is There Sufficient Service¶
Since Mrs. Loclier was not in Arkansas to be served and did not enter her appearance, there was therefore no personal service on her in this state. Neither did plaintiff have a warning order published, nor attorney acl litem appointed, nor statutory writ of attachment or garnishment issued against the res (the trust); and so appellants argue that there is no semblance of service to support judgment.
But it must be remembered that the plaintiff did name Mrs. Locher as defendant in this case and did cause a copy of the complaint to be served on her in Texas, as provided by § 1374 of Pope’s Digest. Because of $ 822'6 of Pope’s Digest, this service under § 1374 of Pope’s Digest did not support a personal judgment against Mrs. Locher, but this service under § 1374 of Pope’s Digest notified Mrs. Loclier of this suit just as effectively— perhaps even more effectively — than would publication of warning order and appointment and report of attorney acl Mem. See Martin v. Gwynn, 90 Ark. 44, 117 S. W. 754; Sinclair Refining Co. v. Bounds, 198 Ark. 149, 127 S. W. 2d 629; Bank of Dover v. Jones, 192 Ark. 740, 95 S. W. 2d 92. While § 5378 ff of Pope’s Digest seems to envision proceedings on local judgments against local defendants, still § 5381 says that even in those cases there need be no attachment, affidavit, or bond. We, therefore, hold that since personal service could not be obtained on Mrs. Locher in Arkansas the nonresidence service under $ 1374 and § 1379 of Pope’s Digest amply dispensed with any further constructive service, and that the service under § 1374 was sufficient to support any judgment in this case except one in personam. The judgment of the Crawford Chancery Court does not purport to be in personam against Mrs. Locher, but merely" to fix the amount of the balance of the indebtedness due by her on the Texas Federal judgment, and to direct the trustees to make payments to the plaintiff instead of to Mrs. Locher. Section 8225 of Pope’s Digest invoked by appellants affords them no support, because, here, there was a lien created by the judgment of the Crawford Chancery Court and an order to pay made in the same judgment.
Appellants cite Norman v. Pool, 70 Ark. 127, 66 S. W. 433; St. Louis Ry. Co. v. McDemitt, 91 Ark. 112, 120 S. W. 831; New York Life Insurance Co. v. Cherry, 185 Ark. 984, 50 S. W. 2d 584, and other cases to sustain the contention that judgment cannot be rendered against a garnishee until there is a judgment against the debtor. This rule of law is fully established, but has no application here. The decree of the Crawford Chancery Court established the amount of the indebtedness due by Mrs. Locher, just as in any case of attachment or garnishment on constructive service, and fully in accordance with § 8225 of Pope’s Digest, and directed the trustees to pay to the Maryland Casualty Company whatever might thereafter be due Mrs. Locher by the trustees. This was also in keeping with § 8219 of Pope’s Digest, because under § 1379 of Pope’s Digest Mrs. Locher had let the time expire in which to make defense.
Appellants cite Coyne, v. Plume, 90 Conn. 293 (1916) 97 Atl. 337 to support their contention that the Crawford Chancery Court acquired no jurisdiction. In the Connecticut case the court held that a statutory writ of attachment would not support a proceeding in rem when there was nothing due the nonresident defendant at the time of the attachment. We cannot follow that case because we have held that unmatured claims may be the subject of garnishment. Harris v, Harris, 201 Ark. 684, 146 S. W. 2d 539. Certainly Mrs: Locher had a claim against the trust fund, and this could be reached bAr creditors’ bill. Thus the Connecticut case is without force in this state.
Appellants cite Pennoyer v. Neff, 95 U. S. 714, 24 L. Ed. 565 in their claim that there was no sufficient service to support the decree rendered; but the plaintiff’s procedure in the case at bar is in full accord with the rule laid down in Pennoyer v. Neff. Mr. Justice Field, there, said: “Substituted service by publication, or.in any other authorized form, may be sufficient to inform parties of the. object of proceedings taken where property is once brought under control of the court by seizure or some equivalent act. ’ ’ In the case at bar this rule was complied with by service on Mrs. Locher under § 1374 of Pope’s Digest, and the property (the trust) was brought under control of the court by the 'service on the trustees.
AATe, therefore, reach the conclusion that there was sufficient service to support the decree rendered.
III. Is This A Case for Equitable Relief?
By this question, we mean — do courts of equity grant relief in a creditor’s suit like the one at bar? We have in our own reports a number of eases of creditors ’ suits. See Riggin v. Hilliard, 56 Ark. 476, 20 S. W. 402, 35 A. S. R. 113; William R. Moore Dry Goods Co. v. Ford, 146 Ark. 227, 225 S. W. 320, 226 S. W. 139, and other cases under the title of “'Creditors’ Suits” in West’s Arkansas Digest. But none of our cases has facts bearing any great similarity to the case at bar. So we turn to text books and cases from other jurisdictions. Discussions on general equity jurisdiction of creditors ’ bills may be • found in 21 C. J. S. 1058 ff and in 14 Am. J. 681. Turning to cases: Earl v. Grove, 92 Mich. 285 (1892) 52 N. W. 615 gives strong support to position of the appellee in the case at bar. The Sligli Company obtained judgment against Kendall in New York State and-had execution issued and returned nulla bona. Kendall’s father died leaving an estate in Michigan. The Sligli Company filed suit in equity in Michigan against Kendall and the administrator of his father’s estate, alleging the New York judgment, execution, return, absence of Kendall from Michigan, and no property of Kendall in Michigan other than the proceeds ■ of the father’s estate; and prayed equitable garnishment and execution against the administrator. The Supreme Court of Michigan held that the suit was properly brought and could be maintained even in the absence of a domestic judgment in Michigan. The court said: “There are, and always have been, exceptions to the general rule in special cases; as, where a judgment cannot be obtained because the debtor ... is a nonresident.” Considering the Michigan statute, (like § 5278 of Pope’s Digest of Arkansas), the court recognized that the statute only applied to home judgments rather than the foreign judgments, but stated that the statute pointed the way to, and recognized, the general equity power in such cases; and that the general equity power extended to foreign judgments.
McCartney v. Bostick (1865) 32 N. Y. 53, also supports the appellee. McCartney recovered judgment against Bostick in Minnesota, and had execution and return nulla bona. McCartney learned that Bostick had an interest in lands in New York covered by fraudulent conveyances and McCartney brought suit in New York to remove the fraudulent conveyances and have Bostick declared the real owner (cestui que trust) and the legal title holder to be declared the trustee. Thus trusts, foreign judgments, and creditor’s suit, were some of the questions involved. In the opinion by Justice Davis, the court discussed the contention that the New York suit was based on a foreign judgment and not on a judgment domesticated in New York; but the court recognized that no judgment in personam could be obtained against Bostick in New York and said: “Does equity demand that a legal remedy shall be exhausted, where none exists, before it will enforce a trust created by statute, of which it alone has jurisdiction? The rule fails where the reason for it ceases, ‘Cessante ratione legis cessat ipse les’ is a maxim as well in equity as at law. Courts of equity ‘have adopted principles exceedingly broad and comprehensive in the application of their remedial justice . . ”
In discussing the necessity of a domestic judgment, the court said: “But if it be essential to jurisdiction in this case, I am prepared to go farther, and hold that the remedy of plaintiffs at law has been exhausted in this case, within the true meaning of the rule. So far as the effect of the judgment is to establish the indebtedness, it has been accomplished by the judgment recovered in Minnesota. That judgment appears to have been recovered upon personal service of process.”
On the exharistion of the remedy at law, the court said: “. . . when that is shown to be impossible under our law, it inevitably follows, that the law is exhausted. Our law is not therefore subject to the reproach of creating by statute a trust for foreign creditors in property within our state, yet withholding from them all power of reaching and applying it. ”
These two cases of Earl v. Grove and McCartney v. Bostick have been frequently cited in various jurisdictions and clearly indicate the trend of authority. For some of the other authorities in accord with the views herein expressed, ,see: Heaton v. Dickson, 153 Mo. App. 312 (1910), 133 S. W. 159; Huntington v. Jones, 72 Conn. 45 (1899), 43 Atl. 564; Adler, Goldman Comm. Co. v. Williams (U. S. Dist. Court, Ark., 1914), 211 Fed. 530; Williams v. Adler, Goldman Comm. Co. (U. S. 8th C. C. A., 1915), 227 Fed. 374; Kraft v. Scott, 278 Mich. 162, (1936), 270 N. W. 253; Demuth v. Kemp, 159 App. Div. 422 (1913), 144 N. Y. S. 690; Bateman v. Hunt, 46 Misc. 346 (1905), 94 N. Y. S. 861, and other cases cited in annotation in 38 A. L. R. 269. This annotation is on the subject: “Nonresidence or absence of debtor as obviating necessity of procuring judgment as condition of creditors’bill. ” And it is there stated: “ The great weight of authority supports the view that the nonresidence or absence of the defendant obviates the necessity of a prior judgment at law at least where such, nonresidence or absence renders it impossible or impracticable to obtain such a judgment”; and in 123 A. L. R. 1293, there is an annotation on the subject, “Jurisdiction and Power of Equity to Subject Legacy, Devise or Distributive Share in Estate to Claim of Creditor of Legatee, Devisee, or Distributee,” which annotation affords ample support for the views herein expressed. Cases from over a score of jurisdictions are cited to sustain the statement: ‘‘ The jurisdiction of equity, under proper circumstances, to afford a creditor a remedy, by way of a creditors’, bill or otherwise, by which he may subject to his claim the debtor’s interest in a decedent’s estate has been sustained, or at least recognized or assumed, in numerous cases”; and to the same effect, see Restatement of the Law of Trusts, § 147.
We, therefore, conclude that the chancery court correctly entertained jurisdiction in this case.
IY. Is A Spendthrift Trust Shown?
The appellants are trustees of the will of Norma Wood, deceased, and also of Margaret Wood, deceased. The wills are identical insofar as the issues in this case are concerned; and we refer to “the will,” meaning the one of each testatrix. In paragraph six of the will the trustees were appointed “with full power ... to manage, control, sell, lease, and dispose of the trust estate or funds o¡r any part thereof. ’ ’ In paragraphs nine and ten of the will, the residue of the estate was to be divided by the trustees into two equal parts. One of the parts went to H. C. Wood. In paragraph twelve of the will the other part was to be divided by the trustees into nine equal subparts called “shares.” Thus a share is one eighteenth of the trust residue. In paragraph fifteen Mrs. A. H. Locher was to receive one share for life. Mrs. A. H. Locher is the same person as Mrs. E. H. Locher and the paragraph fifteen reads as follows:
“Fifteenth: I give, devise and bequeath to Mrs. E. IT. Locher,-daughter of ó. R. Wood, deceased, out of that part named in paragraph twelve, the following:
“One (1) share of my estate, being one of the nine parts mentioned in paragraph twelfth of this will, to have and to hold during her natural life, and at her death to go to the heirs of her body, share and share alike. ’ ’
In paragraph twenty-two of the will the authority of the trustees as stated in paragraph six (supra) was modified in language as follows:
“Twenty-second: The trust herein created in the hands of my trustees shall be governed in the following clauses, to-wit:
“(a) My trustees shall annually render to each beneficiary a written statement of the transactions of the trust estate or funds during the next preceding year.
“(b) My trustees shall be . allowed a reasonable compensation for the services performed, such compensation to be paid out of the income of the trust estate or funds.
“(c) My trustees are not to exceed the income of the trust estate or funds, in whatever form it may be, unless in case of dire extremity of a beneficiary, or unless in case of misfortune or unavoidable accident, the value of the trust estate shall be diminished, and imperious necessity affecting a beneficiary or his family should, in the judgment of the trustees, render it proper to use some portion of the capital; but then only so long as the urgency of the necessity shall continue; and the waste occasioned to the capital thereby, shall be repaired out of the future income of the trust fund, if, in the judgment of the trustees, the same can be done without serious inconvenience to the beneficiary or his family. As to what is dire extremity and imperious necessity, and what amount of the capital is necessary to be used, the trustees shall exercise their best discretion. ’ ’
In 1935 (sometime after the death of the last surviving testatrix) there was a suit in the Crawford chancery court to construe the wills. This suit was brought by the trustees against all of the beneficiaries. The decree in that suit did not undertake to answer the questions involved in the case at bar and the decree in the ‘ ‘ construction suit” does not settle any of the questions .here involved; but it is worth noting that the same chancellor who rendered the decree in the “construction suit” also rendered the decree in the case at bar; and in the construction suit the court held: “The construction of the said aforesaid clauses of said will is that the trustees shall hold each of said nine parts of said half of the estate and pay the income thereof to each of the nieces during her natural life and on her death then deliver unto the ‘heirs of her body’ the said ninth share.”
We take it as conceded that under these wills Mrs. Locher receives certain income for her life. The question now posed is whether the will, viewed particularly in the light of the language of paragraph twenty-two (supra),' created a spendthrift trust for the benefit of Mrs. Locher for her life.
We have several cases in Arkansas on spendthrift trusts: Booe v. Vinson, 104 Ark. 439, 149 S. W. 524; Bowlin v. Citizen Bank & Trust Company, 131 Ark. 97, 198 S. W. 288, 2 A. L. R. 575; Black v. Bailey, 142 Ark. 201, 218 S. W. 210; Pool v. Cross County Bank, 199 Ark. 144, 133 S. W. 2d 19; Clemenson v. Rebsamen, 205 Ark. 123, 168 S. W. 2d 195. Particularly we mention the language in Booe v. Vinson:
“The American rule is likewise given in Heaton v. Dickson, 153 Mo. App. 312, 133 S. W. 162, citing Nichols v. Eaton, 91 U. S. 716, and numerous other cases. See, also, Perry on Trusts, § 286a.
“In Heaton v. Dickson, supra, the court held: ‘A mere direction that ‘ ‘ my wife and my children and their heirs shall receive quarterly from my executor one-fifth each from the net income of my real estate ’ ’ is not suffi-' cient to signify an intention to create a spendthrift trust. ’
“The court said, further: £It therefore appears that, although one may settle an estate in trust, with an equitable use in another for life, with a limitation against alienation and free from the claims of creditors, the presumption of the law is that he has not done so, unless either express words to that effect are set forth, or a clear and undoubted intention of the same is manifested in the will. If there are no express words in the will fixing a restraint against alienation and-withholding the income from other creditors, other language relied upon as reflecting such intention must import it to be clear and undoubted. ’
“The words, £for support and maintenance,’ in an instrument creating a trust estate in favor of another for life alone or in themselves, have been held insufficient to manifest such clear and undoubted intention on the part of the testator or settler to restrain the equitable interest in the income from alienation or remove it from the reach of creditors, or to characterize it as a spendthrift trust. -
“Likewise, it has been determined that the-income of an estate conveyed to the widow for life, ‘to her use and benefit — for her comfort and support,’ cannot, by the use of such words, be withdrawn from creditors, and that they were without force as a limitation upon the absolute gift of the income from the estate. Wenzel v. Powder, supra; Maynard v. Cleaves, 149 Mass. 307, 21 N. E. 376; Girard Life Ins. & Trust Co. v. Chambers, 46 Pa. 485, 86 Am. Dec. 513.”
In Poole v. Cross County Bank the following appears: “A mere trusteeship, even though it is for the protection of the beneficiaries, ought not, as a matter of taste, if for no other reason, to be called a ‘spendthrift trust.’ Only where there is added to the trusteeship express restraints on alienation is it justifiable to call the creation a spendthrift trust.”
The text books are in accord with our own cases. 69 C. J. 697, 25 R. C. L. 357, the American Law Institute’s Restatement of the Law of Trusts, § 152.
In the case at bar we find no language in the will that constitutes any restraint on the beneficiaries, and the only part of the will that contains any restriction on the trustees is found in paragraph twenty-two as previously copied. Subdivision “A” of paragraph twenty-two requires the trustees to render an annual statement to each beneficiary. Subdivision “B” of paragraph twenty-two allows the trustees to receive reasonable compensation. Subdivision, “C” is the so-called “dire extremity” section which will receive further consideration in a subsequent part of this opinion. But there is nothing in this subdivision “C” that prohibits the beneficiary, (Mrs. Locher in the case at bar), from selling, assigning, or transferring all her annual income from the trust during her life. This subdivision “C” gives an added right and power to the trustees to help Mrs. Loclier in tlieir discretion in tlie event of her “dire extremity”; but there is no restriction or restraint on •Mrs. Loclier. Indeed, in paragraph fifteen of the will Mrs. Loclier receives the trust income for life — and this is not ended if seized by process or execution. Neither the classic words of a spendthrift trust nor the “undoubted intention” of the testatrix appear in the will (wills) in question; so we hold-that there was no spendthrift trust created or shown.
Neither does Fortner v. Phillips, (124 Ark. 395, 187 S. W. 318, or Phillips v. Phillips, 143 Ark. 240, 220 S. W. 52), afford any support to appellants; because the will in that case was entirely different from the will in the case at bar. Mr. Justice Wood pointed out in that case: the will did not vest any estate in James Phillips; no' -property right was conferred on him; no trust was set up for him. Whereas, in the case at bar, Mrs. Locher was devised a share for life in a trust estate; she was entitled to reports at stated intervals; and was bequeathed all the income earned by her share in the trust estate. So, in the case at bar, a “Trust for Support” was not shown.
Y. Is the Interest of Mrs. Locher Subject to Seizure¶
Many of the cases and authorities already cited throw light on this question; but we also mention the following: In 21 C. J. S. 1065 in discussing property that may be reached by creditors’ suit it is stated that a vested interest in an estate can be seized; and in 21 C. J. S. 1068 it is stated: “Any beneficial interest of a debtor in real or personal property which cannot be reached by regular process of law and is not expressly exempted by statute may be reached by a creditors’ bill and subjected to payment or satisfaction of the debt; . . .” In 32 Ann. Cas. 945, there is an exhaustive note on the subject “property reachable by creditors’ bill”; and cases from many jurisdictions are cited to sustain the statement to-wit: “It may -be stated generally that the interest of a debtor under a trust may be reached by a creditors ’ bill unless it has been placed beyond the reach of Ms creditors by a valid provision in the instrument creating the trust.”
In 26 R. C. L. 1268, the rule is stated: “If property is conveyed in trust, so that the trustee shall take the rents and profits and apply them to the support and maintenance of designated persons during their lives (as distinguished from a mere right of support out of a fund), the beneficiaries have the right to the whole of the fund thus created and not a mere right to support out of it; the trust created is not a spendthrift trust, but the interest of the beneficiaries is assignable and may be subjected to the payment of their debts by proceedings in equity.”
We, therefore, reach the conclusion that the life income of Mrs. Locher from the trust is subject to seizure just as was decreed by the Crawford chancery court in this cause.
VI. What of the “Dire Extremity” Clause?
We have heretofore reserved consideration of this question, because it is a separate angle of the controversy; yet it must be discussed in order to give, full effect to the will. Subdivision “C” of paragraph twenty-two is the so-called “dire extremity” clause, and we have previously copied it in this opinion in disposing of the contention about a spendthrift trust. Under this clause the testatrix gave the trustees the right to go into the corpus of the trust to aid a beneficiary, when, in the judgment of the trustees, such was direly neeessaiy.
The seizure of the income from the trust by the appellee cannot, and does not, cancel this right Of the. trustees. Even though they pay the income to the appellee on its judgment, still, if some dire extremity should occur to Mrs. Locher, the trustees could still aid her; but they will be accountable not only to the remaindermen but also to the judgment creditor for failure to properly evaluate the existence of the dire extremity or the amount of aid to be so rendered. As long as the trustees exercise their “best discretion” (as stated in the clause), they subject themselves to no greater liability to the judgment creditor than they would at all times have been subjected to in favor of the remaindermen.
It, therefore, follows that the decree of the Crawford chancery court is in all things affirmed. | [
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Holt, J.
This litigation involves the title to an eighty-acre tract of land in Pulaski county and two city lots in Adams’ Addition to Little Rock. The essential facts are: The tract of land and lots forfeited to the State for the taxes for 1931. July 21, 1936, J. M. Ashton, for a consideration of $81, purchased the farm tract from the State and thereafter, October 9, 1936, Alice McHugh, appellant, purchased this eighty-acre tract from Ashton for a consideration of $115, and on September 30, 1936, she secured a deed from the State to the two city lots for a consideration of $43.05. At the time the farm and city ■ lots forfeited for the nonpayment of taxes, they were owned by J. A. Comer and were claimed and controlled by him as owner when his death occurred August 5, 1935. J. A. Comer left two incompetent sons as surviving heirs, James Omer Comer, 38 years of age, and Eben D. Comer, 36 years of age, both being insane. August 17,1935, O. «). Comer, brother of the deceased, James A. Comer, was appointed administrator of J. A. Comer’s estate and on August 23, 1935, O. J. Comer also became guardian of the two incompetent sons of J. A. Comer. O. J. Comer acted as guardian until his death July 3, 1938. His first annual report as guardian showed disbursements which consumed all receipts except $811.38. His second report showed that during the second year of his guardianship, he expended all but $405.92 of receipts, and July 12,1938, a third annual report, prepared and filed shortly after O. J. Comer’s death by appellant, Alice McHugh, showed a balance in the guardianship account of sixteen cents above expenditures.
Following the death of O. J. Comer, Alice McHugh succeeded him as guardian and as such guardian attached to the third report, supra, which she prepared and filed, the following affidavit: “I, Alice McHugh, state on oath that I was the private secretary of the late O. J: Comer, who was heretofore appointed guardian of the above named incompetents, and that the said O. J. Comer departed this life on the 3rd day of July, 1938, and while I was his secretary I was familiar with all the dealings he had with and on behalf of said wards, and that I kept his books and that the foregoing report was prepared during his lifetime, and was not filed because of his sudden illness. I certify that the report hereinabove is correct according to the books of said estate, and that the same reflect all receipts and disbursements.” Miss McHugh was removed as guardian September 21,1943, and appellee^ Jeffries, succeeded her.
About 1932, appellant became associated with O. J. Comer in the furniture business as a principal stockholder in the Comer Furniture Exchange, Inc. Some time prior to August 23,1935, when O. J. Comer became guardian of his brother’s incompetent sons and until his guardianship terminated on his death July 3, 1938, Miss McHugh, appellant, had been and was his secretary and knew intimately the details of his guardianship dealings with the two incompetent wards. She testified: “Q. Now you were in daily contact, practically, with these boys. They were coming in there. Who drew most of the checks? A. In other words, for this guardianship for Mr. Comer? A. I drew most of the checks. ,Q. And paid most of the hills? A. Yes. Q. You were familiar with most of the transactions of the guardianship? A. Yes.” She knew the farm and city lots formerly belonged to J ames A. Comer, that the two incompetents were his heirs, and was thoroughly familiar with the farm and city property.
At the time the farm tract and city lots forfeited for the nonpayment of taxes, and at the time appellant purchased from the State’s grantee, Ashton, the farm tract, and the lots from the State, appellant knew that O. J. Comer, the then guardian, had in his guardianship account ample funds out of which to pay the taxes, but that he had refused to pay the taxes and protect the interests of his incompetent wards.
In these circumstances, Ira F. Jeffries, the present guardian of the two incompetent heirs of James A. Comer, brought this suit, (1) seeking a decree from the court declaring the acquisition of the farm tract and the two city lots by appellant, Alice McHugh, to be a redemption, or trust, for their benefit for the reason that at the time she acquired the property she.stood in such a fiduciary relation to appellee’s wards as to preclude her from acquiring the titles for her own account; (2) and appellee also asked for a writ of assistance against John Evans, who had possession of the lots in question.
The trial court found all issues in favor of appellee, except his prayer for writ of assistance, which was denied on the ground that the court was without jurisdiction as to John Evans. The cause is presented here on appellant’s direct appeal, and appellee’s cross-appeal from that part of the decree denying the writ of assistance.
After a careful review of the record, we are of the opinion that the decree is in all things correct. The primary question for determination is whether Alice McHugh, at the time she purchased the farm tract and the two city lots, occupied such a fiduciary relation to the two incompetent heirs of J. A. Comer as to preclude her from acquiring the title to these properties.
(1) The situation here briefly and simply stated is: Appellant, while acting as the secretary of O. J. Comer, during the term of his guardianship of two incompetent wards, gained vital information concerning the property of these incompetents that enabled her to .buy, on her own account, for a nominal sum, valuable property belonging to them. While appellant was not in fact their guardian at the time, she, as the secretary of-the guardian, O. J. Comer, was occupying such a confidential relationship and trust to him and his wards as would make her position a fiduciary or g-wusi-fiduciary one. In other words, while appellant, as stated, was not the actual guardian at the time she acquired the property of these incompetents, we hold that, in the circumstances here, she was by virtue of her relationship to the real guardian in effect their g^usi-guardian, and as such could hot take any advantage of their'interests. Courts should and do guard and protect, with jealous care, the rights of infants and incompetents. In such circumstances, we hold, as did the trial court, that she could not acquire the properties involved here on her own account, but that she held in trust, for the benefit of the two incompetents.
We think the principles of law announced in Hindman v. O’Connor, 54 Ark. 627, 16 S. W. 1052, 13. L. R. A. 490, apply here. There this court said: “As a general rule, a party occupying a relation of trust or confidence to another is, in equity, bound to abstain from doing everything which can place him in a position inconsistent with the duty or trust such relation imposes on him, or which has a tendency to interfere with the discharge of such duty. Upon this principle no one placed in a situation of trust or confidence in reference to the subject of a sale can be the purchaser, on his own account, of the property sold. If such a one purchase the property, it is in the option of the person interested in the property, and to whom the relation of trust or confidence was sustained, to set aside the sale within a reasonable time, however innocent the purchaser may be. 1 Story, Eq., §§ 307-323, and cases cited. . . . The rule is not confined to persons who are trustees within the more limited and technical signification of the term, or to any particular class of fiduciaries, but applies to all persons placed in a situation of trust or confidence with reference to the subject of the purchase. It embraces all that come within its principle, . . . The law forbids a trustee, and all other persons occupying a fiduciary or gwasi-fiduciary position, from taking any personal advantage, touching the thing or subject as to which such fiduciary position exists. . . . Qwasi-guardians and all other persons occupying the relation of confidential advisers have been held to come within the rule. Revett v. Harvey, 1 Sim. & S. 502; (S. C.) 1 Eng. Ch. Rep., 502; Huguenin v. Basely, 14 Vesey, 273; 1 Story’s Eq. (13th ed.), §§ 317-319, and eases cited; 1 Perry on Trusts, § 204; Torrey v. Bank of Orleans, 9 Paige, 663; Underhill on Trusts, p. 293. In Hobday v. Peters, 28 Beav., 349, a mortgagor consulted a solicitor ‘who turned her over to his clerk to assist her gratuitously.’ The clerk, by reason of information derived during such employment, bought up the, mortgage for less than half the amount due thereon. The court held that the clerk was a trustee for the benefit of the mortgagor. The same was held as to the clerk of a broker employed to make sale of land, in Gardner v. Ogden, 22 N. Y. 327, 78 Am. Dec. 192. ... If the trustee, or other person having a confidential character, can buy in an honest.case, he may in a case having that appearance, but which may be grossly otherwise; and yet the power of the court, because of the infirmity of human testimony, would not be equal to detect the deception. It is to guard against this uncertainty and the hazard of abuse, and to remove the trustee and other persons having confidentiál relations from temptation, that the rule does and will permit the ceshd que trust or other person to come at his option, and without showing actual injury or fraud, have the sale set aside. (Citing many authorities.) ”
(2) The trial court denied appellee’s petition for a writ of assistance on the ground that John Evans was not a party to the suit and therefore the court was without jurisdiction. We find no error here.
The decree is affirmed. | [
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Smith, J.
This suit, filed July 30, 1942, in ejectment, by appellants, was, on motion of the defendantappellee — transferred to equity, where the court found that the appellee had acquired title to the land sued for by adverse possession, and from that decree' is this appeal.
The land sued for is described as NE% section 29, township 13 N., range 1 E., containing 80 acres, and lies within the 'Cache River Drainage District, and was sold for the delinquent taxes due the district for the years 1926 and 1927. The land was conveyed to the district by the commissioner who made the sale, pursuant to the decree foreclosing the district’s lien for taxes on January 2,1928, and on January-5,1939, the district sold and conveyed the land to appellants.
State and county taxes for 1929 were erroneously extended against the land, inasmuch as the title was in the improvement district, and when these taxes were not paid the land was sold to the state and, not having been redeemed, was in 1932 certified to the state land commissioner as forfeited land.
The land had previously been sold to the state for the nonpayment of the general taxes due thereon, and this forfeiture had been certified to the state, and on September 13,1932, the land commissioner issued a donation certificate to appellee, who failed to make the proof required by law, but, under the authority of § 8639, Pope’s Digest, the land commissioner permitted a second donation on September 27, 1938, and issued a donation certificate. Appellee had entered into the possession of the land under his 1932 donation certificate, and has since maintained possession, and the complaint alleged appellee was in possession when it was filed.
During the progress of the trial appellants caused a survey to be made establishing the line between the NWUi NE14 and SW14 NE!4, which showed that all improvements had been made o.n the SWJi NE1^, except that one-half an acre in the NWi^ NE14 had been cleared and was a part of the field which appellee had opened up on the land. -
The decree contains the finding that appellee had made on the W% NE1/! the improvements required by law, entitling him to a donation deed, which was executed October 17, 1940, a date prior to the institution of this suit, but subsequent to the date of the deed from the drainage district to appellant. Upon this finding it was held that appellee’s possession under his donation certificate had ripened into title, and that he had title by adverse possession.
Appellee’s donation certificate covered the W% NE% of the section, of which both the NW% NE1^ and the SWUx NEi/4 are parts, and the decree is not questioned insofar as it vests and quiets appellee’s title to the SW% NE14, the insistence being that possession of the NE14 for two years under the donation certificate was not shown.
We do not agree. It is undisputed that appellee entered under ■ a certificate of donation, which described the donated land as the W% NE%> which description, of course, includes both 40-acre tracts. It was held in the case of Moore v. McHenry, 167 Ark. 483, 268 S. W. 858, to quote a headnote, that: “Where adverse possession is entered under color of title, the grantee in the instrument constituting color of title will be deemed in constructive possession of the entire body of land described in the instrument if in the actual adverse possession of any part thereof.” The following, among other cases, are to the same effect: Crill v. Hudson, 71 Ark. 390, 74 S. W. 299; Haggart v. Ranney, 73 Ark. 344, 84 S. W. 703; Boynton v. Ashabranner, 75 Ark. 415, 88 S. W. 566; Van Etten v. Daugherty, 83 Ark. 534, 103 S. W. 737; Flannigan v. Beavers, 172 Ark. 28, 287 S. W. 755; Rucker v. Dixon, 78 Ark. 99, 93 S. W. 750. In the last cited case the headnote reads as follows: ‘ ‘ One who, under a void tax deed, goes into actual possession of part of the land, which is otherwise unoccupied, has constructive possession of the remainder of the tract sufficient to give title to the whole tract under the statute of limitations. ’ ’
We have not overlooked the recent case of Anthony v. International Paper Company, ante, p. 396, 180 S. W. 2d 828, and the numerous cases there cited and reviewed, as we have'here no actual possession by anyone except appellee, who held actual possession under a certificate of donation which embraced both 40-acre tracts.
The donation law did not require appellee to make improvements, including a house, on each 40-acre tract. The requirements of the law were met when appellee built a house and made the other improvements required by the donation law upon any part of the donated land. It is undisputed that appellee built a house and made all the improvements required by law, including a field, which he cleared and put in cultivation, containing 26.53 acres, all of which field is in the SW14 NE%, except one-half an acre in the NW14 NE14- Appellee actually cleared and occupied one-half an acre in the NW14 NEi/4, and this fact may not be dismissed as de. minimis, inasmuch as the one-half acre was a part of the field containing 26.53 acres, which was, of course, a larger improvement than appellee was required to make to obtain his deed, the law requiring only that 5 acres- be cleared, fenced and placed in cultivation. But apart from this consideration, we hold that having actually occupied SWUt NE14, he was also in possession of NW1/^ NE14, this being a part of the land described in his donation certificate. It is undisputed that appellee held this possession under his donation certificate -for a period of more than two years before this suit was filed. The recent case of Honeycutt v. Sherrill, ante, p. 206, 179 S. W. 2d 693, arose under somewhat similar facts and announces the principles which are controlling here. There, the Cache Biver Drainage District obtained, through the foreclosure of its lien for delinquent assessments, a deed from the commissioner who sold the land under the order of the court, this deed being dated January 2, 1928. Notwithstanding this foreclosure, and the execution of the deed pursuant thereto, the land there in question was sold and forfeited to the state in 1932 for the 1931 general taxes assessed against it. The opinion recognizes and states the law to be that the land having previously been acquired by the drainage district was not thereafter subject to assessment for the general taxes while the title remained in the drainage district.
In that case a donation certificate was issued by the state land commissioner on February 22, 1939, under which possession was held for a period of more than 2 years, as in this case. It was there said that: “The fact that the sale by which the state obtained title was a nullity does not affect the validity of the title of one who enters land under a deed from the state, or a donation certificate, and holds it adversely for two years.”
After citing cases which had construed the statute now appearing as §'8925, Pope’s Digest, it was there further said: ‘£ The rule laid down in all of these cases is that this statute is a statute of limitation, and that actual, adverse possession under a tax deed from the state land commissioner (and, since the amendment by Act No. 7 of 1937, approved January 2G, 1937, under a donation certificate), vests a good title in the occupying holder of the donation certificate or deed, regardless of any defect in the tax sale under which the state acquired title.”
Here, by adverse possession, under a donation certificate, for a period of more than two years before the institution of this suit, appellee had acquired title to the 80-acre tract of land described in the donation certificate, and the fact that a survey of the land showed that only a small part of the N% of the 80-acre tract had been actually occupied would not operate to divest a title which had already been perfected by possession.
The decree from which is this appeal conforms to these views, and it is, therefore, affirmed. | [
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Holt, J.
The Garland Levee District of Miller county was created by Special Act 311 of the 1913 Acts of the General Assembly. It was reenacted so as to correct certain land descriptions by Act 56 of the Acts of 1917. The levee system parallels Red River from a point south of Garland City tp a point approximately nine miles north of the Louisiana state line, being connected at its lower end with the levee of the McKinney Baycpi Drainage District and its upper or north end with Miller Levee District No. 2. Pursuant to the authority granted, the original levee in this district was built in 1917, along the west bank of the Red River, within the district, to protect the lands therein and to maintain the levee so as to secure the district from overflow.
In 1932, the Garland Levee District was placed in • receivership, and Stuart Wilson was appointed receiver, which position he now holds. The present litigation was begun in 1943, at which time the bonded indebtedness of the district amounted to approximately $65,000.
Prior to the spring of 1943, it'became apparent to the commissioners of the district and the receiver that the original levee was endangered by the encroachment of the Red River in two places. One of these danger points was between an old river lake, called Haley’s Lake, and the present channel of Red River, where the river had cut to the very foundation of the levee. At the other danger point, up the river, known as Vickers ’ Point, the river had broken through the old levee for a distance of approximately 150 feet. It became apparent, therefore, that the old levee must be repaired or a new set-back levee constructed to protect the land within the district.
Upon application from the district, the Federal Government, under authority conferred by the Flood Control Act of Congress, 33 U.S.O.A., § 702a et seq. (Act of May 15, 1928, Chapter 569, etc., and amendments), granting aid.to insolvent levee districts, agreed to furnish the entire cost of a proposed new or set-back levee, in accordance with plans submitted by government engineers at Vicksburg, Mississippi. The district accepted the government’s proposal, and the levee, 12,805 feet long, 20 feet high and 16 feet wide at its top, was constructed at a cost of $32,000, all of which was paid by the government, as above indicated, without cost to the-taxpayers. This set-back levee is built 7/10ths of a mile back from the original levee at the most distant point in the center and narrows toward each end where in joining the original levee it forms a “bottleneck loop” encircling the land. As constructed, the set-back levee leaves approximately 6t)0 acres of land in a bottleneck or loop between the original levee and the new or set-back levee, and leaves said lands exposed to the river’s overflows, since it is left between the set-back levee and the river. In constructing this set-back levee, the district cut the old levee at Haley Lake point for a distance of approximately 300 feet and cut a drainage ditch through this opening about 12 feet wide and 3 feet deep, making entrance of flood waters at this point into the bottleneck loop about 7 feet lower than the break-through of the river higher up at Vickers’ Point, and there is evidence that flood waters backed up into this bottleneck loop through this drainage ditch and covered appellees’ lands to a depth of 6 to 8 feet before the waters came through the 150-foot break in the old levee at Vickers’ Point and afforded a cushion to protect the new or set-back levee against the waters coming through at Vickers ’ Point.
Appellees, Lee Nall, L. D. Hutt and C. A, Nottingham, brought suit against the district for damages, (1) for their lands and improvements actually taken by the district for right-of-way on which the levee was built, and (2) for damages to their lands which they own and not used for right-of-way purposes, but which were left exposed between the set-back levee and the river and within the bottleneck or loop.
The jury awarded Nall $1,099.50, Hutt $1,245, and Nottingham $961.50, damages for lands taken for right-of-way purposes under their- first contention, and awarded Nall $4,306.80, Hutt $735, and Nottingham $687.20, for damages under their second contention, for • lands left exposed between the new levee and the river, outside of the right-of-way.
Appellees, J. D. Combs, J. M. Mills and the Valley Gin Co., were awarded damages by the jury, along with Nall, Hutt and Nottingham, for damages to their lands lying between the new levee and the river, although these lands were not taken for actual right-of-way purposes, Combs being awarded $1,720, Mills $3,800, and the Valley Gin Co. $5,000.
There is no controversy on this appeal as to the jury’s award of damages to appellees, Nall, Hutt and Nottingham, for their lands actually taken by the district for right-of-way purposes, under their first contention above; therefore, the jury’s award to them in this connection is affirmed.
It is conceded that Nall owns 14.66 acres of land, included in the right-of-way, and 107.47 acres left between the old and the new levee; that Nottingham owns 12.82 acres included in the right-of-way, and 17.18 acres between the old and new levee; that Hutt owns 16.62 acres of land included in the right-of-way and 18.37 acres between the old and the new levee; that Gombs owns 43 acres of land left between the old and new levee; that Mills owns 95 acres between the old and new levee; and that the Valley Gin Co. owns a cotton gin between the old and new levee on an acre tract leased from J. M. Mills. In short, it is appellees’ contention that’under said Government Flood Control Plan, supra, and the manner used in the construction of the set-back levee here there was a taking' and damaging of their lands for which just compensation should be made. They also invoked the provision of Act 14 of the Second Extra Session of 1932. They allege combined damages to their lauds in the amount of approximately $60,000.
The trial court, in substance, instructed the jury that appellees would be entitled to damages to their lands left exposed between the new levee and the river, if the evidence showed that the district and its receiver had erected the new levee an unreasonable distance from the old levee, thereby leaving more land exposed to the river’s overflows than was necessary. This was not the proper rule as to liability of damages as we shall hereinafter point out.
■ Instructions No. 3 and No. 3A, given at the request of appellees, were inherently erroneous because they permitted the jury to consider and decide whether,or not the new levee had been placed in a proper location. The determination of the location of the new levee was a matter within the discretion of the board of commissioners -and the receiver of the district under the order of the Miller chancery court, and that discretion was not subject to the control of the law courts in the absence of proof (and there was no such proof in the instant case) that the action of the board of commissioners of the levee district, in fixing the location of the new levee was arbitrary and capricious. 29 C. J. S. 886; Patterson Orchard Company v. Southwest Arkansas Utilities Corporation, 179 Ark. 1029, 18 S. W. 2d 1028, 65 A. L. R, 1446; State Highway Commission v. Saline County, 205 Ark. 860, 171 S. W. 2d 60. And even if it were alleged that the board of commissioners acted capriciously and arbitrarily in the matter, such action could not properly be made an issue in a proceeding to condemn right-of-way for the levee or a proceeding by landowners to recover damage by reason of the location of the levee. The sole remedy of the landowners in such a case would be to apply to the chancery court in injunction proceedings for necessary and proper relief from the capricious and arbitrary action of the board of commissioners or the receiver of the district.
Nor can it be said that Act 14 of the second extra session of 1932 is applicable to the case at bar because, by the plain provisions of that act, it is limited in its application to cases where a written agreement had been made by the board of commissioners to compensate landowners for damages resulting from the abandonment of the existing levee and the building of a set-back levee. No such agreement is alleged or proved in this case.
But the damage that may be awarded a landowner for the building of a levee is not necessarily limited to payment for land actually occupied by the levee. Miller Levee District No. 2 v. Wright, 195 Ark. 295, 111 S. W. 2d 469. For example, it might become necessary to acquire an easement over lands some distance from the levee for use as a barrow pit to obtain the proper kind of dirt for the construction of the levee or it might become necessary to obtain an easement for a road over which dirt for the building and repair of the levee might be hauled. Any additional easement, use or servitude required for the levee project and placed upon the land would amount to a damage or taking pro tanto, for which the landowner must, under the Constitution, (Art. 2, § 22, Constitution of Arkansas; Amendment 5, U. S. Constitution) be compensated. There was some evidence in this case that the lands of appellees lying between the new levee and the river were, under the plans of the new levee project as actually executed, to be used as a basin to receive flood waters in time of overflow from Red River, which flood waters would act as a cushion against the current of the overflow and thereby protect the new levee.
On a retrial of this case the jury should be instructed that, if they found from a preponderance of the evidence that under the plans for the new project as actually carried out the said lands of appellees were to be used as a means of affording protection in the manner above set forth to the new levee, then the landowners would be entitled to recover as damages for the imposition of this servitude or easement on their land the difference between the fair market value of their land before the new levee was built and the fair market value thereof after the construction of the new levee.
For the error indicated, the judgment is reversed and the cause remanded for a new trial. | [
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Griffin Smith, Chief Justice.
Nancy was the wife of Milton Barner. With Milton’s death in 1943 his sister, Josephine Handy, and Nancy, each inherited an undivided half interest in Lot 21 near Sweet Home. The question is whether Chancery Court erred in holding that Josephine’s quitclaim deed to Nancy was procured through fraud, allegation also being that the grantor was without mental capacity to contract.
In 1942 A. J. Hoffman was associated with Rodgers, Bruton, and Brown in prospecting for bauxite. They maintained offices in a church building adjoining the Barner lot. Hoffman, who with his associates operated ten drilling rigs, was directed by Bruton to test the church acreage for water. It is claimed by Hoffman that at this time it was not suspected that the land was under-laid with bauxite. Permits had been procured to drill exploratory holes, but in some instances leases had not been taken.
•Concluding it would be profitable to lease the Barner land, Hof finan discussed the matter with Nancy. She delivered to him the deed under which her husband acquired title; also an abstract. Hoffman was told that Milton Barner died intestate, and that Josephine was his 'sister. However, Nancy volunteered assurance that Josephine would not claim her inheritance, and was willing to sign any necessary papers.
In these circumstances Rodgers, Bruton, Brown, and Hoffman took a lease from Nancy May 27,1943, covering all of Lot 21. It was not recorded. Recited consideration was one dollar “and mutual covenants and undertakings.” Royalty payments of fifty cents per ton were reserved to the “lessors” — plural.
Hoffman says that after discovering Josephine’s interest, an attorney was consulted, with the result that a deed from Josephine to Nancy was prepared and placed in Josephine’s hands. Hoffman testified that while this deed remained undelivered (and presumptively unsigned) he talked with Josephine at Nancy’s home and informed her regarding the interest then sought to be procured. Josephine replied that Nancy had worked hard to earn the money used in paying for the property, and “. . . I don’t feel that I should have any part of it.”
Josephine later signed the deed and then or later received ten dollars advanced by Hoffman, and in turn charged by Hoffman to Nancy’s account. Nancy was given an equal sum. Hoffman took Josephine to a notary public in Little Rock (none being available at Sweet Home) and the transaction was completed June 1,' 194.3.
It is conceded by Hoffman that when the deal with Nancy was consummated, he knew that valuable deposits of bauxite were available on Lot 21. So impressed were the prospectors that when Nancy demurred because she had nowhere to go, Hoffman and his associates agreed to advance $2,000' in cash for her use in building a home. Hoffman’s expression concerning the bauxite was, “It looked very promising. ” 4-t trial 'evidence was that royalty interests were worth $15,00
In consequence of Josephine’s suit to cancel her quitclaim deed, and for an accounting, (filed in the name of Magnolia Flowers as next friend) the Chancellor found that the plaintiff did not have capacity to comprehend the nature of her transactions with Hoffman and Nancy, and that undue influence had been exerted. There was also a recitation that no consideration was paid.
The decree is correct. Though Nancy may not have expressly misrepresented to Josephine essential facts connected with Hoffman’s operations and with potential values, -effect was to acquire a half interest in fifteen thousand dollars’ worth of royalties for l/750th of the admitted worth, exclusive of remainders. It is contrary to business and personal experiences for a competent person to knowingly part with $7,500 for a present payment of ten dollars.
Hoffman testified that, as to the lease, it was of no consequence to him who bestowed the right to take ore. Perhaps not. But it ivas essential that the grantor have a right to convey; and without Josephine’s concurrence there could be no completed deal. Hoffman’s purpose in prompting Nancy to have Josephine quitclaim was not an impersonal gesture.
If the argument be that mere inadequacy of consideration — that is, insufficiency of consideration unaccompanied by any other circumstances — will not suffice to cancel a. conveyance, equity’s answer is that when the amount paid is incomparable to value — a disparity so great as to cause reasonable minds to believe that what is claimed as consideration did not attain the dignity of a token — then we must-apply the rule stated in Pledger v. Birkhead, 156 Ark. 443, 245 S. W. 510, and approved in Sims v. Sims, 175 Ark. 1170, 1 S. W. 2d 56. It was there said, in effect, that while mental weakness short of incapacity to execute the instrument in question may render a person more susceptible in respect of fraudulent designs, and lessen resistance to influence, (though such weakness may not, alone, in a given case, be sufficient to avoid the contract) yet when the impairment is proven, and it is shown that.unfairness, undue influence, great inadequacy of consideration (or any one of these things) operated on the subnormal mentality to produce inequitable results., then courts will give relief.
Appellants made substantial proof that Josephine was not incompetent. The notary public who took her acknowledgment did not observe any unusual conduct. Her conversation appeared to be that of a rational person. Hoffman was of the same view. He thought she understood his disclosure that bauxite had been found on the land, and that it might be valuable. There was not, from his standpoint, anything unnatural in Josephine’s assertion that Nancy’s money had paid for the property, and that she (Josephine) did not contend for an interest. Other witnesses supported the general trend of testimony relating to rationality.
On the other hand there were witnesses — some white and some black — who testified to facts showing weak-
mindedness. It is true that Josephine went about doing the ordinary things a sixty-nine-year-old woman in her circumstances must do; such, for instance, as going to a neighboring store, visiting in the community, discussing trivial matters, etc. There was testimony that for several years she had not been able to work; that her only income was from the State Welfare Department, and that relatives contributed to her maintenance. She was spoken of as “absentminded and unreasonable.” 'She would go to the store, make small purchases, then leave without taking them with her. She borrowed fifty cents from one friend and thought it had been advanced by another. She purchased a money order from the postmaster, took it home, misplaced it, then insisted it had not been delivered to her. It was found where the purchaser had put it- — the act having been immediately forgotten. Josephine on more than one occasion got “lost” in the immediate neighborhood. When but four blocks from home she became confused and had to be told where she was and how to return to her daughter’s residence.
Hoffman’s testimony in explanation of why, how, and when the payment to Josephine was-made included this statement: “. . . After the notary signed, Nancy wanted to drive down town to one of-the stores. At that time she wanted to know if I would give her sister-in-law ten dollars. I gave her the ten dollars, and also gave Nancy ten dollars. Both payments were charged to Nancy’s account.”
If this is a full disclosure and the language be literally construed, there was no consideration for Josephine’s deed. The alleged “consideration,” according to Appellant Hoffman, was a “gift” — a gratuity conferred after the deed had been made, and without reference to its execution.
This is an appeal where the oft-repeated judicial expression, ‘ ‘ on the whole case, ’ ’ has pertinent application. The “whole case” consists of separate acts .whereby an inexperienced, illiterate, enfeebled and wholly dependent Negro found herself penniless in the presence of plenty, and the circumstances are such as to show an absence of conscious volition, or understanding.
Nor do we think the Chancellor erred in refusing to hold that when Nancy’s money partially paid for the premises purchased by her husband, a trust arose.
Affirmed.
Bruton, in response to the question, “What is your business?” replied, “Contracting and mining.”
Both Nancy and Josephine are Negroes, | [
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Robins, J.
In this suit appellant prayed for cancellation of a lease contract entered into by appellant, as lessor, and appellees, V. R. Smith; E. B. Crutcher and Jack Barnes, as guardian of Harry Francis Barnes, as lessees on February 27, 1939, covering* certain real property in Mississippi county, Arkansas. Appellees, denying the allegations of appellant’s complaint, alleged that under the real contract entered into by all the parties it was the intention that the term of the lease should he for the lifetime of appellant, and they asked reformation of the lease contract so as to make the term thereof the natural life of appellant. By the decree of the lower court cancellation of the lease contract was denied and reformation thereof as prayed for by appellees was granted; and this appeal is.prosecuted to reverse that decree.'
The land involved in this suit, known as the Moore-head plantation, containing approximately 1,000 acres, was owned by Mrs. Lizzie Friend, wbo died testate in Slielby county, Tennessee, in January, 1936. By her will she devised this land to appellant, her son, for life, the remainder, at appellant’s death, to vest in appellant’s daughter, Roberta Crutcher Barnes, his son, Edward Crutcher, and his son-in-law, Victor Robinson Smith, share and share alike. Roberta Crutcher Barnes died intestate in March, 1936, and her one-third remainder interest in the land thereupon descended to her only son, appellee, Harry Francis Barnes, a minor, whose father, appellee Jack Barnes, was appointed his guardian by the probate court of Shelby county, Tennessee.
The lease contract sought to be canceled herein was as follows:
“This contract, made and entered into by and between Harry Crutcher, to be hereinafter referred to as first party, and V. R. Smith, E. B. Crutcher and Harry Francis Barnes by Jack Barnes, guardian, to be hereinafter referred to as second parties, witnesseth;
“Whereas, the first party is the owner of a life estate in certain lands in Mississippi county, Arkansas, under the will of Mrs. Lizzie Friend, deceased, and the second parties are each the owners of an undivided one-third interest in said lands, subject to the life estate of the first party, and
“Whereas, the first party desires that said lands be divided between the second parties in order that each of the second parties may farm and operate his part of said lands.
“The first party has agreed, and does hereby agree that he will lease to each of the second parties one-third of said lands, beginning January 1, 1910, for an annual cash rental of $500, due and payable on the 15th day of November of each and every year, and payment of each of the second parties of all taxes and special assessments levied against said lands.
“Each of the second parties have agreed and do hereby agree that they will pay the first party an annual cash rental of $500 per year on the 15th day of November, 1940, and each year thereafter, and that they will pay all taxes and special assessments, which may be levied against their part of the land, and will keep their part of the land in a good state of repair.
“Should either of the second parties fail to pay any taxes or special assessments levied against their part of the land, or fail to pay the annual cash rent to the first party promptly on November 15th of each year, then the first party may at h'.s option cancel this contract as to the second party, './ho is in default, by giving him written notice of his intention to cancel this contract.
“Witness our hands on this 27th day of February, 1939.
“/s/ Harry Crutcher,
Party of the First Part.
“/s/ Y. E. Smith,
“/s/ E. B. Crutcher,
“/s/ Jack Barnes, Guardian,
Parties of the Second Part.”
It is undisputed that the lease contract was executed for the purpose, as is shown by its recitals, of enabling the three remaindermen to have the land partitioned in kind amongst themselves, so that each of them might go into possession of and cultivate his portion of the plantation. In pursuance of this plan a friendly partition suit, in which appellant was made a party and entered his appearance, was instituted and commissioners were appointed to partition the land. These commissioners, in making the division, apparently put into effect' an agreement as to division of the land made at a family meeting attended by appellant, and appellant testified that he himself made the division. After the commissioners had reported their recommendations and the chancery court by its decree had vested title in each of the remaindermen for his respective portion of the land they each went into possession of the tract allotted to them respectively, and paid the taxes and special assessments accruing thereon, and each thereafter paid annually to appellant the rent reserved by him.
Appellant alleged in his complaint that he was entitled to a cancellation of the lease contract .on the following grounds: (1) That it was the understanding and agreement between him and appellee, Jack Barnes, that Jack Barnes would in person go upon the portion of the land set apart to his son and would actually cultivate same, and that said appellee had failed to do this and had rented same to another person, who was cultivating same. (2) That appellees had permitted the improvements on the land to go down and failed to make proper repairs thereon. (3) That appellee, Jack Barnes, as guardian, was not authorized by proper order of court to enter into the contract on behalf of his son, Harry Francis Barnes, a minor, and that the contract was void for that reason.
Assuming, but not deciding, that a verbal agreement between appellant and appellee, Jack Barnes, as to the latter actually cultivating the land to be allotted to his son, would be enforceable and that a violation of such agreement would entitle appellant to a cancellation of the contract, appellant, under the proof in this case, is in no position to ask for such relief on this ground, because it was shown by his own testimony that, after some dispute had arisen, appellant, agreed that his son-in-law need not personally cultivate the land, and his son-in-law rented the land to Wheeler on appellant’s instructions and advice. Appellant testified: “Q. Do you know of a single or fraudulent thing that Jack Barnes did in connection with that contract, anything he did to-mislead you in signing this contract? A. This was my firm opinion that Jack is going to live on my place. ... I finally agreed to let Jack live off the place and I told him to rent it to Wheeler. Q. You advised him to do that? A. Yes, sir.” Since, according to his own admission, appellant consented to and advised the sub-renting of the land by appellee, Jack Barnes, to Wheeler, appellant is, in any view of the matter, estopped to ask that the contract be rescinded for failure of Jack 'Barnes to live- on the land.
While, according to the testimony, some of the rent houses on the plantation were not being kept in the best of repair, appellant did not show such a failure on the part of appellees in their undertakings to keep up these repairs as would amount to a breach of the contract. The effect of the testimony of several witnesses was that, taken as a whole, the premises were in practically as good shape at the time of trial as they were when the lease was executed. Appellant did not show such neglect of repairs on the part of lessees as would entitle him to declare a forfeiture of the lease.
It is well settled that the right of a minor to avoid a contract entered into by him is personal to the minor, and that an adult party to the contract cannot take advantage of the incapacity of the minor to contract. “As a general rule, no one but the infant himself, or his legal representatives . . . can avoid the voidable acts, deeds and contracts of an infant. . . .” Bozeman v. Browning, 31 Ark. 364. “The contract of an infant is not absolutely void, but is only voidable at the instance of the infant himself.” (Headnote 5) Davie v. Padgett, 117 Ark. 544, 176 S. W. 333. “The right to avoid a contract because of the infancy of the maker or of one of the makers is a privilege personal to the infant. ' . . .” 27 Am. Jur., p. 772.
The lease here involved has turned out to be very profitable to the infant lessee. He has lived up to his undertakings thereunder, and appellant has no right to rescind the contract on the ground of the minority of appellee, Harry Francis Barnes, or because the probate court had not authorized .execution of the contract.
The evidence that it was the intention of all parties to the lease contract that by it appellant was leasing the land for and during his natural life is clear and convincing. In fact, the terms of the contract itself show that it was not a contract for one year or from year to year, as appellant now insists, Disinterested witnesses testified that appellant stated to them that he had leased the land to appellees for the remainder of his life, and there was evidence indicating that appellees, in consideration of appellant’s promise to lease the land for his lifetime, had permitted appellant to sell and appropriate to his own use the proceeds of a considerable amount of personal property which, under his mother’s will, belonged to appellees, subject to appellant’s right to use it during his lifetime.
The lower court properly found that under the real contract between the parties the term of the lease was co-extensive with the remainder of appellant’s natural life, and therefore it was proper to decree a reformation of the lease so as to make it reflect the intention of the parties at the time it was executed. Stephenson v. Garner, 84 Ark. 623, 104 S. W. 533; Martin v. Hempstead County Levee District No. 1, 98 Ark. 23, 135 S. W. 453; Hoyer v. Edwards, 182 Ark. 624, 32 S. W. 2d 812; Huffstuttler v. State, 183 Ark. 993, 39 S. W. 2d 721; Davidson v. Peyton, 190 Ark. 573, 79 S. W. 2d 734; C. M. Farmer Stave & Heading Company v. Motor Wheel Corporation, 192 Ark. 1177, 90 S. W. 2d 974; Wood v. Wood, ante, p. 518, 181 S. W. 2d 481.
The decree of the lower court is affirmed. | [
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McFaddin, J.
This appeal is the continuation of an attack on the constitutionality of §§ 7 and 8 of Act 213 of the General Assembly of 1939. The appellant is an Arkansas corporation organized with the hope and expectation (as yet unrealized) of hauling passengers for hire in North Little Rock, which is a city of the first class, and is one of the appellees. The Checker Cab Company, also an appellee, is, and was at all times herein mentioned, engaged in hauling passengers for hire in North Little Rock, and is resisting the desire of the appellant to engage as a competitor.
On May 24, 1943, appellant, pursuant to §§ 1 to 6, inclusive, of said Act 213, filed its application with the city officials of North Little Rock for a permit to engage in the taxicab business in said city, and offered full compliance with the municipal ordinance (No. 950) of the city. The application was heard by the city council, with Checker Cab Company protesting issuance of the permit. Many witnesses testified, and the entire proceedings were duly transcribed and preserved. The city council found that there was need for additional taxicab service, and referred the matter to a committee of the council to decide the extent of the needed improvement in service. The council later approved the recommendation of the committee that the Checker Cab Company be given ninety days to comply with the “request” of the council for adequate taxicab service. It was conceded in the oral argument before this court that the action of the council in this ninety-day provision was dictated by the council’s belief of the mandatory provisions of §§ 7 and 8 of Act 213 of 1939.
Appellant then filed its petition for writ of certiorari in the Pulaski circuit court, reciting the facts, attacking §§ 7 and 8 of the Act 213 as unconstitutional, attacking the status of the Checker Cab Company, and praying that no additional permits be issued to Checker Cab Company, and that the entire proceedings before the council be certified to the court, and also praying that its permit be issued as sought before the council. The transcript of the. council proceedings was duly certified to the circuit court, and the matter was heard on that record, together with the response of the Checker Cab Company and the response of the city. The learned circuit judge delivered a memorandum opinion, which is in the transcript and has been beneficial to this court in the consideration of the case. The circuit court denied appellant all relief, and after an unavailing motion for new trial this appeal followed, in which is presented the questions hereinafter discussed.
I. The Constitutionality of Sections 7 and 8 of Act 213 of 1939. This act is entitled “An Act Clarifying the Jurisdiction of Cities of the First Class to Regulate and Control Taxicabs, and for Other Purposes,” and consists of ten sections.
Section 1 defines taxicabs.
Section 2 clothes cities of the first class with exclusive power to permit, regulate, and control by ordinance the business and operation of taxicabs in said cities.
Section 3 concerns rates.
Section 4 prohibits operation of taxicabs in any city without a permit of that city.
Section 5 concerns the contents and essentials of an application for a permit.
Section 6 provides that when an application for a permit has been filed, notice must be given to every other taxicab operator in the city, and any and all interested persons may be heard by the council.
Section 7, here assailed as unconstitutional, provides:
“If after sucli hearing the governing body of such city shall find that the public convenience and necessity require additional service of the type or character described in such application, .it shall cause such finding to be entered in the records of such governing body and shall give to each and all taxicab operators who may at the time of the filing of such application have been operating in such city not less than sixty (60) days and not more than one hundred twenty (120) days from and after the date of the actual recording of such finding within which to establish and inaugurate the rendition of such additional service as the governing body of said-city may have found and declared to be required by public convenience and necessity.”
Section 8, here assailed as unconstitutional, provides:
‘ ‘ If within the time so fixed all or any of such taxicab operators shall have inaugurated and established such service, then the governing body of snch city shall reject such application; but if within said time none of such operators shall have inaugurated and established such service, then the governing body of. said city may, in the event that it shall, after due consideration of all relevant facts, circumstances and conditions, including the probable effect upon the public safety of. the operation upon the streets and ways of such city of the equipment necessary for the rendition of such additional service, find that the grant of such application is in the public interest, grant such application.
“Any final'action of the governing body of the municipality in respect of any such application shall be subject to judicial review.
“Notwithstanding anything in this act contained, neither any person, firm, corporation or association lawfully engaged in rendering or furnishing any class or type of service referred to in section 2 hereof in any city of the first class on-the effective date of this act, nor the successors or assigns of any such, shall be required to secure any permit herein referred to in order to continue such business.”
Section 9 states that the provisions and sections of the act are separable, if any should be unconstitutional.
Section 10 is the emergency clause (which we here note failed of adoption), so that the act became effective June 9,'1939.
Appellant assails §§ 7 and 8 as violative of Article II, §§ 3, 18 and 19, of the Arkansas Constitution, and also as violative of Amendment 14 of the United States Constitution. We have concluded that §§ 7 and 8 are violative of Article II, § 19, of the Arkansas Constitution, so we do not consider the other sections of the State Constitution or the 14th, Amendment to the United States Constitution.
. Article II, § 19, of the. Arkansas Constitution says, in part:
“ Perpetuities and monopolies are contrary to the genius of a republic, and shall not be allowed, . . . ”
This same provision is contained in Article II, § 19, of the Arkansas Constitutions of 1836, 1861, and 1864. For some reason, the framers of the Constitution of 1868 did not include this salutary provision, but the great men who framed the present Constitution of 1874 saw fit to use the quoted language. This provision is not unique to the Constitution of Arkansas; similar provisions are found in Article 41 of the Declaration of Rights of the Constitution of Maryland; in Article I, § 31, of the Constitution of North Carolina; in Article I, § 22, of the Constitution of Tennessee; in Article I, § 26, of the Constitution of Texas; in Article'll, § 32, of the Constitution of Oklahoma; and in Article I, § 30, of the Constitution of Wyoming. See, Joyce on Monopolies, p. 270. et seq. In 36 Am. Jur., 521 et seq., there is a discussion of the anti-monopoly provisions of various State Constitutions; and general rules are enunciated from the many cases involving these provisions.
Mr. Justice Eakin, in Ex parte Levy, 43 Ark. 42, 51 Am. Rep. 550, in discussing this provision in the Arkansas Constitution, said:
‘ ‘ The monopolies which in England became so odious as to excite general opposition, and infuse a detestation which has been transmitted to the free States of America, were in the nature of exclusive privileges of trade, granted to favorites or purchasers from the crown, for the enrichment of individuals, at the cost of the public. They were supported by no considerations of public good. They enabled a few to oppress the community by undue charges for goods or services. The memory, and historical traditions of abuses resulting from this practice, has left the impression that they are dangerous to liberty, and it -is this kind of monopoly against which the constitutional provision is directed. Not all the states have felt this apprehension. There is no indication of it in the Federal Constitution.”
In considering the constitutionality of any act of the legislature, we are always mindful of the rule so well expressed by Mr. Justice Hart in McClure v. Topf & Wright, 112 Ark. 342, 166 S. W. 174: “It is not to be doubted that the legislature has the power to make the written laws of the state unless it is expressly, or by necessary implication, prohibited from so doing by the Constitution, and the act assailed must be plainly at variance with the Constitution before the court will so declare it. ”
But the Constitution says: “Perpetuities and monopolies are contrary to the genius of a republic and shall not be allowed. ’ ’
This language is too clear to need elucidation, and no amount of judicial interpretation should ever be permitted to cause the slightest deviation from the clear language of the constitutional inhibition. We do not hold that §§ 7 and 8 of the Act 213 create a perpetuity, because we are mindful of the fact that any subsequent legislature could repeal the entire act, or any part thereof, under the authority of the Third Slaughterhouse Case (Butchers’ Union Slaughterhouse, etc., v. Crescent City Live Stock, etc., 111 U. S. 746, 4 S. Ct. 652, 28 L. Ed. 585), and also under the authority of our cases of Wade v. Hornor, 115 Ark. 250, 170 S. W. 1005, Ann. Cas. 1916E 167; and Johnson v. Quarles, 121 Ark. 601, 182 S. W. 283. But we hold that the §§ 7 and 8 of the Act 213 create a monopoly' within the constitutional inhibition.
In the case at bar it was shown that on the effective date of the act (June 9, 1939) the appellee, Checker Cab Company, was the only taxicab company operating in North Little Rock. By §§ 7 and 8 of the act, that company was entitled: (1) to a notice of the finding of the council as to the desire for better taxicab service; (2) to have not less than 60 days to meet any requirement for improved service that any proposed competitor had proved necessary or convenient for the inhabitants of the city; (3) to have the exclusive franchise continue if it (appellee, Checker Cab Company)' met the request of the city for improvements in service; and (4) under the last sentence of 8, to continue in business indefinitely without being required to secure any permit.
Did the Checker Cab Company promise any continuance of service for any length of time in order to secure this privilege at the hands of the legislature? No. Merely because it was operating in North Little Rock on June 9, 1939, the Checker Cab-Company received a valuable privilege created at the hands of the legislature — and without any legislative finding in the act, based on substantial reasoning, “that an exclusive taxicab business in cities of the first class was for the public welfare, or was an exercise of the police power. It is true that the anti-monopoly provision in our Constitution is to be read and considered along with the police powers and public welfare powers; but, even so, when, as here, there is a clear showing of absence of the proper exercise of' the police and welfare powers, then the questioned law should not be suffered to stand. See Annotation in 53 L. R. A. 763, and Annotation in 1 Ann. Cas. 847.
The record here before us does not indicate what conditions prevailed in other cities of the first class in Arkansas on June 9, 1939, as regards the number of taxicab companies in operation. But regardless of such conditions, it is clear that a monopoly was created by the' legislature for the benefit of those taxicab companies in operation in cities of the first class on the effective date of this act. Not only was new competition stifled, it was entirely prevented so long as §§ 7 and 8 of this act remained in force.
Appellees say that monopolies in the field of common carriers are not repulsive or unconstitutional; and to sustain that contention they cite: Kinder v. Looney, 171 Ark. 16, 283 S. W. 9; Missouri Pacific R. R. Co. v. Williams, 201 Ark. 895, 148 S. W. 2d 644; Potashnick Truck Service v. Missouri & Arkansas Transportation Co., 203 Ark. 506, 157 S. W. 2d 512; Missouri Pacific Transportation Co. v. Gray, 205 Ark. 62, 167 S. W. 2d 636. These cases do not sustain appellees. In fact, in each case it was impliedly recognized that the Arkansas Corporation Commission has authority to license competition when public convenience and necessity justify competition. As complete refutation to appellees ’ statement, attention is called to the language found in § 2025, Pope’s Digest. It is in this section that the procedure is outlined for the granting of a license to a motor carrier by the Commission; and these words are found in the statute: “nor shall any license, in any event, be exclusive.” This quoted language effectively negatives any idea of a monopoly.
We also point out that in the statute creating the Department of Public Utilities (Act 324 of 1935) the guiding principle is the public convenience and necessity. It is a question of fact in each case as to how public convenience and necessity may best be served, and competition is mandatory when public convenience and necessity can best he served thereby. See, Department of Public Utilities v. Arkansas-Louisiana Gas Co., 200 Ark. 983, 142 S. W. 2d 213.
In further effort to sustain §§ 7 and 8, the appellee, Checker Cab Company, cites us to Merchants Transfer Warehouse Co. v. Gates, 180 Ark. 96, 21 S. W. 2d 406, where it was held that taxicabs were subject to regulation and control because they used the, public highways. Merely because taxicabs might be called public carriers does not merge the fundamental difference .that it is one thing to regulate and tax a public carrier, and yet another thing to grant it a monopoly in the teeth of the constitutional inhibition. In the case of Arkansas Railroad Commission v. Castetter, 180 Ark. 770, 22 S. W. 2d 993, 68 A. L. R. 1018, Mr. Justice Butler pointed out that regulation is one thing and monopoly is vastly different. That case shows why Merchants Transfer Company v. Gates does not support the position of the appellee, Checker Cab Company, in the case at bar. The case of Arkansas Railroad, Commission v. Castetter clearly points the way to the unconstitutionality'of §§ 7 and 8 here assailed.
Turning from the decisions of our own -state, the Checker Cab Company cites us to cases from other states; but in none of these cases was there any language comparable to the language in §§ 7 and 8 here under attack to the effect (1) that the person, or persons, operating taxicabs at the effective date of the act was, or were, allowed time to comply with any council requirements before such privilege could be upset, and (2) that upon such compliance no additional competition could be allowed. The first case cited by appellee is Fletcher v. Bordelon, 56 S. W. 2d 313, from the 9th District Court of Civil Appeals of Texas. A study of that case shows that the ordinance of Beaumont (which was sustained) had no language comparable to §§ 7 and 8 of the act here under consideration. The Beaumont ordinance was in general pattern similar to our Corporation Commission Act (<j> 2025, Pope’s Digest) under which certificates of public convenience and necessity are granted to motor carriers in this state. People ex rel. Johns v. Thompson, 341 Ill. 166, 173 N. E. 137, is cited by appellee. The ordinance of the city of Chicago there involved was not assailed on the ground here urged, to-wit, the creation of a monopoly. No reference was made in the case to any language in the Illinois Constitution similar to the language in Article II, § 19, of our Constitution. Another case cited by appellee is that of Capitol Taxicab Com pany v. Cermak, 60 Fed. 2d 608, decided by the United States District Court for the Eastern District of Illinois, and likewise involving the same Chicago ordinance involved in Johns v. Thompson, supra. The holding of the federal court is against the position of the appellee, Checker Cab Company, in the case at bar, because, in the concluding part of the opinion, the federal court used this language:
“To the argument that the ordinance tends to create a monopoly, it is sufficient answer that the city has not by its legislation, surrendered its right to grant other and further certificates to all other applicants. It may still grant applications, and undoubtedly adequate remedy exists against affirmative exercise of arbitrary authority in that respect. The public policy, of Illinois has been declared by the legislature of Illinois, according to the interpretations of the Supreme Court, to be that, before one utility or public carrier is permitted to enter the business of another already in the field, it is hut a matter of fairness and justice that it he shown that the new utility answers the demands of public convenience and necessity. ’ ’
We conclude that all of §§ 7 and 8 of Act 213 of 1939 are unconstitutional, and must be stricken, except the sentence found in § 8, which reads:' “Any final action of the governing body of the municipality in respect of such application shall be subject to judicial review.”
Section 9 of the Act 213 declares that the various sections and provisions are separable; and an examination convinces us that the legislative declaration is correct in this respect; so that with all of §§ 7 and 8 omitted, except the sentence providing for judicial review, the remaining sections make a workable act; that is, after the hearing provided in § 6, the council is then free to grant or refuse the permit to the competitor, as the council in the exercise of good judgment may see fit for the best interests of the city and the inhabitants, and then “any final action of the governing body of the municipality in respect of any such application shall be subject to judicial review.”
II. The Status of the Checker Cab Company on the Effective Date of Act 213. The appellant has shown: (1) that' Ordinance 950 of North Little Bock was passed in 1935, and required all taxicab companies having permits to have,liability insurance; (2) this ordinance was in effect at the effective date of Act 213; (3) that the Checker Cab Company did not have such insurance, but had entered into an agreement with the mayor of the city for the deposit of $5,000 in a bank account in lieu of compliance with the ordinance; and (4) that there was no repeal of Ordinance No. 950.
On this showing the appellant contends that the Checker Cab Company was not .“lawfully operating” in North Little Bock, notwithstanding the receipt of tax each year by the city from the' Checker Cab Company. With §§ 7 and 8 (except the provision for judicial review) stricken as unconstitutional, the status of the Checker Cab Company presents no substantial issue: because §§ 7 and 8 were the only sections that gave any preference to any operator on the effective date of the act, and it was conceded, in the oral argument before this court, that the council had considered itself bound by §§ 7 and 8 of the act.
It follows that the judgment of the circuit court is reversed, and the cause is remanded, with directions to enter a judgment declaring all of §§ 7 and 8 of Aet 213 of 1939 to be unconstitutional, except the sentence providing for judicial review. The circuit court is also directed to enter an order (1) quashing the order of the council giving the Checker Cab Company time to furnish additional service, and (2) remanding the record to the council, with leave to the plaintiff, if it so desires, to pursue its application to the city of North Little Bock for a permit, on which application the council will proceed in a manner not inconsistent with this opinion.
Costs of both courts are awarded against appellee, Checker Cab Company. | [
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McHaney, J.
On April 30, 1942, appellee received an injury to both his eyes while in the employ of appellant, Peldn Wood Products Company, caused by wood preservative splashing up into his face and eyes when another employee was throwing wood blocks into a vat containing the preservative. His eyes were treated .at the first aid station. On May 1, he was treated by Dr. Aris W. Cox, an eye specialist in Helena, and on May 3, he was discharged by Dr. Cox as being able to return to work. Two days later, on May 5, he returned to Dr. Cox for treatment and his right eye was found to be infected by gonorrheal germs, which spread to the left eye on May 8. He was treated by Dr. Cox until June 18, after which he did not return for' treatment. As a result of this infection he became blind in his left eye.
Appellee filed a claim with the Workmen’s Compensation Commission against appellants who are his employer and its insurance carrier. Claim was allowed by the referee and the Commission at the rate of $9.88 per week for a healing period up to December 16, 1943, and at the same rate for one hundred weeks thereafter, being the period provided by the Workmen’s Compensation Law, Act 319 of 1939. Appellants appealed to the Phillips circuit court, where it was heard on the record made before the Commission and findings and judgment of the Commission were affirmed. This appeal followed.
It is undisputed that appellee received an injury to his eyes from the splashing of the wood preservative fluid, and that within a short-time his eyes became infected with gonorrheal germs which caused blindness in the left eye. It is also undisputed that appellee did not have gonorrhea or any other venereal disease, and that the infection came from some other source. The Commission found that, “it is recognized that gonorrheal infection, unless checked, will produce blindness, ’ ’ and that “it is reasonable to assume that the infection found a ready portal of entry in the already inflamed and irritated eye of this claimant. In the opinion of the Commission, the chain of causation has been established by this claimant, the liquid which was being used in his employment produced the irritation that offered a ready harbor for the gonorrheal infection that spread to the left eye and produced the blindness in the claimant’s left eye.”
For a reversal of the judgment of the circuit court, appellants make two contentions: 1. That it is speculation and conjecture for the Commission to say that the irritated condition of the eyes made them more susceptible to the infection, and that-blindness would not have occurred except for the irritation; and 2, but assuming the Commission was justified in so finding, the germ infection was an intervening efficient cause, for which appellants are not liable.
1. While no witness testified that the irritation to appellee’s eyes made them more susceptible to gonorrheal infection, we think the Commission had the right, in the exercise of sound judgment and discretion, to make the finding in this regard that it did make. It seems to us, as it did the Commission, a reasonable assumption that an inflamed and irritated eye, a conjunctivitis as the doctor «^gstified, would be a ready portal of entry for the germ he did get' or some other destructive germ that he might have gotten.
2. Nor can we agree with appellants that the germ infection which 'Caused his blindness in the left eye was such an intervening efficient cause as to excuse them from responsibility under said act. To support their contentions in this regard, appellants cite a number of cases to the effect “that an employee can only recover for a disability that is caused entirely by the accident which he received in his employment, and that the employer is not responsible for any part of a disability that has been occasioned by another independent agency that has intervened after the accident occurred.” Bunge Bros. Coal Co. v. Industrial Commission, 306 Ill. 582, 138 N. E. 189. In that case, claimant was injured in a collision between the coal wagon he was driving and a street ear in Chicago, on March 8, 1920. On July 15 following, the physician found him infected with acute gonorrhea of recent origin and on August 12, he found him suffering with acute gonorrheal arthritis. In this connection the court said: “The proof is also to the effect that he (claimant) has suffered greatly from gonorrheal arthritis, and that the inflammation and swelling of the joints Avas occasioned by a neAV and independent cause, which occurred weeks after he received his injury.” So, it will be seen that the independent intervening efficient cause in that case occurred more than five months after his original compensable injury and had no connection with it. It was upon these facts that the Illinois court used the language above quoted. Other cases to the same general effect are cited, but Ave do not consider them applicable to .the facts in this case, which is altogether comparable to those in our own recent case of Garrison Furn. Co. v. Butler, 206 Ark. 702, 177 S. W. 2d 738. There O. C. Butler received superficial wounds on his hands while at work in the factory of the furniture company on April 16-17, 1942. On April 20, he went to see Dr. Scott, and on April 21, he went to the hospital where he died on April 29 from lockjaw, as a result of tetanus infection which entered the blood stream through the so-called superficial wounds. _ Compensation for death benefits was awarded to the Avidow and child, and we affirmed the award. The question now presented in the case at bar was not suggested or argued in that case. It seems to have been assumed by counsel and the court in that case that the tetanus bacilli gained entrance into the blood stream through the wounds on Butler’s hands and caused his death, and that if the wounds were received by him in the course of employment, compensation was properly awarded. The question there was: Did Butler get his wounds to his hands from an accidental injury arising out of and in the course of his employment? There was no question of an intervening efficient cause. The injuries to Butler’s hands were slight and superficial, but they formed a ready portal of entry for the tetanus bacilli, just as the inflamed and irritated eyes of appellee rendered them more susceptible to the entry of the gonorrheal germ, gonococcus. We are, therefore, of the opinion that the Commission was justified in finding that there was a causal connection between the original injury and the resulting blindness in the left eye of appellee, and that compensation was properly awarded.
The judgment is accordingly affirmed. | [
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Griffin Smith, Chief Justice.
Appellant Williams was appointed a member of Little Rock Waterworks Commission, other Commissioners being T. J. Gay and Dan M. Boone. Boone’s term expired October 31, 1943; whereupon Williams and Gay nominated Edward L. Gaunt. Pope’s Digest-, §§ 10019 and 10020. Before action on the nomination was taken by the City Council, Gaunt declined to accept. Williams and Gay then suggested Foster A. Vineyard and the Council rejected.
In November a group of citizens, who seemingly were actuated by newspaper articles concerning management of the waterworks system, and inferences of maladministration, addressed a petition to the Mayor and members of tlie -Council, saying: “The peaceful and profitable career of the system is now halted by a demand by two of the governing board for a change in the administrative personnel of the board which has so successfully administered the system since its purchase.”
Comment in the petition was that “. . . reasons advanced in justification of a change, as reflected by the' press, are not, in the opinion of the public, wholly conclusive. ’ ’ There was the suggestion that the -City Council hold a special meeting, to be attended by the three Commissioners “and all other persons who may have information on the subject,” to the end that facts be ascertained.
The City Clerk’s minutes for November 22d show that a special meeting was held November 18th, and that the Council, resolving itself into a committee of the whole, referred the investigation to its Utilities Committee.
Following instruction's that charges of irregularities be inquired into, the Utilities Committee held its first meeting November 29th and took statements from witnesses. L. A. Jackson, operating manager of the Water Department, testified at length regarding Williams ’ use of“. . . a winch-type truck, with twenty-foot flat-bed trailer and Dodge Car No. 11.” These were taken to Tall Timber Jersey Farm on the Hot Springs highway eight and a half miles from Little Rock. Accumulated use.from February to August (1941) was 1,655 miles. August use of truck and car showed 640 miles, billed at $71.50. Williams deducted $17.50 for gasoline and oil lie furnished, and paid the difference of $54. No bill was rendered for automobile from February to June, inclusive. Other uses occurred in September, 1941, and March, 1943.
Jackson further testified that the Water Department extended its lines 3,150 feet to serve Williams’ dairy, at an estimated outlay of $1,936.44. One-sixth of this sum was guaranteed by Williams, payable in annual installments of $22.74 for fifteen years.
Appellant made a brief statement to the Utilities Committee. Its' report to the Council was presented December 13th, with motion for adoption. Effect would have been to exonerate all of those against whom accusations had been made. On substitute motion the report was filed.
November 20, 1943, Williams wrote each member of the Council, asserting that since 1906 he had lived in Little Rock, either at 2118 Louisiana, 2114' Spring, 1855 Cross, or No. 2 Armistead Road, “. . . and now at 515 West 24th Street.” Referring to the Twenty-fourth Street address, he said: “M.y wife and I own this home and the furnishings in it. The house and the household goods are assessed in my name, and I have taken homestead exemption on it. All the utilities except the telephone are in my name, and this is our family home and legal residence, even though we are temporarily living on our farm on Nineteenth Street Pike. Three of our four children attend Rightsell School in this neighborhood.”
A transcript of testimony before the Utilities Committee was available to the Council.
February 21st of this year the Council, without further notice, adopted its resolution No. 1655, “Ordering the removal of W. H. Williams*as a member of the Waterworks Commission. ”
Section 1 of the resolution recites that removal is “for cause.” There is nothing to indicate what particular offense was sufficient, in the Council’s judgment, to warrant removal. However, the minutes for November 22d show that a resolution was proposed “. . . to fix a time for the City Council to determine the qualifi cations of W. H. Williams to continue to serve as a member of the Waterworks Commission. ”
By certiorari action of the Council and records pertaining to tlie investigation were brought to Circuit Court, where additional testimony affecting merits of the controversy was adduced. At conclusion of the hearing the court found that the council, in removing Williams, acted legislatively, and the resolution could not be made the subject of review by the method adopted, nor could the dismissal be questioned otherwise. This appeal challenges correctness of that finding.
Appellant contends that the holding in McAllister v. McAllister, 200 Ark. 171, 138 S. W. 2d 1040, is wrong if, as the judge who passed on Williams’ petition for certiorari thought, it is authority for the proposition that where a statute fixes a definite term, still, if power is given (as in the instant case, Pope’s Digest, § 10021) to remove “for cause,” the Council may determine in its own way and upon any proof it thinks sufficient that a cause does exist, and then, without saying Ivhat the cause is, declare the office vacant.
It must be conceded that there is language in the McAllister opinion which, when segregated from the entire text, indicates a holding that the Council could have acted only in a legislative capacity. Indeed, there is the declaration that “. . . when the [City Council of Fayetteville] enacted the resolution [dismissing three Civil Service Commissioners] it was acting in a legislative capacity as distinguished from judicial or quasi-judicial.” But when the full opinion is studied it can be seen that the intent was to say that in passing the particular resolution in question the action was legislative in its nature. Many of our cases hold that an administrative body or board, in considering charges against officers it may dismiss, acts in a (^««si-judicial capacity in exercising the power.
In the McAllister case, discussing whether the ousted Fayetteville Commissioners were entitled to a writ of certiorari to review the 'Council’s actions, it was said that the appellants insisted upon this relief as a matter of right because the attempted removal — that is, passage' of the resolution — was judicial or gwm-judicial, and that it was not accomplished in the performance of a legislative, executive, or administrative duty. It was then said:
‘‘Should w,e conclude that this act . . . was purely legislative, then we must affirm the action of the trial court in denying the writ, and all other questions pass out of the case.”
Two acts of the Fayetteville City Council were involved. By ordinance the offices of Chief of Police, and Chief of the Fire Department, were abolished. By resolution the Civil Service Commissioners were removed.
This court’s opinion is inexact in that it seemingly anchored final result upon a strictly legal construction of the Council’s power, and upon effect to be given a resolution duly adopted where, on the face of the resolution, statutory requirements, prima facie, were complied with.
Certainly a City Council, when passing an ordinance or adopting a resolution conformable to law, acts legislatively; but even so, it does not follow that a person whose official status has been created by law (subject only to removal for cause) may be denied judicial review of the Council’s right to pass a particular measure merely because, when adopting a resolution, it has legislative powers. If action may be taken only in certain circumstances (as is the case with a City Council to which authority is delegated) it necessarily follows that the power to act in respect of the matter immediately in hand must be found in the law higher than mere will of the Council. Although the process or method by which an end is sought to be achieved — whether resolution or ordinance — is legislative in its nature, authority to attain the result must have been expressly conferred, or it must be necessarily implied, or it must be indispensable to declared objects and purposes of the corporation. Willis v. City of Fort Smith, 121 Ark. 606, 182 S. W. 275; Cum nock v. City of Little Rock, 154 Ark. 471, 243 S. W. 57, 25 A. L. R. 608; Nesler v. City of Paragould, 187 Ark. 177, 58 S. W. 2d 677.
In tlie case at bar the Council was empowered to remove a Commissioner for cause. Admittedly, if the City’s governing body possessed general legislative powers and not delegated authority, its motives or reasons could not be inquired into,- and a mere allegation that cause existed would close the door against inquiry.
In the Fayetteville case the resolution alleged certain neglect of duty by the Commissioners — such as failure, for a period of four years, to designate a Chief of Police, refusal to properly supervise the fire department, holding of dual offices by one of the commissioners, iiieligibility, etc. The Council, having the right to remove for cause, stated its cause, and as the opinion says, proceeded to act.
The case at bar presents no such record. It is not enough, in the affirmative language of a resolution, to throw a cloak of anonymity over the cause and arbitrarily assert that cause exists. By this statement it is not meant that the Little Rock Council acted arbitrarily in removing Williams. On the contrary there was evidence of misconduct which if believed by two-thirds of the Council, and if alleged and acted upon, would have supported its findings. But we do not know, except by inference, that dismissal was predicted upon any of the causes as to which testimony was given. It may have been that purely personal dislike, or incompatibility not associated with official duties, animated the final result. If this were the basis of removal there was no cause within the meaning of the statute.
There were at least three charges expressed or to be inferred, either of which, if proved to the satisfaction of two-thirds of the Council, would have sustained an action of removal; but it was essential that they be particularized, that Williams be reasonably notified of a hearing, and that the testimony be made available to the accused in circumstances permitting a denial or explanation. If this procedure had been followed prior to adoption of a resolution of removal which stated the cause, and if on appeal Circuit Court had affirmed, this court would decline on that record to say that error had prejudiced appellant’s rights.
It is not putting form before substance when the law is construed to mean that in a transaction of this nature the Council must state the cause, give notice, and allow a defense. These are substantial rights. They are in the nature of conditions precedent to the Council’s exercise of power. Impairment of these rights is not mitigated by the fact that in Circuit Court evidence sufficient to sustain removal was heard. The Council, in the first instance, determines sufficiency of the evidence, while Circuit Court examines the record to determine if such evidence was sufficient as a matter of law.
For the reasons expressed, it cannot be said that because there is substance we should affirm the decision. The contention is no more persuasive in the interest of ju,sbice by expediency than would be a demand that we affirm a criminal conviction where the evidence is con-elusive of guilt, but the defendant was not present when tried on an information or indictment that did not specify the crime, and the defendant did not know when court would meet.
Our case of Hall v. Bledsoe, 126 Ark. 125, 189 S. W. 1041, is cited by appellant, coupled with the statement that it is in hopeless conflict with the McAllister decision, that it had not been overruled, qualified, or impaired until the McAllister opinion was handed down, and that it was “simply ignored or overlooked.”
The contention is untenable. The statute applicable when action of the Board of Control for Charitable Insti"tutions of the State in removing Dr. Bledsoe was upheld provided that in case of removal of the secretary, superintendent, or steward for inattention, neglect, misconduct, or inefficiency in the discharge of his duties, or for other adequate cause, the Board should state specifically and distinctly tlie ground therefor. It was held that the Board 'acted judicially, and that certiorari was available as means of review; also that if the Board had acted without any evidence, or contrary to any reasonable view of the evidence, its action would be reviewable 'by the Circuit Court. But the record before the 'Board (Mr. Justice Hart dissenting and Mr. Justice Humphreys concurring in the opinion of the majority) was the only evidence Circuit Court could consider, although testimony might be heard to determine what evidence was before the Board; nor may “an ex post facto showing of grounds warranting the removal of a public officer ’ ’ cure a failure to give the necessary notice or hearing. American Jurisprudence, v. 43, § 212, p. 52.
In Lucas v. Futrall, 84 Ark. 540, 106 S. W. 667, it was held that when an officer does not hold at pleasure, but retains his position during good behavior, subject to removal for specified causes, there must be notice and a hearing, and “He can only be removed from that office for the causes specified in the statute .authorizing the Board to remove him.” See Tappan v. Helena Federal Savings & Loan Assn., 193 Ark. 1023, 104 S. W. 2d 458.
McQuillin, Municipal Corporations, (2d ed., § 575) states the law to be that where power of removal is conferred and the procedure is not specified, “there exists an implied requirement of proper notice to the officer of the charges preferred, and a full opportunity for him to be heard. . . Where the removal must be for cause, the power of removal can only be exercised when charges are made against the accused.”
Cases cited in American Jurisprudence, v. 37, § 241, p. 869, are to the effect that even in the absence of express provision in the statute, “it is well settled by the weight of authority that a municipal officer who has under the law a fixed term of office, and who is removable only for definite and specified causes, cannot be removed without notice of the charges against him and an opportunity to make defense to them, and the same is generally held to be true, in the absence of the positive mandate of statute, where a municipal officer is elected or appointed for a fixed term, and provision is made generally for his removal for cause.”
In Carswell v. Hammock, 127 Ark. 110, 191 S. W. 935, the Cleburne Circuit Court was called upon to review, by certiorari, action of the Incorporated Town of Heber Springs, by its Council, in considering charges of miscondu®t preferred against commissioners'of a waterworks improvement district, and a street improvement district. Under an Act of the General Assembly, as in the case at bar, the Council had authority to remove for cause, and after a hearing, and upon due notice. The opinion quotes from State ex rel. Hart et al. v. Common Council of the City of Duluth et al., 53 Minn. 238, 55 N. W. 118, 39 Am. St. Rep. 595, where it was said:
“ ‘Cause,’ or ‘sufficient cause,’ means ‘legal cause,’ and not any cause which the Council may think sufficient. The cause must be one which specifically relates to and affects the administration of the office, and must be restricted to something of a substantial nature directly affecting the rights and interests of the public.” And in Corpus Juris, v. 43, § 1085, p. 658, the term “for cause,” is said to mean just cause:-“And the cause assigned for removal must not be a mere whim or subterfuge, but must be of substance relating to the character, neglect of duty, or fitness of the person removed. ’ ’
In the very nature of human activities it would be difficult for the General Assembly to enumerate all of the acts of a public official which might constitute cause for removal. The term, therefore, must have been used to mean any act of commission or omission that, considered in its relation to the duty involved, would stamp ■the person in question as unfit to occupy the position— one whose conduct became inimicable to the public welfare. One against whom such charges have been preferred — or concerning whom the implication of misconduct arises by reason of the'allegation of “cause” — is entitled to be heard in defense of the specific matter to which an investigation may be directed.
In the light of these general principles, what is the situation regarding appellant?
Additional testimony was heard in Circuit Court— evidence not previously before the Council. Conceding its sufficiency as “cause,” the fact remains that on certiorari the trial court has authority to determine but one question: Did the Council have power, at the time it acted, and in the light of all testimony before it, to adopt the resolution of dismissal?
Our view is that it did not have such power. Even if it should be conceded that Williams knew what the charges were, and if it be further conceded that action of the Coungil when it resolved itself into a committee of the whole was tantamount to action of the Council, still the charges were in a sense “pigeon-holed” and the accused Commissioner had a right to assume the matter had been dropped, or that he would be notified before further action would be taken.
Appellant, in Circuit Court, asked for four declarations of law: (a) That the Council acted judicially; (b) that Williams could be removed only for cause, and the resolution neither recited nor found legal grounds to sustain the action; (c) that Williams was a citizen and qualified elector of Little Rock, and (cl) the resolution was void.
What has been said disposes of all matters except (c) the requested finding, as a matter of law, that Williams was a citizen and qualified elector of Little Rock.
Whether Williams had moved from the City was a matter for the Council to determine. The holding in Hillman v. Hillman, 200 Ark. 340, 138 S. W. 2d 1051, was that in considering evidence relating to one’s intentions to become a citizen of a particular place, and in weighing its sufficiency, it is necessary to look behind mere physical action and to appraise human behavior. In other words, evidence of intent is largely controlling, but circumstances may belie protestations of purpose; and the examining body is not required to believe claims of intent when circumstances point to' a contrary conclusion.
For failure of the Council to state the cause it regarded as sufficient to sustain removal, and because after an investigation had been made the Utility Commission’s report was filed without action and subsequently revived without notice, judgment of the Circuit Court is reversed. The cause is remanded with directions to the Circuit Court to hold the resolution void, but without prejudice to the Council’s right to reconsider the matter and to act in a manner not inconsistent with this opinion.
Acts of mismanagement mentioned in newspaper articles, as summarized by appellees (Mayor and City Council) were: (a) Use of instruments and equipment belonging- to the Commission by unauthorized persons; (b) use by Williams of Commission trucks; (c) unauthorized use of war board priorities by M. L. Crist, engineer; (d) friction and lack of harmony between officers and employees; (e) use by Crist of commission office space while engaged in private activities; (f) ineligibility of Williams as a member of the Commission because he was not a bona fide resident of Little Rock. [In fixing qualification of commissioners, § 10019 of Pope’s Digest requires that they be “. . . three citizens who are qualified electors of the municipality”] .
No minutes of the actions of the committee of the whole were kept; hence records are not available.
Although the statement is made that February-June use was not billed, it is not expressly stated that payment was not made without formality of a bill. [Other use of equipment was shown; also use by the water department of a tractor owned by Williams.]
Williams executed bond for $2,000 to guarantee his payments. The written contract between Williams and “City of Little Rock, acting by and through the Board of Waterworks Commissioners,” provided that if other consumers should be served from the extension line, Williams would receive fifty per cent of the revenues in excess of the guaranteed income. For the first nine months of 1941 revenue exceeded the guarantee by $85. The 1942 excess was $120.60. Jackson testified: “There is nothing irregular about this contract, and it was approved by the Board.” [The copy appearing in the record of this appeal does not show approval. It is signed: “City of Little Rock. Little Rock Municipal Water Works. L. A. Jackson, Manager. . . Tall Timber Jersey Farm, the Applicant. By Wm. H. Williams, Owner;”]
As a witness in Circuit Court Williams conceded that he knew a resolution questioning his eligibility was pending before the City Council. Referi-ing further to his residence, this statement was made: “I am living at 515 West Twenty-Fourth Street. My wife and I own Tall Timber Jersey Farm. . . We have about four hundred aeres in all. . . We began acquiring this property in 1935 or early 1936. We operate a dairy farm in the fullest sense of the word and retail our products in Little Rock. We have approximately 100 head of registered Jersey cattle. The farm is managed by a full-time employe. I tell him what I want and try to see that he does it. All of my mail comes to 401 Hall Building, Little Rock. All checks and correspondence for Tall Timber Jersey Farm are delivered at the farm, Route Three, Little Rock. . . I am living at Tall Timber Dairy Farm and spent last night there. In the past month I do not know how many nights were spent at Tall Timber Jersey Farm, but I would say by far the majority. This is also true of my family. We have a telephone at the farm listed in my name. I do not have a residence telephone listed in my name in Little Rock. . . My residence on Armistead Road was sold in October, 1942, . . . [but] we moved to Tall Timber Jersey Farm in June, 1942. The other property was sold after we moved. At the present time I have one sister and her son living at 515 West Twenty-Fourth Street. . . They have lived there approximately four years. . . I consider our home at the farm a temporary home, and with that full knowledge we established 515 West Twenty-Fourth Street as our legal residence. . .”
“Whereas, the City Council has determined that it is to the best interest of the City of Little Rock and its Water Department that W. H. Williams be removed as a member of the Board of the Waterworks Commission; now, therefore, be it resolved by the City Council of the City of Little Rock, Arkansas: Section 1. That W. H. Williams be and he is hereby, for cause, removed as a Commissioner of the Waterworks Commission for the City of Little Rock. Section-2. Be it further resolved that copies of this resolution be forwarded to W. H. Williams and to the remaining Waterworks Commissioners, T. J. Gay and Dan M. Boone, in order to notify them of the removal of the said W. H. Williams as such Commissioner.” | [
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Smith, J.
Separate informations were filed against appellants, Morton and Ashcraft, each containing two counts, one count charging the crime of burglary, the other the crime of grand larceny. Over the objections and exceptions of appellants, the cases were consolidated and tried together. Appellants were found guilty on both counts, and verdicts of six years on one count, and twelve years on the other, were returned, and from the judgment pronounced upon these verdicts is this appeal.
We think it was error to have consolidated and tried these informations together, over the objections of appellants. Had the prosecuting attorney elected so to do, he could have indicted or filed an information charging appellants jointly with the commission of these crimes (§ 3016, Crawford & Moses’ Digest, as amended by Initiated Act No. 3, Acts 1937, p. 1384, now appearing as § 3838, Pope’s Digest) in'which event appellants could have been put to trial jointly, even though they had asked and been denied a severance. This is true, because § 29 of Initiated Act No. 3, which appears as § 3976, Pope’s Digest, confers that discretion on the trial judge. This initiated act was adopted at the 1936 general election, and § 29 thereof reads as follows:
“Section 29. Severance in felony cases. The section of Crawford and Moses’ Digest numbered 3140 is hereby amended to read as follows:
“Section 3140. Severance in felony cases. When two or more defendants are jointly indicted for a capital offense, any defendant requiring it is entitled to a separate trial; when indicted for a felony less than capital, defendants may be tried jointly or separately, in the discretion of the trial court. When separate trials are ordered in' any case, the defendants shall be tried in the order directed by the court.”
It will be observed that the provisions of the act are. applicable only to defendants jointly indicted. Prior to its passage, it had been held that the trial court is without authority, over the objections of the defendant, to order the consolidation of separate cases under different indictments, for the purpose of trial. Davis v. State, 118 Ark. 31, 175 S. W. 1168. The case just cited was one in which the defendant was charged with having operated a blind tiger, at a designated location. The charges were the same in each case, and required the same testimony to convict, except only that the law was alleged to have been violated on different dates. It was said in that opinion that: “It is true there is much good reason for requiring the consolidation for trial of misdemeanor cases, and especially where the offenses charged are of a like kind or class, and against the same defendant, but it must continue to address itself to the legislature for effecting improvement in our criminal procedure, rather than to the courts, which are bound by existing laws.” The.cases here involved are felonies, and not misdemeanors.
Prior to the enactment and adoption of Initiated Act No. 3, the practice of consolidating separate cases under separate indictments for the purpose of trial was criticized and condemned in the case of McClellan v. State, 32 Ark. 609. In the case of Setzer v. State, 110 Ark. 226, 161 S. W. 190, it was held, to quote a lieadnote, that: “While it is not good practice, it is not error to try two indictments against one defendant, together, if done with the defendant’s consent.” In the case of Halley v. State, 108 Ark. 224, 158 S. W. 121, a defendant was tried upon the charge of assault with intent to kill, and at the same time his wife was put to trial upon a charge of perjury, for having testified falsely at the examining trial of her husband for the assault' alleged to have been committed upon her. The joint trial was with the express consent of the parties. The husband was convicted, and appealed, and in the opinion affirming his conviction it was said: “While the court would have no authority against the objection of the defendant to try the cases together, yet, as the record affirmatively shows, the defendant ex: pressly consented to it, and inasmuch as the record does not show he was prejudiced thereby, he cannot now he heard to complain of the action of the court which was superinduced by him.”
Now, § 3976, Pope’s Digest, confers the discretion upon the trial judge, where defendants are jointly in- dieted, to deny the right of severance. We so construed the statute in the case of Graham and Seaman v. State, 197 Ark. 50, 121 S. W. 2d 892, and that holding was reaffirmed in the cases of Johnson v. State, 197 Ark. 1016, 126 S. W. 2d 289; Morris and France v. State, 198 Ark. 1040, 132 S. W. 2d 785; Bennett and Holiman v. State, 201 Ark. 237, 144 S. W. 2d 476, 131 A. L. R. 908; and Nolan and Guthrie v. State, 205 Ark. 103, 167 S. W. 2d 503.
The electors did not, by Initiated Act No. 3, confer the discretion to order the consolidation for trial of indictments against defendants separately indicted. This, no doubt, for the reason that it was thought that if the prosecuting attorney, to conserve time and save expense, wished to try jointly two or more, persons for the same offense, he might inform against or indict them jointly, and could try them jointly over their objection. Had they been jointly indicted, it would still have been within the discretion of the court to permit them to be tried jointly or separately. Section 3975, Pope’s Digest.
Section 3976, Pope’s Digest, was amended by Act 359 of the Acts of 1943, p. 800. The amendment made the provisions of the act applicable in the trial of all felonies, whether capital offenses or not, but we will not consider the effect of this Act 359, for the reason that it did not become a law. It undertakes to amend an initiated act, and while the General Assembly has this power, it may exercise that power only by vote of two-thirds of all the members of both houses of the General Assembly. The I. & E. Amendment No. 7 provides that: “No measure approved by a vote of the people shall be amended or repealed by the General Assembly, or by any city council, except upon a yea and nay vote on roll call of two-thirds of all the members elected to each house of the General Assembly, or of the city council, as the case may be.”
When placed upon its final passage, Act 359 received only 62 votes in the House, as disclosed by the journal of that body, which is less than two-thirds of the total membership of the House, and this vote was not sufficient to amend an initiated act.
The record presents a close question as to whether a confession alleged to have been made by appellantAshcraft, which implicated both himself and his co-defendant, Morton, had been freely and voluntarily made. However, in accordance with the practice frequently approved by this court, testimony was heard, in the absence of the jury, as to the circumstances under which the confession had been made, and after hearing this testimony the confession was admitted in evidence.
Notwithstanding the admission of this confession in evidence, appellants had the right to have the jui’y determine whether it had been voluntarily made, and to that end had the right to have the testimony heard by the trial judge in chambers, in the absence of the jury, offered to the jury. We cannot sáy that error was committed in the admission of the confession, inasmuch as the jury was properly told to disregard it if found not to have been voluntarily made.
There is one circumstance in this connection in which we think the court erred. Ashcraft was taken into custody in Hot Springs on Monday, and lodged in jail at Benton, the county seat of the county in which the crimes were alleged to have been committed. The next day he was taken to Little Rock to be interrogated, and then returned to Benton. The day following, he «was turned over by the sheriff, who had him in custody, to a State police officer, who placed him in the jail in North Little Rock. At 9:30 that night he was removed by the State police from the North Little Rock jail and taken to State Police Headquarters in the old penitentiary, and some time after 11:00 o’clock that night he was taken by the State police back to the jail at Benton, where he signed the alleged confession. The. explanation offered for this action was that these officers, who had Ashcraft in their custody for some hours, were more experienced in cross-examination of witnesses.
Ashcraft testified that he was beaten until he confessed, and that he confessed only to avoid further beating. The police officers denied beating Ashcraft, and, according to their testimony, the confession was freely and voluntarily made.
The record contains the recital that two weeks before being placed on trial Ashcraft filed the following petition:
“■Comes the defendant, Ealph Ashcraft, and states to the court that he is now incarcerated in the Saline county jail, charged with the committing of the crime of burglary, and that he is at present unable to give bail for his release from said jail; that while in the custody of the arresting officers he was brutally assaulted and beaten until he became greatly bruised and lacerated.
“Wherefore, he prays this court that he be permitted to have his person examined by a competent physician, and that he be further permitted to have a photograph made of himself by a competent photographer for the purpose of showing to this court the bruised and lacerated condition of his body and of presenting such evidence to this court, and prays that this court grant an order to this effect.
“Ealph Ashcraft,
“Defendant.”
The record further recites that: “The petition herein is overruled, for the reason defendant has already been observed by several persons who may be used as witnesses when the trial is held. Exceptions saved.”
We think the prayer of this petition should have been granted. Its obvious purpose was to preserve testimony which lapse of time might efface by the healing of the wounds which Ashcraft testified had been inflicted upon him.
There was passed at the 1937 session of the General Assembly Act. 306, p. 1188, entitled, “An Act to Protect Prisoners Under Arrest and to Prohibit the Practice of ‘Third Degree’ Methods Now Said to Be in General Practice.” Sections 1 and 2 of this act.read as follows:
“Section 1. Hereafter it shall be unlawful for any form of corporal .or physical punishment to be adminis terecl to any prisoner while under arrest or confined to any jail or prison in this State, awaiting trial.
“Section 2. That no such prisoner shall he denied the right to consult an attorney of his own choosing, or to call a physician of his own choosing, if in need of same while confined to any prison in this State awaiting trial. ’ ’
The right to consult a physician might, in some instances, be as valuable as the right to consult an attorney, and we think it was error to have denied this right. Of course, this examination cannot now be made, but defendant should be permitted to show that he requested the examination.
Inasmuch as the cause will be retried upon the remand which will be ordered, we take occasion to consider the alleged error of admitting, not only the confession of Ashcraft, but also one made by Morton. Had these cases been properly tried together, there would have been no error in the admission of the confessions, inasmuch as the court properly charged the jury as to their use in evidence in accordance with the opinion of this court in the recent case of Bennett and Holiman v. State, 201 Ark. 237, 144 S. W. 2d 476, 131 A. L. R. 908. That opinion so completely disposed of this question that we copy somewhat extensively from it :
“In the recent case of Lindsey v. State, 201 Ark. 87, 143 S. W. 2d 573, this court said:
“ ‘The confessions of Langley and Ralston were made after the completion of the criminal enterprise, and in the absence of appellant, and the law is definitely settled that, where a crime is committed, and the criminal enterprise of the conspirators has ended, the acts or declarations of one conspirator are thereafter inadmissible against his co-conspirators. Hammond v. State, 173 Ark. 674, 293 S. W. 714. But it must be remembered that the parties who made the confessions were also on trial, and the confessions were, of course, admissible against the parties who made them, and the jury was instructed that “The confessions here can be considered only by you as evidence against the one who made it. ’ ’
“ ‘It is argued that the jury could not consider the confessions for any purpose without considering them against appellant. But this does not necessarily follow. The jury was told to do so, and we perceive no reason why they may not have done it. The jury might well have asked, in their deliberations, and have answered the question, whether, aside from the confessions, there was evidence of appellant’s participation in the crime. This they were required under the instruction to do before finding appellant guilty, and we conclude there was no error in the instruction. Johnson v. United States, 82 Fed. 2d 500; State of New Jersey v. Dolbow, 117 N. J. L. 560, 189 Atl. 915, 109 A. L. R. 1488.’ ”
Another error is assigned which we cannot pass without comment. The record contains this recital:
“Mr. Coffelt, assisting in the prosecution, in his argument to the jury, made the following statement: ‘Why didn’t these defendants get on the stand and deny their guilt?’
“Mr. Hughes: We object to that argument, as it is highly improper and prejudicial.
“The Court: Objections will be sustained. The jury will not consider that statement.”
It is conceded that this remark was highly improper, and should not have been made, but it is insisted — and the majority find — that any prejudicial effect of the remark was removed by the ruling of the court sustaining the objection and directing the jury not to consider the statement. Purtle v. State, 206 Ark. 994, 178 S. W. 2d 65.
For the errors indicated, the judgment must be reversed, and the cause will be remanded for a new trial. | [
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Knox, J.
On January 17, 1940, appellee obtained a default judgment against appellant in an action based upon a policy of life insurance.
On June 22, 1943, appellant commenced this action, under authority of § 8246 of Pope’s Digest, seeking to vacate such judgment on account of unavoidable casualty or misfortune, preventing it from appearing in or defending the previous action. Demurrer to the complaint was sustained; appellant refused to plead further; its complaint was, therefore, dismissed, and it appeals.
The complaint alleged that “on the 10th day of January, 1940, the (original) cause was set for trial on the 15th day of January, 1940; that immediately (thereafter) . . . the attorney for the defendant (appellant here) . . . notfied R. V. Marlin (president of the appellant insurance company) at his address in Versailles, Missouri, that the trial of said cause would be held on the '15th day of January; that under ordinary circumstances the defendant would have received the notice in ample time to have been present and defended said suit.
“However, due to the fact that the roads in and around Versailles . . . were impassable . . . due to an unprecedented snow . . . and no deliveries having been made by . . . mail carrier, . . . notice was not delivered to the home of . . . R. V. Marlin until the 22d day of January, and immediately forwarded to Sikeston, Mo., where it was received by him on the 24th day of January, which was the first notification that the said R. V. Marlin had of the setting of said cause for trial.
It was further alleged “that . . . R. V. Marlin' . . . (was at the bedside of his mother who) was seriously ill at Sikeston, Missouri', and that as a result of her illness she died and that it would have been impossible for the said R. V. Marlin to have had the trial of the said cause due to the unavoidable casualty of the post roads in and around .Versailles being impassable by reason of unprecedented snow and for the further unavoidable casualty of the illness, death and burial of the mother of the said R. V. Marlin in 'Sikeston, Missouri, at and after the date of the said judgment.”
It was further alleged “that when the said cause came on to be heard on the 1.5th day of January it was reset at the request of Gordon Armitage, attorney for defendant, for the 17th day of January. At which time the default judgment was taken . . . ; that at the time the attorney for the defendant stated in open court that he reserved the right to file a motion to set said default judgment aside within the term; that the said motion was filed and the court overruled the same without hearing any testimony thereon which defendant offered to produce and which the court refused to hear. Defendant further states that by reason of the unavoidable casualty, that is, the snow-bound mail routes, he did not receive notice of the trial of said cause, and in addition thereto the critical illness, death and burial of his mother precluded his being present at the said trial even though he had received notice, would constitute such unavoidable casualty as would require the' court under law to set aside the judgment herein before set out, if there was a meritorious defense.”
The complaint then sets out allegations of fact which purport to disclose that appellant .had a meritorious defense to the original action.
The demurrer to the complaint was interposed and properly sustained. The facts alleged in the complaint amount to nothing more than an explanation of why B-. Y. Marlin, the president of the appellant insurance ■ company, was not personally present when the case was called for trial. No facts are alleged which show, or from which it might reasonably be inferred, that appellant insurance company was prevented from defending the action because Marlin was snowbound.
What contribution Marlin was expected to make to the defense of the action is not disclosed. Whether he was to appear as counsel, or witness, lay or expert, is not made known. Even if we assume, in the absence of allegation that he is in fact a lawyer, that he was to act as counsel, still no reason is assigned why the defense could not have been presented by able local counsel, who the record discloses had been previously employed. If his role was that of a witness, there is no showing as to what facts would, have been established by him or that his testimony could not have been supplied by other witnesses. If he was to appear neither as counsel nor witness, but, as the complaint appears to suggest, merely in his capacity as president of the company, directing the strategy of the defense, his absence might have been a “misfortune” but certainly not one which went to the extent of “preventing” the insurance company from' “appearing or defending.” Barely is the defense in an insurance case “sparked” by the president of the defendant company. It quite frequently occurs - that a fairly satisfactory defense is interposed on behalf of some defendant insurance company when the president thereof is not only outside the courtroom, but even thousands of miles removed from the scene of the judicial inquiry.
Appellant seeks relief under paragraph 7 of § 8246 of Pope’s Digest, which clothes the trial,court with power to vacate or modify” a judgment after the term “for unavoidable casualty or misfortune preventing the party from appearing or defending. ’ ’■ The facts alleged are insufficient to afford appellant relief under the provision of that‘statute. The judgment is affirmed. | [
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Robins, J.
This is a controversy as to ownership of a 69-acre tract in Ouachita county, Arkansas. Appellees, Leroy J ohnson and Allie Mae Hall, claim the land under a deed executed to them by the purchaser at a delinquent tax sale in 1936. Appellants assert that they and appellees own same as tenants in common by inheritance from Emaline Johnson, mother of some of the parties to the suit and grandmother of the remainder, and appellants allege that the acquisition of the tax title by said appellees amounted to a redemption and furthermore that the tax sale was invalid.
Emaline J ohnson purchased the land involved in this suit in 1917, at which time she moved on the land and she remained in possession thereof until her death, which occurred on July 11, 1942. She failed to pay the taxes due thereon for 1935 and the land was sold by the collector at the delinquent tax sale in 1936 to Thomas H. Wagner. There was never any confirmation of this tax sale. Wagner conveyed the land by quitclaim deed on January 31, 1942, to appellees, Leroy Johnson and Allie Mae Hall, who, with appellee, Janie Hubbard, were the children of Steve Johnson, deceased, and grandchildren of Emaline Johnson.
Emaline Johnson left surviving her as her heirs at law the said appellees and appellee, Mary Johnson, and the appellants, Joe Johnson and Louis Johnson, who were her children, and appellants, Nathan King, Cora King, Jimmie Lee Morgan, Eddie Lee Morgan, Anna Lee Morgan, Nannie Lee Morgan, Hezikiah Johnson and Luther Johnson, who were her grandchildren.
In their complaint filed in the lower court on November 11,1942, appellants prayed for cancellation of the tax title, and for partition of the land amongst appellants and appellees, as heirs at law of Emaline Johnson in accordance with their respective interests therein. Appellants alleged that the sale of the land to Wagner for taxes was void, because of defects in the proceedings of the county officers preceding and incident to the tax sale, and they further alleged that in any event the purchase of the land from Wagner by appellees, Leroy Johnson and Allie Mae Hall, amounted to a redemption for the benefit of all the heirs of Emaline Johnson.
The lower court found: First, that the purchase by said appellees did not amount to a redemption; and, second, that though ‘ ‘ the tax sale was apparently void, ’ ’ yet, since Emaline Johnson did not in her lifetime attack the tax sale or have it set aside, “she did not die seized of the lands, and therefore the plaintiffs (appellants) could not inherit the same.” To reverse decree of the lower court dismissing appellants ’ complaint this appeal is prosecuted.
The first finding of the chancery court was correct, but the second finding was erroneous. The tax sale was shown to be void, because of, among other defects alleged, the undenied failure of the clerk to certify, before the sale, as to publication of notice of the sale, as required by the provisions of § 13848 of Pope’s Digest of the laws of Arkansas. We have frequently held that such a failure invalidates the delinquent tax sale. Martin v. Allard, 55 Ark. 218, 17 S. W. 878; Logan v. Eastern Arkansas Land Co., 68 Ark. 248, 57 S. W. 798; Hurst v. Munson, 152 Ark. 313, 238 S. W. 42; Bingham v. Powell, 152 Ark. 484, 238 S. W. 597, 21 A. L. R. 1214; Fairbanks v. Douglas, 188 Ark. 224, 66 S. W. 2d 286; Cecil v. Tisher and Friend, 206 Ark. 962, 178 S. W. 2d 655. “This court has repeatedly held that the failure of the clerk to make the certificate provided for in § 7086 of Kirby’s Digest is fatal to the validity of the tax sale.” Hewett v. Ozark White Lime Co., 120 Ark. 528, 180 S. W. 199.
Neither the original purchaser at the tax sale nor his grantees ever went into possession of the land. Emaline Johnson remained in possession of the land until her death. At any time during her lifetime Emaline Johnson might have successfully maintained a suit to cancel this tax sale. She died seized and possessed of the land and at her death the title vested in her heirs at law, who had the same right as she did to have the tax deed canceled as a cloud on the title.
Appellees, Leroy Johnson and Allie Mae Hall, are not entitled to the benefit of § 13883 of Pope’s Digest of the laws of Arkansas (providing that actions to test the validity of the proceedings incident to a sale of land for delinquent taxes must he commenced within two years) because this section does not apply where the sale is void' by reason of a defect such as invalidated the sale involved herein. Radcliffe v. Scruggs, 46 Ark. 96; Taylor v. Van Meter, 53 Ark. 204, 13 S. W. 699; Townsend v. Martin, 55 Ark. 192, 17 S. W. 875; Ross v. Royal, 77 Ark. 324, 91 S. W. 178; Leigh v. Trippe, 91 Ark. 117, 120 S. W. 972; Hewett v. Ozark White Lime Company, 120 Ark. 528, 180 S. W. 199; Pride v. Gist, 152 Ark. 368, 238 S. W. 35; Wildman v. Enfield, 174 Ark. 1005, 298 S. W. 196.
Nor are said appellees entitled to the benefit of § 8925 of Pope’s Digest, which prescribes a limitation of two years on actions to recover lands from purchasers at delinquent tax sales. This statute may only be invoked by a holder of a tax title who has held possession thereunder for two years. Woolfolk v. Buckner, 67 Ark. 411, 55 S. W. 168; Towson v. Denson, 74 Ark. 302, 86 S. W. 661; Pride v. Gist, 169 Ark. 1096, 277 S. W. 870.
Since the tax sale upon which said appellees base their title was not valid, and neither they nor their grantor have ever been in possession of the land, it follows that appellants were entitled to tbe relief prayed for by them.
Tbe decree of tbe lower conrt is accordingly reversed and tbis canse is remanded with directions to tbe lower court to enter a decree cancelling tbe deed from tbe county clerk to Wagner and tbe deed from Wagner to said appellees and ordering partition of the land amongst appellants and appellees in accordance with their respective shares therein; costs accruing up to tbis time to be adjudged against appellees and costs accruing hereafter to be paid ratably by all the parties. | [
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Holt, J.
The parties to this suit are non-residents of Arkansas, residing in North 'Carolina. Appellant, Mary Glover Wilder, is insane, and appears by her nephew, A. G. Glover, as next friend, he also being a non-resident. February 21, 1940, a decree of divorce against appellant was granted appellee by the Garland Chancery Court upon constructive service.
November 16, 1943, appellant, by her next friend, A. G. Glover, filed a complaint in the same court in which the divorce decree was rendered, asking the' court to set aside that decree on the ground that appellee, her husband, practiced a fraud on the court in securing the decree. Among other things, she alleged that at the time the divorce decree was granted, she was insane and confined in the North Carolina State Hospital for the Insane at Raleigh, where she had been continuously confined since 1925; that she married appellee in 1901; that the divorce decree was granted on the ground that she ,and appellee had lived separate and apart without cohabitation for three consecutive years. The allegations of fraud were: securing the divorce decree without having served appellant with process and failure on the part of appellee to inform the court that the alleged separation was not by the voluntary act of appellant, Mary Glover Wilder, she being, at the time, insane and in involuntary confinement.
Appellee obtained “permission of the court to appear herein specially only for the purpose of filing a motion to the jurisdiction of the court over the person of the plaintiff and of this defendant, and the legal capacity of the plaintiff to institute this action, and for no other purpose.”
The substance of appellee’s allegations, in his motion, was that appellant, Mrs. Wilder, has always been a non-resident of Arkansas, and at all times mentioned in the motion was insane and confined in the North Carolina State Hospital for the Insane at Raleigh; that appellant has four sons residing near her in North Carolina, who are on intimate terms with her and appellee, and that she also has three brothers and two sisters residing near her, who are friendly with her; that A. G. Glover, her next friend, is a resident of North Carolina and her nepheiv, but that appellee does not believe that Glover is interested in Mrs. Wilder or her welfare; that Glover has shown “an unfriendly and inhospitable attitude and relationship” toward appellee and that his appearance as next friend of Mrs. Wilder is not based on friendship for her, but because of his hostility toward appellee; that appellee believes Glover instituted these proceedings without authority of Mrs. Wilder and that her children, as well as her brothers and sisters, are-antagonistic to the present suit.
“Petitioner (appellee) further states that this court is without jurisdiction of this cause of action, for the reason that the plaintiff, Mary Glover Wilder, and the said A. G. Glover, as next friend, are non-residents of the State of Arkansas, and yoiir petitioner, named as defendant therein, is a non-resident of the State of Arkansas, and that the court is without jurisdiction of either of said parties named as plaintiff and defendant in said action, and that the plaintiff, A. G. Glover, is without legal authority to institute the action in this jurisdiction, since the court does not have nor maintain jurisdiction over said parties; and further because the said A. G. Glover, as next friend, has not instituted said action in such capacity in good faith. Petitioner further states that under the laws of the State of Arkansas it is expressly provided that non-resident guardians are authorized to institute actions on behalf of their wards in this state, and that thereby the said A. G-. Glover as next friend is forbidden by the laws of this state to institute this action.”
Appellant responded to appellee’s motion as follows: “She admits that the plaintiff, Mary Glover Wilder, is a non-resident of the State of Arkansas, and is a resident of the State of North Carolina. She admits that she is and was at the time this action was instituted a patient at the State Hospital for the Insane at Raleigh, North Carolina. She admits that she is the mother of four adult children. She denies that all of her children are antagonistic to this action. . She admits that her next friend, A. G. Glover, is a resident of the State of North Carolina and her nephew. The plaintiff denies each and every material allegation set out in the defendant’s motion except those allegations which are expressly admitted herein. As a further response to the defendant’s motion, she states that her children are under the duress and domination of the defendant. The said children threatened to institute proceedings to set aside the decree of divorce that was granted in favor of the defendant herein against this plaintiff, and the defendant influenced .the children against taking such proceedings by conveying certain lands to them in the State of North Carolina and by threatening to disinherit them if they took sides with their mother, the plaintiff in this cause. A. G. Glover, who appears as next friend of the plaintiff, herein, states that he has appeared herein in good faith to protect the rights and interests of the plaintiff. If this court has any doubt as to his authority or as to his good faith, the said A. G. Glover offers to withdraw from this cause; and he states that Scott Wood, who has appeared as solicitor for the plaintiff in this cause, has made an investigation of the plaintiff’s cause and has convinced himself that.a fraud was practiced on this court in tlie granting of the divorce to 'the defendant against this plaintiff, and he is convinced that this court did not have jurisdiction to grant the said divorce, and the said Scott Wood, who is a resident of Garland county in the State of-Arkansas, and a solicitor practicing before tlie bar of this court, lias offered to appear as next friend for tlie plaintiff if this court should desire to remove the said A. G. Glover as such next friend. ’ ’
December 15, 1943, the cause was submitted to the court and (quoting from the decree) there was a finding' that “Mary Glover Wilder, an insane person, and A. G. Glover, and the defendant, William J. Wilder, are nonresidents of the State of Arkansas, and that the plaintiffs are without legal capacity to maintain this action to set aside the decree of this court duly entered herein in a cause wherein William J. Wilder is named as plaintiff and Mary Glover Wilder is named as defendant.” and “decreed that the motion of the defendant, William J. Wilder, be and the same is hereby sustained, and that tlie service of process which issued in this cause against said defendant be and the same is hereby quashed and held for naught. . . ; that the court does not have jurisdiction of the parties to this action,” and dismissed the cause. This appeal followed.
Appellant challenges the correctness of the trial court’s holding that it did not have jurisdiction for the reason that appellant, Mary Glover Wilder, and her nephew, A. G. Glover, who appeared as her next friend, were non-residents of Arkansas, that Glover could not maintain the action and that process be quashed. We agree with appellant that the court erred in so holding. It is alleged and not questioned that appellee’s wife, Mary Glover Wilder, was a non-resident of Arkansas and insane when her husband, appellee, obtained the decree of divorce February 21, 1940, in the Garland chancery court. In fact, she had been confined in a North Carolina Hospital for the Insane since 1925.
Our statute {% 1332 of Pope’s Digest) provides: ‘' The action of a person judicially found to be of unsound mind must be brought by his guardian, or, if he has none, by his next friend. When brought by his next friend, the action is subject to the power of the court, in the same'manner as the action of an infant so brought.” Referring to this statute, this court in Missouri State Life Insurance Company v. Holt, 186 Ark. 672, 55 S. W.2d 788, said: “When an action is brought by next friend, the action is subject to the power of the court' in the same manner as the action of an infant so brought. ‘It is the infant, and not the next friend, who is the real and proper party. The next friend by whom the suit is brought on behalf of the infant is neither technically nor substantially the party, but resembles an attorney or a guardian acl litem by whom a suit is brought or defended in behalf of another.’ St. L. I. M. & S. R. Co. v. Haist, 71 Ark. 258, 72 S. W. 893, 100 Am. St. Ref. 65; Morgan v. Potter, 157 U. S. 195, 15 S. Ct. 590, 39 L. Ed. 670.”
Section 1327 of Pope’s Digest provides: “Any person may bring the action of an infant as his next friend; but the court has power to dismiss it if it is not for the benefit of the infant.” So, in the instant case, appellee’s wife, Mary Glover Wilder, though insane, is the real and proper party and Glover, as next friend, is neither technically nor substantially the real party to the action. Certainly, we think Mrs. Wilder, though a non-resident, had the right to go into the same court in which a decree of divorce had been granted against her and attempt to show, after the lapse of - the term, that a fraud had been practiced itpon the court in procuring the decree, and if she possessed this right, .certainly Glover, though a nonresident, representing not himself but Mrs. Wilder, the real and.proper party, could properly act for her in bringing the suit in the same court in which appellee secured the decree, and on constructive service against appellee (non-resident) obtain his appearance. We find no provision in any statute to the contrary.
Appellant’s action to set aside the divorce decree was brought under the provisions of § 8246 of Pope’s Digest, which provides: “The court-in which a'judgment or final order has been rendered or made shall have power, after the expiration of the term, to vacate or modify such judgment or order . . . Fourth. For fraud practiced by tbe successful party in tbe obtaining of tbe judgment or order.”
If tbe allegation in her complaint that tbe decree was obtained on the ground provided in the seventh subdivision of our divorce statute (§ 4381 of Pope’s Digest) which provides that a divorce “may be obtained . . when the husband and wife have lived apart for three consecutive years without cohabitation, etc.,” and the further allegation that appellee concealed from the court that his wife was insane at the time the decree was obtained and that the separation was not and could not have been the voluntary act of the wife, be true, then appellant would be entitled, under § 8246, supra, to the relief prayed.
Appellee was granted the divorce on a non-existing cause of action and which, under the law, would not and could not have been granted had the facts which were known to appellee been disclosed to the court when the decree was rendered. This constituted a fraud practiced upon the court in the procurement of the decree. See Dodd v. Holden, 205 Ark. 817, 171 S. W. 2d 948.
On February 21, 1940, when the decree of divorce was rendered, insanity was not a ground for divorce in this State. It was made a ground for divorce (an eighth ground) by the General Assembly by Act 428. of the 1943 session.
In construing the effect of the three-year separation provision, supra, which became the seventh ground for divorce in this state by Act 20 of the Acts of the General Assembly of 1939, we said in Serio v. Serio, 201 Ark. 11, 143 S. W. 2d 1097: “Our construction of the statute is that it assumes that the period of living apart without cohabitation for three years must have been the conscious act of both parties in order to entitle one of the parties to a divorce. The purpose and intent of the act was not to grant divorces on the ground of insanity of either party else it would have said so. . . We find nothing in the act which manifests an intention to make insanity a ground for divorce.”
Having reached the conclusion that the trial court had jurisdiction of the cause, that Glover, as next friend of Mary Glover Wilder, had the right to maintain the action, and that the court erred in holding otherwise, the decree is reversed and the cause remanded with directions to proceed in conformity with this opinion. | [
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McHaney, J.
This is a proceeding brought by appellee on July 26, 1940, in the probate court to have her dower assigned in certain lands in Pope county, described in her petition. She alleged that her late husband, J. T. Robertson who died in said county on January 6, 1934, became seized of an estate of inheritance in said lands and that she had never relinquished her dower therein. She prayed that dower be set apart to her and for judgment for one-third the rental value of said lands, appel lants having been in possession thereof at all times since her husband’s death.
No answer appears to have been filed to this petition, but appellants appeared and defended the action. In addition to witnesses who testified as to the rental value of said lands, appellants introduced the record of the decree of the Pope chancery court in the case of Dora Robertson, et al., v. W. J. Chronister, et at., in which the title to. the same land now under' consideration and in which dower is now sought was involved, and in which the court found: “That on said date, to-wit: December 5, 1929, the said J. T. Robertson and the plaintiff, Dora Robertson, executed their warranty deed with relinquishment of dower to the undivided five-sixths (5/6) interest, and also the life estate of J. T. Robertson in and to the remaining. one-sixth (1/6) interest of Ella Edwards Robertson, the first wife of J. T. Robertson, in and to the following described lands”: (Describing the lands now here involved) to appellants in the case at bar for a consideration of $3,000, which deed was duly acknowledged and was recorded promptly. The court found that the lands were inaccurately described in said deed and reformed the description to describe correctly and accurately the lands so conveyed. The decree then provided: “The court doth further find that by the deeds herein above set out in said decree all of said plaintiffs intended to and did convey all of their interest in and to all of the lands so above described to the defendants, Chronister Brothers & Company, except the plaintiffs, Florence Robertson Garrison and Roy Robertson, and that the complaint as to each of said plaintiffs, except said Florence Robertson Garrison and Roy Robertson, be dismissed for want of equity. ’ ’ A decree was entered to this effect September 7, 1937.
Appellants also introduced a supplemental and amendatory decree of said court of May 8, 1939, and entered nunc pro tuno on June 12, 1939, further adjudicating the rights of said Florence Garrison and Roy Robertson. They also introduced the warranty deed from J. T. Robertson and Dora Robertson to the appellants,
W. J, Chronister also testified in the case,
From all of which the court found that J. T. Robertson was seized of an estate of inheritance in said lands while the husband of appellee and that appellee had not relinquished her dower in legal form and was not barred by limitations. A judgment was entered awarding dower to her and appointing commissioners to lay it off. This appeal followed.
We think the trial court fell into error. By this judgment, the chancery court has set aside and annulled two former decrees of the trial court, both of which were appealed to this court and affirmed — one, Robertson v. Chronister, 196 Ark. 141, 116 S. W. 2d 1048, and the other, Robertson v. Chronister, 199 Ark. 373, 134 S. W. 2d 517. In the former appeal (196 Ark. 141) we said: “This is a case where the heirs of the grantor are attempting to recover lands which their grantor sold to appellees for a valuable consideration and put the purchasers or appellees in possession thereof under a faulty description in the deed and upon which appellees made valuable improvements and paid the taxes and remained in possession thereof for more than seven years. There is no question that the lands which were intended to be conveyed were the lands that the grantor sold to the appellees and for which the grantor received the entire purchase price.”
While appellants may not have filed a formal answer to the petition for dower by appellee, we think the introduction of the former decrees of the chancery court and of said deed without objection amounted to a plea of res judicata which should have been sustained in bar of the action.
In effect the action of the probate court in the premises was again to try the title to said lands and overrule both the decrees of the chancery court and the judgment of this court which held that appellee and her husband, in his lifetime, to-wit, December 5, 1929, had conveyed said lands to appellants by warranty deed in which appellee relinquished her dower, for a good and valuable consideration. The probate court has no such jurisdiction. Moss v. Moose, 184 Ark. 798, 44 S. W. 2d 825; Ellsworth, Admr., v. Cornes, 204 Ark. 756, 165 S. W. 2d 57.
The judgment is accordingly reversed and the cause dismissed. | [
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McFaddin, J.
This appeal concerns the title to real estate. Appellant claims under a tax forfeiture and state deed. Appéllee, Flossie Eenn, claims under a divorce decree. The other appehtees are nominal parties.
Adolph Reim and Flossie Renn were married in about 1922, and during all of their married life lived on the lands here involved. On September 26, 1940, Flossie Renn filed a suit for-divorce, dower, etc. The case was heard in open court on November 30, 1940, and resulted in a decree awarding Flossie Renn a divorce, and the custody of the two children (then aged fifteen-years and twelve years, respectively) and one-third interest' in all of the real estate of Adolph Renn, specifically describing the'lands here involved. George Bridges was appointed, commissioner to lay off the said one-third interest in the lands; and if the lands could not be divided in kind then the commissioner would so report and secure an order of sale of the lands.
On October 6, 1941, the court ordered the commissioner to sell the lands and divide the proceeds. When the commissioner advertised the land sale, appellant ■herein, G. A. Renn (brother of Adolph Renn), filed this present suit in the chancery court against appellees herein, Flossie Renn and George Bridges, commissioner. G. A. Renn alleged that he was the owner of the lands and claimed that the proposed sale should be enjoined and the title of G. A. Renn should be confirmed and quieted. To sustain his case, G. A. Renn alleged in the complaint and testified before the court, that the lands forfeited to the state in 1934 for nonpayment of 1933 taxes; that the lands were certified to the state in 1936; that the state’s title was confirmed in April, 1938, by suit under act 119 of 1935; that on October 17,1940, G. A. Renn acquired the deed from the state; that he used his own money to pay for the deed and to affect improvement district redemptions; that after a few months he dispossessed his brother, Adolph Renn; and since 1941 G. A. Renn had been collecting the rents from the lands. He was supported by record testimony as to the forfeiture, confirmation, and deed to himself; and was supported by witnesses as to the rent, the amount of which was not shown.
Flossie Renn, by pleading and testimony-, denied that G. A. Renn was the' owner of the lands, and alleged tlxat the tax forfeiture of the lands by Adolph Renn and the state deed to Gr. A. Renn were, together and separately, a subterfuge and a fraud to defeat her of her dower; that Gr. A. Renn acted as an agent of Adolph Renn in getting the state deed, and in collecting the rents; and that Adolph Renn was the owner of the lands and G. A. Renn a mere trustee; and she prayed for a decree so declaring. Adolph Renn was not called as a witness by either side. On final hearing the chancery court dismissed the complaint of G. A. Renn; and on this appeal, G. A. Renn challenges the correctness of that decree, and also urges, here, the contention made in the lower court, that certain evidence be excluded as -incompetent.
Giving due consideration to this second- point— about the incompetency of certain evidence — we are, nevertheless, of the opinion that the decree of the chancery court was correct and should be affii*med. Here are some of the facts shown in the evidence which support the contentions of Flossie Renn and the decree of the chancery court:
(1) Flossie Renn did not know the lands were forfeited for taxes until after her divorce suit was pending. Of course she had legal notice of .the forfeiture because it was of record, but she had no knowledge. She would have paid the taxes if she had known about them.
(2) Adolph Renn had sufficient money to have paid the taxes originally if he had wanted to do so; but later made disposition of his property, so that he was either insolvent or had removed all his other property from Arkansas at, the time that G. A. Renn acquired the state deed.
(3) The divorce suit was filed September 30, 1940, and G. A. Renn secured the state deed on October 17, 1940. He allowed Adolph Renn to remain on the lands for three months and Adolph Renn paid rent at the rate of $5 per month for that period of time for a house on the land.
(4) Tlie amount that Gr. A. Renn paid for the state deed and for all the improvement taxes was approximately $200. The value of the lands and buildings was testified to be approximately $2,000.
(5) Gf. A. Renn admitted that Adolph Renn rented the lands to Herman Helvey for 1941, and Gr. A. Renn “let the deal stand.” Herman Helvey testified that he made the rent contract with Adolph Renn in March, 1941, (five months after the state deed to G. A. Renn); and that in the fall of 1941 the rents were paid to Adolph Renn. Helvey further testified that he never knew G. A. Renn in any part of the transaction and dealt with Adolph Renn as the owner of the land throughout the entire year of 1941. This continued possession of Adolph Renn under all the facts in this case was badge of fraud. (See Wasson v. Lightle, 188 Ark. 440, 66 S. W. 2d 652, and cases there cited, and see, also, 27 C. J. S. 801 where it is stated that where there is no change of possession then the burden is on the alleged grantee to prove good faith and the payment of a valuable consideration.)
(6) In the fall of 1943, Adolph Renn sent Flossie Renn money from the rents of that jmar and offered to turn over to her all of the 1941 rents on condition that she would relinquish all claims to the land. To explain this testimony G. A. Renn stated that for years he had been helping’ in the support of the children of Adolph Renn and that Adolph Renn had no property left, and it was for the support of the children that he (G. A. Renn) sent the money in the fall of 1941 to his brother, Adolph Renn, to be sent to the children.
(7) G. A. Renn admitted that, he knew Flossie Renn and Adolph Renn had been having marital difficulties for ten years and divorce suits had been filed and dismissed; and knowing all this he drove from his home in Middlebrook, Missouri, to Little Rock, Arkansas, for the purpose of buying from the state of Arkansas the lands in this state that he knew his brother had owned for twenty years, and that as soon as he secured the deed he went back to his home in Missouri and began immediately to collect rent from Ms brother at $5 per month for a house on the farm lands. There are other facts in the record.
It is true that fraud is not to be presumed, but must be proved.' (37 C. J. S., § 114, p. 426.) It is also true that fraud may be proved by circumstantial evidence, provided it affords a clear inference of fraud and amounts to more than mere suspicion or conjecture. (37 C. J. S. 436.) When we consider: the value of the land as compared with the amount that the appellant paid the relationship of the parties, the knowledge G-. A. Renn had about the marital difficulties and former divorce suits, the purchase by Gr. A. Renn while the divorce suit was pending, the fact that Gr. A. Renn claimed he had been contributing to the support of the Adolph Renn family, the ready acquiescence of Adolph Renn in the loss of his property (evidenced by the immediate payment of rent to Gr. A. Renn), the continued exercise of ownership by Adolph Renn after Gr. A. Renn received the deed (as evidenced by the renting of the land to Herman Helvey for 1941, and Helvey’s testimony on this point), the strangeness of one brother traveling over a hundred miles into another state and buying Ms brother’s land for taxes (with no apparent use for his land), and, that the result of all of this was to defeat the erstwhile wife of her dower interest in the land — when we consider all of these facts and others in the record — we reach the conclusion that the chancery court was correct in dismissing Gr. A. Renn’s complaint for want of equity.
He, it was, who asked equity to aid him. He therefore had the burden not only of proving his legal right, but also of proving himself free of equitable wrongdoing. The facts developed placed against Mm a prima facie case of inequitable conduct, and he offered no substantial evidence to overcome this prima facie case. The maxim, “He who comes into equity must come with clean hands,” finds full application here. In discussing this maxim it is stated in 21 C. J. 185: “The same rule applies in the case of other devices to defraud creditors. Not only is the fraudulent debtor denied relief, but also' Ills fraudulent grantee; when the latter comes into equity to assert his claim, ’ ’ and in 21 C. J. 186 it is stated: ‘ ‘ One may be barred from relief by misconduct with reference to the suit itself. Thus equity may refuse to protect one who fails to make a full and free disclosure of all of the facts relating to his case.”
But over and beyond the failure of Gr. A. Renn to show himself entitled to equitable relief, there is ample authority to support relief for Mrs. Flossie Renn. The points of this authority may be summarized:
I. Where property is allowed to forfeit for taxes, and then some member of the family (or other confederate) acquires a deed from the state or taxing-agency, equity will examine the transaction to see if it was a fraudulent conveyance; and upon ascertaining such to be the fact, then the purchaser will be held a trustee, or the entire transaction will be held a redemption b}^ the original owner. Regardless of the form of relief, equity will pierce the sham of the fraudulent conve3'-ance. Humphreys v. McKnight, 202 Ark. 715, 152 S. W. 2d 567; Zimmerman v. Franklin County Savings Bank & Trust Co., 194 Ark. 554, 108 S. W. 2d 1074; Fluke v. Sharum, 118 Ark. 229, 176 S. W. 684; Drake v. Sherburne, 57 Ark. 563, 22 S. W. 430; Rowland v. Wadly, 71 Ark. 273, 72 S. W. 994. A forfeiture and a deed from the taxing agency may be considered as just another form of fraudulent conveyance.
II. Mrs. Flossie Renn was a creditor of Adolph Renn from the time the decree was rendered for divorce, alimony, maintenance, and dower. In Sneed v. Sneed, 172 Ark. 1135, 291 S. W. 999, we said: “The law is that a wife who secures a judgment for alimony in a suit against her husband for a divorce is a creditor, and a conveyance made'in fraud of her rights as such may be set aside or the property subjected' to the lien of the judgment, provided that the rights of purchasers without notice and for a valid consideration have not intervened. Masterson v. Ogden, 78 Wash. 644, 139 Pac. 654, Ann. Cas. 1914D, 885; Barber v. Barber, 21 How. (U. S.) 582, 16 L. Ed. 226; Fahey v. Fahey, 43 Col. 354, 96 Pac. 251, 127 Am. St. Rep. 118, 18 L. R. A., N. S., 1147, and Austin v. Austin, 143 Ark. 222, 220 S. W. 46.”
It is true, Mrs. Benn did not occupy the status of a creditor until the date of the divorce decree and that this was after the forfeiture of the lands and the state deed to G-. A. Benn. She Avas thus a subsequent creditor rather than an existing creditor. But § 6070 ff of Pope’s Digest protect subsequent creditors as well as existing creditors under certain circumstances, and we believe those circumstances exist here. A voluntary conveyance by an insolvent debtor is fraudulent as to a subsequent creditor if the debtor reasonably had in contemplation the contracting of such future debt at the time the conveyance was made. Rudy v. Austin, 56 Ark. 73, 19 S. W. 111, 35 Am. St. Rep. 85; Driggs v. Norwood, 50 Ark. 42, 6 S. W. 323, 7 Am. St. Rep. 78; Scott v. McCraw, Perkins & Webber Co., 119 Ark. 492, 179 S. W. 329, and see West’s Arkansas Digest, "Fraudulent Conveyances,” Key No. 69. That this whole scheme was in the contemplation of Adolph Benn when he allowed the lands to forfeit for taxes, may be reasonably inferred from the testimony of G-. A. Benn. that the husband and Avife had been having marital difficulties for ten years and divorce suits had been filed and dismissed.
III. In 27 C. J. S., Divorce, § 273, pp. 1078-9, it is stated: “A conveyance made by the husband in anticipation of the wife’s libel for divorce, and to prevent her from recovering alimony, is fraudulent, and may be set aside unless the purchaser took without notice and for value. ... To invalidate a conveyance of the husband’s property, the grantee ordinarily must have had actual or constructive notice that the conveyance Avas for the purpose of defeating the wife’s claim to alimony.”
In West v. West, 120 Ark. 500, 179 S. W. 1017, we recognized the rule that a conveyance made in anticipation of marriage, and for the purpose of defrauding the intended wife of her dower, could be set aside by her. Although the proof in that case did not justify such relief, nevertheless the case recognized the rule, as also did Roberts v. Roberts, 131 Ark. 90, 198 S. W. 697. We 'think the testimony here shows that the forfeiture of the lands by Adolph Renn and the state deed to Gr. A. Renn were for the purpose of defrauding Flossie Renn of her dower and the rule recognized in West v. West and Roberts v. Roberts should he applied to this case. See, also, Wilson v. Wilson, 163 Ark. 294, 259 S. W. 742.
Without lengthening the opinion by citation of other authorities we may conclude by stating that equity must always be as astute in preventing fraud as corrupt minds are in conceiving it. A court of conscience must keep the granted relief abreast of the current forms of iniquity. We should never naively refuse relief against fraud simply because there is1 no similar-instance of such fraud in any of the books.
The decree of the chancery court was correct, and is in all things affirmed. | [
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Robins, J.
Appellants, Matilda Long and Bertha Banzhof, daughters of Fred and Elizabeth Seidenstricker, both deceased, on September 18, 1939, brought suit in the chancery court against appellee A. F. Seidenstricker, their brother, alleging that appellee, as executor of the estate of their father, who died in 1921, and as administrator of the estate of their mother, who died in 1930, had "dissipated the assets” of both estates, had invested money of said estates in property which he was holding, and had failed to account for the properties of the estates, but had filed a final settlement as executor of the father’s estate to which appellants had filed exceptions. The prayer of the complaint was that appellee be directed "to make a full and complete accounting of any and all sums received and held by him from the estate of Elizabeth Seidenstricker and Fred Seidenstricker.”
Appellee answered alleging that, by the terms of his father’s will, all the testator’s property was given to his widow, Elizabeth Seidenstricker; that in her lifetime Elizabeth Seidenstricker gave each of her children (appellants and áppellee) $1,000 out of the property left to her by her husband; that shortly after his mother’s death appellee was appointed administrator of her estate and that subsequently the property of his mother (with the exception of certain lots known as the Bowman property) was divided equally among the appellants and himself, Avho were her only heirs; that afterwards the Bowman property Avas sold in partition proceedings and the proceeds properly divided, and that in the distribution agreement it was provided that the administration of both estates should be closed. Appellee denied that he had dissipated any assets of either estate, and alleged that he had divided all- property equally among the three heirs — appellants and himself.
In a reply filed by appellants they alleged that appellee had, in fraud of their rights, ‘ ‘ attempted to make a settlement with plaintiffs by giving them worthless notes and cancelling his debt of $1,850 with the estate of Elizabeth 'Seidenstricker.” By an amendment to their complaint appellants alleged that appellee had filed an inventory as executor of his father’s estate by which it was shown that the property of the estate amounted in cash and notes to $13,452.13; that he had failed to account for this property other than by claiming that he turned it over to his mother; that appellee had loaned $2,300 on the Bowman property without authority and the heirs realized only $600 from this loan; that appellee deposited money belonging to the estates in banks which became insolvent; that appellee, with funds of his father’s estate, purchased in his own name eighty acres and gave the estate his note therefor which he after-wards allocated to himself; that no explanation of the disposition of $13,452.13 belonging to the father’s estate had been made by appellee except that he had admitted and inventoried as property of his mother money and securities of the amount of $7,914 and had disclosed the loan of $2,300 to Bowman, and the purchase of a tombstone ; that the alleged distribution and' settlement of Elizabeth’s estate was fraudulent, and that appellee owed appellants $12,371.50, .less certain sums, the amount of which was not specified.
The lower court heard the testimony and made the following finding: ‘ ‘ That the order of the probate court overruling exceptions to the final settlement of defendant as executor of the estate of Fred Seidenstricker, deceased, is res judicata; that no final settlement has been filed in the probate court by defendant as administrator of the estate of Elizabeth Seidenstricker, deceased, and that therefore this court has no power to go into or surcharge. the account as to' that estate, ’ ’ and entered a decree “that the complaint insofar as it relates to transactions as executor of the estate of Fred Seidenstricker, deceased, be and the same is hereby dismissed for want of equity; that the complaint insofar as it relates to transactions of defendant as administrator of the estate of Elizabeth Seidenstricker, deceased, be and the same is hereby dismissed, but without prejudice to the right of plaintiffs to seek an accounting in the probate court. ’ ’
It is undisputed that appellee, on February 7, 1931, filed a final settlement as executor of the estate of Fred Seidenstricker, deceased, in which he set forth that, in accordance with the provisions of the last will and testament of the deceased, he had turned over to the beneficiary, Mrs. Elizabeth Seidenstricker, all assets of the estate. Apparently no action was taken by the court as to this settlement until April 14, 1939, when, as shown by the record, appellants and appellee appeared in court with their respective attorneys and the exceptions of appellants to the final settlement were heard and overruled by the court. Appellants thereupon prayed an appeal, but they attempted to appeal to the circuit court. The circuit court had no jurisdiction of the matter, as Constitutional Amendment No. 24, adopted November 8, 1938, provided for an appeal from the probate court to the Supreme Court; and no attempt was made to prosecute an appeal to this, court. .
Appellants, by the instant proceeding, aré apparently attempting to try again in chancery court the same issue — the correctness of the executor’s final settlement —that was tried by the probate court on their exceptions to the final settlement. This they cannot do. “Where the party has had an opportunity to be heard in the original proceeding and to have the matter revised on appeal, but has neglected to avail himself thereof, he is not entitled to redress in the equitable forum.” 21 Am. Jui\ 686.
The order of the probate court overruling appellants’ exceptions was a final adjudication of the matter and the chancellor did not err in so holding. Fidelity & Deposit Company v. Fairfield, 164 Ark. 498, 262 S. W. 322; McLain v. Sprigg, 174 Ark. 1052, 298 S. W. 870.
The administration of the estate of Elizabeth Seidenstricker is still pending in. the probate court of Prairie county, and appellants may require appellee to account in that court for all property of said estate, which came into his hands as administrator and which has not been properly distributed. The order of the probate court approving a partial distribution of the assets of this estate does not bar the right of appellants to demand and obtain in that tribunal an order directing appellee to account to them for any balance shown to be due to them or either of them in the distribution of the assets of their mo tiler’s estate. Since appellants have this legal remedy they may not invoke the extraordinary powers of a court of equity. Hankins v. Layne, 48 Ark. 544, 3 S. W. 831.
The decree of the lower court is affirmed. | [
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E. A. Henry, Special Justice.
On September 8,1941, judgment was entered in the chancery court of White pounty in different amounts against appellants, Jim W. Quattlebaum, et al. On appeal this judgment was affirmed by this court. Quattlebaum v. Busbea, 204 Ark. 96, 162 S. W. 2d 44. The judgment defendants in that case were found to have diverted funds from the “transportation budget” and by rather devious methods, to have used those funds in finishing a gymnasium for the school, which gymnasium also contained two or three classrooms.
At the 1943 session of the Legislature, act 67 was enacted and approved February 18, 1943. That act is as follows:
“ACT 67.
“AN ACT to Eelieve Officials and Employees of School Districts from Certain Technical Liability.
“Be It Enacted by the General Assembly of the State of Arkansas:
“Section 1. All directors, officials and employees of school districts wTho have drawn or caused to be drawn funds of their respective districts, which funds were expended for the actual benefit of said districts, in the construction of a building or buildings prior to January 1, 1943, and which are located on school property and used for school purposes, but which funds, through some error or misunderstanding of the law on the part of any such directors, officials or employees, were drawn from an improper account, or in an improper or unauthorized manner, are hereby relieved of any liability on any claim, or judgment, for tlie benefit of any school district based on claim arising from any technical liability for the use of said school funds in such manner, and any such claim is hereby released, and any judgment based on any such claim heretofore rendered in favor of or for the use and benefit of any school district, against directors, officials and/or employees of any school district, in any court of this státe, is hereby released, satisfied and cancelled.
“Section 2. Nothing in this act shall be so construed as to relieve from liability any school director or official or employee of any school district who has appropriated to his own use any funds of any school district for which said district does not obtain value in property or services, or who has knowingly caused to be paid to another any funds belonging to a school district for which said district did not receive value in property or services; nor shall anything in-this act be construed to change the present law as to the duties and liabilities of county treasurers.
“Section 3. All laws and parts of laws in conflict herewith are hereby repealed, and this act shall be in force and effect from and after its passage.
“APPROVED: February 18, 1943.”
The appellants in the present appeal on March 30, 1943, filed their complaint in the White chancery court to enjoin the sheriff of White county from levying an execution on the judgment and for a cancellation of the judgment, basing their action on'the provisions of act 67. Discovering, however, that this complaint had been prematurely brought, the act not carrying the emergency clause, they filed, at a later date and after the act had become effective, a second complaint practically identical to that filed on March 30, 1943.
Motions were filed in each case by the defendants, appellees here, to consolidate each case with the original case of Quattlebaum v. Busbea. These motions were granted by the court and the consolidation ordered. Then the defendants, appellees here; filed demurrers in each case, which were sustained, by the court, and appeals taken to this court. The two cases were here consolidated for hearing.
At the outset it is urged by appellants that the trial court erred in consolidating the cases brought by the plaintiffs-appellants with the original Busbea-Quattlebaum case. We believe the contention is well founded and that the order of consolidation as made by the chancellor was erroneous, but that it was harmless error, inasmuch as the record in the original case of Busbea v. Quattlebaum could have properly been brought into the present case as evidence, if and when the case should proceed to a hearing on the merits.
Act 67 is a general act. It applies to and operates uniformly on all members of a class, namely, “directors, officials and employees of school districts,” and the classification is germane to the purpose of the act and is “characterized by some substantial qualities or attributes which render such legislation necessary or appropriate for the individual members of the class.” 25 R. C. L., p. 815, et seq.; State, ex rel., Attorney General, v. Lee, 193 Ark. 270, 99 S. W. 2d 835. The purpose of the act is not limited to relief from a “judgment” but extends to and includes “any claim” which might be urged against the members of the class for the benefit of which it was enacted.
Act 67 is to be distinguished and differentiated from act 279 of 1933, which act in State, ex rel., Atty. Gen., v. Lee, supra, was held to be a special act,-and therefore unconstitutional, in that act 279 of 1933 applied to one county collector only, against whom a suit was pending in a circuit court. Act 67 of 1943 releases and cancels not only any judgment in favor of a school district for funds “drawn from an improper account or an improper or unauthorized manner,” but also relieves the named officials of “any liability on any claim or judgment,” on account of any such improper or unauthorized withdrawal of funds.
Act 67, therefore, meets the tests of a "general act, and by its terms creates a remedy in favor of the class therein named. The appellants, under the allegations of their complaint, bring themselves within the provisions of the act and are entitled to a trial upon the merits. In this connection and for the guidance of the trial court-, we hold that the judgment in the case of Quattlebaum v. Busbea, 204 Ark. 96, 162 S. W. 2d 44, is not res judicata of the issues in the case now before the court. To so hold would be to nullify Act 67 and make it of no effect.
The judgment for the defendants is reversed with instructions to the trial court to overrule the demurrers and proceed to a trial of the case upon its merits.
Robins, J., disqualified and not participating. | [
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McHaney, J.'
On February 14, 1939, Walter Chat-well, being the owner of the Ft. Smith Paint & Wall Paper Company of Ft. -Smith, Arkansas, by written contract, sold the assets of said business to Sigmund Borengasser for a consideration of $9,000, of which $500 was paid in cash and for the remainder Sigmund gave his note for $8,500, payable in monthly installments. The contract between the parties retained title to the assets so sold until the full amount was paid with interest. It also provided that the seller should hay,e title not only to “the present assets” of the business “but is to be given title to any new merchandise purchased for said company until the entire purchase price referred to herein has been paid.” Another clause provides that the buyer should keep the stock and assets up and in good condition, take care of the accounts both payable and receivable and pay taxes. On failure to comply with any provision of the contract, purchaser agreed to1 deliver possession of said assets on demand to seller.
On the same day, Chatwell assigned said contract and note to appellee, his wife. Sigmund'was later inducted into the armed forces, and he turned the business over to appellants, who are his brother and father. Default was made in the monthly payments, -and appellee brought this action in the circuit court against Sigmund Borengasser and the appellants to establish and enforce a vendor’s lien on all the assets then remaining, including the new merchandise bought during the operation of said business under said contract, sued out a specific attachment thereon, which was levied by the sheriff and the property taken • into custody by him, pending court order. The levy was made May 24, 1943. Sigmund was constructively summoned and a report was made by attorney ad litem that he had been notified. Charles and Jake were personally served, and answered with a general denial and a plea that on May 29, five days after the attachment, Sigmund executed and delivered to his brother Charles a bill of sale conveying to him. “all of the stock of goods and fixtures on hand in the inventory which was contained in the contract of sale between Lillie Chatwell and Sigmund Borengasser.” Appellants.’ abstract. Also that on June 8, 1943, Sigmund sold and assigned to Charles and Jake all of the accounts receivable of said business; that the property so sold and assigned to them is not covered by said conditional sales contract, and the debts due appellee does not represent the purchase price of any of the property so conveyed ■ to them; and that the specific attachment on the alleged vendor’s lien is void as against their rights in the property conveyed to them.
Trial to the court by consent, only questions of law being involved, resulted in a judgment sustaining the attachment and ordering the attached property sold, no personal judgment being rendered against any one. The court found there was a balance due appellee, on her conditional sales contract, the sum of $5,403.57 with interest from October 7, 1943, until paid at 6 per cent, per annum, and that appellants were not entitled to recover on their cross-complaint which was dismissed at their cost. Charles and Jake Borengasser have appealed.
Appellants contend, and we think correctly, that appellee was not entitled to a declaration of a vendor’s lien under § 11422 of Pope’s Digest, nor to the enforcement thereof by specific attachment under § 11423 of said Digest, for any. of the assets of said business not sold to Sigmund Borengasser by Walter Chatwell, for these statutes contemplate that the lien claimant shall be the vendor of the chattels on which the lien is sought to be established. It is conceded by appellants that as to all that property still on hand which was sold by Chatwell to Sigmund in said conditional sales contract, appellee has the right to establish and enforce a vendor’s lien. It was so held in Olson v. Moody, Knight and Lewis, 156 Ark. 319, 246 S. W. 3, even though title- was retained to some of the property.
But as to the chattel assets acquired by Borengasser after the original sales contract, Chatwell was not the vendor, was never the owner, and it is difficult to perceive how he or his assignee could establish a vendor’s lien on property he did not own and did not sell. As to this, we think the court erred in declaring and attempting to enforce such a lien. Not having the right to such a lien, appellee had no right to an attachment of this property, and the court erred in sustaining it to this extent only, because the title to the so-called “new property” was never in appellee. Ferguson v. Hetherington, 39 Ark. 438.
We think the contract here involved was ineffectual in so far as it attempted to put the ‘title to the -“new property” in appellee so as to give her a vendor’s lien under said statute, but we agree with appellants that it did give her an equitable lien on said assets acquired subsequent to the date of said contract which lien might have been enforced in a court of equity. Appellants in their reply brief say: “Appellee, under her contract, clearly had an equitable lien by virtue of the attempt to reserve title in what she did not own. Whether this lien be in the nature of an unrecorded mortgage or what-not, she had adequate remedy of foreclosing this lien or having it established in the chancery court. ’ ’ We note from the record that a sale of all the assets attached was had, a report of sale thereof to appellee of “one lot of paint, wallpaper and outstanding accounts due by customers — and fixtures” on a bid of $2,000. No exceptions were filed to the report of sale, and the sale to appellee was approved and confirmed. This appears to have been a sale of the property as a whole. No request was made by appellants to have the old and the new assets sold separately and the complaint did not ask for a sale of the customer accounts, but same were sold without objection. No contention is made that the sale was for an inadequate price or was irregular in any particular. •
We are, therefore, of the opinion that it would be a useless and expensive procedure to reverse and remand this case to the circuit court with directions to transfer to chancery for the purpose of foreclosing the conceded equitable lien of appellee on the “new assets” and again selling same. Since they have already been sold for a sum about which no complaint is made, it would appear useless to sell them again.
Appellants having acquired their alleged interest in the property after this action was begun, with full knowledge of the outstanding contract and the rights of appellee thereunder, we think the court correctly dismissed their cross-complaint, and that a like result would be inevitable on a proceeding in equity.
The judgment is accordingly affirmed. | [
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Gtrieein Smith, Chief Justice.
The question is, Did J. H. Pope lose his interest when Union & Planters Bank as owner in succession foreclosed the trust deed. he executed on 240 acres owned by the entirety? — the wife not being a party to the conveyance.
When Mrs. L. P. McBride married Pope she had five children. Katherine, twelvé years of age when the wedding occurred in 1899, is one of the appellees here.' The land vested in husband and wife through deed of Mary J. Phillips (Mrs. Pope’s mother), made in 1901.
Pope alleged his ownership of the lands described in his complaint filed in February 1944. Defendants other than the McBride children settled pendente lite.
Various transactions as abstracted by appellees are set out in the footnote.
Mrs. Pope died in October, 1940.
The first sale is evidenced by the deed of husband and wife, who conveyed to T. A. Pope “. . . a one-H. Pope. ’ ’ March 16,1921, J. H. Pope’s indebtedness of $30,000 to North Memphis -Savings Bank was secured by half undivided interest of the one-half interest of James trust deed. Two weeks later T. A. Pope also conveyed to a trustee for tlie Bank. In June 1924, Union & Planters Bank foreclosed.
For a consideration of $5,000, Katherine McBride (September 18,1928) purchased from the Bank the interest it acquired under the commissioner’s deed. By reference to the sequence of transactions, as shown by'the second marginal note, it will be observed that the day the Bank’s sale was made, Katherine and Mrs. Pope borrowed $4,000 by conveying to a trustee for Abe Goodman the land Katherine had purchased from the. Bank. November 4, 1937, Katherine, by quitclaim deed, conveyed her interest to Mrs. Pope for “$1 and other good ■and valuable considerations received.” Hence, when Mrs. Pope died, record title was in her.
' Two children were born to J. H. Pope and his wife, both of whom are living.
Four of Mrs. Pope’s children by her marriage to McBride were living in 1911, and to these, during that year, she devised her real property. There was this explanation in the will: “I make no provision for my two younger children, Cynthia Pearl Pope and James Hannah Pope, because they will be sufficiently provided for out of that part of my property which will pass to their father upon my death. ’ ’
The Court did not err in dismissing J. H. Pope’s suit for want of equity.
The primary issue,'as stated in the first paragraph of this opinion, has been subdivided by appellant, who seeks answers to the following questions:
(a) Did the transfers from Union & Planters Bank to Katherine McBride, and from Katherine McBride to Mrs. Pope, amount to a redemption, having the effect of “recreating an estate by the entirety in a three-fourths interest in the land sued for”? (b) Was a trust created in favor of appellant in consequence of “negotiations and transfers” as to three-fourths of the land, and (c) was there a trust in appellant’s favor by reason of transfers from Dr. T. A. Pope to Katherine McBride, and from Katherine McBride to Mrs. Pope, as to the so-called fourth interest sold Dr. Pope by J. H. Pope and his wife?
Appellant says the record conclusively shows that when the property was originally acquired, his money supplied the cash payment, and that he personally discharged a mortgage the grantee assumed. This, however, is denied.
Soon after theiUmarriage the Popes movéd to a home owned by Mrs. Pope on McLemore Avenue, in Memphis. Being in need of personal funds, Mrs. Pope mortgaged her home to her husband, and from time to time during succeeding years the two engaged in business enterprises on their separate accounts. There is testimony that domestic relations were far short of that degree of tranquillity found in a well-ordered home. Appellant admits there were occasional discordant notes, but minimizes these with the observation that they were no more frequent nor of greater violence than may be expected in average family life. Katherine McBride and other witnesses say that for years there was an entire absence of congeniality; that in fact, Pope and his wife dealt at “arm’s length.”
Although the decree does not contain express findings, the Chancellor would have been justified in holding that Katherine McBride’s participation was prompted through a desire to assist her mother during extremely difficult times. While appellant argues that the money used in paying the Bank was borrowed from Goodman with the land as security, it appears that the amount paid was $5,000 and the loan was for $4,000. Personal checks were exhibited which, it was contended, were used in the transaction. Nor does the record sufficiently support appellant’s insistence that his wife, in acquiring the property, was acting for him, or that their interests were such as to justify the belief there was a unity of purpose. It follows that the trust theory must fail.
Estates by the entirety were discussed by Mr. Justice Riddick in Branch v. Polk, 61 Ark. 388, 33 S. W. 424, 30 L. R. A. 324, 54 Am. St. Rep. 266. A married woman, it was said, may convey an undivided half interest in such an estate, subject to the husband’s right of survivorship. Commenting upon the effect of legislation enlarging the rights of married women, Judge Riddick said: “The right of the wife to control and convey her interest [in an estate by the entirety] ... is' now equal to the right of the husband over his interest. They each are entitled to one-half of the rents and profits during coverture, with power to each to dispose of or to charge his or her interest, subject to the right of survivorship existing in the other. ’ ’
In Roulston v. Hall, 66 Ark. 305, 50 S. W. 690, 74 Am. St. Rep. 97, a wife who divorced her husband was held to be entitled to rents from half of the whole estate while they both lived, the- entire property going to the survivor. But the right of disposal was recognized, the holding being that “[such alienation by the husband] will not defeat the wife’s title to that moiety if she survive him; but, if he survive, the conveyance becomes as effective to pass the whole estate as it would had he been sole seized at the time of the conveyance. ’ ’
Chief Justice McCulloch, in Davies v. Johnson, 124 Ark. 390, 187 S. W. 323, in holding that the character of an estate held by the entirety was not destroyed by di vorce, said: ‘ ‘ Suppose one of the parties executed a deed to a third party during the coverture, purporting to convey the whole estate, the deed would convey all of the vested interest of the grantor, including the rights resulting from survivorship, and it would be an anomalous situation to hold that such a vested interest could he divested by divorce of the parties.”
Moore v. Denson, 167 Ark. 134, 268 S. W. 609, is authority for the proposition that real property held as an estate by the entirety may he sold under execution to satisfy a judgment against the designated spouse. Cases holding that character of the estate has not been changed by statute are cited in Ward v. Ward, 186 Ark. 196, 53 S. W. 2d 8.
The essential feature of entire estates is that each owner, whether husband or wife, “is secure against an impairment of rights through the sole act of the other. ’ ’ Donahue et ux. v. Hubbard, 154 Mass. 537, 28 N. E. 909, 14 L. R. A. 123, 26 Am. St. Rep. 271.
Appellant, in the case at bar, did not impair his wife’s rights by his mortgage, nor in any manner charge the estate as to her. Had he predeceased Mrs. Pope, title to all the land not otherwise disposed of would have vested in her. But, as was said in the Davies-Johnson case, his trust deed, when foreclosed, conveyed all of the grantor’s vested interest, [and] “the rights resulting from survivorship. ’ ’
Eesult is that appellant parted with his interest in the property when he permitted foreclosure. The acts of Katherine McBride in purchasing and in conveying to her mother could not have the effect of revitalizing Pope’s former estate. He sold the rights resulting from survivorship — a fact he no doubt considered.
Affirmed,
The trust deed was subject to a reservation not related to the right of survivorship.
(1) January 9, 1901, deed from Mrs. Phillips, mother of Mrs. Pope, to J. H. and Lady P. Pope. (2) March 30, 1901, deed from J. H. Pope and Lady P. Pope to T. A. Pope, conveying a “one-half undivided interest of the one-half interest of James H. Pope.” (3) March 16, 1921, trust deed from J. H. Pope securing payment to North Memphis Savings Bank of $30,000.00 and mortgaging J. H. Pope’s interest in the lands. [This is the deed acquired by Union & Planters Bank]. (4) March 30, 1921, T. A. Pope Trust Deed to North Memphis Savings Bank securing the payment of approximately $37,000.00 and reserving to T. A. Pope the first $4,000.00 of the foreclosure proceeds in the event of foreclosure. (5) June 2, 1924, decree of the Chancery Court of Crittenden County, foreclosing the above mentioned mortgages. (6) March 18, 1925, deed from Commissioner in Chancery to Union Planters Bank and Trust Company, purchaser of the interest of J. H. Pope and T. A. Pope in the lands. (7) September 18, 1928, deed from Union Planters Bank and Trust Company to Katherine McBride selling to her the interests in the lands previously owned by J. H. Pope and T. A. Pope, for a consideration of $5,000.00. (8) September 18, 1928, trust deed from Katherine McBride and Lady P. Pope to R. C. Brown, trustee for Abe Goodman securing $4,000.00. [It will be observed that Katherine McBride borrowed $4,000.00 but paid $5,000.00 for the interest purchased. This difference of $1,000.00 was a part of her savings]. (9) March 26, 1929, T. A. Pope executed special warranty deed to Katherine McBride conveying the interest previously held by him. (10) April 17, 1930, Katherine McBride and Lady P. Pope borrowed from Shannon Brothers $25,000.00 and executed trust deed on the lands north of Highway 70 which ultimately resulted iñ foreclosure of said lands and acquisition of same by Shannon Brothers. (11) November 4, 1937, deed from Katherine McBride to Lady P. Pope. (12) June 27, 1938, deed from Lady P. Pope to Shannon Brothers, Inc., conveying all the land north of Highway 70 in satisfaction of the debt owed Shannon Brothers, Inc.
T. A. Pope, a dentist residing at Franklin, Tenn., was appellant’s brother.
Abstract pages appearing in the transcript show that the trust deed was executed by Memphis Ginning Company and J. H. Pope. A notation is: “Lady P. Pope, wife of J. H. Pope, appears in the face of this instrument, but does not sign or acknowledge same.” [A covenant was to forever warrant and defend the title].
In appellant’s brief it is stated that the decree foreclosing Dr. T. A. Pope’s trust deed was set aside June 25, 1927. There is the notation, “.See order.” But the record contains 385 pages, and the order is not otherwise identified. This becomes unimportant, however, (except in support of the contention that Katherine held as trustee) because in April, 1929, Dr. Pope executed his quitclaim deed ’to her.
Although Katherine conveyed to her mother, she joined her fifteen months later in a deed to Shannon Brothers, conveying the merchantable timber on what was known as the Stovall Place, embracing 1,287 acres. [See Pope v. Shannon Brothers, 190 Ark. 441, 79 S. W. 2d 278; McBride v. Shannon Brothers, Inc., 193 Ark. 730, 102 S. W. 2d 535; Pope v. Shannon Brothers, Inc., 195 Ark. 770, 114 S. W. 2d 1]. | [
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Smith, J.
This is a suit on an insurance policy issued by appellant company to appellee, to recover damages to a truck and trailer, which, according to the stipulation of the parties, amounted to $997.09, and the 'question presented on this appeal is whether the loss is payable under what is called the transportation clause,- or under another clause of the policy called a collision clause. If liability attached under the latter clause, $100 was deductible from the damages sustained. If under, the transportation clause, the full amount of the damage, not exceeding $2,500, was payable. Judgment was rendered for the sum sued for, and from that judgment is this appeal.
Appellant says two questions are presented. “First: Whether this loss was caused by collision or transportation. Second: Whether-appellee is entitled to recover penalty and attorney’s fees.”
The answer to this second question depends upon the answer to the first. Appellant is liable for penalty and attorney’s fees under Act 71 of the Acts of 1939 in applicable cases, but under numerous decisions of this court would not be liable for either the penalty or the attorney’s fees if the insured recovers judgment for a sum less than the amount sued for. If, therefore, appellant is liable under the tíollision clause, but not under the transportation clause, the judgment is $100 in excess of tlie liability and the penalty and attprney’s fees are not collectible; but if liable under the transportation clause, the judgment must be affirmed in its entirety. The question for decision is, therefore, whether the transportation clause is applicable to this cause of action.
The circumstances out of which the cause of action arose is covered by a stipulation as to the facts, which reads as follows:
“It is stipulated and agreed by and between the plaintiffs and the defendant, that while policy of insurance number 60253 issued by the defendant to plaintiffs was in full force and effect the Ford truck and the one- and-one-half-ton trailer described in the said policy were damaged under the following circumstances:
“On March 29, 1943, about 3:30 p. m., Cecil Bettis was driving the Ford truck and trailer belonging to plaintiffs, approaching Calico Rock, Arkansas, and stopped at the White River to ferry. He had to wait for the return of the ferry from the opposite side of the river. The man in charge of the ferry instructed the driver of the truck to drive it onto the ferry as is the usual practice. When the driver of the truck got the front wheels of the truck on the ferry, the man in charge of the ferry motioned to him to stop, the driver did so applying his brakes. The unit of the truck and trailer was made up by the regular truck on the rear axle of which rested the front part of the tractor, which made three complete sets of wheels. The man in charge of the ferry wanted the driver to go more on the1 right side of the ferry. When the driver applied the brakes on the truck the stakes holding the ferry to the bank pulled up and released the ferry and the ferry twisted around and straight across the river. At the time the brakes were applied, the rear wheels- of the truck were on the apron of the ferry. The ferry drifted out into the river, the apron on which the rear wheels of the truck were resting broke and when the ferry continued to drift out into the river the tractor went under pulling the truck in after it. The ferry did not sink and did not even break loose from the guy wire, and the accident was caused by the stakes pulling out which permitted the ferry to float out into the river which was quite -deep at that particular point.
‘ ‘ The cost of getting the truck and trailer out of the river and the damage caused by the accident above described amounted to $997.09.”
The relevant portions of the policy sued on appear in paragraph B-l and paragraph C. The first insures against “Loss or damage to the automobile caused by collision of the automobile with another object or by upset of the automobile,” and from such a loss $100 is deductible from the damages sustained.
• If paragraph C applies there is no deduction and the full amount of the loss is payable. This paragraph C insures against loss “ ... by stranding, sinking, burning, collision or derailment of any conveyance in or upon which the automobile is being transported on land or on water. ’ ’
Appellant argues for the reversal of the judgment that “ ... when a truck insured under such policy runs off of a ferry and is precipitated into the water below, landing at the bottom of the river, there is a collision within the meaning of the policy. ’ ’ The argument, while plausible, is too tenuous for practical application in view of the presence of paragraph C above quoted. It may be that if the policy contained only paragraph B, above quoted, it would be held that- the plunging of the car into the water and finally striking and resting upon the bottom oj: the stream was a collision, but even so, paragraph C cannot be eliminated or ignored.
It is argued, however, that paragraph C cannot be applied for the reason that the automobile was not injured bjr the “stranding, sinking, burning, collision or derailment of any conveyance in ór upon which the automobile is being transported on land or on water. ’ ’ This contention was sustained by the Ontario Supreme Court in the case of Wampler v. British Empire Underwriters’ Agency, 54 Dom. L. R. 657, in a suit upon a similar policy, where it was said: “And the risk that the policy assumes is the stranding, burning, sinking, collision and derail ment of tlie conveyance containing the motor car while being transported by land or water. ’ ’ The facts-dn that case were that the plaintiff was crossing a stream on a ferry operated by means of a chain and he proceeded to drive his car off the ferry when it reached the land and “while he was doing so, .after the front wheels had reached the land the ferry began to move away with the result that the car dropped into the river. ’ ’ It was there said that this was not a risk insured against; but we refused to follow that holding in our case of Importers’ & Exporters’ Ins. Co. v. Jones, 166 Ark. 370, 266 S. W. 286. In so doing Justice Wood, speaking for this court, said:
“Tobe sure, by feather-edge refinements in the construction of language and a process of strained reasoning, the language of clause ‘b’ is susceptible of the construction given it by the Canada court, and in accordance with the contention of léarned counsel for appellant. But such construction would not carry out the intention of the parties to the contract. It was manifestly their intention, by the language used, to cover all conceivable losses to the automobile while it was being transported, and they used the terms ‘sinking, collision, stranding, burnings and derailment’ as an enumeration of the methods by which such loss or damage might occur. When the subject-matter of the insurance and the language of the policy as a whole is considered, it certainly cannot be said that it was the intention of the company to limit its liability to the appellee for a loss or damage caused only by the sinking, collision, stranding, burning and derailment of the conveyance in which the car was being transported, rather than the ‘sinking,’ etc., of the car itself. The words ‘sinking,’ etc., were words of enumeration or description of the manner of loss of the car rather than a limitation of the liability to the manner of the description of the vehicle or means of transportation. Such we believe to be the plain, common-sense meaning of the contract. Any other view would lead to the rather absurd conclusion that, although the automobile was damaged or destroyed by ‘ sinking, ’ yet the appellant did not intend to be liable for such loss or damage unless the boat in which the car was being transported was also lost or destroyed by ‘ sinking, ’ etc. If such was the meaning of the appellant, it should have used phraseology that would express it in plain terms, instead of ambiguous language indorsed in exceedingly fine print among multitudinous other- provisions on the back of the policy. ’ ’
We think there is nothing that need be added to this construction of paragraph C of the policy, and the judgment must be affirmed, and it is so ordered. | [
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McFaddin, J.
This is a suit by an alleged insane person to redeem her property sold for delinquent taxes; and the redemption is resisted on (1) the denial of insanity, (2) the plea of limitations, and (3) the plea of innocent purchaser. Also there is the question of the time when the redemptor becomes entitled to the- rents.
Anna Laurie Westbrook was the owner by will of the property here involved, consisting of two lots and a house thereon in Port Smith. In 1932, the property was forfeited to the State for the delinquent taxes of 1931. Tlie State received the deed in 1934; and in October, 1937, appellant, Manie Schuman, received a deed from the State upon payment of $80.12. In February, 1940, Schuman conveyed the property to Maurice Kaplan by quitclaim deed. From July, 1938, until after the filing of this suit, either Schuman or Kaplan was at all times in actual possession by a tenant.
On September 15, 1941, this suit was filed by Anna Laurie Westbrook, an insane person, acting by her next friend, Lucille Westbrook; and there was: (1) an allegation of the insanity of Anna Laurie Westbrook at all times involved, (2) an allegation of the tender of taxes, and (3) a prayer for redemption and also for an accounting of rents. Both of the appellants (1) denied the insanity of Anna Laurie Westbrook, (2) pleaded adverse possession under § 8925 of Pope’s Digest, (3) pleaded three years’ adverse possession, and (4) denied plaintiff’s right to any rents. In addition, Kaplan pleaded that he was an innocent purchaser of the property for value and without any notice or knowledge of any defect in the title.
The chancery court rendered a decree of redemption in favor of the plaintiff, and found that Schuman had received rents totaling $553 and had expended for taxes and improvements a total of $451.37. Therefore, in addition to ordering redemption, the chancery court rendered judgment against Schuman for $101.63. From that dercree comes this appeal, presenting the questions which avo now list and discuss:
I. Was Anna La%irie Weslbrooh Insane?
At the time of the trial in the chancery court, Anna Laurie Westbrook was a woman thirty-two years of age. There had never, been any previous inquisition into her mental status. She had never been declared insane and therefore had no guardian. (See § 7543 et seq. of Pope’s Digest.) But such an order, if'made, avouIcI only have been prima facie evidence in a suit like the one here (Eagle v. Petterson, 136 Ark. 72, 206 S. W. 55, 7 A. L. R. 553; Barkheimer v. Lochhart, 139 Ark. 223, 213 S. W. 381). The chancery court had authority to determine •mental status in this case irrespective of any previous adjudication by the probate court.
In some jurisdictions there are three types of mental status, being: sanity, incompetency, and insanity (see 28 Am. J. 656 et seq.); but in this State we have only two types of mental status recognized by law, being: sanity and insanity. The question here is whether the plaintiff was sane or insane. Many authorities agree that it is difficult to define insanity, and that it is a social or legal term rather than a medical term. In 32 C. J.- 593 it is said: “ ‘Insanity’ differs so much in kind and degree that no precise definition can be given applicable to the varying .circumstances of every case. . . . Upon questions of insanity the law attempts to ascertain whether a party is or is not possessed of such soundness of mind as renders him competent to do, or relieves him from the responsibility for doing, certain acts. In a legal sense, mental soundness is sanity; mental unsoundness is insanity. In this sense insanity is defined as such unsoundness of mental condition as, with regard to any matter under action, modifies or does away with individual legal responsibility or capacity.”
Our own case of Pulaski County v. Hill, 97 Ark. 450, 134 S. W. 973, is one of our landmarks on this subject; and Mr. Justice Frauenthal’s words, as there contained, remain, even after the lapse of years, still the clearest expression on the subject, and directly in point in the case at bar. We quote at length:
“It is earnestly contended by counsel for defendants that the finding of the chancellor that John Hill was an insane person at the time of the tax sale or at any time thereafter is contrary to the weight of the testimony adduced upon the trial of this case. It is difficult to define with accuracy the limits, of that mental incapacity which under the law renders one insane. An insane person is one who is of unsound mind, and our statute provides that a ‘person of unsound mind includes every person who is a lunatic, idiot or deranged.’ Kirby’s Digest, § 7812.
“But at last tbe law furnishes no definite enumeration of the mental powers and no exact measure by which to determine the degree of their exercise in order to decide whether or not an individual is of sound or unsound mind. There are numerous civil proceedings where insanity or mental incapacity may be shown, and the rule for establishing the degree of the insanity necessarily depends upon the purpose for which the insanity is to be proved. It may be that the object of proving insanity is to annul a contract, or to defeat the execution of a will or to appoint a guardian to take charge of the estate of the insane person. The rule for establishing the degree of insanity in these various cases varies with the case. But the question in all such cases where incapacity arising from defect of the mind is alleged is, not whether the mind is itself diseased or the person is afflicted with any particular form of insanity, but rather whether the powers of the mind have become so affected, by whatever cause, as to render him incapable of transacting business like the one in question. As a general rule, it may be stated that, in order to have that measure of capacity required by law to be of sound mind, a person must have capacity enough to comprehend and understand the nature and effect of the business he is doing; and where it is clearly made to appear that the mental incapacity and imbecility is of such a degree .as to render the person unable to conduct the ordinary affairs of life and leaves him in a condition to be the victim of his infirmity, then such person is in contemplation of law not of sound mind. Weakness of understanding is not alone sufficient to show mental unsoundness if 'capacity remains to see things in their true relations and where the individual has a moderate comprehension of his immediate duties and of the value and use of his property. But, as is said by Marshall, J., in the case of Prather v. Naylor’s Adm’r, 1 B. Monroe 244, the criterion in determining whether or not the individual'is of sound mind ‘rests upon the question whether the individual is mentally competent of rational government of liimself and his affairs. ’ 1 Clevenger on Med. Jur. of Insanity, § 244; Young v. Stevens, 48 N. H. 133, 2 Am. Rep. 202, 97 Am. Dig. 592; In re Storick, 64 Mich. 685, 31 N. W. 582; Hamrick v. Hamrick, 134 Ind. 324, 34 N. E. 3; King v. Cummins, 60 Vt. 502, 11 Atl. 727; Snyder v. Snyder, 142 Ill. 60, 31 N. E. 303; Kelly’s Heirs v. McGuire, 15 Ark. 555; Beller v. Jones, 22 Ark. 92. And the opinions of witnesses not expert are Competent to prove mental capacity or incapacity when the facts or circumstances are disclosed upon which they found their opinions. Beller v. Jones, supra; King v. Cummins, supra; Kilgore v. Cross, 1 Fed. 578.
“In the case at bar the matter involved related to the payment of taxes upon property. That was one of the matters attending the transaction of ordinary business. The object and purpose of proving insanity in this case would be to show that John Hill .did not have the mental capacity to understand and appreciate the fact that the taxes should be paid upon his property; in other words, the true and proper test of whether or not he was of sound mind under the testimony and nature of this case was whether or not he had the mental capacity to transact ordinary business and to take care of and manage his property. If he was mentally incapable of understanding and acting rationally in the ordinary affairs of life and in the management of his property, then he was not of sound mind within the meaning of the statute granting him time until such disability should be removed in which to redeem his land from tax forfeiture.
“We do not deem it desirable to set out in any detail the testimony relative to the mental condition of John Hill. The testimony discloses that almost from his infancy he was a mental imbecile, and on this account was the sport and plaything of his associates. He was not totally incapable of taking care of himself, but he was wholly incompetent on account of his mental unsoundness to rationally manage his affairs or to care for and protect his property in a. rational manner. He did not understand the ordinary affairs of life in their true relations, and was unable to form correct conclusions as to them, lie was mentally incapable of transacting business, or to comprehend the nature and effect of the business of paying or failure to pay taxes on his property. Upon an examination of all the evidence Ave feel a conviction that he did not have that mental capacity which is found in a sound mind, although he was not technically an idiot or lunatic. This was his mental condition at the time of said tax sale and continuously from that date to his death. He was therefore an insane person, within the meaning of the statute which granted to him the right to redeem his land from tax sale within the period named therein. ’ ’
Change the name from “John Hill,” in the para-’ graph just above, to “Anna Laurie Westbrook,” and the statements in the quotation are true in the case at bar. Three disinterested and unrelated witnesses testified about the mental status of Anna Laurie Westbrook. One was. the school principal who had known her for over twenty years. He said that she had never been normal. She never could pass any of her courses. “Her mentality was notoriously below normal, and it was a matter of frequent comment by the teachers.” This witness unhesitatingly pronounced her incompetent. Another witness, a next door neighbor of the Westbrook family, and one whose acquaintance also- covered a period of over tAventy years, said that the plaintiff was mentally incompetent and unable to handle any business affairs. Said this lady of Anna Laurie Westbrook: “She never impressed me as being a normal child. She talked foolishly a lot of times and would just grin and laugh about nothing. She always impressed me as a child with a very immature mind. ’ ’ The third witness was a businessman who lived only a few blocks from the Westbrooks. He had known the plaintiff fifteen years and said she did not have sufficient mental ability to transact business affairs or to pay taxes.
In the light of this evidence, and in view of the fact that no evidence was offered in contradiction, we cannot say that the findings of the chancery court are against the preponderance of the evidence: so we affirm so much of the decree as hold that Alina Laurie AA7estbrook was mentally incompetent and insane. • ■
II. Did Anna Laurie Westbrook Have the Bight to Bedeemf
Having affirmed the finding of insanity, we logically come to the question of redemption; and this means whether there is a savings clause for an insane person in a case like this one. Schuman and Kaplan, together, were in adverse possession of the property under a State deed containing a legally sufficient description at all times from July, 1938, until after September 15, 1941; and they claim that § 8925 of Pope’s Digest has no savings clause for insane persons. They cite Hall v. Porter, 81 Ark. 476, 99 S. W. 687; and Sims v. Cumby, 53 Ark. 418, 14 S. W. 623, as cases holding that there is no savings clause for infants or insane persons. ANe will first dispose of these cases and then demonstrate that there is a savings clause for an insane person in a case like the one at bar.
In Hall v. Porter, this court held that under the Overdue Tax Act of March 12, 1881, there was no savings clause for a person of unsound mind; but in the case at bar the lands were not sold under the Overdue Tax Act of 1881; and so that case has ho application to this case. Even if there had been a confirmation in the chancery court under Act 119 of 1935 still an insane person would have a right to redeem, because § 9 of Act 119 of 1935, as amended by Act 318 of 1939, contains a savings clause for insane persons. Therefore we dispose of cases like Hall v. Porter, and Ry. Co. v. Burke, 53 Ark. 430, 14 S. W. 622, by pointing out that the statute on which those cases were based is not involved in the case at bar.
Sims v. Cumby, 53 Ark. 418, 14 S. W. 623, is urged by appellants. That case, decided in 1890, specifically held that under the two-year statute of limitations (which is now 8925 of Pope’s Digest) there was no savings clause for persons under disability. If the statutes were worded today as they were at the time of Sims v. Cumby, then appellants would be correct. But there has been an amendment to. tlie statutes winch displaces the holding in Sims v. Cumby. At the time of the decision in Sims v. Cumby the savings clause for persons under disability was contained in § 4489 of' Mansfield’s Digest which section was taken from the Act of 1844, and which provided a savings clause for persons under disability only in causes of action recognized by law in 1844--, and Mr. Justice Hemingway pointed out, in Sims v. Cumby, that the two-year statute of limitations could not apply in that case because of .tlie peculiar wording of § 4489 of Mansfield’s Digest, and because the two-year statute of limitations was not enacted until 1857. This § 4489 of Mansfield’s Digest became § 4833 of Sandels and Hill’s Digest of 1894. As previously pointed out, the opinion in Sims v. Cumby was rendered in 1890 ; and by Act 123 of 1899 the Legislature amended § 4833 of Sandels and Hill’s Digest (% 4489 of Mansfield’s Digest) so as to make the savings clause apply to any cause of action ivhetlier it existed prior to the 1844 savings clause, or afterwards', and this Act 123 of 1899 is now § 8939 of Pope’s Digest. So it is clear that the said Act of 1899 made the' savings clause for insane persons apply in the very situation to which it did not apply in Sims v. Cumby. In other words, the law as announced in Sims v. Cumby was changed by the Act of 1899; and therefore Sims v. Cumby affords the appellant no support in the case at bar.
"Even though Sparks v. Farris, 71 Ark. 117, 71 S. W. 255, 945, was decided in 1902, still it arose prior to 1899, and was' tried under the law as it existed prior to the Act of 1899; so Sparks v. Harris affords appellants no support.
With these cases disposed of, we point out that there is a savings clause that protects Anna Laurie Westbrook in the case at bar; and this clause is found in § 13860 of Pope’s Digest. The right of an insane person to redeem, in a case like the one here, has existed at all time's since the enactment of § 115 of Act 124 of 1873 (commonly called the Revenue Act of 1873); and this § 115 became § 5197 of G-annt’s Digest, and, with subsequent changes and. amendments, is,now § 13860 of Pope’s Digest. One of the effects of Act No. 123 of 1899 was to allow the savings clause in-the favor of infants and insane persons to apply even against the section that is now § 8925 of Pope’s Digest. We have consistently held that there is a savings clause for infants and insane persons. Hodges v. Harkleroad, 74 Ark. 343, 85 S. W. 779; George v. Hefley, 182 Ark. 678, 32 S. W. 2d 445; Hisey v. Sloan, 180 Ark. 797, 22 S. W. 2d 1005; and cases there cited.
Therefore, Ave affirm so much of the decree of the chancery court as found that Anna Laurie Westbrook had not lost her right of redemption, by a lapse of time.
III. What of Kaplan’s Plea of Innocent Purchaser?
Kaplan received a quitclaim deed to the property from Schuman on February 6, 1940; and Kaplan claims that at the time of his purchase he was not put on notice of any offer of redemption and that he was an innocent purchaser. To sustain his contention he cites the case of Jefferson Land Company v. Grace, 57 Ark. 423, 21 S. W. 877. But that case involved a proceeding under the Overdue Tax Act of 1881, and we have previously pointed out that the case at bar is not under that Act; so the cited case has no application to the case at bar.
This court has many times held that the right of a person under disability (such as minority or insanity) to redeem his land, in an ordinary state and county tax forfeiture case as is the case here, runs with the land, and any person acquiring the land takes with notice thereof. As said by Mr. Justice Wood in Bradbury v. Johnson, 104 Ark. 108, 147 S. W. 865, Ann. Cas. 19140, 419:
“ There can be no such thing as an innocent purchaser of land at a tax sale, or from one who buys at such sale, as against the statutory privilege of redemption. The statute makes no exceptions, and there are no restrictions or limitations upon the right to redeem except as to the time in which it shall be exercised. As was said in Neil v. Rozier, 49 Ark. 551, 6 S. W. 157, ‘a sale of the land by tbe tax purchaser does not displace the right to redeem.’ The right, within the time, is absolute, and the provisions of the statute are to be liberally construed to effectuate its purpose in preventing a permanent forfeiture of the estate of a minor. Woodward v. Campbell, 39 Ark. 580; Neil v. Rozier, supra.
“All the world must take notice of the statute granting to a minor the privilege of redemption from a sale for taxes. ’.’
And in Hisey v. Sloan, 180 Ark. 797, 22 S. W. 2d 1005, Chief Justice Hart said: “Our statute authorizes the sale'of land delinquent for nonpayment of taxes, and it also contains a saving clause, granting to minors the right to redeem the land from the tax sale within two years after the expiration of their disabilities as minors. This court has uniformly held that all the world must take notice of the statute granting to minors the privilege of redeeming the land from a sale for taxes. Bender v. Bean, 52 Ark. 132, 12 S. W. 180, 241; Seger v. Spurlock, 59 Ark. 147, 26 S. W. 819; Hodges v. Harkleroad, 74 Ark. 343, 85 S. W. 779; Bradbury v. Johnson, 104 Ark. 108, 147 S. W. 865, Ann. Cas. 1914C, 419; and Lightle v. Laws, 123 Ark. 537, 186 S. W. 73.”
The same statute {% 13860) that contains the savings clause for minors (as mentioned in the last quotation) also includes insane persons; so we affirm so much of the decree of the chancery court, in the case at bar, as denied Kaplan’s plea of innocent purchaser.
IY. What of the Jxulgment Against Schuman for Rents?
It will be recalled that Schuman had received as rents a total of $553; and had expended for the deed and all subsequent taxes and improvements, and interest thereon, a total of $451.37; and the chancery court not only allowed the plaintiff to recover the property by redemption, but also rendered judgment against Schuman for $101.63 as the excess of receipts over disbursements. This part of the judgment is assigned as error, and we find that there is merit in this assignment.
In Hisey v. Sloan, 180 Ark. 797, 22 S. W. 2d 1005, Cliief Justice Hart said:
“Without redeeming, the minors hold no present interest, and can only assert a right to the rents after they have offered to redeem. Lightle v. Laws, 123 Ark. 537, 186 S. W. 73; Bender v. Bean, 52 Ark. 132, 12 S. W. 180, 241; and Seger v. Spurlock, 59 Ark. 147, 26 S. W. 819.
‘ ‘ These authorities hold that the tender made by the owner to the purchaser is the point at which the title changes, and the positions are reversed. Up to that time, no rents are due- from the purchaser, while all moneys paid out for taxes and the value of all the improvements are due to him. Improvements made after an offer to redeem, and taxes paid afterwards, except by contract, are not charges against the owner or on the land, and the purchaser in possession is bound for rents accruing after that date.”
The complaint in the case at bar was filed September 15, 1941, and was verified and contained an allegation of tender. The decree of the chancery court evidently overlooked the rule in Hisey v. Sloan, supra, and proceeded on the theory that Schuman was liable for rents for the full period of his possession. This was error. He was only liable for rents from the time of tender, and he could offset against these rents all the taxes paid out by him prior to the tender a;tid also the value of all the improvements prior to the tender.
It follows, therefore, that so much of the decree as adjudged Anna Laurie Westbrook entitled to rents for the full period of 1937 to 1942 was error; and all that part of the decree concerning rents, improvements, and taxes is reversed and remanded to the chancery court with directions:
(1) To determine all rents collected by Schuman and Kaplan prior to the tender, and to award all such to them.
(2) To determine the amount of all rents collected by Schuman and Kaplan subsequent to the tender.
(3) To determine all taxes and the value of all improvements made by Schuman and Kaplan prior to tender.
If the amount of item 3, just above, is greater than the amount of item 2, then the chancery court will decree that Westbrook is to pay the said difference to Schuman and Kaplan, which difference, until paid, shall be a lien on the land and required to be paid to make a complete redemption. If the' amount of item 3 is less than the amount of item 2, then Schuman and Kaplan are to pay to Westbrook the said difference.
The cause is also remanded for any further proceedings as may be necessary under the principles of equity and not inconsistent with this opinion. Since the appellants denied the plaintiff’s right of redemption, which is the substantial question of the case, all the costs of both courts are adjudged against appellants.
It follows, therefore, that the decree of the chancery court is in part affirmed, as herein stated, and is in part reversed and remanded with directions, as herein stated.
The Chief Justice does not agree that the evidence was sufficient to show appellee’s insanity, and therefore dissents. | [
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Knox, J.
Suit was commenced in the chancery court of Pope county for partition of land situated in section 19, township 8 north, range 21 west, and near this same time action was filed in the circuit court of that county in ejectment to try title to the same land. The ejectment action was transferred to the chancery court and consolidated with the partition suit. No question as to this procedure was presented to the lower court, nor raised hbre. We raise none, but our action is not to be construed as approval of the practice.
These lands forfeited for the taxes of 1933, and were sold and certified to the State, and later conveyed by the Commissioner of State Lands to appellant, Burris Price. The description under which the land was assessed, sold, certified to the State, and later conveyed by the Commissioner of State Lands was “Pt. SE¼ NE¼, Sec. 19, Twp. 8 N., Range 21 W.; 34 acres.” We have many decisions holding that a deed which describes the land as “a part of a certain quarter section, or other governmental subdivisions, without otherwise describing it is void. Jacks v. Chaffin, 34 Ark. 534; Rhodes v. Covington, 69 Ark. 357, 63 S. W. 799; Penix v. Rice, 93 Ark. 176, 124 S. W. 747; Morris v. Eagle, 94 Ark. 180, 126 S. W. 382; Woodall v. Edwards, 83 Ark. 334, 104 S. W. 128; Person v. Davis, 199 Ark. 1029, 138 S. W. 2d 71.
The assessment on which the forfeiture was based was for the year 1922, and it was established by the undisputed evidence of the deputy collector of taxes, testifying from the original records, that the taxes on such land for that year were actually paid. The record discloses that such payment was made by White Brothers, a large mercantile establishment in the locality who frequently paid taxes for a large number of their customers. Why they paid these taxes is not shown. Counsel for appellant says the payment was made through error. No member or agent of the firm has appeared to so testify. Nevertheless, the fact remains that such taxes were paid, and the lien'thereof has been discharged. Having received the payment which satisfied the tax lien, the State could not thereafter conduct a valid sale for the nonpayment of the same taxes, and this is true whether payment was made through error or for some other reason.
For these and other reasons the chancery court rendered its decree in favor of appellee on the question of the validity of the tax deed, and shortly thereafter it entered its decree directing partition.
We are of the opinion that such decrees should be affirmed, and it is so ordered. | [
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Smith, J.
It is not complained in this case that any competent testimony was excluded, or any incompetent testimony admitted; nor is it complained that any erroneous instructions were given or any correct instructions refused. We are asked to review the judgment from which is this appeal upon the sole ground that it is contrary to the undisputed testimony heard at the trial.
The suit is in replevin for the possession of an automobile, and the testimony said to be undisputed was given by tbe appellant, Ira Roberts, and one C.*C. Collins, and is to tbe following effect: .Roberts was tbe owner of the car,'and was compelled, at a pistol’s point, to execute a bill of sale for the car and to deliver the possession thereof to one Fred Bryson. No consideration was paid, although the bill of sale recited a consideration of $1,000, and the insistence is that inasmuch as this testimony was undisputed, it was arbitrary for the jury to have disregarded it and to have returned a verdict, as was done, for the defendant appellee, Louis Keasler. We are unable to say, however, that the jury acted arbitrarily in disregarding this testimony, although there was no direct contradiction of it in view of other testimony in the case.
Roberts and 'Collins are ex-convicts, the first having been convicted of burglary, the other of robbery. These men, in company with Fred Bryson and Roy Thompson, drove in Roberts’ car from Paragould, in this state, to Cairo, Illinois. There was testimony about a fifth person, a boy, being in the car, but his identity and whereabouts were not disclosed. There is some conflict in. the testimony of Roberts and Collins as to their destination when they left Paragould, and the testimony is not clear as to their mission, except that it related to the purchase of whiskey, sold in violation of the law, and a confidence scheme involving a gadget used to make counterfeit money.
Roberts and Collins testified that returning home, and just before crossing the state line, Bryson, abetted by Thompson, leveled his pistol on Roberts, and restrained both Roberts and 'Collins of their liberty until they had compelled Roberts to execute a bill of sale for the car to Bryson. 'Subpoenas issued for Bryson and Thompson were not served, and neither appeared at the trial, and their presence is unaccounted for except that the subpoena issued for Bryson contained a notation made by the sheriff that Bryson was in Flint, Michigan.
Upon the return of these tourists from their mission, whatever it may have been, they went to the home of a reputable, and well known lawyer, and told him they wanted a bill of sale prepared to evidence the sale of an automobile which was being sold by Roberts to Bryson. This attorney testified that there appeared to be nothing unusual in the transaction, except the lateness of the hour, and that he accompanied the parties from his home at about 10:00 p.m., to his office, where he was furnished the information necessary to prepare the bill of sale, and that he observed nothing unusual in the demeanor of the parties while he was doing so. They were in his office about twenty-five or thirty minutes.
Roberts produced a registration certificate for the car, which gave his residence as Leachville in Mississippi county, but he stated to the attorney that he was then a resident of Greene county. The registration certificate and bill of sale were delivered to Bryson without the attorney’s suspicions having been aroused that anything unusual had occurred.
The parties separated after leaving the attorney’s office within two or three blocks of the county jail in the center of Paragould, where the sheriff or his deputy is constantly on duty, but no complaint was made to these officers. There is a conflict in the testimony of Roberts and Collins as to what they did and where they went after leaving the attorney’s office, but the following day they went to Jonesboro and consulted one of the attorneys who filed this suit, but they made no report to any officer of the alleged robbery which they testified had occurred June 22d. Within two or three days after the alleged holdup by Bryson and Thompson, Collins and Roberts were arrested on warrants issued upon the affidavit of Bryson for the offense of obtaining money under false pretense, and then, for the first time, Collins told the sheriff of Greene county that he wanted to see a federal officer, but never at any time did Roberts and Collins have a warrant issued for the arrest of Bryson.
At about 7:00 p.m. on June 23d, about twenty-four hours after the alleged holdup, there was filed for record in Craighead county a mortgage from Roberts to one W. L. Akins, covering the car here in controversy, which recites that it was executed on April 15, 1913, to secure a note for $700, due June 15, 1943. There is no explanation as to why this mortgage had not been filed for record earlier, or as to why it was filed in Craighead county at all, as none of the parties resided in that county. Immediately after the filing of this mortgage the sheriff of Craighead county and a State Banger were instructed by someone, to contact Keasler and recover possession of the car under the mortgage. Keasler refused to surrender possession of the car, and nothing further appears in the record about this mortgage, and the jury may have concluded that the alleged mortgage was a part of the plan to recover the car. '
Keasler’s good faith in purchasing the car from Bryson is not questioned. About 3:00 o’clock in the afternoon following the alleged holdup, Bryson proposed to sell the car to Keasler, and they went to the office of a notary public, across the street from the courthouse, where Bryson produced the bill of sale and the registration certificate, and the notary prepared a bill of sale from Bryson to Keasler, reciting a cash consideration of $875 which Keasler paid with a check, and Bryson cashed the check that afternoon at the bank, after banking hours.
The cause was submitted to the jury under the instruction that if the jury found that the bill of sale from Boberts to Bryson, and the delivery of the possession of the car, were obtained through fear and intimidation on the part of Bryson, or others, to find for the plaintiff. This was the issue of fact in the case, and the jury evidently did not believe the testimony of Boberts and ■Collins, and we cannot say that the unanimous verdict of the jury, disregarding this testimony, was arbitrary, and the judgment must, therefore, be affirmed, and it is so ordered. - | [
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Knox, J.
Appellant, a common carrier of freight by motor coach, accepted for shipment to appellee 2,350 pounds of “pressed cloth” to be transported from a point near Houston to Texarkana. Somewhere en route the goods caught fire and were damaged to such an extent that, according to appellee, they were wholly.unfit for use. Unable to adjust their differences, appellee brought this action, alleging that the goods were “wholly lost to” appellee. During the trial appellee, over appellant’s objection, was permitted to amend by alleging that the loss occurred on account of fire. The goods were not totally destroyed. It seems that pressed cloth is manufactured from human hair, and is used in hydraulic presses in extracting, under pressure, oil from cotton seed, and of necessity must be of correct width and length to fit the press. There is a thick woven edge along each side of the cloth. There is no dispute that in order for the cloth to be usable its edges must be intact.
In the instant case the cloth was not completely burned up, but the evidence is that the edges were so badly burned that the cloth was not usable.. Convinced that there was no'substantial evidence to the contrary, the trial court directed a verdict for appellee, and appellant relies mainly upon this action of the trial court to obtain a reversal. Appellant bases his claim of error in the instruction of the verdict upon three grounds, to-wit: He contends (1) that there was substantial conflict in the testimony of the witnesses; (2) that since the trial court permitted the jury to view the damaged cloth it could not thereafter direct a verdict; and (3) the court could not direct a verdict for unliquidated damages.
Three witnesses, with many years of experience in the operation of cotton oil mills, testified for appellee that the cloth after injury by the fire was utterly useless, ' and had no value except for junk. Appellant’s agent, one C. L. Clark, testified that he had measured the cloth and that it was still 12y2 inches wide. Certain questions propounded to, and answers given by him, are quoted as follows : “Q. On this roll of press cloth (indicating) are all of the edges charred or seared so as to render it unserviceable? A. No, sir. On cross-examination: Q. You don’t know whether this cloth can be used for the purpose for which it was purchased or not, do you? A. Not being a cotton oil mill man, I wouldn’t say. ’ ’ Later Mr. Clark was recalled and testified that this was the first burned pressed cloth he had ever seen, and that he was not undertaking to téstify that the edges of the cloth were not affected.
As we view it, Mr. Clark does not testify to the existence of any fact whatever. His testimony is so negative in character as to have no probative value whatever. The record here presented, therefore, is as if three witnesses had testified for appellee that the cloth was wholly destroyed, and that Mr. Clark, or no other witness, had testified otherwise.
Little need be said as to the verdict being for unliquidated damages. The evidence is undisputed that the value of 2,350 pounds of press cloth in an undamaged condition in Texarkana was $1,762.50, plus freight. It is true that after the fire it had a small junk value, but appellant at all times has had possession of the goods, so appellee is under no obligation to account'to appellant for this junk value, since, having possession of the damaged goods, appellant is in a better position to obtain this junk value than appellee. The amount of damage was fixed and certain and the court properly directed a verdict for this undisputed value. In support of his argument on this point appellant relies, almost exclusively, upon the case of Naperskie v. Trevillion, 202 Ark. 638, 151 S. W. 2d 992. That case was one sounding in tort,- while here the action is based upon an alleged breach of contract of carriage of goods — the bill of lading was introduced in evidence.
Tlie main argument advanced by appellant for reversal is that, since tbe jury were permitted to view the damaged goods,-tbe court could not thereafter direct a verdict. Appellant cites no authority in support of his argument. While there is conflict between the decisions of other jurisdictions, the weight of authority appears to be that the trial court may direct a verdict after inspection by the jury. Kurrle v. City of Baltimore, 77 Atl. 373, 133 Md. 63; Tully v. Fitchburg R. Co., 134 Mass. 499; Albright v. Sherer, et al., 223 Mass. 39, 11 N. E. 711.
The argument that the court should not direct a verdict after permitting a view by the jury is based upon the theory that all or some members of the jury might observe some fact or circumstance not proven by the testimony of other witnesses, which is in conflict with other evidence, and creates a disputed issue for the jury’s determination. Nothing in the record here indicates that through this cursory examination any juror observed any fact or circumstance not discovered by those who had made a careful examination in order to properly qualify themselves to testify. If, as might be expected, such fact had come to the attention of those who were called as witnesses, it would have been preserved in their testimony, and if substantial, then the issue would have been for the jury’s determination. Highly persuasive, if not controlling, in the determination of the question is the language of Mr. Justice Riddiok in the case of Fitzgerald v. La Porte, 67 Ark. 263, 54 S. W. 342, where referring to a view by the jury he says: “The verdict must be supported by other evidence than a view, and a verdict depending upon a view alone could not be upheld.” The. oral evidence presented by the record here standing alone would require a directed verdict for appellee. Appellant contends, however, that the view by the jury changes the situation. If so, would we not have a “verdict upon a view alone?” We are of the opinion that the view by the jury did not deprive the trial court of the right to direct a verdict.
Appellant contended in the court below that human hair could not. be the subject of commerce, and that ap pellee, therefore, could not recover for loss thereof/ He also contended that the court erred in permitting appellee to'amend to show that the alleged loss was “by fire.” Counsel says because he was being inducted into the army he did not have time to brief these assignments of error, but states that he does not abandon them. Our own examination of the authorities has failed to disclose error with respect to the trial court’s ruling on either question.
Finding no error, the judgment is affirmed. | [
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Knox, J.
This is an action in replevin for the recovery of certain machinery and equipment designed for use in the manufacture of ice cream, and which was delivered to appellant by appellee in accordance with the provisions of a certain conditional sales contract executed by and between them on May 22, 1941. The description of the property is set out in the complaint as follows: “One TTP two-temperature cabinet, one 40 DHP hardening-cabinet, and one Kegty 1 H. P. condensing unit.” The last item, or else its chief component part, is an electric motor, .and in the record it is sometimes referred to as a “Kegty 1 H. P. condensing unit,” sometimes as a “1 11. P. air cooled'"compressor,” and sometimes as a-“l H. P. electric motor.” Appellant testified that because the electric current supplied at Pocahontas," the place where this machinery would be used, was such as required a single phase motor, that, notwithstanding the fact no such provision appears in the contract, it was in fact agreed between him and the salesman representing appellee that such type motor would be furnished. One of appellant’s defenses to the action, as well as the cause of action, alleged b}r him in his cross-complaint, is founded upon an allegation that appellee agreed to deliver a single phase electric motor, but shipped instead a 3-phase motor, which could not, and which appellee well knew, could not be used in connection with the type of electric current available in the locality. The conditional sales contract, among other things, provided that (1) the equipment is sold P. O. B. factory without service wiring or plumbing; (2) that title shall remain in appellee until purchase price is paid, and that all notes, checks or other negotiable paper received by appellee are accepted subject to final payment in cash; (3) that appellee does not undertake to furnish or perform any electrical or plumbing work or materials in the installation of such equipment, and (4) that such contract alone expresses the final agreement of the parties and supersedes all prior representations, negotiations, warranties or agreements.
Reference is made in the contract to appellee’s so-called “Plan One,” and the instrument provides that if such plan “is selected the purchaser will upon completion of the installation, execute seller’s refinance contract . . . which shall thereupon supersede this contract.”
On June 25, 3941, appellant executed and delivered to appellee an instrument which bore the caption “Chattel Mortgage, ’ ’ and to which there was attached a promissory note in the principal sum of $876.96, payable in 24 monthly installments of $36.54 each to the order of appellee. The chattel mortgage was not acknowledged, and in fact no form for the certificate of acknowledgment appeared thereon. Whether the note and mortgage were executed in conformity with “plan one,” referred to in the conditional sales contract, is not clear. The amounts set out in the note and mortgage do not agree with those applicable to “plan one” as described in the conditional sales contract. The note and mortgage were transferred by appellee to Minneapolis Securities Oorp. on August 1, 1941, but later, after default by appellant, the same were repurchased by appellee.
Appellant admits that by means of a memorandum mailed to him by appellee on June 30, 1941, and also through an invoice mailed to him on August 26, 1941, he became fully aware of the fact that appellee was shipping a 3-phase motor. After this motor arrived, and before appellant accepted delivery thereof, appellant wrote appellee a letter, dated September 4, 1941, complaining of the delay in shipping, and advising that he would expect compensation for damages caused to him “by reason of . . . failure ... to deliver ... in reasonable time after the order was made.” He made no complaint that the wrong type of motor had been sent. Appellee replied in due course, stating that the delay resulted from governmental regulations establishing priorities for delivery of motors. Thereafter, on or shortly before, September 11th, appellant accepted delivery of the motor, and employed Thad Barnes, 'an electrician, to install tlie equipment. Barnes testified that he installed all of the equipment except the motor, but that it would not work when connected to the available supply of current, because it was a 3-phase and not h single phase type. At appellant’s'direction Barnes sent appellee a bill for his services, in which the following statement appears: “Exchanging motors. You sent three-phase motor when city current is single phase. It also had to be changed with rental motor. Wiring three pieces of equipment. ’ ’
At no time prior to the filing of the answer in this action did appellant notify appellee that the motor shipped was not of the type agreed on, or make any demand for exchange thereof. The only complaint registered by him was on account of damage caused by delaj^ in delivery, for which he stated he expected compensation.
On May 2, 1942, appellee instituted this action in replevin, based upon the conditional sales contract, the noté and the chattel mortgage, all of which were referred to in the complaint, as exhibits thereto. Appellant filed an answer consisting of a general denial. He also filed a separate instrument styled “Cross Complaint,” by which he sought damages in the sum of $1,000. An amendment to the cross-complaint was later filed, alleging damage in the sum of $3,000 instead of $1,000.- The entire claim is * based upon the allegation that appellee had shipped a 3-phase instead of a 1-phase motor. Delay in shipment is not pleaded as an element of damage.
On July 19, 1943, the court sustained a motion by appellant to require appellee, to elect whether it claimed possession under the conditional sales contract or under the mortgage, and appellee, thereupon, elected to proceed under the mortgage. Appellant on July 18th had filed an amendment to his answer and cross-complaint, alleging that the note sued on was'executed for the purchase price of a patented machine, and not having been executed on a printed form showing such fact the same -was void under the provisions of § 10348 of Pope’s Digest. An oral demurrer to this amendment was offered by appellee, and was’sustained by the court on July 19th, following appellee’s election to proceed under the mortgage.
The case was called for trial on July 21st and, after a jury was empaneled, appellant asked leave to amend his cross-complaint so as.to seek damage on account of the delay in the delivery of the equipment. This motion was by the court denied..
From a judgment based upon a directed verdict in favor of appellee, appellant prosecutes this appeal.
Appellant, by an amendment to his answer and cross-complaint pleaded that the note and mortgage were void under § 10348 of Pope’s Digest, because they Represented part of the purchase price of a patented machine, which fact was not disclosed on the face of such instrument. Appellant urges as a ground for reversal that the court erred in sustaining appellee’s demurrer to this amendment.
Because the statute is both penal and criminal it must be strictly construed. Broadway Bank of Kansas City v. Mason, 176 Ark. 812, 4 S. W. 2d 5; Green v. Jones, 168 Ark. 423, 270 S. W. 515.
In the case of J. B. Colt Co. v. Mitcham, 172 Ark. 55, 287 S. W. 1008, Mr. Justice Hart said: “This court is committed to the doctrine that the main purpose of the act was to enable the maker of a negotiable instrument, given for patent rights or patented articles, to make the same defense thereto against any holder thereof that could be made against the original holder or party to whom it was given. Roth v. Merchants’ & Planters’ Bank, 70 Ark. 200, 66 S. W. 918, 91 Am. St. Rep. 80; Warmack v. Askew, 97 Ark. 19, 132 S. W. 1013; and Brenard Mfg. Co. v. McRee’s Model Pharmacy, 171 Ark. 978, 287 S. W. 187. Hence it is held in these cases that the failure to .comply -with the statute does not affect the validity of the sale, but renders onty the note absolutely void.
“It has been held further, that, though the note may be void, the vendor may recover whatever may be due him on the contract of sale from the vendee. In the case of Roth v. Merchants’ & Planters’ Bank, 70 Ark. 200, 66 S. W. 918, 93 Am. St. Rep. 80, to support the principle of law controlling the decision, the case of Iron Mountain & Helena Railroad v. Stansell, 43 Ark. 275, and other cases of like character, are cited. In'the Stansell case it was held that, in an action for money due on a contract, change tickets issued by the defendant in violation of the statute and delivered in payment of the debt, though illegal, may be used as evidence of the amount due on the contract. The court said that they were a written confession that the maker had received the value expressed in them. ’ ’
Again in the case of Brenard Mfg. Co. v. McRee’s Model Pharmacy, Inc., 171 Ark. 978, 287 S. W. 187, Mr. Justice ITart said: “It is true that the suit was originally brought on the note, but subsequently the plaintiff filed an amended complaint, in which a recovery was sought alone upon the contract.
“This court has said that the object of the statute in question was to save a vendee of any patented article all the defenses that he might have to an action on liis note for the purchase money,' and to prevent the loss thereby by transfer of the note to an innocent holder before maturity. Hence it was held that the failure to comply with the statute does not affect the validity of the sale, and that, though the note may be void, the seller may recover whatever may be due him on the contract of sale from the purchaser. Roth v. Merchants’ & Planters’ Bank, 70 Ark. 200, 66 S. W. 918, 91 Am. St. Rep. 80, and Warmack v. Askew, 97 Ark. 19, 132 S. W. 1013. While a suit upon the note and upon the contract of sale are entirely separate and distinct causes of action, the effect of the defendant’s answering the complaint and defending the action entered its appearance.”
We have reached the conclusion that the allegations of the amendment were sufficient, if established, to render the note void under the statute. But it does not follow that because the note was void the court committed reversible error in sustaining the demurrer. This was not and never had been an action on the note to recover judgment for the balance thereon. It was, and at all times had been, an action in replevin, to recover certain machinery and equipment, which appellee alleged belonged to it. By way of explanation as to how such property had come into the possession of appellant, the appellee in its complaint had alleged facts relating to transactions between it and appellant, and the execution of the conditional sales contract, the note and the mortgage. The fact that the note itself might have been void did not necessarily deprive appellee of the right to recover its own property. Defects in the form of the note could not divest appellee of its title nor vest such title in appellant.
It is true that the court on motion of appellant required appellee to elect whether it would stand upon the conditional sales contract, which contained recitals retaining title, or upon the note and mortgage, and appellee elected to stand on the latter. At the trial appellee was permitted, without objection, to introduce as evidence the conditional sales contract, the note and the mortgage. Later appellant moved to exclude the conditional sales contract, but his motion was denied. The note, even though void under the statute, was competent as evidence to establish its recitals. J. B. Colt Co. v. Mitcham, supra. The conditional sales contract and the mortgage were competent evidence of appellee’s title and right of possession.
In Brenard Mfg. Co. v. McRee’s, etc., supra, the action originally commenced on the note was changed by amendment to an action on the contract. First pointing out that these were two separate and distinct causes of action, the court nevertheless held that siq.ce, after such amendment, the purchaser answered and made defense to the action based upon the contract, he had thereby entered his appearance in such second action. For the reason above stated, we are of the opinion that appellee by electing to stand on the note and mortgage did not change the nature of its cause of action. At no time prior or subsequent to such election did appellee seek a money judgment on the note. After the election the action continued, as it had been begun, one in replevin, to recover certain personal property. Even if the so-called election liad in. effect changed the nature of the action, still, under the authority of Brenard v. McRee’s, appellant, having defended against the second action, is bound by the result thereof.
•. Since the invalidity of the note was not a defense to the action in replevin to recover the property, appellant’s amendment pleading the invalidity thereof because of the failure to comply with the provisions of § 10348 of Pope’s Digest did not set forth facts sufficient to constitute a defense, and the demurrer thereto was, therefore, property sustained.
Appellant says that he “should have been permitted to introduce parol testimony to show the understandings and conditions that were a part of the transaction. ’ ’ He does not specifically' point out the evidence which was excluded. The motion for new trial contains three, and only three, assignments of error, which are based upon the action of the court in refusing to permit the introduction of testimony which might be said to relate to transactions. surrounding the making of the contract. These are — (a) assignment 4 — to the effect that the court erred in refusing to allow appellant to testify that appellee had agreed to install the equipment, (b) assignment 6 to the effect that the court erred in refusing to permit appellant to testify that at the time he signed the mortgage the machinery was not described therein, and (c) assignment 9 to the effect that the court erred in refusing to permit appellant to introduce a carbon copy of the mortgage.
The written contract expressly provided that the “equipment was sold f. o. b. factory, without service' wiring or plumbing.” Evidence of a parol agreement that appellee was to install the equipment would be in direct variance with this written stipulation, and, therefore, incompetent. For that reason, and also because no such parol agreement had been pleaded, the trial court refused to permit the introduction of such testimony.
Counsel for appellant stated at the time that the purpose for offering testimony showing that the property was not described in the carbon copy of the mortgage was to establish fraud practiced on appellant by appellee. Tlie court properly excluded tliis testimony, because fraud had not been pleaded. Fraud, when relied on, must be distinctly pleaded. Jackson v. Reeve, 44 Ark. 496; Paragould Trust Co. v. Willcockson, 121 Ark. 261, 180 S. W. 986.
Although, prior to the filing of the suit appellant had advised appellee that he had been damaged on account of delay in deliveiy of the equipment, and had stated he would expect compensation therefor, he failed to allege this as an element of damage in his cross-complaint. During the trial he sought leave to amend his pleadings in this regard and also to allege (a) an agreement that appellee would install the equipment, and (b). fraud practiced by appellee in the transaction. The. trial court in each ease refused to permit the amendment. Appellant assigns the action of the court as error, but concedes that granting or denying leave to amend pleadings after trial is begun are matters largely in discretion of the trial court. We are of the opinion that the actions of the trial court did not constitute an abuse of discretion.
Appellant, while on the witness stand, was asked by his counsel if he had incurred ‘ ‘ any expense in preparing for the installation of this machinery at the request of the plaintiff.” The court sustained appellee’s objection, and such ruling is assigned as error. Such expenditures, if made, doubtless would not constitute proper items of damage, but even if the contrary be conceded the action of the court in excluding such evidence cannot be considered, because the record fails to disclose the answer which it was expected the witness would give in response to such question. St. L.-S. W. Ry. Co. v. Myzell, 87 Ark. 123, 112 S. W. 203; Boland v. Stanley, 88 Ark. 562, 115 S. W. 163, 129 Am. St. Rep: 114; Lincoln Reserve Life Ins. Co. v. Smith, 134 Ark. 245, 203 S. W. 698; Woodman of Union v. Anderson, 186 Ark. 1198, 54 S. W. 2d 406; Gray v. Gray, 199 Ark. 152, 133 S. W. 2d 874.
The trial court, after reviewing the facts and declaring the law which he regarded as applicable in this case, directed the jury to return a verdict in favor of appellee. To set out such charge in full would unduly extend this opinion. The gist thereof is contained in the following quotations taken therefrom, and set forth in chronological order in which given, to-wit: “. . . According to the testimony of the defendant he received a motor that coincided with the description contained in the conditional sales contract, it being a one-liorsepower motor. He says, however, that he was to have a single-phase motor and that the motor sent him is a three-phase motor. The contract does not say what phase the motor shall be; but he says that the agent of the company, the salesman, told him that it would be a one-phase motor — single-phase motor. . . . He retained the motor that was sent him, and did not complain to the seller about it; and he claims now, by way of cross-complaint, damage. It is the duty of one who makes purchase of equipment, such as this, to do one of two things: either rescind the contract, if it is not lived up to, or retain the property and sue for his damage. . . . His measure of damage in this case would be the cost of putting the equipment in the . . . condition ... it was contracted to be in. There is nothing to show but what there could have been an exchange of motors. The defendant has proved no legal damage, and a verdict will be instructed for the plaintiff. . . . ”
The statement of facts set forth by the trial court above is supported by the record, and we conclude that the. court correctly declared the law applicable thereto. Appellant’s contention that the court erred in directing the verdict in favor of appellee is therefore without merit.
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Griffin Smith, Chief Justice.
Walker Hudson, Negro, lias appealed from a judgment that he he electrocuted for the murder of his wife, Junie.
In September, 1942, Junie separated from Walker and went to the home of her father, Mark Pheiffer. Two weeks later she was followed by her husband who stayed with her several days. Walker says that during this time he unsuccessfully attempted to reconcile differences. On Monday he left his father-in-law’s house, but returned Wednesday. The following morning he asked his wife to sign a waiver of summons in connection with a divorce suit he proposed to file, or had filed. This she refused to do, but indicated she might comply later. Following the conversations relating to the waiver,’ Junie went half a mile to a store (owned by C. C. Cox) where small purchases were made. She was brought back to her father’s house by Cox, who used his truck.
Junie prepared dinner; also a lunch she intended to take to a son who worked at a nearby sorghum mill. Meanwhile appellant left the Pheiffer home and went to the Cox store, where he purchased some potted meat and other foods. Junie took the prepared lunch and a baby in arms; and, accompanied by a young daughter, Pauline Pheiffer, started to the mill where her son was working, following a path crossed by a fence. When she reached the fence she was encountered by appellant who was apparently waiting for her. ' Other than appellant, Pauline was the only eye witness to what followed.
Appellant testified that he again asked his wife to sign the waiver. She replied that she could not, the inference being that inability was due to the fact that she was carrying the child. Appellant says that while Junie was standing near the fence she put the lunch “on the other side.” Paulihe crossed under the wire, and Junie “set the baby down on the inside.” Appellant says he stood and talked with Junie, and “handed her that divorce.” While she was apparently in the act of signing the waiver, he told her something about “T. Hays,” (who is also referred to as T. Young). Junie quit writing, looked at appellant, applied a vile epithet and struck him. Appellant says he threw his hand up and at the same time Junie “hit (indicating) [at my ribs on the left side] and I got my gun and commenced shooting and backed on back like this.” Appellant testified Junie cut his clothing and later “had him at the throat.” He also testified that while shooting he was continuously backing away. One shot took effect in the upper part of Junie’s left arm, another went through her heart, and three entered her head — one through the mouth, one through the nose, and the other through a cheek.
Pauline testified that her mother did not attack appellant or make any demonstration. According to this witness, when “Hays” or “Young” was being discussed appellant told Junie that if he could not get her out of tlie way lie would kill her. Following this declaration he began firing.
Appellant immediately went to East St. Louis, where he was apprehended a year later. A statement appellant subscribed soon after being arrested was made a part of the testimony of Sheriff Wells of Clark County. In it the shooting and preliminary activities were described, as shown in the footnote.
Errors argued in appellant’s brief 'are (1) that Pauline, on account of immature age, was incompetent to testify; (2) instructions Nos. 15 and 8 were erroneous; (3) evidence was insufficient.
First — Competéncy of Child’s Testimony. — There is substantial evidence that Pauline was more than seven years of age, although this is denied. The common law affecting competency of a witness was not changed by the Civil Code, which provides that “infants under the age of ten years, and over that age if incapable of understanding the obligation of an oath, shall be incompetent to testify in civil cases.”
Effect of decisions is that if the child-witness, when offered, has capacity to understand the solemnity of an oath and to comprehend the obligation it imposes, and if in the exercise of a sound discretion the trial court determines that at the time the transaction under investigation occurred the proposed witness was able to receive accurate impressions and to retain them to such an extent that when testifying the capacity existed to transmit to fact-finders a reasonable statement of what was seen, felt, or heard, — then, on appeal, the ’Court’s action in holding the witness to be qualified will not be reversed.
An excellent discussion of competency, in circumstances such as we are dealing with, may be found in the opinion of Mr. Justice Brewer, where it is said that the decision of a trial judge in admitting or rejecting testimony of an infant will not be disturbed "unless . . . it is clear that [the ruling] was erroneous.” Wheeler v. United States, 159 U. S. 523, 16 S. Ct. 93, 40 L. Ed. 244.
In Alford v. State, 182 Ark. 1184, 34 S. W. 2d 224, a ten-year-old girl was permitted to testify, over objections of appellant that she did not understand the nature of an oath. She answered "No” when asked, "Do you-know what would become of you if }rou were to swear a lie!” But to the question, "Do you know what would happen to you if you were to tell a lie!” she said, "Yes, sir.” Mr. Justice Butler said in the opinion that it was apparent the witness knew the difference between truth and falsehood, and understood it was her duty to tell the truth. *
Mr. Justice Hart, speaking for the Court in Crosby v. State, 93 Ark. 156, 124 S. W. 781, 137 Am. St. Rep. 80, held that examination of the witness was not sufficiently comprehensive. "The child,” he said, "must not only have intelligence enough to understand what he is called upon to testify about and the capacity to tell what he knows, but he must also have a due sense of the obligation of an oath. ’ ’
In the Crosby case a ten-year-old witness said he did not know what it meant to be sworn, but did know he was expected to tell the truth when he held up his hand and took the oath. He didn’t know what would be done to him if he did not tell the truth, but knew it would be wrong.
Chief Justice McCulloch, in Penny v. State, 109 Ark. 343, 159 S. W. 1127, held that the rule laid down in the Crosby case did not apply. Examination of the child (Leslie Penny, 9) is not set out in the opinion. The transcript reveals that Leslie said he attended public school and went to Sunday School. The Bible taught him that those who are not good will be punished. At home and in Sunday School he had learned that one who does not tell the truth will be punished.- Question: “When you were sworn this morning what did the Clerk say to you when you held up your hand?” The answer was: “I have forgotten now.” Q. “But did you understand by that that you were to tell the truth about what you told?” A. “Yes, sir.” Q. “Now, if you don’t do that, what would happen to you?” A. “I don’t know.” Q. “Do you know that you would be punished if you didn’t tell the truth?” A. “Yes, sir.”
Á fifteen-year-old Negro (Guthrie v. State, 188 Ark. 1081, 70 S. W. 2d 39) was permitted to testify. On cross-examination touching qualifications, he replied that he did not know what it was to tell the truth, didn’t know what an oath was, nor what-would happen to him if he testified falsely. On re-examination he said he did understand the nature of an oath.
It is insisted that Pauline was not sworn, or, if the oath were administered, she was not cognizant of it and did not appreciate the obligation imposed.
The bill of exceptions shows affirmatively that Pauline was sworn. It must be conceded that court re porters follow.- a -prescribed form, and it is conceivable that the expressions, . . after being duly sworn, testified as follows, ’ ’ were written in pursuance of babit, and were not observed by the Judge when he authenticated.
Counsel for appellant cross-examined Pauline in respect of qualification and asked: “Did you hold up your hand today when they called the names of all those folks back in the courtroom?” (2) “Do you know what an oath is?” (3) “When [the Circuit Clerk] asked you if you agreed to tell the truth, the whole truth, and nothing but the truth, did you know what he was asking?” To each question a negative answer was given. The little girl asserted that she knew the difference between right and wrong, but did not know what happened to one who did wrong; but she knew about God, and if she did wrong she knew He would do something about it. She later said: “He will kill you!” She knew what the truth was, but when asked to define it replied, “I don’t know.” There was this question: “If you were asked to tell the truth about something, would you know what they wanted you to tell?” Answer: “Tell the truth.”
Following this cross examination the Court asked certain questions [shown below], and announced that Pauline was competent. There was no objection to this ruling at the time it was made. Appellant’s attorneys were permitted to present vital statistics and similar evidence in an endeavor to show that the proposed witness was only five years of age, and was under five when the shooting occurred. The Court then said, “This girl can testify. ’ ’
If it can be said that the general objection then made related back to the specific contention urged prior to the Court’s interrogation of Pauline, and not to the question of age alone, it would be sufficient to present for review the particular issue — that is, that the Court (in the light of answers to its own questions) was not 'justified in permitting the'witness to testify. We prefer to place our decisions on grounds other than failure to make specific objection, although a strict construction would have that result. Hence, effect is given the general purpose relating to the entire investigation as to qualification.
Was Pauline sworn? In oral argument before, this Court counsel for appellant conceded there was no express objection to the alleged oversight to which attention is now called. In fact, when Pauline was being questioned to determine her competency the proceeding was as though she, with other witnesses, had been sworn. But, it is argued, her own admissions disclose (a) that she did not hold up her hand, -(b) that she did not understand what was being done, or (c) if she did take the oath, the act wTas perfunctory and without conscious obligation.
Wharton (Criminal Evidence, v. 3, p. 2122, § 1259, 11th ed.) says the right to have an adverse witness sworn may be waived. Prof. Wharton cites the Keeney case (Okla.) which, in turn, is supported by the authorities to which attention is called. Cases from other jurisdictions are to the same effect.
We do not decide whether the oath was, or was not, waived in the instant case. Our decision rests upon the principle that no prescribed form is essential if the witness, either expressly or impliedly, having had her attention called to a Supreme Being who rewards or punishes in a manner she thinks she understands, assents to the proposition that the testimony given will not be false. Are we to resort to literal construction and say that because an eight-year-old girl who in other respects gave evidence reflecting average intelligence shall not be allowed to tell what she heard and describe what she saw when appellant remonstrated with her mother and made deadly use of a pistol — shall this inhibition be applied because the witness did not know what man-made law, as distinguished from the higher law, would do to her if she testified falsely!
The distinction is one of definition, rather than understanding. It is the exceptional person who, when called to testify, knows what punishment will result from perjury; nor is Pauline to be held incompetent because she did not know what the Circuit Clerk meant when he asked her if, she agreed “to tell the truth, the whole truth, and nothing but the truth.” That she did not hold up a hand when “they called the names of all those folks back in the courtroom” is not of controlling importance. She ivas interrogated by the Judge, who impressed upon her full solemnity of the situation in so far as her degree of maturity permitted.
In the light of the Court’s correct conception of what was necessary as a condition to-qualification, Pauline, (but not without hesitation, retractions, and corrections in consequence of permissive guidance) in effect, said to the Court that God would punish her if she told an untruth, that it would be wrong to lie, and asserted that she would not do so. This was as effectual an oath as though the stereotyped incantation'so familiar to court attendants had been pointedly directed to her at a time when she stood with uplifted hand.
An oath has been defined as a call upon God to witness that what is said by the person sworn is true, “and invoking the divine vengeance upon his head if what he says is false. ’ ’ In Brock v. Milligan, 10 Ohio 121, where comment upon the quoted definition was made, it is said that “if the witness states he considers the oath binding on his conscience, it is - perfectly unnecessary and irrelevant to ask any further questions.” But, it may be argued, the point in the present controversy is that Pauline testified she had not been sworn; hence, no definition dealing with the obligation of an oath can apply. That is true if it be held that particular words must be employed, and that language fairly susceptible of being construed as an acceptation of the Court’s authority, coupled with an understanding of the moral aspect, be treated as of less dignity than the familiar intonation of an administering officer whose principal purpose is to see that a record is “regular.”
Second — Instructions.—Insistence is that Instruction No. 15 is erroneous (a) because not applicable to facts; (b) it makes the opinion of the jury the test whether shots other than the first were necessary to the defendant’s defense, “rather than the defendant’s honest belief as to this necessity”; and (c) it required a verdict of first degree murder, “even though the defendant’s actions in firing the subsequent shots were done under the stress of fear.”
Instruction No. 15 is copied in the footnote. We think it is justified by the facts. Appellant’s plea was self-defense. He contended that his wife “got a death hold” and while he backed away in an effort to disengage himself, Juriie cut at him, and would not release her grip. Effect of the instruction is that if the defendant, without fault or carelessness, believed that in the circumstances he was in danger of bodily injury, he had a right to .fire the first shot, hut was not privileged to keep on shooting if the first shot removed the danger. Whether that danger continued was a matter for the defendant himself tp determine, “acting as a reasonable man, without fault or carelessness.” The instruction is not to he construed as appellant contends.
Instruction No. 8 is copied below. Worded somewhat differently, it was offered by the defendant. Modification in three respects is complained of. In the original, following the statement that “Walker Hudson has admitted killing Junie Pheiffer,” there was the sentence: “This, however, is not sufficient to justify you in convicting him of any crime.” Counsel for appellant urge that he was entitled to have the jury told- that the mere act of killing, when admitted, is not punishable. What the instruction told the jury was that if Hudson honestly believed, without carelessness or fault on his part, that he was in danger of being cut or seriously injured, and believed it was necessary for him to shoot in order to prevent the injury, “then he is not guilty of any crime, and you should acquit him.” The matter eliminated was submitted in substantially the same form. There was no prejudice.
The instruction, as offered, contained the language: “If Hudson shot the deceased [because] of a feeling of malice or ill will which he had against her at the time of the shooting, but the shooting was done without deliberation or without the specific intent to kill her, then he is guilty of murder in the second degree.” The words, “without the specific intent to kill her,” were eliminated. Intent may be implied from the act and circumstances surrounding a homicide. The instruction, as given, told the jury that if the defendant, with premeditation and deliberation, shot with the intent to kill, he would be guilty of murder in the first degree, “but if he acted without deliberation or premeditation, then he is not guilty of murder in the first degree.” “Intent” appears in the affirmative part of the charge, but is merely implied from the negative language. No prejudice resulted from the modification.
A request was that the jury be told that “If the shooting was done without malice or ill feeling, but in a sudden irresistible heat of passion, due either to surprise, fear, terror, or anger (and not in self-defense), then the defendant is guilty of manslaughter.” As given, the instruction read: “If the shooting was done without malice, but in a sudden irresistible heat of passion, caused by a provocation apparently sufficient to make the passion irresistible, then the defendant is guilty of manslaughter.”
“Apparently” was not explained. Since the passion, if irresistible, was not a matter the defendant could measure, purpose of the instruction must have been to inform the jury that it should determine whether defendant’s passion affected him to such an extent that he was helpless to control himself. We do not think the criticism is well taken. Only general objections were interposed.
Third — Sufficiency of the Evidence. — Mrs. C. C. Cox testified that when appellant came to her husband’s store the day of the killing he had a pistol. Oox testified that he saw appellant standing in the woods near the store. Although appellant claims Junie was trying to cut him, there was no substantiation of this contention. It was not showii that she had a weapon of any kind. According to Mrs. Cox, when Junie came to the store the day of her death, she was visibly frightened. Either of four of the shots was thought to' have been fatal— virtually instantaneously so. Pauline testified that there was no demonstration by her mother, no attack. Other circumstances pointed to a planned assault.
Considering the testimony as a whole, it was sufficient to support the jury’s verdict of murder in the first degree, upon which the judgment of electrocution was based.
Affirmed.
The Walker Hudson family consisted of one child, born as a result of his marriage to Junie, and six children Junie had at the time of their marriage. It is conceded that these children were not Walker’s. [“Pauline” is referred to as “Revelena” in a statement signed by appellant.]
“Then came tlie day when we had the trouble that caused her death. That morning she left the house and-went to Cox’s store to get something for the house. She came back riding in Mr. Cox’s truck, brings the groceries in the house. I get up and walked down to Cox’s store and bought me something- to eat — cheese and crackers, and a can of tobacco. I -started back eating, and she had in the meantime cooked dinner for the boys at the sorghum mill. I met her taking the dinner down to the mill. Before I got to her I saw some man run away from her and I never did know who he was. I walked on and met her. She was carrying the dinner and the baby and Revelena was walking along with her. I talked to her about signing the waiver. She finally agreed to sign it and I gave her a pencil. She put her foot on the fence to sign it and about that time I said something to her about the man she had been with, and when I said that she flew all to pieces and refused to finish signing it. She called me a goddam liar. She had already put the baby down. She grabbed at me and caught me by the shirt collar with her left hand and slashed me with the other. I couldn’t tell what it was she cut at me with. She cut my clothes in front but did not get to my skin because I had on a vest and three shirts and a sweat jacket. I kept her off of me with my hands but she Would not turn me loose, and had a death hold on me and she was still cutting at me. I kept trying to pull loose but couldn’t and I got my hand on my gun and pulled it out and kept backing up and shooting and shot her several times. When-she fell I left.”
Pope’s Digest, § 5156 (C. & M. Digest, § 4146); Payne v. State, 177 Ark 413, 6 S. W. 2d 832. [Effect of Act 312, § 6, approved March 26, 1941, is to amend § 5156 of Pope’s Digest, but the amendment does not affect the subject-matter of the instant appeal.]
A quotation from the Wheeler case is copied in Payne v. State, 177 Ark. 413, 6 S. W. 2d 832. See Guthrie v. State, 188 Ark. 1081, 70 S. W. 2d 39; DeVoe v. State, 193 Ark. 3, 97 S. W. 2d 75; Yother v. State, 167 Ark. 492, 268 S. W. 861; Penny v. State, 109 Ark. 343, 159 S. W. 1127; Crosby v. State, 93 Ark. 156, 124 S. W. 781, 137 Am. St. Rep. 80; Warner v. State, 25 Ark. 447; Flanagin v. State, 25 Ark. 92; Alford v. State, 182 Ark. 1184, (not reported) 34 S. W. 2d 224. [These are only a few of the pertinent cases.]
Amplifying this line of examination, the following questions were asked and answers given: “Q. What do you mean by that? A. Tell the truth. Q. Tell the truth? A. Yes, sir. Q. And if you didn’t tell the truth, what would happen to you? If you are not telling me the truth about what I am asking you, what is going to happen to you? A. I don’t know. . . . Q. As far as you know, there wouldn’t anything happen to you if you didn’t tell [those men over there] the truth. Is that right? A. Yes, sir.”
Question: “Pauline, you say you know the difference between right and wrong? A. Yes, sir. Q. You have been taught that at home, and in Sunday.School? A. Yes, sir. Q. Is it right or wrong to tell a story? A. It’s right. Q. It is right? A. It’s wrong. Q. What happens to you if you tell a story? A. The bad man will get you. Q. Where did you learn that? A. Nowhere. Q. Now, do you know what swearing is? A. No, sir. Q. Would you swear something is so that is not so? A. No, sir. Q. If you were to sit here today in that chair and tell these people a story, or something . . . that wasn’t true, what would happen to you? A. The bad man would get me. Q. Would that be right, or wrong, for you to do that? A. It would be wrong.”
Keeney v. State, 53 Okla. Cr. Rep. 1, 6 Pac. 2d 833; Moore v. State, 96 Tenn. 209, 33 S. W. 1046; Rhodes v. State, 122 Ga. 568, 50 S. W. 361; Barnes v. State, 61 Tex. Cr. R. 37, 133 S. W. 887; Smith v. State, 81 Ga. 479, 8 S. E. 187; State v. Hope, 100 Mo. 347, 13 S. W. 490, 8 L. R. A. 608.
“Although you should find that the defendant fired the first shot or shots in his necessary self-defense, still if you should find from the evidence beyond a reasonable doubt that the defendant fired subsequent shots at a time when it was not necessary for the defendant further to defend himself as viewed from the standpoint of the defendant at the time, acting as a reasonable man, without fault or carelessness on his part, then you will find the defendant guilty of murder in the first degree, or murder in the second degree, or manslaughter; provided, you further find from the evidence beyond a reasonable doubt that such .subsequent shots contributed to the death of the deceased.”
“Walker Hudson has admitted killing Junie Pheiffer. In this .case, there are four possibilities: (1) Murder in the first degree, (2) murder in the second degree, (3) voluntary manslaughter, and (4) justifiable homicide, commonly called self-defense. If Hudson, after premeditation and deliberation, maliciously shot Junie Pheiffer, intending thereby to kill her, then he is guilty of murder in the first degree, but if he acted without deliberation or premeditation, then he is not guilty of murder in the first degree. If Hudson maliciously shot the deceased, but the shooting was done without deliberation, then he is guilty of murder in the second degree. But if the shooting was not done with malice, then he 'is not guilty of murder in the second degree. If the shooting was done without malice, but in a sudden irresistible heat of passion, caused by a provocation apparently sufficient to make the passion irresistible, then the defendant is guilty of manslaughter. If, however, Hudson shot the deceased because h.e honestly believed that he was in danger of being cut or seriously injured and believed that it was necessary for him to shoot in order to prevent this injury to himself, and if he reached this conclusion or belief from the facts as they appeared to him to be (without carelessness or fault, on his part), then he is not guilty of any crime, and you should acquit him.” | [
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McFaddin, J.
This appeal involves the foreclosure of a mortgage. In 1933, J. W. A. Norden and J. H. Natho were partners engaged in the mercantile business Under the firm name of Rook & Company in Arkansas county, Arkansas; and C. C. McCallister was sheriff of that county. McCallister and Norden had been friends through the years. At one time McCallister had been hard "pressed by creditors, and Norden had favored him. In 1933, the situation was reversed: a number of executions against the firm of Rook & Company were placed in McCallister’s hands, as sheriff. McCallister agreed with Rook & Company to pay the judgments and executions, if secured by a mortgage on certain real and personal property for the total of the amounts so paid. The parties (Norden and McCallister) calculated such total to be $1,070; and on February 28; 1933, Norden and his wife, and Natho and his wife, executed a note for that amount to McCallister, due November 1, 1933, and bearing interest from date until paid, and secured by a' real estate mortgage and also a chattel mortgage. On the strength of this security McCallister paid to the creditors the amount of the judgments. Payments made on the McCallister note are claimed by appellants to total $460; and they were made with sufficient frequency to keep the note in date between the parties.
Natho died; and on March 3, 1942, McCallister filed suit-against Norden and his wife, and the widow and heirs at law of Natho, seeking judgments against Norden and his wife personally for the balance due on the note and interest, and judgment in rem for foreclosure of the mortgages. During the pendency of the suit, and after his deposition had been taken, C. C. McCallister died testate, and .the suit was revived by his executor and bene ficiaries and widow and heirs. From a decree granting the plaintiffs judgments as prayed, there is this appeal, presenting the issues herein discussed.
I. The Proof of Indebtedness. Appellants claim that the note for $1,070 was for moneys that McCallister might pay on certain judgments, and that the mortgages were security for such payments, and that the note is therefore not an evidence of indebtedness; and appellants, to sustain these contentions, cite language from Turman v. Forrester, 55 Ark. 336, 18 S. W. 167, as follows:
“Until something was advanced, he had no right to a foreclosure; and when anything was advanced, the amount of it determined the amount for which a foreclosure could be had. Turman has shown that the note an evidence of debt was a fiction, and that nothing was due when it was given; and if anything afterward became due which entitled the mortgagee to a foreclosure, the burden is on him to show it. Mr. Jones says: ‘When the object is simply to indemnify the mortgagee for a liability he has incurred or may incur, the amount of the mortgage, or of the mortgage note, serves merely to limit the extent of the security. Upon the foreclosure of such a mortgage, the amount for which the judgment is to be rendered is the amount the mortgagee has been compelled to pay under the liability for which he was secured, with interest from the date of payment. The amount and date of the mortgage note are wholly disregarded in ascertaining this sum.’ I Jones, Mort., § 384; Moses v. Hatfield, 27 S. C. 324, 3 S. E. 538; Vogan v. Caminetti, 75 Cal. 438, 4 Pac. 435.”
There is no necessity for us to explore this legal proposition to see if it is applicable to the facts in this case, because McCallister, at the time his 'deposition was taken, produced checks totalling $1,272.30, which he testified he paid in reliance on the mortgage security; and this evidence amply supports the finding of the chancery court to the effect that McCallister paid more than the $1,070, the face amount of the note. Likewise, on the question of credits on the note, little need be said, because the chancery court allowed the appellants the $460 in credits they claimed.
II. The Question of Novation. Appellants claimed that in 1936 McCallister agreed to waive all interest, and to settle for $1,000; and appellants claimed this as a novation of the indebtedness, and asked that judgment be rendered in the chancery court for only $540, being the $1,000 less the credits of $460. On this issue of novation the burden was, of course, on the appellants. Brewer v. Winston, 46 Ark. 163; Elkins v. Henry Vogt Mach. Co., 125 Ark. 6, 187 S. W. 663; 39 Am. Juris. 272; 46 C. J. 625. See, also, Riddick v. White, 194 Ark. 1010, 110 S. W. 2d 9. The proof was in sharp dispute. Norden testified as to what McCallister said:
. . He said, ‘I am going to make this debt $1,000 and forget about the interest; just make it $1,000.’ ”
McCallister, on the contrary, testified:
“. . . I talked to Mr. Norden. I said,‘If you will get me up $1,000 now, I will clear the record for you.’ He says, ‘I can’t do it.’ And that settled it. That is the way it was. I needed the money then. I did not have time to wait for the timber to be cut. In other words, I had to go somewhere else to get the money. ’ ’
It will thus be seen that McCallister claimed that the offer of $1,000 was for immediate payment, and that no such payment was made. Taking into consideration the sharp dispute in the evidence, and all the other facts and circumstances, we are unable to say that the decree of the chancery court was against the preponderance of the evidence on this issue of novation.
III. Refusal of the Chancery Court to Appoint a Master. In the course of the trial, and after a large part of the evidence had been heard, appellants moved the chancery court to appoint a master to hear the evidence and determine the amounts advanced by McCallister to satisfy the various judgments. Appellants now assign as error the refusal of the chancery court to grant this motion.
We find nothing in the record to indicate any necessity for the appointment of a master. The chancery court is clothed with considerable discretion as regards the appointment of a master. Bryan v. Morgan, 35 Ark. 113. Parker v. Wells, 84 Ark. 172, 105 S. W. 75; 19 Am. Juris. 254; 30 C. J. S. Equity 919. In this case the chancery court determined directly from the testimony the amounts advanced by McCallister. The accounts were not complicated. Eight checks were introduced as evidence of the advances. Certainly there was no abuse of discretion by the chancery court in refusing to appoint a master under the fact in this case.
Finding no error, the decree of the chancery court is in all things affirmed. | [
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Knox, J.
Appellee, a Negro resident and citizen of Saline county, Arkansas, being in Monroe, Louisiana, and desiring to go to Shreveport, purchased a ticket for passage on appellants’ through bus operating between Meridian, Miss., and Shreveport, La., which was due to leave Monroe about 2 o’clock a. m., January 20, 1943. While the driver of the bus was in the station attending to certain duties, appellee boarded the bus and took a seat thereon. The bus driver testified that the bus had been crowded all the way from Meridian and some passengers had been forced to stand, some twenty-five passengers were going on through, most of whom had gotten off the bus at Monroe; that it was the practice of the company to hold for their reoccupancy the seats of through passengers who temporarily left the bus at any station, and to tliis end additional passengers were not taken on the bns until the through passengers had returned thereto, and then the new passengers were permitted to board the bus, first surrendering their tickets to, and taking a receipt from the driver. When the driver of the bus returned and found that appellee had boarded it in his absence he directed that he get off and await his proper turn to reboard.
The testimony as to what took place immediately afterwards is in conflict.
Appellee was the sole witness testifying in his behalf as to circumstances of the rencounter, and his testimony tends to show that he was sober and behaving himself properly at the time; that he got up in obedience to the driver’s order and started off the bus; that the driver stepped off in front of him and as he stepped off the bus the driver hit him over the head with a crank without any provocation or warning whatever, knocked him to the pavement and drove off and left him lying there.
Six witnesses, the bus driver and five passengers, testified on behalf of appellants and their testimony tends to show that appellee was drunk at the' time, and cursed the driver when he was ordered off the bus; that he got off the bus and hit the driver with his fist, and that the driver in self-defense struck at him with the crank, which appellee knocked out of his hand; that while they were fighting, an.army sergeant standing nearby picked up the crank and struck appellee over the head with it 'several times' and ended the fight.
In this action, the jury awarded appellee $500 as compensatory damages and also $500 as punitive damages. While several assignments of error are set out in the motion for new trial, only two points are- argued,* to-wit: (1) error in admission of evidence on cross-examination, and (2) improper argument on the part of counsel which was not corrected by. proper and suitable action on the part of the trial court. These matters are set out in full in assignments 8, 30 and 11 of the motion for new trial as follows :
“8. Because the court erred in admitting, over the objections and exceptions of the defendants, the following testimony of the witness, Charles Musick, on cross-examination: ‘Mr. Coffelt: You fellows in Louisiana knock them (Negroes) in the head when you want to, don’t you? Mr. Gregory: We object to that. Mr. Coffelt : That is what you do — knock them in the head when you want to and get by with it? A. No. Q. Have you heard of it being done? The Court: Go on. Mr. Gregory: Save ortr exceptions. Mr. Coffelt: Isn’t that the practice in that country when'you deal with Negroes— when they get out of line you knock hell out of them? A. Yes, when they get out of line. Q. And that is what you did in this case — took the law in your own hands? A. I did not. ’ ’ ’
“10. Because the court erred in failing to admonish counsel for plaintiff against making improper and prejudicial statements, after being requested to do so by counsel for defendants, such request resulting from the following statement made by plaintiff’s counsel during the opening argument to the jury, all of which was over the objections and exceptions of the defendants: ‘Mr. Coffelt: Now about these depositions that were framed. Mr. Gregory: I object to that line of argument, and ask the court to tell the jury not to consider what Mr. Coffelt has said and also to admonish him not to make such improper statements. The Court: The jury should only consider the evidence before you.’ ”
“11. Because the court erred in permitting and allowing plaintiff’s counsel to state, in his closing argument to the jury, the following, which the court refused to withdraw from the jury-’s'consideration at the request of the defendants, all of which was over the objections and exceptions of the defendants: ‘Mr. Coffelt: I don’t know whether the jury knows much about court procedure or not. They accuse this Negro of perjury. I want to tell you that they have a right to investigate this Negro after this trial the same as before and to check upon every word of his testimony, and in the event you .should find for him in this case, and it is later found that he has perjured himself in any instance, the defendant in this case has fifteen days to file a motion for a new trial and they can set up any perjured testimony in that motion they want to. Mr. Gregory: I object to that, your honor, because that kind of argument is improper and highly prejudicial and it hasn’t got anything to do. with the issues to be tried by this jury. Mr. Coffelt: Your honor, they accuse this Negro of perjury. The Court: Objection overruled. Mr. Gregory: Save my exceptions. Mr. Coffelt: Yes, lady and gentlemen of the jury, the defendant has ample opportunity after a case is decided the same as before to investigate the plaintiff and if they can prove he has been guilty of perjury, they have that right and they know it, and they can set it up in their motion for a new trial and prove It, in the event you should find for the plaintiff, and they have fifteen days to do so, and to ask this court for a new trial on that ground.. I say to you this Negro has told the truth all the way through, and as I told you at the outset of this trial it is up to you to say where the truth lies. If you believe he has told the truth, find for him. If you don’t believe he has told the truth, find against him. That’s the issue for you to decide.’ ”
The purpose of the questions propounded to Musick, the bus driver above quoted, was to disclose whether the people of his community generally accepted the doctrine, to which he himself also subscribed,, that quick corporal punishment should be administered to Negroes “when they get out of line. ’ ’ It was within the discretion of the trial court to allow such cross-examination to test the credibility of the witness, especially so since he testified that although the Negro applied to him a vile epithet he nevertheless took no action until after he was assaulted. Hofler v. State, 16 Ark. 534; Hughes v. State, 70 Ark. 420, 68 S. W. 676; Carter v. State, 196 Ark. 746, 119 S. W. 2d 913.
The argument of counsel presents a more serious question.
It has been stated generally that “the control of argument is in the sound judicial discretion of the trial judge” and “reversal rests upon (liis) abuse of discretion ... in not confining the argument within its legitimate channels.” Kansas City Sou. Ry. Co. v. Murphy, 74 Ark. 256, 85 S. W. 428.
In his work “Judicial Discretion of Trial Courts,” Mr. Bowers, after pointing out that the term “judicial discretion” is in fact a “misnomer” and that its companion term “abuse of discretion” is “unhappily phrased” admits that such terms have “become so deeply imbedded in the legal nomenclature that any attempt to dislodge them would be futile.” Later the same author says: “While trial courts are clothed with considerable discretion in controlling the arguments, little > hesitancy is shown by appellate courts in reviewing the action taken below, and reversals are ordered, seemingly with alacrity, when it has been made to appear that prejudice resulted from improper argument of counsel.” Bowers — Judicial Discretion of Trial Courts, § 283, p. 318.
The text above quoted is in conformity with pronouncements of this court. In the early case of Vaughan v. State, 58 Ark. 353, 24 S. W. 885, the court, although stating that control of argument was within the sound discretion of the trial court, nevertheless declared that the exercise of that discretion was subject to review, and added “'Whenever it occurs to us that any prejudice has most likely resulted therefrom (improper argument) we shall not hesitate to reverse on that account.”
In the case of Kansas City Sou. Ry. Co. v. Murphy, 74 Ark. 256, 85 S. W. 428, it was said: “. . . . it is the duty of the appellate court to look to the remarks, and weigh their probable effect upon the issue; then to the action of the trial court in dealing with them; and if the trial court has not properly eliminated their sinister effect, and they seem to have created prejudice, and likely produced a verdict not otherwise obtainable, then the appellate court should reverse. However, a wide range of discretion must be allowed the circuit judges in dealing with the subject, for they can best determine at the time the effect of unwarranted'argument; but that discretion is not-an arbitrary one, but that sound judicial discretion the exercise of which is a matter of re: view. .' . In the final analysis, the reversal rests upon an undue advantage having been secured by argument which has worked a prejudice to the losing party not warranted by the law and facts of the case.”
It is contended that the argument of counsel here was improper, and the action of the court ineffective to eliminate the sinister effect thereof in three particulars as follows: (1) counsel’s reference to depositions of ap.pellants’ witnesses having been framed, followed by the court’s statement “The jury should only consider the evidence before you”; (2) counsel’s statement “I say to you this Negro has told the truth all the way through”; and (8) that the general effect of counsel’s closing argument was an invitation to the jury to evade their responsibility under the belief that in its final analysis it was for the trial court on the motion for new trial to determine whether appellant had sworn falsely.
In the case of Kansas City, etc., Rd. Co. v. Sokal, 61 Ark. 130, 32 S. W. 497, Mr. Justice Battle, speaking for the court, said: “Except as to those facts- of which courts take .judicial notice, juries should consider only the evidence adduced. Arguments by counsel of the evidence adduced and the law as given by the court are allowed only to aid them in the discharge of their duty. .Within these limits counsel may present their client’s case in the most favorable light they can. When they go beyond them and undertake to supply the deficiencies of their client’s case by assertions as to facts, which are unsupported by the evidence, or by appeals to prejudices foreign to the case, they travel outside of their duty and right, and abuse the privilege of addressing the jury by using it for a purpose it was never intended to accomplish; for such assertions or appeals can serve no purpose except to mislead the jury and defeat the ends of the law in requiring them to confine .their consideration to the evidence adduced and the law embodied in the instructions of the court.” See, also, Anderson v. Erberich, 195 Ark. 321, 112 S. W. 2d 634; Mo. Pac. R. Co. v. Fore man, 194 Ark. 490, 107 S. W. 2d 546; Hall v. Jones, 129 Ark. 18, 195 S. W. 399; St. L. I. M. & S. Ry. Co. v. Raines, 90 Ark. 398, 119 S. W. 665, 17 Aim. Cas. 1.
Of appellants’ six witnesses, the bus driver alone appeared and testified in person at the trial. The testimony of the other five, all of whom were passengers on the bus at the time of the difficulty, gave their testimony by means of depositions. Counsel for appellee in' his opening argument said "Now about these depositions that were framed. ’ ’
Of late years the word "framed,” when used to describe evidence, has come to be generally accepted as implying that wilful perjurers, suborned thereto by, and acting in conspiracy with, parties in interest to litigation are swearing or have sworn to matters which have no basis in fact. (Webster’s New International Dictionary, 1935.)
There is nothing in the record to support an inference that these "depositions were framed.” In the case of Herman Kahn Co. v. A. T. Bowden & Co., 80 Ark. 23, 96 S. W. 126, 10 Ann. Cas. 132, it was held that a statement by counsel in argument that two witnesses were "liars and scoundrels” being unsupported by evidence was improper and prejudicial.
The following statement is found in Hyatt on Trials: "Without justifying evidence, asserting or implying that a particular witness on the opposite side had been suborned to commit perjury is misconduct (which) cannot be deemed harmless merely because the evidence was conflicting . . . and the verdict was moderate.” 2 Hyatt on Trials 1028. See, also, 1 Thompson on Trials 821; 2 R. C. L. 413; 64 C. J. 273 & 274, particularly note “f,” p.274.
It necessarily follows from what has been said that the charge that the depositions were "framed’’ constituted improper argument. •
We reserve for later discussion questions (1) as to whether such argument, if standing alone and unrebuked by the court, would require a reversal; and (2) whether action, which trial court did in fact take, was sufficient to cure the error.
In the course of his closing argument counsel for appellee said: “I say to you this Negro has told the truth all the way through . . . ”
In the case of Western Union Tel. Co. v. Furlow, 121 Ark. 244, 180 S. W. 502, it was held that the action of the trial court in permitting counsel to bolster up the testimony of a witness by asserting in argument that he had known the witness from childhood, and that the witness’ veracity was beyond question, constituted error.
Again we quote from Hyatt on Trials as follows: “Next to assailing the character and motives of adverse witnesses, some advocates seem to think that their purposes are best attained by' crediting their own witnesses with as many virtues as faults are debited to those of the opposite side. The one kind of argument is as improper as the other, . . .” Hyatt on Trials 1606.
Counsel for appellants very forcefully contend that the purpose and effect of the entire above quoted language employed by counsel in his closing argument was to create in the minds of the jury the belief that in the final analysis the question of whether appellee’s testimony was true or false would be determined by the trial court upon a motion for new trial, and that their decision with respect thereto would not be final. They argue that counsel’s remarks sought to create the impression that if the jury wronged appellants by finding in favor of appellee such wrong could and would be righted by the trial court at the hearing on the motion for new trial, and that such argument was calculated to induce the jury to disregard its own responsibility to find the truth from the evidence and reflect the same in its verdict.
At 2 E. C. L., p. 418 — Arguments of Counsel, § 15, it is said: ‘ ‘ Statements that the higher court has the power to review the findings of thé jury on the weight of evidence are calculated to induce the jury to disregard their responsibility, and are improper. Such error ordinarily will be overcome where the court admonishes the jury to disrégard the remarks and also directs counsel to refrain from indulging in them.”
Nearly all of the cases cited in support of the text and revealed by further examination were.criminal cases and for the most part deal with statements made by prosecuting attorneys with respect to the right of appeal and the power of the appellate court to review the weight of the evidence. See McDonald v. People, 126 Ill. 150, 18 N. E. 817, 9 A. S. R. 547; People v. Johnson, 284 N. Y. 182, 30 N. E. 2d 465, 132 A. L. R. 675; Hammond v. State, 156 Ga. 880, 120 S. E. 539; Kelley v. State, 210 Ind. 380, 3 N. E. 2d 65; Hudson v. Commonwealth, 161 Ky. 257, 170 S. W. 620; Crow v. State, 33 Tex. Crim. R. 264, 26 S. W. 209; Commonwealth v. Smith, 10 Phila. 189; State v. Biggerstaff, 17 Mont. 510 43 Pac. 709; State v. Kring, 64 Mo. 591; Boone v. People, 148 Ill. 440, 36 N. E. 99; State v. Young, 105 Mo. 634, 16 S. W. 408, 18 L. R. A., N. S. 321, 127 Am. St. Rep. 606; see, also, Note 46 L. R. A. 641, 670; Neff v. Cameron, 213 Mo. 340, 111 S. W. 1139; Landro v. Great Northern R. Co., 117 Minn. 306, 135 N. W. 991, Ann. Cas. 1923D, 244.
Similar arguments have been considered by this court on at least two occasions: Vaughan v. State, 58 Ark. 353, 24 S. W. 885; Southern, etc., Min. Co. v. Rice, 156 Ark. 94, 245 S. W. 805. In each case the court specifically declared that such argument was “improper,” but failed to reverse on that account, in the Vaughan case because (1) it doubted that the jury had been influenced, especially so since (2) the court had admonished them to disregard it, and, also, in the Rice case because the improper argument was an appeal for a large verdict, and the moderate amount allowed by the jury showed that no prejudice had resulted.
It is clear, therefore, that the argument of counsel was improper in all three of the particulars alleged. In determining whether improper argument requires the setting aside of a verdict many things should be considered, among which are, the character of the argument, the circumstances under which it was made, the effort made by counsel and the court, or either of them, to remove the harmful effect thereof from the minds of the jury, the apparent effect which such argument had on the verdict, and many'other things. As was said in K. C. S. Ry. Co. v. Murphy, supra: “In the final analysis the reversal rests upon an undue advantage having been secured by (such) argument ...”
When objection was made to the opening argument the court, addressing them, said “the jury should only, consider the evidence before you.” A similar charge in Mo. Pac. R. Co. v. Foreman, 194 Ark. 490, 107 S. W. 2d 546, was held ineffectual to remove the prejudice resulting from the action of an attorney in emphatically stating a fact having no foundation in the record.
The court took no action whatever towards removing the harmful effect of the improper statements made by counsel in his closing argument, but on the contrary overruled appellants’ objection made thereto. “Thus,” as was said in Doran v. State, 141 Ark. 442, 217 S. W. 485, “the jury were given to understand by the judge himself, the ruling genius at the trial, that the arguments were not improper.”
It is to be remembered that this action was being tried in Hot Spring county, the adjoining county to the one in which plaintiff and his counsel resided. The witnesses for appellant, although six in number, were all nonresidents of Arkansas'. The plaintiff alone testified in his own behalf. He probably was no better known to the jury than were the’ out of state witnesses produced by the appellants, but some members thereof doubtless knew counsel in person or by reputation. The question naturally arose in the mind of appellee’s counsel how best to get the jury to accept the uncorroborated testimony of his client, in the face of the contrary testimony of six unimpeached witnesses, who were guilty of no greater crime than being nonresidents of Arkansas. Evidently he decided to throw into the scales of justice charges of wrongdoing, suggestions of fact, and assurances of verity, vouched for only by his own unsworn statements. So he sought to discredit the testimony of the five witnesses, who had given their testimony by depositions, by making the utterly unwarranted statement that such “depositions were framed”; then to bolster up the uncorroborated testimony of his client he gave the jury his personal assurance that appellee had “told the truth all the way through,” . . . and then to clinch the matter he suggested, without actually so saying, that the court at the hearing on the motion for new trial could and would correct any erroneous finding which they might make. These do not appear to have been mere statements inadvertently made in the heat of trial. They appear to have been the result of a careful plan, made for the purpose of bolstering up appellee’s uncorroborated testimony. Such design is admitted on page 15 of appellee’s brief, in this language: “It may be that counsel should not have attempted to strengthen the force of appellee’s testimony by reference to appellants’ right to file a motion for new trial. . .”
Perhaps any one of these “improper” statements would not have been sufficient to require reversal, but when we consider their combined effect, we cannot escape the conclusion that counsel for appellee accomplished his purpose. The jury were persuaded to accept the uncorroborated testimony of appellee as against the testimony of six unimpeaclied witnesses. ■ The repeated improper argument muat have been the effective agency which produced this result. Since the argument was improper, and appellee has obtained an undue advantage thereby, the judgment will be reversed and the cause remanded for a new trial. It is so ordered.
Mr. Justice Robins dissents. | [
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Knox, J.
On September 15,1942, appellant obtained a divorce from appellee and was awarded custody of their 4-year-old son, the decree providing that appellee should be entitled to custody of the child from Saturday morning until Sunday evening, every two weeks, and should have the right to visit him at all reasonable hours. No appeal was taken from that deoree. On December 10, 1942, appellee filed motion asking that she be given custody of the child, alleging, in support thereof, that gas rationing prevented her from making the trip to and from Waldron every two weeks, and that appellant was teaching the child to disrespect her and seeking to wean his affection from her.
On May 7, 1943, appellee filed an amendment to her motion, alleging that she had moved to Atoka, Oklahoma, where she was living with her parents, and was employed at the Government prison camp located nearby; that inadequate public transportation, restrictions imposed on private transportation by gas rationing, the great distance separating Atoka and Waldron, and the requirements of her employment upon her time made it impossible for her to go to Waldron and get the child every two weeks, and that it was for his best interest that permanent custody be awarded to her.
At the time appellant was granted a divorce from appellee she was living in Port Smith and was employed in the office of her attorney, earning $20 per week. She moved to Atoka on March 8, 1943, and was living with her parents there when her motion to modify the decree was heard. She testified that her salary was $105 per month, and that after deductions she received $130 per month. The family consists of her mother and father, two brothers, 13 and 16 years of age, and herself. Her father is employed as postal clerk and assistant postmaster at Atoka, and earns $200 per month. He and his wife testified that they were willing to contribute to the child’s support and educate him, and that appellee’s mother would look after the child. They testified that they had, in open court, offered to do- that when the divorce case was tried and custody of the child was given to appellant. Both admitted that the conditions were the same then as they were when the divorce was-tried, except that appellee had returned to their home and. was employed near Atoka. Appellee’s father testified that appellee made no contributions to him or to the home. The parents operate a tourist court with eight cabins, adjoining their home, the income from which is about $250 per month, the mother runs the same during the day and the father rents the cabins at night.
At the time of the rendition of the original decree, the appellant and child were residing at the family residence in "Waldron, Arkansas; the housekeeper who had been in the home prior to the separation of the parties, and who knew the child, was in charge of appellant’s home. At the time of the rendition of the decree from which this appeal is taken, the housekeeper was no longer employed, but the sister of appellant, an unmarried girl 23 years of age, was keeping house for him, and assisting him in looking after the child. Appellee testified that at times when she had the child in her custody he would start to manifest his affection for her and then hesitate, and say he couldn’t do that, that his father had told him not to; that he would also cry to go home and would say that his father told him to do that. Appellee’s former roommate corroborated her testimony in this regard, but appellant denied that he had ever made any such suggestion to the child or that he had in any way sought to poison the child’s mind against his mother.
We do not have before us the testimony in the original proceeding upon which the chancellor awarded the custody of the child to the father. We must assume that tlie chancellor’s findings were correct and fully supported by the testimony, especially so since there was no appeal from the decree thus fixing the custody of the child. Patterson v. Cooper, 163 Ark. 364, 258 S. W. 988. The original decree awarding custody of the child to the father was an adjudication that at the time of the rendition thereof, the father and not the mother was the proper person to have the care, custody and control of the infant. While there is continuing authority in the court granting a decree of divorce to revise or alter orders contained in such decrees affecting custody and control of the minor children of -the parties, such orders cannot be changed without proof showing a change in circumstances from those existing at the time of the original order, which changed circumstances, when considered from the standpoint of the child’s welfare, are such as to require or justify the transfer, of custody from one parent to the other. Weatherford v. Taylor, 124 Ark. 579, 187 S. W. 450; Nelson v. Nelson, 146 Ark. 362, 225 S. W. 619; Jackson v. Jackson, 151 Ark. 9, 235 S. W. 47; Stone v. Crafton, 156 Ark. 323, 245 S. W. 827; Hamilton v. Anderson, 176 Ark. 76, 2 S. W. 2d 673; Kirby v. Kirby, 189 Ark. 937, 75 S. W. 2d 817.
There has been no change in circumstances affecting the home of the father since the original decree, except that a certain housekeeper is no longer employed, and appellant’s sister and aunt of the child is in charge of the household. There is not the slightest suggestion in the record that this young lady is not maintaining a suitable home for the child. The close kinship existing between her and the child lends credence to her testimony that she loves, the child and has his welfare at heart, and that the child manifests love and affection for her.
While it is true thatdhere has been some change in the mother’s circumstances since the entry of the original decree, it does not follow that such change of circumstances is such as to require, or even justify, an order transferring custody. There has been some betterment in the financial condition of the mother. Evidently the court did not at the time of the original decree deny her custody of tlie child because of her limited income, since the court had ample power to require the father to provide for the child, even though custody was awarded to the mother. Likewise, tlie fact that the mother has changed her domicile from Fort 'Smith, where she shared a small apartment with a girl friend, to Atoka, Oklahoma, where she now resides with her mother and father, has little material effect upon the question. At the original trial appellee’s mother and father both testified that appellee and tlie child were welcome to live with them, and the child would be cared for in the manner which the record discloses is now being done. Appellee at that time offered to take the child and establish her home with her mother and father if granted the custody.
The difference in the circumstances relating to appellee’s ability to provide a home for the child, as reflected by the testimony at the two hearings is only this, that the suggested plan offered at the first trial had at the second trial approached nearer materialization, in that the mother had herself actually become a member of her.father’s household.
These three changes in circumstances, to-wit: (1) substitution of the child’s aunt in the place of the retained housekeeper in the father’s household; (2) increased earning capacity of the mother; and (3) transfer of the mother’s residence; constitute all of the material changes which have occurred since the original hearing.
There is nothing in these circumstances which indicate that the welfare of the child would be better served by transferring his custody to the mother.
Appellee’s allegations that the father was teaching the child to hold her in disrespect and contempt, and that he sought to wean the child’s affection from her are not established by competent evidence. It is true that she and her former roommate testified that the child had stated that the father had directed him to adopt a certain attitude when in the mother’s presence. The fact that the witnesses were quoting alleged statements of a very young' boy did not prevent such testimony from violating- the hearsay rule. . The father denied that he had ever sought to prejudice the child against his mother. The evidence that the father was poisoning the mind of the child is too meager to justify a transfer of custody. Jackson v. Jackson, supra.
We have reached the conclusion that the court erred in modifying the original decree so as to award custody of the child to the mother.
The decree is reversed and the'cause remanded with directions to deny appellee’s petition. | [
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McFaddin, J.
The decree, challenged by the appellant on this appeal, was rendered by the chancery court on March 28, 1944; but to understand the issues it is necessary to state in some detail the history of this litigation.
In December, Í939, appellant brought suit against appellees to quiet appellant’s title to 61.08 acres of land on Black River in Randolph county. Appellees filed answer and cross-complaint, claiming to be the owners of 2!4 acres of the land, by reason of (1) reservation made in 1922 in the line of title under which appellant claimed, and (2) acquisition by appellees of the said reserved 2% acres.
On June 28, 1940, a decree was rendered awarding the appellees the 2% acres, and the description of this land in the decree was the same as in all of the deeds, being:
“. . . A strip of land extending along the left bank of Black River, three rods back from the high bank of said river, being in length 121 rods and containing 2% acres, and running across the boundary of” the 61.08 acres described in appellant’s complaint.
Appellant prayed an appeal to the Supreme Court from the said decree of June 28,1940, but the appeal was never perfected. On September 12, 1942, appellant filed a motion for a new trial alleging that, after the lapse of more than six months from the date of the decree ap pellant had discovered for the first time (and then hy actual survey of the land) that the high ground along the left bank of Black River was 129 rods instead of 121, as mentioned in the description. By reason of this additional eight rods, appellant contended, in the said motion, that the land could not be definitely located, and therefore the reservation was void, and that there should be a new trial of the entire case. Appellant alleged in the motion that this fact (of the additional eight rods) could not have been discovered with due diligence prior to the former decree. To this motion for a new trial, appellee filed a demurrer; and on November 27, 1942, the chancery court sustained the demurrer, and appellant secured leave to amend.
Then on September 29, 1943, appellant filed her pleading entitled “Petition for injunction; amendment to motion for new trial, motion that motion for new trial and amendment thereto be treated as bill of review. ’ ’ In this pleading, appellant (1) set out in detail the history of the entire title and reservation; (2) again alleged that the high ground was 129 rods long, instead of 121 rods; (3) stated that this fact could not have been discovered prior to the former trial or within six months thereof; and (4) claimed that since the high ground was 129 rods long, it was impossible to determine the beginning point of the 121-rod tract reserved, and, therefore, the reservation was void. Appellant also (5) alleged that when the clerk entered the decree in 1940, he had omitted from the record one of the calls in the description of the land, and for this reason there should be a new trial granted. While this pleading was much more detailed than the motion of September 12,1942, the only new point was the one number (5) above, relative to omission of a call in the description of the land.
This petition for bill of review was likewise met by a ' demurrer on behalf of appellees. The chancéry court sustained the demurrer on March 28,1944; and appellant refused to plead further, and final decree of dismissal was entered on March 28, 1944, which is the decree here challenged.
I. The Newly Discovered Evidence. In 19 Am. Juris. 291, it is stated:
“A bill of review based upon newly discovered evidence is designed to accomplish the same purpose as. a petition for a rehearing, in chancery or a motion for a new trial at law. ”
So, without discussing all the historical and academic distinctions that might exist between a bill of review under the equity practice, and a motion for new trial under subdivision 7 of § 1596 of Pope’s Digest, we proceed to a disposition of this case. In either event, (whether bill of review in equity practice, or motion for new trial under the statute), the following rules, inter alia, are applicable:
1. The pleading is addressed to the sound discretion of the trial court. For bill of review cases, see Webster v. Diamond, 36 Ark. 532; Smith v. Rucker, 95 Ark. 517, 129 S. W. 1079, 30 L. R. A., N. S., 1030; for motion for new trial eases, see Forsgren v. Massey, 185 Ark. 90, 46 S. W. 2d 20; St. L., I. M. & S. Ry. Co. v. Dague, 118 Ark. 277, 176 S. W. 138, Ann. Cas. 1917B, 577.
2. The newly discovered evidence must be material, not merely cumulative, but sufficient to change the result of the original trial. For bill of review case, see Killion v. Killion, 98 Ark. 15, 135 S. W. 452; for motion for new trial case, see T. & P. Ry. Co. v. Smith, 91 Ark. 362, 121 S. W. 282.
3. The newly discovered evidence must be such as could not have been discovered- at the original trial by the exercise of reasonable diligence. For bill of review cases, see Bartlett v. Gregory, 60 Ark. 453, 30 S. W. 1043; Davis v. Hale, 114 Ark. 426, 170 S. W. 99, Ann. Cas. 1916 D, 701; Jackson v. Becktold Ptg. & Bk. Mfg. Co., 97 Ark. 415, 134 S. W. 629; Long v. Long, 104 Ark. 562, 149 S. W. 662. For motion for new trial cases, see Chandler v. Lazarus, 55 Ark. 312, 18 S. W. 181; Arkadelphia Lumber Co. v. Posey, 74 Ark. 377, 85 S. W. 1127; Dixon v. Bullock, 206 Ark. 192, 174 S. W. 2d 449.
When appellant’s pleading is tested by these essentials, we are of the opinion that it failed to contain sufficient allegations for either a bill of review or a new trial, and that the trial court did not abuse its discretion in the decree here assailed. The newly discovered evidence in this case, as alleged by appellant, consists of the fact that appellant discovered by a survey that the high ground on the left bank of Black River was 129 rods long instead of 121 rods, as stated in the reservation. In other words, appellant alleges that some time after the decree of 1940 appellant had the land surveyed and found that the high ground was eight rods longer than had been thought at the time of the trial. That is the only newly discovered evidence alleged in this case.
No reason is advanced as to why appellant could not have made this survey before the original trial in 1940. Reasonable diligence would have suggested such a survey, particularly when the land was along the bank of a river and the description was in reference to the river. The description of the 2% acres was made in a deed in 1922. The case was tried originally in 1940, eighteen years after the description. In those intervening years the river could have changed its course enough to account for the difference of eight rods.
The pleadings suggest that there was a survey prior to 1939. In the original complaint (filed by appellant in 1939) it was alleged that since 1926 all of the 61.08 acres of land (which included the 2%.acres in the reservation) had been "enclosed on the west by Black River, on the south and east by a wire fence, and also on the north, or what was thought to be the north boundary, it was enclosed by a wire fence; but in the spring of 1935, upon being surveyed by the county surveyor, the north boundary was re-established several feet north of what was formerly thought to be the north boundary line, and a new fence was placed on the north boundary line. . . .” Thus, it appears by appellant’s own pleading that the 1935 survey was made before the original suit was filed in 1939. Appellant could have discovered in 1935 the length in rods of the river front land reserved in the deed.
It is also evident that, from appellant’s own allegations in the original complaint (filed in 1939, there had been a survey in 1935, at which time it was found that the north boundary line was farther north than theretofore thought. The moving of the fence line to the north would serve to increase the length in rods, beyond 121, of the high bank on the river front. Just how much additional length in rods we cannot say, because appellant did not state definitely how far north the fence was moved. For every rod that the fence was moved north, the number of rods on the river bank would be lengthened. But it is clear that the 2%-acre tract begins at the intersection of Black River with the northern boundary line of the 61.08 acres, and extends south along Black River 121 rods, and has a depth of three rods.
We fail, therefore, to see (a) how it can be urged that the excessive length of the strip was not discovered before the original suit, or (b) how reasonable diligence was exercised. These facts being true, the resurvey in 1942 did not constitute newly discovered evidence within the essentials allowing a new trial or bill of review. The facts that we have mentioned herein appeared on the face of the record. Some of them were facts alleged by appellant in her own pleadings. Therefore, we hold that the chancery court did not abuse its discretion in sustaining the demurrer to appellant’s petition in 1943, and in refusing any relief to the appellant.
■ II. Omission of One Gall in Description of Appellant’s Land. Appellant argues that in the decree made by the chancery court in 1940, the lands were indefinitely described, in that one call, as contained in the complaint, was omitted from the decree as it appears of record. Without lengthening the opinion by detailing the description of the lands, and showing the omitted call, it is sufficient to state that this omission was clearly a clerical misprision in copying the description ; and the mistake was made either by the clerk of the court who copied the decree, or by the attorney who prepared the precedent. In either event, and since the rights of third parties are not alleged to be affected, a motion for order nunc pro tunc would have afforded proper relief for the omitted call. A new trial or bill of review was not the proper relief. In 30 Am. Juris. 866, in discussing the power of a court to correct its records by nunc pro tunc entries, it is stated:
“The power of a court to amend records of its judgments by correcting mistakes, or supplying defects of omissions, therein must be distinguished from the power of the court to modify or vacate an existing judgment. A court may rightfully exercise its powers merely to amend or correct the record of the judgment, so as to make it speak truthfully, under circumstances which would not at all justify it in exercising its power to vacate the judgment. ”
The correction of the decree by nunc pro tunc does not extend the time for filing bills of exceptions. Hershy v. Baer, 45 Ark. 240. Many of our cases on nunc pro tunc orders may be found in West’s Arkansas Digest, “'Courts,” § 114."
For the reasons.stated, it follows that the decree of the chancery court is in all things affirmed. | [
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G-rieein Smith, Chief Justice.
Sections 1 and 2, article 7, Act 108, approved March 16, 1935, (Pope’s Digest, Secs. 14147 and 14148) authorized voters of designated political subdivisions to petition “the judge of the County Court” to call an election to determine whether spirituous, vinous, or malt liquors shall be sold, bartered, or loaned. A proviso is that the election shall not be held on the same day with any regular political election, nor within thirty days next preceding or following such regular political election.
May 22, 1944, Medlock and others, constituting more than fifteen percent of the electors of Crawford County, petitioned for a so-called “wet or dry” election to be held according to the provisions and mandatory requirements of [Initiated] Act No..l, adopted Nov. 3, 1943.
Approximately a week later the Court found the petition to be sufficient and ordered that an election be held June 27. Result was a victory for the “drys”, a court finding to that effect having been made July 6.
The first of two 1944 democratic primaries was held July 25th. The petitioned election, therefore, was within thirty days of the political event. Contention is that Act 108 is controlling as to time, hence the June 27 vote was ineffective.
Specifically, appellant’s contention is that Initiated Act No. 1 amended, but did not repeal, the 1935 legislation. It is urged that language in the Initiated Act declaring it to be cumulative expresses an intent by the people to preserve existing statutes not in conflict with the new provisions; and, since .no conflict is shown, the pari materia rule applies.
It appears to have been assumed, in. Yarbrough v. Bearden, and Phillips v. Foreman, 206 Ark. 553, 177 S. W. 2d 38, that the Act confers duties on the court, as distinguished from the judge. See, also, Phillips v. Matthews, County Judge, 203 Ark. 100, 155 S. W. 2d 716; Bennett v. Moore, 203 Ark. 511, 157 S. W. 2d 515.
The Phillips-Matthews cáse, dealing with a controversy relating to the right to call an election under provisions of Act 108, contains the following sentence: “It is, of course, elementary that the County Court had no jurisdiction to make the order it did on the day it was made. The jurisdiction of said County Court in the premises was wholly dependent upon the statute [which specifically provides] that the election order should he made at the next regular term after receiving said petitions.”
Here, it seems, is a holding that in effect construes the term “judge of the County Court” as used in Act 108, to mean the County Court sitting at an authorized time, for the purpose of passing upon matters in respect of which there is no discretion. It was mandatory, says the opinion, that an election call be withheld until the next regular term. There is an absence of discretion. The Court cannot select the election date. It must be held “. . . on some day named in said petition not earlier than 60 days after said application is lodged with the judge of said Court,” subject to the limitation as to regular political elections.
The Initiated Act provides for an election. The requirement of Act 108 that petitions be signed by thirty-five percent of the qualified electors gives way to fifteen percent, and the question to be determined is whether intoxicating liquors may be sold within the designated area. The County Court (which for the purpose of the Act “shall be open at all times”) must, within ten days, publicly hear protests concerning sufficiency of the petition. If judgment sustains proponents, a special election is ordered “. . . not earlier than twenty days nor later than thirty days after the rendition of the Court’s decision at said public hearing.”
Other matters of substance and some minor details distinguish election proceedings under the Initiated Act from provisions of Act 108. The formulae promulgated in the initiated measure is quite clear, and it is complete. Nothing essential to an election is omitted. The test of sentiment for or against sale of intoxicating liquors must be made (when preliminaries have been complied with) not earlier than twenty days nor later than thirty days after the petition has been adjudged sufficient. Interested parties do not, as under Act-108, fix the election date. This is done, at the Court’s discretion, within a permissive period. There is no reference to other elections; no suggestion of a purpose to bring forward any restrictions the General Assembly placed in Act 108.
Since sections 1 and 2 of the Initiated Act are not ambiguous, and no essential constituent .of an election is left to intendment, it must be held that, the restrictive provisions of Act 108 were purposely eliminated.
Affirmed.
Popularly referred to as the Thorne Liquor Act.
The concluding sentence of the mandate of Sec. 2 is: “All elections provided for in this Act shall be held by such officers as would be qualified to hold elections for county officers, and they shall be selected in the same way, and all elections provided for herein shall be held in accordance with the provisions of the general election laws of the State, except that they shall not be held on the same day with any-regular political election, nor within thirty days next preceding or following any such regular political election.” | [
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Holt, J.
For more than a quarter of a century prior to 1932, The G. R. Brickey Mercantile Company, a corporation, had been in active operation in Osceola, Arkansas. On August 2, 1932, the company had become so involved and burdened with debt that it made a written assignment for the benefit of its creditors of “all the assets belonging to The G. R. Brickey Mercantile Company, excepting the store building, ” to V. G. Lane, vice-president of the ¥m. R. Moore Company of Memphis, Tenn., (one of the largest creditors) with authority’“as trustee to handle the business or assets in such manner as he may deem best for the interest of the creditors, that is he may operate the business, may convert it into money either in the usual course of business or by private or public sale. The intent hereof is to empower the said trustee with the same rights of disposition or otherwise over said property as if he were the absolute owner,” etc. This assignment was signed by “The G. R. Brickey Mercantile Company, By A. G. Brickey, President. Mrs. G. R. Brickey, Vice-President. Leon Sullivan,'Secretary. ” On the daté of this assignment, and since 1920, A. G, Brickey was, and had been, president of the company and in active charge of its business, and owned 186 shares of the capital stock of 400 shares. Following this assignment, Mr. Lane operated the company for approximately fifteen months when, the creditors not having been paid or satisfied, it was determined to sell the remaining assets of the company, for their benefit.
There was a meeting of the stockholders and directors of the Brickey Mercantile Company November 16, 1933; and the minutes of that date reflect the following proceedings: “At a meeting, held on the above date, at the office of the Gr. R. Brickey Mercantile Co., called hy the president, A. G. Brickey, the following directors and stockholders were present, viz: A. G. Brickey, Pres.; Leon Sullivan,.Secy.-Treas., and N. W. Brickey, Director. Absent, Mrs. L. E. Brickey. The object of the meeting was stated by Leon Sullivan, Secy.-Treas., who explained that the company owed approximately $5,000; that some of the creditors had filed suit and obtained judgments and were threatening to foreclose or execute on them. He also stated that he had been to see Mr. Lane, Trustee, on August 22, 1933. And at that meeting Mr; Lane told him' he could get the creditors to accept a compromise settlement for $1,500 cash and assumption of certain other obligations — Judgment of Geo. Balloue and account Osceola Lbr. Co. Motion was made by N. W. Brickey, and seconded, that all the stock certificates of the corporation be assigned to Y. G. Lane, Trustee, and Mr. Lane instructed to turn said certificates over to whomsoever of the stockholders paid over the $1,500 and assumed the certain indebtedness. Motion was carried and all the stock certificates turned in to the Secretary-Treasurer who in turn delivered them to Y. G. Lane, Trustee. The certificates turned in were as follows: No. 21 — 186 shares, A. G. Brickey; No. 8 — 40 shares, Leon Sullivan; No. 12— 20 shares, Leon Sullivan; No. 15 — 15 shares, Leon Sullivan; No. 18 — 74 shares, Louise E. Brickey; No. 20 — 60 shares, N. W. Brickey, Trustee, 400 shares.
“A. G. Brickey asked that he he given until Monday, November 20, 1933, to see if he could get up the money to buy same. Motion was made and seconded that Mr. A. G. Brickey be granted the time asked for. Motion carried, and the following was sent to Mr. Y. G. Lane, Trustee in Memphis, Tenn.:
“The G. R. Brickey Mercantile 'Company, Osceola, Ark., November 17, 1933. Mr. Y. G. Lane, Trustee for G. R. Brickey Merc. Co., Memphis, Tenn. Dear Sir: It is agreed that Mr. A. G. Brickey will have until Monday, November 20,1933, to buy the assets of the above concern for $1,500 cash and he is to assume all liability of the G. R. Brickey Mercantile Co., and in case that he does not buy this by the above date you are at liberty to sell as per written agreement that you had with Mr. N. W. Brickey. If Mr. A. Gr. Brickey pays you the $1,500 cash he is to get a clear receipt from all merchandise creditors as per list furnished you by Mr. Sullivan and assume all other liability of The Gr. B. Brickey Mercantile Company. Yours very truly, (signed) A. G. Brickey, (signed) Leon Sullivan. ’ ’
Following this meeting all the stockholders, including appellant, A. G. Brickey, assigned their stock certificates in blank to Mr. Lane, trustee, with instructions “to turn said certificates over to whomsoever of the stockholders paid over the $1,500 and assumed the certain indebtedness” as provided by the action of the stockholders and directors, supra.
Appellant testified in part as follows relative to the transfer and delivery of his stock to Lane. “.What were the circumstances in connection with the reissuance of the stock on that date? A. After I signed this I was given a few days in which- to get this $1,500 up. Mr. Wales said that Mr. Lane wanted the stock, and it was issued and signed, and I left it lying on the desk in the office in the company’s store, got in my car and went to Memphis to try to raise the money. Q. Was there a reissuance of stock by the company in lieu of the 186 shares which you state that you lost? A. There was. Q.-State the circumstances under which the certificate for' 186 shares was reissued and when, if you remember ? A. It was reissued the same day that this letter of Mr. Wales, November 17, 1933. Q. State the circumstances under which it was reissued, as you remember ? A. I signed a statement saying that I had lost or misplaced the stock, and the stock was reissued to be put up with Mr. Lane as per the agreement we had with Mr. Lane in which all stockholders were to do the same thing. ”
The record discloses that appellant was given additional time beyond November 20, 1933, to buy the assets of the mercantile company for $1,500' in cash. When it became apparent that he was unable to raise the money with which to make the purchase, all the assets of the company were sold by Mr. Lane to N. W. Brickey for $1,500 on December 28, 1933, all the company’s stock turned over to Mm and lie assumed the company’s debts. N. W. Brickey reissued tlie stock of the company, none of which went to appellant, and he reorganized and continued the business.
November 25, 1936, appellant filed this suit asking for an accounting “showing all transactions with reference to the merchandise, real and personal property and capital stock of the said corporation since August 2, 1932, ’ ’ and that he be restored to all of Ms rights as stockholder. Appellees denied that appellant had any interest in the company. The trial court found all issues in favor of appellees and this appeal followed.
While appellant testified to the contrary, we think the great preponderance of the testimony is to the effect that appellant was not only present in person at the meeting of the stockholders and directors on November 16, 1933, but that he actively participated and agreed to the action there taken, supra. He admits that on the next day, November 17th, following the action of the .company, supra, he went to Mr. Lane’s office, and after informing him that Ms, appellant’s, certificate to his 186 shares of stock was lost, he signed an affidavit to this effect, and a new stock certificate was issued to him, which he immediately indorsed and signed in blank, and delivered to the .trustee, and in his own words “to be put up with Mr. Lane as per the agreement we had with Mr. Lane in which all stockholders were to do the same thing.” He admitted that he was given the option as stated in the letter, supra, to purchase all the assets of the company for $1,500 cash by November 20th and that additional time beyond this was given him, but that he was unable to raise the money with which to make the purchase.
There is no evidence here of fraud or deception in the assignment and transfer of appellant’s stock to Mr. Lane, the trustee, or in the subsequent sale of all the assets of the company to N. W. Brickey by Lane, as trustee. When appellant indorsed, signed and delivered his stock certificate to Lane, under the agreement of the stockholders and directors, supra, he did all that was required under our statute to constitute an absolute transfer of the legal and equitable title to the stock and all of his interests therein, and in so doing he parted with all of his interests in the assets of-the mercantile company, whether such assets be composed of realty, personalty or merchandise.
Section 2150 of Pope’s Digest provides: “The title to a certificate and to the share represented thereby can be transferred only: (a) by delivery of the certificate indorsed either in blank or to a specified person by the person appearing by the certificate to be the owner of the shares represented thereby, ’ ’ etc.
In Stroud v. Henderson, 180 Ark. 459, 21 S. W. 2d 871, the court said: “This court has several times held that the transfer of stock referred to in this section Í3 the absolute transfer of the legal and equitable title to the stock, and not pledges or liens by way of collateral security.” See, also, 7 R. C. L., § 242, p. 264; 13 Am. Jur., § 340, p. 414.
N. W. Brickey paid $1,500 cash, a valuable consideration, for the assets of the company which, in the circumstances here, carried with the purchase, all the stock of the corporation. When this sale was made to N. W. Brickey all of appellant’s interest in the stock and assets of The Gr. E. Brickey Mercantile Company came to an end.
Finding no error, the decree is affirmed. | [
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McHaney, J.
Appellants were jointly charged by information with the “crime of felony committed as follows, to-wit: The said defendants on the 20th day of August, 1943, in Jefferson county, Arkansas, did then and there willfully, unlawfully and feloniously, by threats and the use of force and violence, prevent R. A. Dickey from engaging in the painting of a building in Pine Bluff, Arkansas, said painting being a lawful vocation, contrary to the statute in such cases made and provided, and against the peace and dignity of the State of Arkansas.”
Trial resulted in a verdict finding appellants guilty and fixing their punishment at confinement in the penitentiary for one year, upon which judgment was entered, and from which judgment they have appealed.
The only assignment of error argued for a reversal is that the evidence is insufficient to support the verdict and judgment against them.
The prosecution was based on ^ 1 of Act 193 of 1943, which reads as follows: “It shall be unlawful for any person by the use of force or violence, or threat of the use of force or violence, to prevent or attempt to prevent any person from engaging in any lawful vocation within this state. Any person guilty of violating this section shall be deemed guilty of a felony, and upon conviction thereof shall be punished by confinement in the state penitentiary for not less than one (1) year, nor more than (2) years.”
We think the information charged the offense of felony substantially in the language of the statute just quoted and was sufficient to put appellants to trial, if the statute is a valid enactment. While appellants have not challenged the constitutionality of said act, except in their motion for a new trial, still their conviction and sentence’ under it could not. be permitted to stand, if in fact it is unconstitutional and void.
This is the first case .of conviction, under said statute, coming to this court since its enactment a little more than a year ago. Counsel amici curiae and the attorney general have filed excellent briefs in support of the constitutionality of said act, and also in support of the sufficiency of the evidence. By these briefs our attention is directed to the fact, that the act here in question is an exact or verbatim copy of the Texas statute, Art. 1621b of Texas Penal Codé as amended by Chapter 100, Acts 47th Legislature, Regular Session, Vernon’s Ann. P. C. Art. 1021b, except the latter statute carries an emergency clause, whereas, ours does not. On December 10,' 1941, the Court of Criminal Appeals of Texas sustained the constitutionality of the Texas statute in Ex parte Frye, 143 Tex. Cr. R. 9, 156 S. W. 2d 531. On the same date the same Texas court sustained'the same statute in Ex parte Sanford, 144 Tex. Cr. R. 430, 157 S. W. 2d 899, on the authority of the Frye case. The Sanford case was appealed to the U. S. Supreme Court, where it was dismissed on the ground that it did not involve a federal question. Sanford v. Hill, 316 U. S. 647, 62 Sup. Ct. 1292, 86 L. Ed. 1731.
It thus appears that said Act 193 of 1943 was borrowed from the State of Texas and along with it the construction theretofore given it by the highest court of that state in criminal matters. In the Frye case, the court said: “Relator also contends that the statute in question denies him the equal protection of the law and he seeks to illustrate his contention «by making the following observation: If A strikes B, who is engaged in a lawful occupation in order to prevent or attempt to prevent him from engaging in a lawful vocation, he is guilty of a felony. Yet, if B strikes A who is not so engaged, he is merely guilty of a misdemeanor. Hence, the unequal protection of the law. To the casual observer this reasoning-may seem plausible, but a critical analysis will lead one to the discovery of a more far-reaching objective in the two offenses. When B assaults A, who is not engaged in a gainful occupation, the assault is directed primarily against the person, while A, who assaults B, who is engaged in a gainful occupation, the assault is not only directed against the person but against his vocation for the purpose of preventing- B from pursuing his occupation and to deprive him of the fruits of his labor. It is obvious that the assault by A upon B under the circumstances stated not only deprives B of his labor, but in a measure affects the entire economic fabric of the country. Hence the act of A passes into a more serious class and justifies a greater punishment than the act of B. To hold that the law in question is in contravention of the federal Constitution on the ground of unequal protection of the law would be creating a fertile ground from which an attack might be made on the law relating to robbery. A, who makes an assault upon.B for the purpose of depriving him of some personal property, is guilty of a felony, but if B, who assaults A, who has no personal property, deprives him of nothing and does not intend to deprive him of anything, and' is therefore merely guilty of a misdemeanor. It is obvious that the classification of the offenses and the penalty prescribed for each is a reasonable exercise of legislative functions within the purview of the Constitution.”
The courts of Michigan and Wisconsin have sustained similar statutes to the one here involved. See People v. Washburn, 285 Mich. 119, 280 N. W. 132, 123 A. L. R. 311; Fischer v. State, 101 Wis. 23, 76 N. W. 594.
The gravamen of the offense prohibited by the statute is “the use of force or violence-, or the threat of the use of force or violence, to prevent any person from engaging in any lawful vocation within this state.” No one would seriously contend that force and violence, or intimidation and coercion, due thereto, are within the pale of constitutional protection. And the power to prohibit their exercise is within the police power of the state, acting through its legislature. “The state,” said Judge Hart, in Huff v. State, 164 Ark. 211, 261 S. W. 654, “has the power to determine what acts committed within its limits shall be deemed criminal.” Having done so here, and having classified the offense here denounced as a felony, it cannot be said to be an arbitrary or an unreasonable one when considered in connection with the public good it seeks to protect. There is here no question of a labor dispute or of the right of peaceful picketing, but even picketing when accompanied by force, violence, intimidation or coercion cannot find any protection under the constitutional guaranties of freedom of speech and freedom of the press. Local Union 313 v. Stathakis, 135 Ark. 86, 205 S. W. 450, 6 A. L. R. 894; Riggs v. Tucker-Duck & Rubber Co., 196 Ark. 571, 119 S. W. 2d 507; Milk Wagon Drivers’ Union v. Meadowmoore Dairies, 312 U. S. 287, 61 Sup. Ct. 552, 86 L. Ed. 836, 132 A. L. R. 1200.
In the last mentioned case, it was said: “Freedom of speech and freedom of the press cannot be too often invoked as basic to our scheme of society. But these liberties will not be advanced or even maintained by denying to the states with all their resources, including the. instrumentality of their courts, the power to deal with coercion due to extensive violence.”
There the Supreme Court reviewed and distinguished Thornhill v. Alabama, 310 U. S. 88, 60 Sup. Ct. 736, 84 L. Ed. 1093, and Carlson v. California, 310 U. S. 106, 60 Sup. Ct. 746, 84 L. Ed. 1104, and said: “Entanglement with violence was expressly out of those cases.”
We conclude, therefore, that said Act 193 is not open to constitutional objection.
The only other question to be considered is the sufficiency of the evidence to sustain the verdict and judgment, and we think it is amply sufficient. Viewed in the light most favorable to the state, which we must do in determining this question, the evidence, briefly stated, is as follows: R. A. Dickey was employed by the owners of a building on Main street in Pine Bluff to paint the interior of said building. He had employed four negroes to assist him in this work, and the paint was being applied with a spray gun operated by an electric motor. At about 9:30 p. m. August 20,1943, while said helpers were engaged in mixing paint in the container of the spraying machine located about the middle of the store, with the motor running, appellants and another came up behind Dickey, who was standing near the machine with his back to the door, and ordered the motor “shut down” and work to stop. Brown said: “Don’t put any more paint in that pot. You will have to stop.” Dickey told them he would not have to stop and that he would call the police, and started to do so, when he was grabbed on either side by appellants and was struck on the back of his head. A fight ensued, Dickey trying to get Out of the door. They beat him on the head and face, cutting his lip, and tearing off his shirt. The fight continued and Dickey finally got outside the building, trying to escape. Both appellants followed him out on the street, striking him with. H mixing paddle and a floor brnsli, and was knocked down by a lick on the head with the floor brush. Someone across the street hollowed “That’s enough,” and a stranger assisted him in getting up and into the building. As a result of the assault upon him, his helpers were frightened and ran away, and he was prevented from continuing the work until the fallowing Monday, the fight having occurred on Friday. Appellants admit they went into said building and had an altercation with Mr. Dickey, but give a different version of it and how it occurred. They were employed at the Pine Bluff Arsenal, were members of the Painters’ Union, and “they thought the building being on Main street, it was better for union painters to paint the building than for the negroes he was using.” They, admitted they asked him to stop, but denied they undertook by force and violence to compel him to stop.
We think the evidence is sufficient to support the verdict and the judgment is accordingly affirmed. | [
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Smith, J.
This is a suit by a ward to compel his guardian to account for funds coming into his hands as guardian. It was the view of the court below that the funds in question had not come into the hands of the guardian, as such, and the suit was dismissed for that reason, and from that judgment is this appeal.
The facts out of which the litigation arose are as follows: Roscoe H. Channing, a resident of the State of New York, died testate in 1916, leaving an estate of the approximate value of $250,000. He was survived by a daughter and two sons, and his will created a trust in the proceeds of which the children or their descendants shared per stirpes, after the death of the daughter who was given the entire proceeds during her life. The Farmers Loan & Trust Company (subsequently renamed City Bank Farmers Trust Company) was named trustee, and empowered to execute the provisions of the will.
The daughter married Joseph Migliore, and one child was born to this union, a son named Roscoe Channing. The daughter died in 1930, and was survived by this son and her husband who had previously removed to this state, and had obtained a divorce, and was later remarried. Upon the death of his wife, he brought their son, then 13 years of age, to this .state.
After the death of Mrs. Migliore, the Trust Company qualified as guardian of her son in New York, and thereafter made monthly remittances of the proceeds of the share of the son in the trust to Joseph Migliore, the boy’s father, who testified that the remittances were made under the following arrangement: “The bank (the trustee and guardian) wrote me and said they could not pay this money to Roscoe, but they'could pay this money if I would be guardian and see that the boy lived as he.was accustomed to living. ’ ’ The father accordingly applied for and obtained general letters of guardianship in Boone county on April 4, 1930, and executed the statutory bond as such.
Monthly remittances were made upon statements furnished to the Bank by the father of expenditures for the son’s benefit, and the statements covering them were in each instance approved by the son. These remittances continued until the son came of age in 1937, and totaled about $16,000.
When the son came of age, he and his father went to New York to have the trust settled and closed, and this was done by an order of the Surrogate Court of New York county, which order was based upon a report by the Bank, approved by both the father and the son.
The son, having attained full age, executed an acquittance to the Bank, which recited the full performance by the Bank of its duties as trustee and guardian, and that the sum of $70,789.77 remained in the hands of the Bank. These assets were delivered to the father, with the consent of the son, and have all been dissipated or lost by the father in an unsuccessful business venture, which the father owned and conducted hi his own name. No attempt is made by this suit to collect from the father any part of this money. The money sought to be recovered is that paid to the father during the minority of his son.
The statements to the Bank furnished by the father on which the remittances, totaling about $16,000, were made, were offered in evidence, and 'these show that this money, all of it, was expended for the use and benefit of the son.
The father never, at any time, made any report to the Probate Court of Boone county, of his administration as guardian, and he explains this failure by saying that the Bank advised him that he was its agent, and that he was acting in that capacity, and this appears to have been the theory upon which the suit was dismissed.
At a preliminary hearing before the Referee in Probate, it was “Ordered that the guardian file complete settlement showing all sums received by him, in any manner, of the properties of his ward and the disbursements thereof,” and this order was complied with by exhibiting the statements to the Bank upon which remittances had been made. Exceptions to this settlement were filed which questioned credits claimed totaling $13,592.38.
These exceptions alleged that none of the expenditures were authorized or approved by the Probate Court of Boone county, and that many of them were never made. The testimony relating to these exceptions reveals a sordid story, which we do not review, as the exceptions were not passed upon by the court. The question presented for our decision is, whether the father may be called upon to account, and the father’s insistence is that he may not be called upon to account for the reason that he did not receive this money as guardian, and also that the son ratified and approved all his father had done when the son executed the acquittance to the Bank.
Answering this last reason first, it may be said that the relation between the father and son as guardian and ward was not involved in the settlement with the Bank. The son did acquit the Bank from all liability to him, both as trustee and guardian, but he did nothing more and did not profess to, and in fact, did not settle the prior dealings with his father as guardian.
The father was not appointed guardian ancillary. He was appointed general guardian, and under this appointment received and receipted for the remittances which form the subject matter of this action. The father may not now exonerate himself by saying that he did not receive this money as guardian, but as agent of the Bank.
He received the money, knowing it was the property of his son, and he must account for it as guardian, and he will not be heard to say that he acquired possession of property which he knew belonged to his ward, but received it in some other capacity.
It is said in § 23, 12 B. C. L., “Chapter on Guardian and Ward,” p. 1122, that: “It is inherent in the very nature of a guardianship over the estate of a ward that the guardian is entitled and bound to take possession and management of his ward’s property, real and personal.’.’ An almost infinite number of cases supporting this text might be cited, including our own of Waldrip, Guardian, v. Tulley, 48 Ark. 297, 3 S. W. 192, and Moss v. Moose, 184 Ark. 798, 44 S. W. 2d 825; but this would be a work of supererogation, as § 6251 of Pope’s Digest defines the powers and duties of the guardian in this respect, as follows: “The guardian of the person, whether natural or legal, shall be entitled to the charge, custody and control of the person of his ward, and the care of his education, support and maintenance. The curator shall have the care and management of the estate of the minor, subject to the superintending control of the court; and the guardian of the person and estate of the minor shall have all the powers and perform all the duties both of a guardian of the person and curator. ’ ’
The letters of guardianship issued to the father recite that Joseph Migliore “has on this day, by the Court of Probate in and for said county of Boone been appointed Guardian for person and estate of Roscoe Channing Migliore, minor, under the age of 15 years,” and recite that “The said Joseph Migliore is hereby authorized and empowered to collect and receive all moneys, property and effects that are now, or hereafter may become, due to his said ward . . . ”
It must, therefore, be held- as a matter of law that the' money belonging to the ward, received during his minority, by his father was received by the father in his capacity as guardian, and that the father must account as such. No other question was decided by the court below, and no other question need be considered by us. The judgment of the Chancellor, sitting in Probate, must, therefore, be reversed, and the cause remanded for further proceedings not in conflict with this opinion, and it is so ordered.
Holt, J., disqualified and nonparticipating. . | [
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