author: J. Fred Jones, Justice. John A. Fogleman, Justice,

text:
    Billy J. STRANG v. Mary Alice STRANG
    75-14
    523 S.W. 2d 887
    Opinion delivered May 19, 1975
    [Rehearing denied June 23, 1975.]

      Jones, Gilbreath & Jones, for appellant.

      Warner & Smith, by: Wayne Harris, for appellee.
   J. Fred Jones, Justice.

Billy J. Strang and Mary Alice Strang were husband and wife until that relationship was dissolved by action of the Sebastian County Chancery Court in a divorce decree awarded to Mrs. Strang on December 31, 1970. Three children were born as a result of the marriage and their custody was awarded to Mrs. Strang with the usual right of visitation by Mr. Strang. The 1970 decree then provided as follows:

“(6) The Estate by the entirety in all real estate owned by the parties is hereby dissolved and vest[ed] in said parties as tenants in common wheresoever located.
(7) Plaintiff is entitled to all right granted to the wife under Ark. Stat. 34-1214 except such interest in real estate provided for in paragraph (6) above.”

On January 11, 1972, Mrs. Strang filed a motion to modify the decree and in her motion she stated as follows:

“ [P]laintiff states that she was awarded all of the rights granted to the wife under Ark. Stat. 34-1214. In accordance with said Arkansas Statute, the wife after having been granted a Divorce against the husband was entitled by law to one-third of the defendant’s personal property absolutely, and one-third of all of the lands that defendant was seized of an estate of inheritance at any time during the marriage for this plaintiff’s life. That this defendant was the owner in fee to 60 acres of real estate in Section 6, Township 12, Range 27 in Sequoyah County, Oklahoma and fee owner in and to 60 acres of real estate in Section 7, Township 12, Range 27 in the County of Sequoyah, Oklahoma, on the date this plaintiff was awarded a Decree of Divorce from this defendant. That the Decree filed of record in this cause should be modified to show that this plaintiff is the record owner of an undivided one-third interest in and to the 120 acres of real estate owned by the husband and the specific property description should be set forth in detail. Further, this defendant should be ordered and directed to convey by quitclaim deed to the plaintiff a one-third undivided interest in and to said real estate.”

The original decree dated December 31, 1970, was rendered by a different chancellor than the one who finally entered the order from whence comes this appeal. After considerable correspondence between the attorneys and the chancellor, the chancellor on September 30, 1974, entered a final 11 page order, the pertinent parts of which appear as follows:

“(4) Plaintiff, will have the use, and possession of the homeplace, and with Defendant paying the existing monthly home mortgage payments, and up to $50.00 per month on the monthly utilities thereon. Plaintiff shall be responsible for the routine and ordinary upkeep and minor repairs on the homeplace. As the parties own said homeplace as tenants in common, the parties shall share equally in the cost of any major alterations or major repairs. However, no expense for major alterations, major repairs, or damages shall be incurred by the Plaintiff without having first conferred with the Defendant and obtaining his agreement if Plaintiff expects Defendant to share in the cost thereof, concerning the work required to be done; and each of the parties having opportunity to arrange for the completion of the major alterations and major repairs in a satisfactory manner at the lowest cost available. The Court expressly finds that the cost of re-painting the homeplace would be considered a major cost of upkeep and that the parties should equally share in the cost thereof. The Plaintiff shall have the right to make any and all repairs at her own expense to improve the property and without notice to this Defendant.
(5) Further, the Court finds that Plaintiff is entitled to a one-half undivided interest as a tenant in common in the following described realty in which previous ownership by tenants by the entirety has hereinbefore been dissolved: * * * [Lengthy description of the property]. [I]n Sequoyah County, State of Oklahoma, consisting of approximately 318 acres, together with all oil, gas, coal and all minerals in, under and upon said lands, said Warranty Deed being found in Deed Book 291, at Page 105, office of the County Clerk, Sequoyah County, Oklahoma.
Lot 34, Southbrook Addition to the City of Fort Smith, Arkansas situated in Fort Smith District of Sebastian County, Arkansas, said Warranty Deed being found in Deed Book 183, at Page 129, office of the Circuit Clerk, Fort Smith, Arkansas.
(6) Further, the Court finds that the Defendant is ordered and directed to convey to this Plaintiff a one-third interest for life in the following described realty located in the State of Oklahoma acquired by the parties during their marriage with title in Defendant’s name only, and ownea by Defendant on the 24th day of November, 1970:
The Southwest Quarter of the Northeast Quarter (SW Va NE Va ) and the West Half of the Southeast Quarter of the Northeast Quarter (W'A, SE!4, NE!4), Section 6, Township 12 North, Range 27 East, and the Northwest Quarter of the Northeast Quarter (NW!4, NE Va ) and North Half of the Southwest Quarter of the Northeast Quarter (SW /a , NE!4) of Section 7, Township 12 North, Range 27 East, situated in Sequoyah County, Oklahoma, said Warranty Deeds being found in Deed Book 293, at Page 522 and Deed Book 305, Page 451, in the office of the County Clerk, Sequoyah County, Oklahoma.
The Court finds that the Defendant be and is hereby ordered to convey said interest to Plaintiff within 15 days after the entry of this Order herein so that her interest therein might be of record. The Court further finds that upon demand by Plaintiff, Plaintiff is entitled to receive the value of this one-third life interest in said described Oklahoma property computed in accordance with the statutory tables set out in Arkansas Statute Annotated Section 50-705. The Court retains jurisdiction over this cause for the purpose of determining the fair market value for said acreage should an Agreement not be reached by the parties herein.
(7) The Court finds that the Defendant be and is hereby directed and ordered to pay to the Plaintiff the sum of $1,156.66 which is Plaintiff’s one-third interest in the accepted or agreed sale value of the personal property owned by this Defendant on November 24, 1970, amounting to $3,470.00. The Court finds that in order to do equity in this cause, Plaintiff’s interest in Defendant’s personal properties should be determined as of the time suit was filed in this cause. The Defendant did execute certain security agreements on the 16th day of November, 1970 which were filed of record on the 2nd day of December, 1970, but it is noted that Defendant satisfied said liens on March 2, 1971. That such action on the part of Defendant was during the pendency of this suit for divorce and designed to defeat or diminish Plaintiff’s property interest. The Court, therefore, finds that Plaintiff’s interest should not be reduced by the amounts of said security agreements for to do so under the circumstances of this case would be inequitable. The Defendant is directed and ordered to pay said sum of $1,156.66 to the Plaintiff within thirty days subsequent to the entry of this Order.
Further, the Court finds that the Plaintiff is entitled to a one-third interest absolutely in the following properties: Pontoon boat, mineral, calf feeder, miscellaneous tools, chest/chain saw, electric stove, and quail incubator. These items shall be appraised forthwith and sold within twenty days after the entry of the precedent for Order in this cause unless either party in the interim desires to purchase the other party’s interest therein and does so. The Court further finds that the photographic equipment, bed springs and mattress, iron bed rail, piano, dehumidifier, books, portable heaters, and household goods and furnishings are to remain with the respective parties as having heretofore been distributed to each other as personal effects or as part of the household goods or furnishings awarded to the Plaintiff for her use and that of her minor children.”

The chancellor retained jurisdiction for such orders as might be necessary in the future and awarded an attorney’s fee in the amount of $100 and the cost of the action against the appellant-defendant.

On appeal to this court Mr. Strang assigns error under five points stated as follows:

“The chancellor erred in awarding the appellee the use and possession of the homeplace while requiring the appellant to pay the existing home mortgage payments in the amount of $77.65 per month and up to $50.00 per month for utilities, and one-half the cost of any major alterations and repairs in addition to requiring him to pay child support and alimony in the amount of $100.00 per week.
The chancellor erred in applying Arkansas law to determine the appellee’s interest in the appellant’s separate real property located in Oklahoma.
The chancellor erred in failing to apply the law to the facts when he found that the appellee’s interest in the appellant’s personal property should be determined as of the time suit was filed rather than on the date of the decree for divorce.
The chancellor erred in requiring the appellant to pay appellee’s attorney’s fees and court costs.
The chancellor erred in finding that the appellee is entitled to a one-third interest absolutely in the following properties: Pontoon boat, mineral calf feeder, miscellaneous tools, chest, chain saw, electric stove, and quail incubator, and further erred in ordering that said items be appraised and sold inasmuch as on the date of the decree of divorce the appellant’s liabilities exceeded his assets and the appellee should only be entitled to one-third of appellant’s equity interest.”

We are unable to say that the chancellor abused his discretion as contended by Mr. Strang under his first assignment. The chancellor’s finding that Mr. Strang had an annual income of approximately $20,000 is supported by the evidence. The ages of the three minor children are 10, 9 and 8 years. The chancellor reduced the estate by the entirety in the Fort Smith homeplace to a tenancy in common and awarded Mrs. Strang the possession. Mr. Strang was directed to continue the mortgage payments of $77.65 on balance owed on the homeplace and to pay $50 per month on the utility bills. He was ordered to pay $100 per week alimony and child support to be allocated equally between Mrs. Strang and the three minor children, which would amount to $25 per week for each of them. Mr. Strang was ordered to pay one-half of any major repairs necessary in the upkeep of the homeplace.

The mortgage payments and major repairs on the property would increase and protect Mr. Strang’s undivided one-half interest in the property as well as that of Mrs. Strang, and Mrs. Strang would actually receive only about $88.82 per month benefits under the decree in addition to the $100 per month in alimony. The overall money award, aside from possible major repairs on the property, would amount to approximately $6,731 per year, or approximately one-third of Mr. Strang’s annual net income. While we consider the amounts of these awards quite generous under the evidence in this case, we are unable to say that the chancellor’s findings and order in connection therewith are against the preponderance of the evidence, or that he abused his discretion in making them.

As to appellant’s second point, Ark. Stat. Ann. § 34-1214 (Repl. 1962) provides in part as follows:

“In every final judgment for divorce . . . where the divorce is granted to the wife the court shall make an order that each party be restored to all property not disposed of at the commencement of the action, which either party obtained from or through the other during the marriage and in consideration or by reason thereof; and the wife so granted a divorce against the husband .. . shall be entitled to one-third [1/3] of the husband’s personal property absolutely, and one-third [1/3] of all the lands whereof her husband was seized of an estate of inheritance at any time during the marriage for her life, unless the same shall have been relinquished by her in legal form, and every such final order or judgment shall designate the specific property both real and personal, to which such wife is entitled.....”

This section then provides that when the court is satisfied that such real estate is not susceptible to division in kind without great prejudice to the parties interested, the court .shall order a sale of said real estate to be made by a commissioner to be appointed by the court for that purpose, at public auction to the highest bidder upon terms and conditions fixed by the court. The proceeds of such sale then to be paid into the registry of the court and divided between the parties. This section then provides that such judgment or decree shall be a bar for claim of dower in any of the lands or personalty of the husband.

In Beene v. Beene, 64 Ark. 518, 43 S.W. 968, we pointed out that the purpose of this statute was to put an end to controversies as to dower right in divorce actions and, as we interpret the chancellor’s order in the case at bar, he was simply attempting to determine and set aside to the wife the property she was legally entitled to as a matter of law and in lieu of her inchoate right of dower. The original decree simply recited that “she was entitled to all right granted to the wife under Ark. Stat. 34-1214.” The appellant has correctly quoted Lefiar, American Conflicts Law, § 234, (1968), but the appellant’s separate, real property involved in the case at bar, was acquired after marriage and § 235 of Lefiar states as follows:

“If new property is acquired after marriage by purchase or exchange for property previously owned by one or both of the spouses, every state agrees that the title, or at least the equitable title, in the new property is the same as that which existed in the predecessor property. Apart from that, if the newly-acquired property be immovable, there is no doubt that in the absence of a controlling prenuptial contract the whole law of the situs determines what marital interests exist in it.”

This statement from Leflar is not in conflict with § 174 having to do with the power of state courts to issue judgments or orders pertaining to lands in other states where, under the subtitle, “Actions Concerning Extrastate Land,” appears the following statement:

“As an incident to divorce proceedings also, an in personam order may be issued against the husband requiring him to convey extrastate land to his wife in lieu of dower. ”

This section begins with the statement:

“Although the courts of one state are without power to issue any judgment or decree directly affecting title to land in another state. ...”

As we interpret the chancellor’s decree in the case at bar, that is exactly what the order attempted to do: directly affect title to land in another state. The right of dower has been abolished in Oklahoma and the law of Oklahoma is quite different from § 34-1214, supra. 12 Okla. Stat. Ann. § 1278 provides as follows:

“When a divorce shall be granted by reason of the fault or aggression of the husband, the wife shall be restored to her maiden name if she so desires, and also to all the property, lands, tenements, hereditaments owned by her before marriage or acquired by her in her own right after such marriage, and not previously disposed of, and shall be allowed such alimony out of the husband’s real and personal property as the court shall think reasonable, having due regard to the value of his real and personal estate at the time of said divorce; which alimony may be allowed to her in real or personal property, or both, or by decreeing to her such sum of money, payable either in gross or in installments, as the court may deem just and equitable. As to such property, whether real or personal, as shall have been acquired by the parties jointly during their marriage, whether the title thereto be in either or both of said parties, the court shall make such division between the parties respectively as may appear just and reasonable, by a division of the property in kind, or by setting the same apart to one of the parties, and requiring the other thereof to pay such sum as may be just and proper to effect a fair and just division thereof. In case of a finding by the court, that such divorce should be granted on account of the fault of aggression of the wife, the court may set apart to the husband and for the support of the children, issue of the marriage, such portion of the wife’s separate estate as may be proper.”

It thus appears that under Oklahoma law a wife has no inchoate right of dower in her husband’s property as is the situation in Arkansas and, therefore, the Oklahoma Legislature has not provided for disposition of such right in her husband’s lands in the event of divorce. On the contrary the Oklahoma Legislature in § 1278, supra, has vested a very comprehensive equitable power in courts concerning the husband’s real estate in connection with the award of alimony and child support. See Gardenshire v. Gardenshire, 2 Okla. 484, 37 P. 813 (1894); Haddad v. Haddad, 152 Okla. 264, 4 P. 2d 110. We conclude, therefore, that the chancellor erred in the case at bar in not applying the Oklahoma law in determining the property rights of the parties in this case.

As to the appellant’s third point, we are unable to say the chancellor erred. A wife does not acquire, by marriage, an inchoate right of dower in the personal property of her husband. Hewitt v. Cox, 55 Ark. 225, 15 S.W. 1026 (1891); Featherston v. Hartford Fire Ins. Co., 146 F. Supp. 535. Under ordinary circumstances where property subject to division in a divorce case is mortgaged, each takes subject to the mortgage. Crosser v. Crosser, 121 Ark. 64, 180 S.W. 337. However, in the case of Wilson v. Wilson, 163 Ark. 294, 259 S.W. 742, we held that where a husband, in contemplation of his wife’s suit for divorce, fraudulently conveyed his land and departed from the state taking his personal property with him, the value of the property so taken should be considered in determining her share of his property, and the same declared to be a lien on the land so fraudulently conveyed. In Dowell v. Dowell, 207 Ark. 578, 182 S.W. 2d 344, we held that where testimony supported a finding that a chattel mortgage was executed in fraud and to defeat the wife’s marital rights, the wife was entitled to her interest in the personalty free from the mortgage. See also Austin v. Austin, 143 Ark. 222, 220 S.W. 46.

The parties stipulated that the value of the personal property involved in the appellant’s third point had been sold and its value amounted to $3,470. The evidence was to the effect that the appellant had from time to time borrowed money from his Federal Employees Credit Union and on November 16, 1970, he executed a security agreement to the credit union covering some of the property involved. We find it unnecessary to set out the testimony pertaining to the transaction in detail. The chancellor saw the parties as they testified in the case and we are unable to say his findings as to the fraudulent intent of the appellant were against the preponderance of the evidence.

We are inclined to agree with the appellant as to his fifth point contending that the chancellor erred in finding that the appellee was entitled to a one-third interest absolutely in a pontoon boat, mineral calf feeder, miscellaneous tools, chest, chain saw, electric stove and quail incubator and in ordering said items to be sold. The appellee was awarded the household furniture and other items for the use of herself and her children and we think it only equitable that the appellant be awarded his mineral calf feeder, miscellaneous tools, chest, chain saw, electric stove and quail incubator. We find no error in the chancellor’s award of a one-third interest value in the pontoon boat to appellee, and we find no error in the chancellor’s award of attorney’s fee and court costs.

The decree is reversed as to the two 60 acre tracts of land individually owned by the appellant in Oklahoma. The appellee has no interest in this property. The decree is reversed as to the calf mineral feeder, miscellaneous tools, chest, chain saw, electric stove and quail incubator. These items are awarded to the appellant. One-third the value of these items is surely no more than two-thirds the value of furniture and other items awarded to the appellee.

In all other respects the decree is affirmed. The Appellee’s attorney is awarded a fee of $500 for his services in this court and the appellant is hereby ordered to pay said amount.

Affirmed in part, reversed in part.

Dissenting Opinion on Denial of Rehearing delivered June 23, 1975

John A. Fogleman, Justice,

dissenting. I submit that the petition for rehearing has pointed up a grievous error in our original decision and opinion — one that we should correct before our opinion becomes a binding precedent.

While we have not decided the precise question, I feel that our holding that the courts of this state cannot take into consideration property in another state in making distribution in a divorce case and carry that distribution into effect by compelling a conveyance of that property is not only unsound and wrong, but is out of harmony with our holding in Phillips v. Phillips, 224 Ark. 225, 272 S.W. 2d 433.

If the question were one involving the right a wife has, by reason of the marriage, in her husband’s property, I could agree that Oklahoma law should govern. But this is not the question involved at all. We have here a husband and wife, who are both residents of Arkansas and both before the courts of Arkansas in person. There cannot be any doubt about Arkansas being the marital domicile. The question then, is what is the wife entitled to as a distribution of the husband’s property when she is granted a divorce as the injured party. I think the reasons are partly recognized in language of the statute omitted from the original opinion in this case. The pertinent part of the statute reads:

. . . and the wife so granted a divorce against the husband, if she shall have actually personally resided in this State for a period of time next before the commencement of the action at least equal to the residence required to enable her to maintain an action for divorce, shall be entitled to one-third [1/3] of the husband’s personal property absolutely, and one-third [1/3] of all the lands whereof her husband was seized of an estate of inheritance at any time during the marriage for her life, unless the same shall have been relinquished by her in legal form, and every such final order or judgment shall designate the specific property both real and personal, to which such wife is entitled; ***** The proceedings for enforcing these orders may be by petition of either party specifying the property the other has failed to restore or deliver, upon which the court may proceed to hear and determine the same in a summary manner after ten [10] days’ notice to the opposite party. And such order, judgment or decree shall be a bar to all claim of dower in and to any of the lands or personality [personalty] of the husband then owned or thereafter acquired on the part of his said wife divorced by the decree of the court.
Provided, however, that a wife not haying actually personally resided in this State for a period of time, next before the commencement of the action, at least equal to the residence required to enable her to maintain an action for divorce, but found to be the injured party in an action brought on the grounds of three [3] years separation or granted an absolute divorce on her cross-complaint, shall be entitled to the same portion, if any, of the husband’s personal or real property, or both, that she would have been entitled to, if an absolute decree of divorce had been granted her in the state of the last matrimonial domicile of the parties, wherein they lived together as husband and wife, such portion, however, not to exceed that to which a wife residing in this State, as aforesaid, would be entitled under the provisions of this Section and, provided further, that no permanent alimony allowable under Section 34-1211, Arkansas Statutes 1947, shall be granted a wife not a resident of this State as aforesaid but found to be the injured party in an action brought on the ground of three [3] years separation or granted an absolute divorce on her cross-complaint, unless permanent alimony is, at the time of the rendition of the decree, allowable upon the granting of an absolute divorce in the state of the last matrimonial domicile of the parties, wherein they lived together as husband and wife.

This language itself recognizes that the law of the marital domicile should be the overriding factor in distribution of the husband’s property in a divorce case. It clearly provides for those cases in which the law of some other state should be applied. This is not one of them. It does not say that the wife is entitled to one-third interest in the husband’s Arkansas real estate only.

Marriage is a social institution in which the state has a vital interest. 52 Am. Jur. 2d 866, Marriage § 2. The state has a vital interest in its protection and we have said that it is a silent third party in every divorce action. Dunn v. Dunn, 222 Ark. 85, 257 S.W. 2d 283; Mohr v. Mohr, 206 Ark. 1094, 178 S.W. 2d 502. The state of the marital domicile has the greatest interest in the marital status. Leflar, American Conflicts Law 533, § 220. The state of the marital domicile has the power to prescribe the duties and obligations of the marriage partners. 55 CJS 809, Marriage, § 2. It has the exclusive right to determine the marital status of its domiciled citizens, respecting questions of marriage and divorce. Peirce v. Peirce, 379 Ill. 185, 39 N.E. 2d 990 (1942); Larsen v. Erickson, 222 Minn. 363, 24 N.W. 2d 711 (1946).

The important question is what provision shall be made for the wife out of the husband’s property, when both are domiciliaries. It matters not where the property is located. One jurisdiction should control that distribution, insofar as possible. No better expression of my view could be given than that expressed in McElreath v. McElreath, 162 Tex. 190, 345 S.W. 2d 722, where the Texas court directed enforcement of an equitable decree in a divorce suit in Oklahoma ordering the husband to convey Texas lands to the wife based on a distribution under the Oklahoma statute. Oklahoma was the marital domicile. The Texas court said:

Insofar as marital property is concerned, the laws of Oklahoma are different from those of Texas. However, upon the dissolution of a marriage, Oklahoma like Texas seeks to provide equitable distribution of properties and property rights between its residents. Quite obviously one authority must settle these rights if anything approaching fairness and equity is to be secured. Jurisdiction for such purpose rests with the courts of the matrimonial domicile which, in this case, is the State of Oklahoma. ***** This case involves Oklahomans and it is not against the public policy of Texas for Oklahoma to maintain a different system of property ownership for its residents than that provided by Texas for Texans.

Article 4638 of Vernon’s Ann. Tex. Stats, is a part of Chapter 4, Title 75 of the Revised Statutes relating to Divorce. It reads as follows:

“The court pronouncing a decree of divorce shall also decree and order a division of the estate of the parties in such a way as the court shall deem just and right, having due regard to the rights of each party and their children, if any. Nothing herein shall be construed to compel either party to divest himself or herself of the title to real estate.”
This article and the chapter of which it is a part apply only to Texas courts pronouncing decrees of divorce in suits involving Texas residents. Our community property system naturally affects our plan of property division upon a marriage dissolution. Under our laws, permanent alimony is not recognized, nor is a Texas court authorized to divest either spouse of his or her title to separate property, Hailey v. Hailey, 160 Tex. 372, 331 S.W. 2d 299, but the wife, in the main, must look to the community property for her share of the material gains incident to an ill-starred marriage. We expect other states to recognize our system of marital property ownership, so should we respect their schemes of property ownership and attendant plans for the adjustment of property rights upon dissolution of a marriage. Texas public policy does not relate to and is not concerned with the settlement by Oklahoma courts of marital property problems which arise between Oklahoma citizens. Article 4638 establishes a policy governing Texas courts in cases involving divorce and property rights based upon the marital laws of this State. It does not purport to establish a public policy relating to land tenure by nonresidents.
The respondent here was a resident of Oklahoma when divorced. He possessed no rights in Texas property under the marital laws of this state. He had no homestead right in and to the property involved, Article 16, § 51, Texas Constitution, Vernon’s Ann. St., Article 3833, Vernon’s Ann. Tex. Stats., 22 Tex. Jur., Homestead, §§31, 32, or anything similar thereto.
*****
. . . The trial court and the Court of Civil Appeals treated the decree as being one which directly affected the title to Texas lands. We regard it as being an equitable order operating in personam which orders James Dorsey McElreath to execute a deed conveying land in Texas to Evelyn Ann McElreath.
*****
James Dorsey McElreath’s holdings consisted of real and personal property situated in both Oklahoma and Texas. The Texas property was devised to him by his father, A. R. McElreath. This circumstance is immaterial as the Oklahoma statute above quoted makes no distinction between property acquired by gift, devise or bequest and any other form of separate property. Under the Oklahoma law the court was empowered to allow alimony to the wife “out of the husband’s real and personal property.”
*****
. . . [W]e might inquire as to how and in what way does one state’s action in adjusting the property rights and problems of its own citizens violate the public policy of another state. Or, to be specific and to the point insofar as this case is concerned, what difference does it make to the State of Texas whether the property here involved is awarded to the ex-husband or the ex-wife of a broken Oklahoma marriage?
*****
It would seem that Texas should have no concern with the statutes and methods adopted by Oklahoma in settling the matrimonial differences of its citizens and their property rights.
*****
Although this Court and the courts below may be of the opinion that the Oklahoma trial court should have awarded Oklahoma land rather than Texas land to the wife or entered an alternative money award to the wife in the event the husband refused to convey the Texas land, 17A Am. Jur. 172, Divorce and Separation § 991, and thus avoided the complexities incident to the type of decree now before us, such opinion or belief would not justify a conclusion that the Oklahoma judgment is contrary to Texas public policy. The public policy issue, stripped of all its spurious and specious ramifications, is simply answered by saying that insofar as the public policy of Texas is concerned, either a husband or a wife to a broken marriage of Oklahoma residents may hold land in this state.

McElreath has been cited and applied in other jurisdictions. One case determined on its authority is Phelps v. Williams, 192 A. 2d 805 (DC. Ct. App. 1963). There the court said:

We of course agree with the trial court that the Ohio decree could not operate directly upon or affect title to the District of Columbia real estate, and that part of the decree which sought to effect a conveyance of title to the wife free from any interest of the husband was wholly ineffective. ***** But it does not necessarily follow that appellant is entitled to no relief.
The Ohio court had personal jurisdiction over appellee and had authority to order him to pay alimony to appellant, and under the law of Ohio alimony may be allowed in real property. In this case the Ohio court ordered appellee to convey the real estate to appellant “as and for” alimony. Thus, although the Ohio court could not by its decree directly act upon the title to the District of Columbia real estate, it could and did impose a personal obligation upon appellee to convey such real estate to appellant as and for her alimony.
*****
Appellee was subject to the jurisdiction of the Ohio court and that court granted appellant a divorce and made a final determination of the rights of the parties with respect to support for the wife. Appellee has the burden as well as the benefit of that determination. There was imposed upon appellee a personal obligation to convey the real estate and such obligation should be recognized and enforced here.

The Nebraska Supreme Court reached the same result. Weesner v. Weesner, 168 Neb. 346, 95 N.W. 2d 682 (1959). That court said:

Also, the Wyoming court had jurisdiction of the parties, the divorce controversy, and all that pertained to it, including an award in lieu of alimony to defendant. If once decided in a final valid personam decree, the same claim or demand for division of the property and alimony cannot generally be relitigated in another action between the parties in this state because of the application of the principle that determines the estoppel of judgments which are res judicata. In other words, as claimed by plaintiff, the Wyoming court had no jurisdiction and authority to directly affect and determine the title to the property in North Platte, Nebraska. However, it did have jurisdiction and authority under the circumstances presented here, to render any personam order it might make in lieu of alimony, such as an order that plaintiff make, execute, and deliver a quitclaim deed to defendant of his interest in the property, which when made and final would be res judicata and binding upon plaintiff and defendant. See, Bates v. Bndie, 245 U.S. 520, 38 S. Ct. 182, 62 L. Ed. 444.
*****
. . . [I]t is universally held that a court of one state cannot directly affect or determine the title to land in another state. However, it is also now well established that a court of competent jurisdiction in one state with all necessary parties properly before it in an action for divorce, generally has the power and authority to render a decree ordering the execution and delivery of a deed to property in another state in lieu of alimony for the wife.

In New Jersey, a decree of a Florida court directing the husband to convey New Jersey land to the wife as lump sum alimony was enforced in Higginbotham v. Higginbotham, 92 N. J. Super 18, 222 A 2d 120 (1966), saying:

The Florida court, as earlier noted, had jurisdiction of the parties and the subject matter of the divorce action. Defendant concedes that its judgment is in all respects valid except for the provision relating to the conveyance of the Clifton property. The Florida court had the power to grant lump sum alimony, Fla. Stat. Ann., § 65.08, and this in the form of ordering defendant to convey the property in question. Kilian v. Kilian, 97 So. 2d 201 (D. Ct. App. 1957); Bezanilla v. Bezanilla, 65 So. 2d 754 (Sup. Ct. 1953).

See also, Larrabee v. Larrabee, 504 P. 2d 358 (1972) where a Colorado intermediate court approved a decree requiring conveyance of Texas property, citing McElreath.

These decisions clearly recognize that when the parties to a divorce suit are before the court in the state of the marital domicile that state may apply its laws relating to property distribution. Support is given by the text writers. Dr. Leflar speaks clearly on the subject, and contrary to the inference drawn from the proof-text quotations in the original opinion. In his American Conflicts Law, he has said:

A decree determining the personal rights of parties, both before the court, with reference to land located in or out of the state ought to be as conclusive as any other judgment. The states are free to reach this conclusion, since Fall v. Eastin [215 U.S. 1, 30 S. Ct. 3, 54 L. Ed. 65] does not say that faith and credit must not be given to land decrees, but only that it need not be given. Most states today do give full faith and credit to them. On facts almost identical with those in the Nebraska case, Iowa gave effect to the same kind of Washington decree ten years later, distinguishing Fall v. Eastin narrowly on its facts. Nebraska itself changed its position and now grants faith and credit to sister states’ in personam orders for conveyances of local land, as do most of the other states in which the question has recently arisen. In Durfee v. Duke [375 U.S. 106, 84 S. Ct. 242, 11 L. Ed. 2d 186] the United States Supreme Court came close to saying that Fall v. Eastin is superseded, by holding that a sister state jurisdictional finding concerning land was binding on the parties. But the old case has not yet been overruled. The question now is as to what a state court ought to do.
The courts of one state cannot directly affect title to land in another state, and all courts have always looked with suspicion upon the orders of extrastate courts concerning local land. But a court having personal jurisdiction over parties can adjudicate their personal rights and obligations in reference to any res, wherever situated, and all courts have agreed in giving extrastate negative effect to such adjudications, that is, in treating them as defenses to later suits between the same parties on the original causes of action. Several states have allowed such personal decrees to be employed affirmatively, by entertaining suits brought upon them as causes of action, p. 191, § 83.
Although the courts of one state are without power to issue any judgment or decree directly affecting title to land in another state, it is permissible for them to issue in personam judgments and decrees in suits involving foreign land. ***** As an incident to divorce proceedings also, an in personam order may be issued against the husband requiring him to convey extrastate land to his wife in lieu of dower, pp. 428, 429, § 174
. . . The only way in which a wife can secure a direct assignment of dower in land or in tangible chattels in connection with a divorce is by securing her divorce at the situs of the land or chattels. This applies, however, only to a direct assignment; indirectly, the award can often be accomplished by the court which grants the divorce taking into consideration the value of the estrastate property and proportionately increasing the amount awarded to the wife out of local property, or rendering a personal decree against the defendant husband (if he be personally subject to the jurisdiction) for the increased amount in lieu of dower, p. 574, § 239
*****
If the court granting the divorce has personal jurisdiction over the husband, it may issue an in personam decree against him ordering him to convey ex-trastate land to his wife in lieu of dower. Such a decree will have no effect upon the legal title to the foreign land, and the decree is not absolutely entitled to full faith and credit in the state where the land lies. But most states of situs will voluntarily recognize and give effect to such decrees as rendering res judicata a prior right of the parties and creating an equitable obligation which is entitled to extrastate enforcement, p. 575, § 239

In 3 Nelson, Divorce and Annulment, (2d Ed.) 519, § 33.43, the writer says:

A court of one state has no jurisdiction over immovable or real property in another. Such property is governed by the lex rei sitae and is subject to the exclusive jurisdiction of the state in which it is located. Accordingly a court of one state cannot decree a charge upon, or a transfer of, realty in another; nor can its decree have any effect per se upon the title to such property. But a court having jurisdiction of the subject matter and parties in a divorce action can decree a division and distribution of property, including realty in another state, by operating on the person. In other words, it can grant a decree requiring a party to execute an instrument conveying or encumbering realty in such state, the decree operating in personam and not of itself conveying or encumbering the property and, such a decree having been granted, not only may the court that granted it punish disobedience of its order, but the decree will constitute a sufficient basis for an action in the state where the property is located to compel a conveyance. Thus, where a court having personal jurisdiction of the parties has rendered a decree requiring the defendant to convey land in another state, but he has prevented the court from enforcing compliance by leaving the jurisdiction and going to the state where the property is located, a court of the latter state may render a decree in personam against him requiring him to make the required conveyance.

Our statute permits the chancellor to consider all property of the husband in all states when making a property distribution and to compel a conveyance of real property in another state as a part of that distribution. This the chancellor did in this case. I submit that he was more sensitive to the problems involved than this court has been. What are we going to do when a husband who wants to avoid a property distribution in a pending divorce case invests all his assets in real estate in Oklahoma, or any other sister state?

We recognized the propriety of application of the principles of McElreath and other such cases as long ago as our decision in Phillips v. Phillips, 224 Ark. 225, 272 S.W. 2d 433, when we recognized the power of the Kansas courts having jurisdiction of the persons of the parties to dissolve estates by the entirety in Arkansas as an incident to a divorce between a husband and wife who were domiciled in Kansas, by compelling conveyances by each to the other. At the time, our own statute empowering our courts to dissolve tenancies by the entirety had not been passed.

I would also point out that there seems to be an inconsistency in the original opinion’s holding that Oklahoma law should have been applied and the statement that appellant has no interest in the Oklahoma property. Yet, if Oklahoma law is applied the chancellor clearly had the power to award alimony in the real estate, either in gross or in installments. Although I think this is an unsound approach, it seems clear that the chancellor might well have taken a different approach to property distribution and to alimony, had he suspected that the action he took would be set aside because he did not apply Oklahoma law. We properly recognized such a possibility in Lockley v. Lockley, 257 Ark. 603, 519 S.W. 2d 52 (1975), when we voided the trial court’s attempt to act directly upon the title to Michigan real estate and remanded the case in order that the chancellor might reconsider the distribution. See also, Wilson v. Wilson, 163 Ark. 294, 259 S.W. 742. We did not do so here.

However, I would grant the rehearing and affirm the chancellor’s decree.

I am authorized to state that Mr. Justice Brown joins in this opinion.

      See 84 Okla. Stat. Ann. § 214


source: Caselaw Access Project

author: J. Fred Jones, Justice.

license: Public Domain

text:
    Jerry Glen PRICHARD and Charles D. PRICHARD v. STATE of Arkansas
    CR 75-20
    523 S.W. 2d 194
    Opinion delivered May 19, 1975

      James E. Davis, for appellants.

      Jim Guy Tucker, Atty. Gen., by: Robert A. Newcomb, Asst. Atty. Gen., for appellee.
   J. Fred Jones, Justice.

A church building in Texarkana was burglarized and two units of speaking equipment valued at 888 each were taken therefrom along with other items. The appellants were brothers who lived with their parents, Mr. and Mrs. Frank Prichard, about four blocks from the church. The Prichard home was searched under a search warrant and the stolen property was found. The appellants admitted the burglary and their admissions and also the stolen property were introduced into evidence at their trial before the circuit court sitting as a jury on the charges of burglary and grand larceny. They were both found guilty and Jerry Glen was sentenced to five years in the penitentiary on each count to run concurrently but suspended during good behavior. Charles was sentenced to five years on each count to run concurrently, four years of which was suspended during good behavior.

On appeal to this court the appellants question the admissibility of evidence obtained under an invalid search warrant because the warrant did not particularly describe the place to be searched. The search warrant and the affidavit upon which it was based described the premises as follows:

“Res. of Holland Prichard 1st House North of Euclid on west side white frame with green shutters also two storage houses behind and any vehicle on premises....”

At the hearing on motion to quash, the appellant Charles Prichard testified that he and his brother lived with their parents at 1617 Prospect in the city of Texarkana. He said that they were buying the property and had lived there about six months. He said the house was not identified in any way that a stranger would know that the Prichard family lived in it. He said that the name on the mailbox in front of the house was “Strachan. ” On cross-examination Mr. Prichard testified as follows:

“Q. Mr. Prichard, if you were going to tell a friend who had never been over to your home at that particular residence how to get there, and what to look for when they got there, how would you describe it?
A. On to the house?
Q. Yes.
A. I just tell them to turn off Euclid onto Prospect, and it’s the second house upon the hill on the left.
Q. Would it be a fair direction to say the first house north of Euclid on the west side of the street?
A. Yes, sir.
Q. And would it further be fair to say that it is a white frame house with green shutters on it?
A. Yes, sir, but there’s two—
Q. In other words, if you were going to tell your girl friend to come see you, or a boyfriend, or whoever, and they hadn’t been over there before, you would have told them that, and that would be a fair description of how to get to your house, and to know which house you lived in when they got there, is that right?
A. Yes, sir.
Q. How many storage building, or outhouses, are on the premises over there?
A. Two.
Q. What are they, garages, or houses, or what?
A. There’s a house right behind ours, and a little storage house.”

Mr. Prichard said there was another white house with green shutters on the street but their house was the only one that had two storage buildings behind it.

On redirect examination Mr. Prichard explained the discrepancy as to the first and second house by stating that there actually was one other house on the same side of Prospect between his house and Euclid, but that the other house faced on Euclid.

The officers serving the search warrant testified that they had no difficulty locating the Prichard house under the description in the search warrant.

In the statement Charles Prichard gave to the officers he said the church building was about four blocks from their home; that he and his brother had heard about the speakers that were in the church building; that they went to the church building at night, found the door locked but a window unlocked; that they went through the window, unplugged the loudspeakers and carried them to their home and hid them. He said that other items found in the home and offered in evidence were brought to the house by his brother, Jerry Glen, who told him he had obtained the articles from another boy.

The appellants argue on appeal that according to the evidence the residence searched was in no way identified as the residence of Holland Prichard; that the residence was actually at 1617 Prospect in Texarkana; that Euclid is an east-west street approximately ten blocks long; that it is intersected by one major highway and approximately eight other streets beside Prospect Street. They argue that there is a white frame house with green shutters directly next door to the house searched; that the residence searched was being purchased by Frank Prichard, and that the name on the mailbox in front of the house was not “Prichard, but Strachan.” The appellants argue that the proper description in the search warrant should have been “turn off Euclid onto Prospect and it is the second house on the left.” They argue that the officers making the search had never been to the house before or had the house under surveillance; that since the residence was urban property and had an identifiable address, that it could be easily confused with any one of the first houses which would be the first house on the west, north of Euclid on any of the other streets which intersect Euclid Street. The appellants contend that the facts in this case bring it within the purview of Perez v. State, 249 Ark. 1111, 463 S.W. 2d 394 (1971), rather than our earlier case of Easley v. State, 249 Ark. 405, 459 S.W. 2d 410 (1970).

The appellants overlook Prichard’s own testimony that his home is actually the first house on the left after turning off of Euclid Street onto Prospect, as the other white house with green shutters was on the corner and faces on Euclid rather than Prospect. He also testified that his house was the only white house with green shutters with two storage houses in back. There was no evidence of other white houses with green shutters'on other streets in the area north of Euclid, and no evidence of any other house in the area occupied by a person named “Prichard. ” There was no evidence of any other white frame house with green shutters and two storage houses behind it on the north side of Euclid Street in its entire length. As a matter of fact Prichard testified that there was no such other house in the area and the officer who served the warrant and made the search, said he had no difficulty locating the house under the description in the warrant. We are of the opinion, therefore, that this case falls within the purview of Easley v. State, supra, rather than the Perez case.

We do not deem it necessary to set out in detail the distinction between the Perez and Easley cases except to say that the search warrant in Perez directed the searching officers to an apartment occupied by Jack Eaton at the “Curl Street Apartments at Curl and Washington Streets and in a black Ford Thunderbird, Kentucky License Number B67-413, and a red Volkswagen, Kentucky License Number M6-801, at said address in the City of Hot Springs, County of Garland, State of Arkansas.” There was no Jack Eaton occupying an apartment in the building but Perez appeared in the properly described automobile and his apartment, one of seven in the building, was searched.

The search warrant in Easley directed the officers to search a house “occupied by Bud Easley in or near Hiwasse in the County of Benton.” In that case, as in the case at bar, the officers had no difficulty in locating the house to be searched. It is true that in Easley the property was rural property but regardless of whether the property is rural or urban, a search warrant is directed to the officers charged with the responsibility of making the search; and the description should be specific enough to enable the officers to identify the person or premises to be searched and, at the same time, protect the person or property searched against unintended and unreasonable searches and seizures.

In Steele v. United States, 267 U.S. 498 (1925), the United States Supreme Court set out the test as to specific description required in search warrants under the Fourth Amendment as follows:

“It is enough if the description is such that the officer with a search warrant, can, with reasonable effort, ascertain and identify the place intended.”

In State v. Daniels, 46 N.J. 428, 217 A. 2d 610 (1966), a store, described in the search warrant as a confectionary store, was erroneously stated to be at 31 Avon Place rather than at 35 Avon Place. In that case the New Jersey Supreme Court said:

“The test is not whether the description is completely accurate in every detail but rather whether it furnishes a sufficient basis for identification of the property so that it is recognizable from other adjoining and neighboring properties. United States v. Pisano, 191 F. Supp. 861 (S.D. N.Y. 1961).
We must therefore analyze the facts in the matter sub judice to ascertain whether the search warrant complied with the basic tenet set forth in Steele, supra. This subject must be approached on a common sense basis rather than upon a super technical basis requiring elaborate specificity.”

The appellants seem to contend that the burden was on the state to show that no comparable residences to that of the appellants existed on any of the other intersecting streets north of Euclid Street. The state seems to contend that the burden was on the appellants to show the possibility of another house or houses that could be confused with the one described in the warrant. We are inclined to agree with the state. In United States v. Joseph, 174 F. Supp. 539 (E.D. Pa. 1959), the address of the building searched was 209 Minersville Street, but the warrants used identified the premises as 209 Court Terrace and 523 Minersville Street. In finding the warrant description to meet constitutional requirements, the court said:

“In any case, if defendant is seriously taking the position that the address is or was insufficient, his argument is doomed to failure by the settled rule that all that is required is that the description suffice to enable officers to ascertain and identify the place intended by reasonable effort. Steele v. United Stales, 267 U.S. 498 (1925); United States v. Klaia, 127 F. 2d 529 (2nd Cir. 1942).
No showing was made that there was any adjoining building likely to be confused with the Joseph premises, regardless of which address or which entrance was specified.”

In Johnson v. State, 469 S.W. 2d 581 (Tex. Cr. App. 1971), the court said:

“In another ground of error, appellant complains that there was a variance between the premises described in the search warrant and the premises actually searched. The warrant designates 872 Bettina Street. The proof shows that the apartment searched was located at 872 Bettina Court. Reliance is had upon Balch v. State, 134 Tex. Cr. R. 237, 115 S.W. 2d 676. In Balch it was made apparent that the address designated in the warrant was a vacant lot. No such fact exists in this case. There is no showing that there were two streets named Bettina in Houston and therefore, Balch supra, is not controlling.”

In Owens v. Scafati, 273 F. Supp. 428 (D. Mass. 1967), the petitioner sought a writ of habeas corpus on the ground that his conviction resulted from evidence seized under a search warrant which did not particularly describe the place to be searched. In approving the warrant the court said:

“With regard to the contention that the search warrant failed to describe the premises with particularity, * * * there was no showing at any stage of the State court proceedings, and there has been no showing to date, that 1 Thomas Park appeared to be a multiple unit dwelling. The State 'court record indicates, to the contrary, that there was only one door from the outside, which opened into a hallway which gave access to the entire house. There has been no showing that the police officers knew or should have known from its physical appearance that 1 Thomas Park was a multiple dwelling house when they applied for the warrants, there has been no showing that the officers knew or should have known that anyone other than the Owens brothers lived therein, and there has been a showing that the officers did know that the Owens lived at 1 Thomas Park.”

At 79 C.J.S., Searches and Seizures, § 98, the following general proposition is set forth:

“One who seeks affirmative relief on the ground that officers violated his constitutional rights in making a search has the burden of establishing facts from which it will affirmatively appear that his rights were invaded.”

In State v. Holt, 415 S.W. 2d 761 (Mo. 1967), the accused was convicted of possessing an apparatus for the unauthorized use of narcotic drugs. The appellant sought reversal because, inter alia, the search which resulted in the seizure of certain articles was unreasonable and void and that the evidence so taken should have been suppressed. In denying this contention the Supreme Court of Missouri said:

“Not only must defendant file a motion to suppress the controverted evidence, but he has the burden of presenting evidence to sustain his contentions. (Cases cited). Not only is the legality of a seizure properly determined by a motion to suppress the evidence but the burden is on the defendant to offer evidence and affirmatively demonstrate the illegality of the search and seizure.”

Thus, the burden of proof, in the sense of producing evidence, is clearly on the defendant who alleges that the warrant is unconstitutional.

In State v. Gailes, 428 S.W. 2d 555 (Mo. 1968), the defendant was convicted of illegal possession of a stimulant drug. Though this case is not exactly on point because the search was one without a warrant, the general rule was set out by the court as follows:

“Defendant was not denied but on the contrary was given every opportunity to establish the unlawfulness of the search and of the arrest of defendant, but simply failed to sustain the burden which rests upon a defendant to ‘affirmatively demonstrate the illegality of the search and seizure.’ State v. Medley, Mo. Sup., 400 S.W. 2d 87.”

In State v. Bailey, 23 Conn. Sup. 405, 184 A. 2d 61 (1962), the defendant appealed on the sole ground that thé court erred in denying his motion to suppress or strike the evidence from the record because the state failed to introduce the search warrant as part of its case. In holding that the state was not required to put the warrant into evidence the Connecticut Court said:

“ ‘Various documents or instruments issued by authority of law and approved by the courts or public officers are presumed to have been regularly issued. This is true as to search warrants * * *.’ 1 Wharton, Criminal Evidence (11th Ed.) § 160, p. 176; 47 Am. Jur. 521, § 31. ‘The burden rests upon the defendant to prove the invalidity of the search warrant.’ Wharton, op. cit. § 197, p. 219.”

In People v. Wilson, 256 C.A. 2d 411, 64 Cal. Rptr. 172 (1967), a defendant, who was convicted of unlawfully possessing heroin for sale, alleged error, inter alia, because at the evidentiary hearing the magistrate held the burden to be on the defendant to go forward in contesting the warrant and that each side produce the witnesses they wanted. The California Court of Appeals for the Second District dismissed this argument saying:

“It has been held that the burden of establishing the invalidity of a search warrant is upon the defendant. Williams v. Justice Court, 230 Cal. App. 2d 87, 40 Cal. Rptr. 724 (1964).”

See also, People v. Carson, 4 Cal. App. 3d 782, 84 Cal. Rptr. 699 (1970).

In State v. Rangel, 12 Ariz. App. 172, 468 P. 2d 623 (1970), a defendant convicted of possession of heroin contended that the search warrant used to acquire the damaging evidence was invalid. The court held that in order to determine the validity of the warrant, it must view the affidavit presented to the magistrate and any sworn testimony given him. The record contained neither the affidavit nor any testimony before the magistrate. The Court of Appeals of Arizona, Division 1, said:

“While we may sympathize with the defendant’s allegation, we are compelled to overrule any objections he may have as to the insufficiency of the warrant as the burden is upon him to so prove and the record imports verity.”

We conclude that the description of the premises to be searched in the case at bar was sufficiently accurate and specific to enable the officers to find it without confusion or difficulty, and that the burden rested on the appellants to offer proof to the contrary.

The judgments are affirmed.

Byrd, J., concurs.


author: Conley Byrd, Justice.

text:
    REBSAMEN COMPANIES, Inc., d/b/a REBSAMEN FORD COMPANY v. ARKANSAS STATE HOSPITAL EMPLOYEES FEDERAL CREDIT UNION
    74-329
    522 S.W. 2d 845
    Opinion delivered May 19, 1975

      Moses, McClellan, Arnold, Owen & McDermott, by: William !j. Owen, for appellant.

      Walker & Hirby, by: H. Oscar Hirby, for appellee.
   Conley Byrd, Justice.

This litigation arises out of the sale of a 1974 Ford pickup truck by appellant, Rebsamen Companies, Inc., d/b/a Rebsamen Ford Company, to George H. Miller and Miller’s financing arrangements with appellee, Arkansas State Hospital Employees Federal Credit Union. The trial court found that appellant had agreed to record appellee’s lien against the truck and that because of appellant’s failure to record the lien, it was jointly and severally liable with George H. Miller for the balance due on the note together with interest and attorney’s fees. The trial court also gave appellee a lien on the truck in the possession of George H. Miller together with a writ for possession. For reversal appellant contends:

“I. The trial court erred in awarding appellee a judgment against the appellant, Rebsamen Ford, upon the promissory note executed by the other defendant George Miller, to which appellant was not a party.
II. There is no substantial evidence to support a contractual relationship between appellant and appellee.”

Edna Miller, appellee’s office manager, testified that when George Miller made application for a loan he presented one of appellant’s forms showing that he was purchasing a 1974 Ford pickup, Serial No. F10AUT24479. That after talking with the appellant’s salesman and the billing department she caused appellee’s check No. 20704 to be drawn payable to George H. Miller and Rebsamen Ford Inc., in the amount of $2975.00. In accordance with her conversation with the billing department she placed in red ink the notation on the check, “Please record our lien in amount of this check 1974 Ford pickup F10AUT24479.” After waiting a reasonable time to receive notification from the State Motor Vehicle Department that appellee’s lien had been recorded, she started checking with the Motor Vehicle Department to see why she had not received the notification of the perfection of her lien. In her check with the Motor Vehicle Department she determined that appellant had sold the Ford pickup F10AUT24479 to Karl Krick. She also determined that on November 29, 1973, appellant had sold a Ford pickup F10GUS87202 to George H. Miller and had treated the same as a “cash transaction.” Appellee’s check No. 20704, supra, under date of December 1, 1973, had been endorsed by both appellant and George H. Miller. Miller was then in default and owed a current balance of $2,847.36.

Gene Beavers, appellant’s business manager, testified that as far as appellant was concerned the sale to George H. Miller was a cash deal.

Curtice Ratcliff, appellant’s sales manager, testified that Travis Henderson and Gary Williams were the salesmen involved in the transaction and that when they brought the transaction to him for approval nothing was said to him about financing.

When we consider the evidence of Mrs. Edna Miller, together with the notation on the check and the fact that the check was made out to George H. Miller and appellant, we find sufficient evidence to sustain the Chancellor’s finding that appellant had agreed to record the lien. In fact it is difficult to understand how appellant could accept the check with the notation thereon and still claim that so far as it knew it had no knowledge of any financing arrangements.

The ordinary damage rule for a breach of a contract is to place the plaintiff in the same financial position in which he would have been had the promise not been broken. See Blair v. U.S. for Use and Benefit of Gregory-Hogan, 150 F 2d 676 (8th Cir. 1945). Had appellant recorded the lien as appellee contends then appellee would have only had security to the extent of the value of the truck — not necessarily for the balance of the loan. Consequently, it follows that the trial court erred in rendering judgment jointly against appellant and George H. Miller for the balance due. However, since the security also called for interest and the allowance of a reasonable attorney’s fee, appellant would be liable for that amount up to the value of the security.

Appellee to sustain the action of the trial court in awarding damages jointly against appellant and George H. Miller relies upon Federal Employees Credit Union v. Capital Automobile Company, 124 Ga. App. 144, 183 S.E. 2d 39 (1971). In that case the automobile dealer endorsed a check with a notation similar to the one here involved and instead of selling an automobile issued his own check to the credit union borrower. The court there held the automobile dealer liable for the full amount of the money received as in cases of fraud involving parties in pari delicto.

The facts in this case were developed in the trial court on the theory that appellant and George H. Miller were jointly liable. In view of the trial court’s ruling, it was not necessary for appellee to develop the facts to determine whether the Ford pickup F10AUT24479, upon which the loan was made, was equal in value to the truck purchased by George H. Miller. There is some indication in the record that if the lien had been perfected against the vehicle actually purchased no law suit would have been filed against appellant. Furthermore, the trial court in addition to ordering the sale of the truck purchased by George H. Miller retained jurisdiction to permit appellant to amend and cross-complain against George Miller. If the two trucks were equal in value and the one in Miller’s possession has been sold, then appellant would have no liability beyond the value of the truck and incidental court costs. Therefore, to do equity between the parties we are reversing and remanding with leave to the trial court to hear additional testimony if necessary to determine ihe liability of appellant, if any.

Reversed and remanded.


text:
    Roger HILL v. STATE of Arkansas
    CR 75-28
    522 S.W. 2d 660
    Opinion delivered May 19, 1975

      Barrett, Wheatley, Smith & Deacon, by: Tom D. Womack, for appellant.

      Jim Guy Tucker, Atty. Gen., by: Robert A. Newcomb, Asst. Atty. Gen., for appellee.
   Conley Byrd, Justice.

Appellant Roger Hill was convicted of selling a controlled substance (marijuana) and given a ten year sentence. For reversal he makes the following contentions:

“I. The trial judge improperly permitted a witness subpoenaed by the defense to assert the privilege against self-incrimination.
II. It was prejudicial error to allow the prosecuting attorney to repeatedly describe the appellant as a drug pusher in his closing argument when there was no reference to such term in the evidence and no reason for it to be inferred therefrom.”

The record shows that Larry Jackson, an undercover agent, went by appellant’s house to see his roommate. While talking to appellant in front of his apartment some young boys came by and asked appellant if he had a “lid”. Appellant told them “yes” and went into his apartment with the boys. When the boys left, appellant made inquiry as to why Jackson wished to see the roommate. When Jackson explained that he desired to purchase some marijuana, appellant invited him into the apartment. Inside the apartment appellant got an athletic traveling bag containing 25 to 30 lids of marijuana. Jackson purchased two lids for $30.00. Inside the apartment was a Negro male that introduced himself as Dewight. Dewight told Jackson that he had bought a “lid” from appellant.

At the trial appellant called as a witness Lisa Roddy. After ascertaining that Lisa Roddy knew Larry Jackson, appellant asked her, “Has Mr. Jackson, in your presence, in your view, ever attempted to smoke a marijuana cigarette or anything you think or know contain marijuana?” To this and other questions of like nature, the witness pleaded the Fifth Amendment. The record shows that Lisa Roddy was under indictment at the time on drug charges.

POINT I. We find no merit in appellant’s contention that the witness was improperly permitted to plead the Fifth Amendment. It was pointed out in Emspak v. United States, 349 U.S. 190, 75 S. Ct. 687, 99 L. Ed. 997 (1955), that to “sustain the privilege ... it need only be evident from the implications of the question, in the setting in which it is asked, that a responsive answer to the question, or an explanation of why it cannot be answered might be dangerous because injurious disclosure could result.”

POINT II. Under the record presented it appears that appellant was fairly active in the sale of marijuana and consequently we cannot say the State’s characterization of appellant as a “drug pusher” was not fair comment on the evidence.

Affirmed.


author: George Rose Smith, Justice.

text:
    ROYAL MANOR APARTMENTS et al v. B.J. POWELL d/b/a B.J. POWELL CONSTRUCTION COMPANY
    75-13
    523 S.W. 2d 909
    Opinion delivered May 27, 1975
    [Rehearing denied July 7, 1975.]

      Dickey, Dickey & Drake, for appellants.

      Coleman, Gantt, Ramsay & Cox, for appellee.
   George Rose Smith, Justice.

This is a dispute between a general contractor and one of its subcontractors. In 1973 the principal appellant, Professional Builders & Realty Company, a corporation owned by Leonard Coyle, was the general contractor engaged in the construction of the Royal Manor Apartments, in Jefferson county. Coyle orally subcontracted the foundation and carpentry work to the appellee, B.J. Powell, for the total sum of $112,000.

Under the agreement Powell was entitled to request part payments or “draws” as the work progressed. Powell’s first three draws, totaling $52,148, were duly paid. Coyle, however, refused to honor the fourth request, taking the position that the amount sought was excessive and that Powell was not properly performing his contract. Powell then quit the project and brought this suit for $21,712.59 as the balance due for his past performance. After an extended trial the chancellor found that Coyle was at fault in failing to honor the fourth request or at least in failing to enter into negotiations about the amount due. This appeal is from a decree awarding Powell a judgment and lien for $16,290.22 as the amount still due for his part performance of the subcontract.

For reversal Coyle first contends, in substance, that Powell was himself in default when he quit the job, because the delays and other conditions about which he complained were the result of his own defective performance of his subcontract. Neither side questions the controlling rule of law, that a subcontractor’s right to abandon his contract for nonpayment of a requested installment depends upon which party was actually in default at the time. Tech-Neeks v. Francis, 241 Ark. 390, 407 S.W. 2d 938 (1966).

The weight of the evidence supports the chancellor’s conclusion that here it was the principal contractor who was at fault when Powell abandoned the work. Powell testified that other subcontractors failed to do their jobs properly and on schedule, resulting in costly delays in Powell’s performance of his own subcontract. Coyle testified that under the Coyle-Powell oral contract it was Powell’s responsibility to supervise the project as a whole and to require all subcontractors to stay current in their work. Powell denied having assumed that responsibility.

Powell’s version of the parties’ understanding is the more reasonable of the two. It was unquestionably Coyle’s duty to employ all the subcontractors; Powell had no authority in that respect. Even though Coyle insisted that Powell was to supervise the other subcontractors, Coyle readily admitted that Powell had no real power to discharge that responsibility. This excerpt is from Coyle’s testimony:

Q. He [Powell] had no supervision over them, as far as being able to tell them, “Now, I want you out here on this job at 8:00 Monday morning”?
A. Now, that would be part of it, as far as supervision and having them there on time or at the time he wants them.
Q. It would be part of his job to alert them that he needs them there at a certain time?
A. Yes, sir.
Q. But as far as having any authority to order them there or face the consequences, he would not have any sanction he could apply against them if they didn’t cooperate?
A. No, sir.
Q. He would be just another subcontractor?
A. Right.
* * * *
Q. Now, if there had been difficulty, Mr. Powell would have contacted you, and you would have dealt with the subcontractor?
A. Yes, sir.

Viewing the record as a whole we agree with the chancellor’s belief that the overall progress of the work was the general contractor’s responsibility. It follows that Powell was not in default by abandoning his contract owing to adverse conditions over which he had no control.

The appellants’ remaining contentions relate to the chancellor’s method of computing Powell’s damages. Those damages were necessarily hard to prove with precision, because Powell complained of many delays that occurred over a period of several months. The chancellor adopted, we think properly, the view expressed in Story Parchment Co. v. Paterson Parchment Paper Co.. 282 U.S. 555 (1931):

It is true that there was uncertainty as to the extent of the damage, but there was none as to the fact of damage; and there is a clear distinction between the measure of proof necessary to establish the fact that petitioner had sustained some damage, and the measure of proof necessary to enable the jury to fix the amount. The rule which precludes the recovery of uncertain damages applies to such as are not the certain result of the wrong, not to those damages which are definitely attributable to the wrong and only uncertain in respect of their amount.

What the chancellor did in this case was to base his computation of damages upon the four requested draws made by Powell in the course of the work. The first three requests were paid by Coyle without question, but we do not agree with the appellants’ argument that the chancellor treated that fact as establishing an estoppel against the appellants. Instead, we think the chancellor took the requests to be the best proof of Powell’s damages. The requests were made contemporaneously as the work progressed, when firsthand information was available. Powell testified that in preparing the requests he inspected the job site and used percentage figures that he had discussed with Coyle. Coyle’s ready payment of the first three draws certainly suggests that their amount was not decidedly out of line with the progress of the work. Moreover, the testimony of the witness Ferguson, who made inspections for the agency, that was financing the project, tends to support Powell’s figures. Finally, the chancellor reduced the amount of the fourth requested draw from i -,- 900 to $8,000, apparently giving some weight to Coyle’s general statements that he thought Powell had been overpaid on some of the draws.

In this situation, where a builder or subcontractor has been prevented by the owner or general contractor from completing the work, the courts have recognized two alternative measures of damages. The plaintiff may elect to rely upon the contract and claim the full amount of the agreed price, less what it would have cost him to complete the construction. Or the plaintiff may seek a recovery on a quantum meruit basis, his damages then being the reasonable value of his performance. Corbin, Contracts, § 1094 (1964); Williston, Contracts, § 1454 (3d ed., 1970); Restatement, Contract, § 346(2) (1932); Petropoulos v. Lubienski, 220 Md. 293, 152 A. 2d 801 (1959).

Here the chancellor, as we interpret his detailed opinion, adopted the quantum meruit approach and sought to determine the reasonable value of Powell’s contribution to the project, above what he had been paid. After studying the record we cannot say that the chancellor’s determination of damages is clearly against the preponderance of the evidence. To the contrary, his award appears to effect substantial justice. We note the appellants’ suggestion that the cause be remanded with instructions for a new trial, but in chancery cases it is our usual practice to render final judgment upon the proof that the parties have seen fit to introduce. Wilborn v. Elston, 209 Ark. 670, 191 S.W. 2d 961 (1946). We find no reason to depart from that practice in this case.

Affirmed.


author: John A. Fogleman, Justice.

text:
    Johnny KING Jr. v. STATE of Arkansas
    CR 75-10
    522 S.W. 2d 842
    Opinion delivered May 27, 1975

      Kenneth ('.. ('.offelt, for appellant.

      Jim Guy Tucker, Atty. Gen., by: Alston Jennings, Jr., Asst. Atty. Gen., for appellee.
   John A. Fogleman, Justice.

This is a very peculiar case. Appellant’s conviction of burglary in the circuit court of Pulaski county was affirmed in this court on June 17, 1974. King v. State, 256 Ark. 778, 510 S.W. 2d 876. On December 2, 1974, this court considered his petition to recall the mandate and to proceed under Criminal ProcedureRule 1. Our order denying the petition stated that it was “denied without prejudice to petitioner’s right to proceed under Criminal Procedure Rule 1 when he is in custody.” Although granting permission to one who was not in custody at the time to proceed on a Criminal Procedure Rule 1 petition was unprecedented, the order was construed by others to grant the permission, and we cannot quarrel with that construction. On the very next day, appellant petitioned the circuit court for relief under Criminal Procedure Rule 1. In this petition, he asked that the judgment of conviction be vacated because the deputy prosecuting attorney who represented the state at King’s trial had learned from the police officer who had testified for the state, while the jury was deliberating, that the officer in charge of the central security burglar alarm system had heard two voices when a burglar alarm went off at the burglarized premises; that the deputy prosecuting attorney had immediately informed the circuit judge presiding over the trial, but that the judge stated that it was too late to do anything about it. The materiality of this evidence is its relationship to appellant’s trial testimony that he was forced at gun point by an unidentified individual to break into the building. The state’s evidence had shown that the police had gone to the burglarized premises in response to the alarm system and found appellant in the building lying on the floor. See King v. State, supra.

On December 9, 1974, Lowber Hendricks was elected special judge of the Fourth Division of the Circuit Court of Pulaski County, over which Circuit Judge Richard B. Adkisson regularly presides. This was the division in which appellant’s petition had been filed. The petition was heard by Judge Hendricks on December 11, 1974. No record of the proceedings was kept and no one has undertaken to supplement the record as to what was said and done at that hearing, so we must consider the recitals of the order of Judge Hendricks on the petition to be correct. By that order, he granted appellant a new trial.

The order recites that Jim Hamilton, the deputy prosecuting attorney who represented the state at the trial, advised the court that information that two voices were heard on the burglar alarm system was relayed to him by one of the investigating police officers while the jury was deliberating; he reported this matter to Bill Satterfield who was representing the appellant at the trial; the matter was reported to Circuit Judge Richard B. Adkisson, who was then presiding; no action was taken by the trial judge and Satterfield failed to make any record on the matter; when the jury returned a verdict of guilty, King discharged Satterfield.

The order also recites that thereafter appellant’s present attorney was employed to perfect an appeal, but had no knowledge of what had taken place with reference to the matters related by the deputy prosecuting attorney. The order also recites:

. . . Today Mr. Jim Hamilton has very honestly and candidly advised the Court that in his opinion this matter should have been made a part of the record by Mr. Satterfield and he feels that the jury should have had the opportunity to consider this evidence together with all the other evidence presented in the case. In response to a direct question posed to Mr. Hamilton by the Court, viz, “Do you feel that the defendant received a fair and impartial trial by Jury?” Mr. Hamilton again in all candor answered that he does not think that the defendant did receive a fair trial due to the fact that they were not permitted to deliberate on this excluded evidence and stated that it was probably the only case he has tried in which he feels the defendant did not receive a fair and impartial trial by jury.
. . . While the Court readily recognizes that the revelation that two voices were heard on the audio system does not clear the defendant of suspicion [of] guilt, it is evidence which should have been considered in view of the allegation of the defendant to the effect that he was forced by a second person at gunpoint to break into the building and lie down on the floor with his hands behind his head, the position, incidentally, in which he was found by the police. In view of this circumstance and in view of the opinion of the State’s trial counsel, Deputy Prosecuting Attorney Jim Hamilton, it is by the Court considered that the defendant, Johnny King, Jr., did not receive a fair and impartial trial by jury and that his petition should be and the same is hereby granted.

The Court’s order recited that the new trial was granted on “recommendation of State,” set aside the judgment of conviction, fixed bail at $1,000 and set the case for jury trial on January 23, 1975.

The prosecuting attorney filed a motion to vacate this order on January 20, 1975, which the court set for hearing on February 3, 1975, ordering the jury trial to be delayed. This motion was overruled on January 21, 1975. On January 23, 1975, the state filed an amended motion to vacate the order setting aside the conviction, alleging that the matter was not a pending case in the circuit court whenjudge Hendricks was elected because the order of this court granting King permission to proceed was not filed in the circuit court until December 10, 1974, relying on State v. George, 250 Ark. 968, 470 S.W. 2d 593 and State v. Stevenson, 89 Ark. 31, 116 S.W. 202.

Judge Adkisson heard the state’s motion and granted it, set aside the order granted by Judge Hendricks and ordered King recommitted without prejudice to his right to proceed under Criminal Procedure Rule 1 before this court. This order erroneously states that the date of this court’s action was December 10. This court’s order filed in the circuit court clearly reveals that the action was taken by this court on December 2. Perhaps the error in this respect is due to the fact that the clerk of this court certified the copy of our order filed in the circuit court on December 10.

The order entered by Judge Adkisson is based upon the holding that this court had not on December 2 granted permission to King to proceed so that the case was not a pending case before Judge Hendricks because the order from this court was not received before his election as special judge.

We disagree with the holding of Judge Adkisson, albeit reluctantly, that our order of December 2 did not give King permission to proceed on his petition in the circuit court. No one contends that he was not in custody at the time. In spite of the fact that it is not the practice of this court to grant conditional permission to one not in custody to proceed, we must say that our order must be so read. The circuit court was not without jurisdiction to proceed in this matter at any time after appellant’s petition was filed in that court. It is our order, not the certified copy thereof, which confers jurisdiction on the trial court and the copy is merely evidence of that jurisdiction, much as a mandate from this court is evidence of the trial court’s reacquisition after an appeal has been decided. See Smith v. Union National Bank, 241 Ark. 821, 410 S.W. 2d 599; Bertig Bros. v. Independent Gin Co., 147 Ark. 581, 228 S.W. 392.

Although it is the better procedure before a hearing is held, for a trial judge to make certain that permission to proceed has been granted by this court in Criminal Procedure Rule 1 case when there has been an appeal to this court, the filing of our order, as evidence of the granting of that permission may be waived. This is the case where the filing of a mandate after appeal is involved. See cases above cited. The defect, just as in Smith, was a procedural one, which may be waived by failure to object. The waiver does not confer jurisdiction by consent, but as in Bertig, it is a waiver of the formal evidence of jurisdiction.

The jurisdiction of the Circuit Court of Pulaski County was conferred by our grant of permission, and the certified copy of our order furnished the evidence of the requisite jurisdictional fact. Under the circumstances here, we must say that the case was a pending case when Judge Hendricks was elected and that the appearance and participation of the deputy prosecuting attorney in the hearing before Judge Hendricks, without making any objection, did constitute a waiver of the filing of the copy of the order of this court. The first objection on this ground comes in the State’s amendment to its motion to vacate Judge Hendricks’ order. This was filed January 23, 1975. This was too late.

The judgment is reversed and the cause remanded for further proceedings consistent with this opinion.