author: Conley Byrd, Justice.

text:
    CHICAGO, ROCK ISLAND & PACIFIC RAILROAD COMPANY v. M. C. MOCK
    5-5789
    477 S.W. 2d 465
    Opinion delivered March 6, 1972
    [Rehearing denied April 10, 1972.]

      Wright, Lindsey & Jennings; By: William R. Wilson, Jr., for appellant.

      Hall, Tucker ir Lovell and Patten, Brown & Leslie, for appellee.
   Conley Byrd, Justice.

This is a suit under the Federal Employers Liability Act, 45 USCA § 51, et seq, by appellee M. C. Mock against appellant Chicago Rock Island & Pacific Railroad Company for injuries received when Mock allegedly stepped in a hole at Rock Island’s yard at Bauxite, Arkansas, on November 23, 1967. Rock Island denied any negligence and affirmatively pleaded a $2,000 release signed by Mock on June 21, 1968. Mock contended the release was obtained from him through an incorrect medical opinion rendered to him, and upon which he relied, by Rock Island’s company doctor. The jury found the issues for Mock and awarded damages of $37,400, from which the court deducted the $2,000 already paid and entered judgment for $35,400. For reversal Rock Island contends:

“The trial court erred in refusing to direct a verdict for Rock Island:
A. The doctor’s statement in this case could not have induced a reasonable man to sign a release, as a matter of law;
B. The evidence demonstrated that Mr. Mock did not, in fact, rely upon the involved statement in signing a release;
C. Mr. Mock’s account of the facts and circumstances surrounding this case was so inherently incredible that it could not support a verdict, as a matter of law.

The proof shows that Mock, a conductor on the date of the injury, was “bumped” (displaced by seniority) at the end of that day’s work. November 29, 1967, he went to Dr. Paul Hoover, Rock Island’s regional surgeon, with a complaint of severe pain in his back. X-rays were made and Mock was treated by Dr. Hoover for a short period before Dr. Hoover suffered a heart attack. Thereafter Mock was advised by letter from Rock Island that he should arrange to see another company doctor and that Dr. Harlan Holmes was seeing Dr. Hoover’s patients. As a result of the letter, Mock was then treated by Dr. Holmes. On June 4, 1968, Dr. Holmes wrote Rock Island that Mock continued to slowly improve but still complained of some low back pain. In the same letter Dr. Holmes stated, “It is hoped that recovery will be very soon.” Mock testified that Dr. Holmes told him that he was doing very well and ought to be well before long. Mock says that he was relying upon Dr. Holmes’ statement when he signed the $2,000 release on June 21, 1968.

Dr. Holmes testified that he was only an authorized medical examiner for Rock Island and that he only did a few examinations. On direct he stated that he had treated Mock for an injury that allegedly occurred when he stepped in a hole. His notes did not indicate that Mock was on duty when he stepped in the hole, but if Mock had told him that he was on duty when it occurred, his notes would have shown that information. With reference to the June 4 letter, Dr. Holmes testified:

“Q. Doctor, I show you what’s been marked and admitted as Plaintiff’s Exhibit 16 which purports to be a letter from you dated June 4th ’68. I would like to ask if you wrote that letter?
A. Yes, sir. I wrote the letter.
Q. And if I may, I will read the last sentence. I believe you state, ‘It is hoped recovery will be very soon.’
A. Yes, sir.
Q. Does that reflect an opinion on your part that a recovery will be very soon?
A. I stated I hoped it would be very soon.
Q. You didn’t have an opinion at that time it would be?
A. No, sir.”

On cross-examination Dr. Holmes again stated that if Mock had told him that the injury occurred on the job, his medical notes would have shown that information. It then developed that Dr. Holmes on March 22, 1968, had written Rock Island as follows:

“Dear Sir: I first saw the above named on December 22, 1967, with a history of having stepped in a hole injuring his back on November 22, 1967, while on duty.”

Dr. Holmes did not know whether or not he had authorization from Mock to furnish medical information to Rock Island. He regularly furnished progress reports on Mock to Rock Island at Rock Island’s request and in doing so considered himself as representing Rock Island. He could not remember exactly what he had told Mock about his condition in June. On redirect Dr. Holmes stated that his notes indicated Mock was worse on June 17th and 21st and that information would have come primarily from the patient. While considering himself as representing Rock Island, he did not consider himself as a company doctor.

There was evidence that Mock made application to Travelers Insurance Company for hospitalization insurance benefits on March 4, 1968, in which he stated that his injury occurred on the job. Travelers later refused payment because their policy only covered off duty injuries.

Because Mock had failed to promptly report the injury, Rock Island had discharged him. At a reinstatement hearing on March 11, 1968, Mock had testified. In testifying at trial on cross-examination with reference thereto the record shows:

“Q. In referring again to your investigation, Mr. Mock, you were asked the question: ‘Did you incur while on duty as conductor at about 2:30 a.m., November 23, 1967, at Bauxite Arkansas, an injury to yourself?’ And your answer, ‘In checking my train which was made up on B & N One track, I was walking between B & N and Rock Island three, when I stepped in a hole and felt a slight pain run up my back — In thirty minutes the pain left and I felt all right.’ Question: ‘Was the pain you suffered in your back a result of stepping in a hole? Answer: ‘It could have been.
A. Correct.
Q. That is the answer you gave at that point?
A. Correct.
Q. Now then, two pages over you were asked the question: ‘Mr. Mock, were you injured while on duty as a conductor at Bauxite, Arkansas, at or about 2:30 a.m., November 23, 1967?’ Your answer was: ‘No sir. I don’t think so.’ Is that correct?
A. It could be.
Q. I am not saying that is what happened. That is the answer you gave at that time?
A. Right.”

After Mock signed the release on June 21, 1968, he went to Travelers Insurance Company and made the following statement:

“On March 4, 1968 I turned in a claim to The Travelers Insurance Company for an injury. I indicated on the first notice of claim that I stepped in a hole at Bauxite, Arkansas while on duty for the railroad and hurt my back. I stepped in a hole at a lake on my property at Alexander and hurt my back. This happened Nov. 23, 1967.
“I thought I might be compensated by Rock Island for showing an injury that happened on the job. I have read the above statement and it is true and correct to the best of my knowledge and memory. ”

Concerning the above statement, Mock testified that when he signed the release and resignation Mr. Pumphrey, appellant’s claims agent, told him that if he would go to Travelers and sign such a statement, Travelers would pay his hospital bill of some $500 or $600. As a result of signing the statement Travelers did pay $461.75 to the hospital.

The law with respect to the validity of releases such as is here involved is set forth in Kansas City Southern Railway Company v. Sanford, 182 Ark. 484, 31 S. W. 2d 963 (1930), and Dixie Bauxite Company v. Webb, 187 Ark. 1024, 63 S. W. 2d 634 (1933). In the latter case, page 1031, it was said: “This court has many times held that a release executed by an injured party, relying upon the opinion of the physician of the party responsible for the injury, that the injury was slight and temporary and not permanent, is not binding upon the party making the release.” The appellant relies upon Benedum-Trees Oil Company v. Sutton, 198 Ark. 699, 130 S. W. 2d 720 (1939). As we view the record there is substantial evidence from which the jury could have found that Dr. Holmes’ statement induced Mock to sign the release and that in signing the release Mock relied upon the doctor’s statement.

Jurors are the sole judges of the weight and credibility of witnesses. AMI 103. If Dr. Holmes’ testimony could be accepted as uncontradicted and unimpeached, then appellant’s argument that this case should be controlled by Benedum-Trees Oil Company v. Sutton, supra, would be more ..persuasive. Because of his relationship with the railroad, it cannot be considered uncontroverted, because of contradiction by both direct and circumstantial evidence, nor can we say with assurance that the jury should not have weighed its credibility. Obviously, we cannot hold as a matter of law that there is no credible evidence to support the jury verdict.

Affirmed.

Harris, C. J. dissent.


source: Caselaw Access Project

license: Public Domain

text:
    Wadell JOHNSON v. STATE of Arkansas
    5688
    477 S.W. 2d 196
    Opinion delivered March 6, 1972

      Sam L. Anderson, for appellant.

      Ray Thornton, Attorney General; John D. Bridgforth, for appellee.
   Conley Byrd, Justice.

The trial court sitting as á jury found appellant Wadell Johnson guilty of burglary and fixed his sentence at seven years. For reversal he contends that his conviction is not supported by the evidence and that the trial court erred in refusing to permit him to recall the prosecuting witness for cross-examination.

The proof on behalf of the prosecuting witness, a female age 30, was that she was asleep in her apartment between 9:00 and 10:00 a.m. on January 18, 1970. At the time she was dressed in a night gown and underpants. She was awakened when appellant jumped in the middle of the bed straddling her. He covered her face with a housecoat and said: “Lay still and be quiet. Don’t make any noise. If you don’t, I won’t hurt you as bad. If you do, I’ll kill you.” After she turned on her stomach he cut her panties off and stuck a lighted match to her bottom. When appellant attempted to turn a radio on beside the bed, she threw the duster off her head and looked at him. Appellant then beat her on the head with a heavy object to such an extent that she was hospitalized for a week or so. After appellant jumped up and ran out the back door, she found that the locks had been pried off the back door. Witness positively identified appellant.

By Ark. Stat. Ann. § 41-1001 (Repl. 1964), burglary is defined as “. . . the unlawful breaking or entering a house. . . with the intent to commit any felony. ...” The foregoing evidence is amply sufficient to sustain the conviction.

There is no merit in appellant’s contention that the trial court erred in refusing to permit him to recall the prosecuting witness for cross-examination. The trial court did permit him to call the prosecuting witness as a hostile witness. Thus he was permitted to ask the same questions that he could have asked on-cross-examination.

Affirmed.

Fogleman, J., concurs.


author: Frank Holt, Justice.

text:
    HOME INSURANCE CO. v. Ernest D. MOYERS

      5-5735

    477 S.W. 2d 193
    Opinion delivered March 6, 1972

      Griffin Smith, for appellant.
    No brief for appellee.
   Frank Holt, Justice.

Appellant brought this action to cancel its automobile liability policy issued to appellee, alleging that the coverage was fraudulently secured by appellee after the occurrence of an accident. Appellee answered and asserted that a valid binder on the policy was agreed upon in a telephone conversation with appellant’s agent approximately forty-five minutes preceding appellee’s involvement in an automobile accident. The chancellor found that coverage existed and for reversal of that decree the appellant contends that such finding is against the preponderance of the evidence.

Appellant’s agent, Mr. S. W. Bowker, testified that on Friday night November 20, 1970, the appellee telephoned him at his home stating that his car insurance was up for renewal and he wished to purchase liability insurance on two cars and a truck. The agent was unable to recall any previous conversation about insurance with the appellee. Nevertheless, coverage on the vehicles was discussed and a binder effected. The agent further testified that the appellee "offered to come over that night, but I told him I didn’t have books at home to take care of it.” When the appellee asked, “can you bind me” the agent advised him, "I will bind you in Home Insurance [appellant] and we arranged for me to see him Monday” to complete the application since he (the agent) was attending a football game in Texas the next day. The agent testified that to the best of his recollection the appellee’s telephone call to him was made between 8:15 and 8:30 p.m. and that the call “came after 8:15 to the best of my knowledge.” He and his wife were watching a TV movie from 7 to 9 p.m. The agent testified that he and his wife had been watching the movie for an hour to an hour and a half when the telephone call came from the appellee: “I know it was in the latter stages of the movie. * * * in the last half [of the movie] to the best of my knowledge.” During the telephone conversation appellant’s agent heard some noise in the background which he could not describe, but stated that appellee’s conversation appeared normal and he did not detect any excitement in appellee’s voice.

The agent received a call from the appellee on the following Sunday afternoon and met him about 2:30 p.m. at the agent’s office. The appellee asked: “Was I bound?” The agent told him “yes, what happened?” The appellee told him that he was involved in an accident subsequent to their telephone conversation, on Friday evening. The agent testified that the appellee-insured told him the accident happened at 8:45 p.m. It was later learned from a police report that the accident occurred at 8:05. The agent completed the application and took appellee’s check with the understanding that the check wasn’t any good until appellee put a check on another, party in the bank the next day. Upon a telephone inquiry the next day, the bank advised the agent that appellee’s check was not good. Appellee then brought the agent a third-party check which the agent never cashed because appellee’s insurance was not desired.

The appellee testified that because of the illness of a friend in Texas, he and his family intended to make the 5-hour drive there on Friday night. At his wife’s insistence that he secure insurance, he called appellant’s agent “around 7:30 or a quarter until 8.” According to appellee, appellant’s agent seemed to recognize him and asked questions as to any previous accidents, his age, "teenage drivers” and “whether my wife drove or not.” Appellee answered all questions asked and also gave the names of lienholders on his cars since that information had to be on the policy. He also furnished his driver’s license number. The agent declined appellee’s offer to come by that night and complete the policy application and to make a down payment on the premium.

Appellee further testified that on the night of the accident he left his house at 5 or 10 minutes before 8 o’clock; that the accident occurred when he was forced from his lane of traffic and rear-ended another car which had stopped because of another accident; that the force of the impact threw him forward and against the steering wheel, bending it, and threw his son out of the front seat and underneath the dashboard; that he was much concerned about the condition of his wife and three children; that the state policeman made him get into the police car and sit there; that he was bleeding from the mouth, his lips were swollen and he was physically unable to use a telephone; that about 30 minutes after the accident he and his family rode about 6 blocks in the investigating officer’s car from the scene of the accident to a filling station and later from that station to another one nearby to which appellee’s car had been towed; there the officer released him about 9 p.m. and he and his family took a taxi to the hospital. The appellee testified that on the following Sunday afternoon he gave the agent a check for $100 in partial payment of the insurance premium with the explanation it would not be good the next day until the deposit of a third-party’s check was made; and that his wife had $60 or $65 in cash but the agent preferred the check to the cash.

Appellee’s wife estimated the phone call to appellant’s agent was made between 6:30 and 7 and then changed the time to 7:30 after the court admonished appellee: "Don’t shake your head, or instruct the witness what to say.” The remainder of her testimony tended to corroborate the testimony of her husband.

A state policeman who observed the accident testified that he noted in his report that the accident occurred at 8:05 p.m.; that the closest telephone was off the interstate three and one-half blocks away; that as a result of the accident appellee was not very rational and that he had difficulty keeping him out of the traffic and had to place him in his car unit twice; that it took about 20 minutes or longer to investigate the two accidents; that he took appellee and his family to a filling station about 6 blocks from the scene and estimated that he arrived there about 8:30 p.m. and there he continued interviewing people involved in the accidents. He described appellee’s condition: “He had blood about him in front, on the front of his shirt. He was very emotionally upset. He was — well, he would make statements about he caused all of it to happen and things like this and he was holding his head and just to be frank, I had a lot of trouble with the man.” He further described appellee’s behavior as being “very irrational.” The officer’s testimony was that he never observed the appellee using a telephone during the time he had him in his observation and custody which was from 8:05 p.m. until close to 9 p.m. when he released appellee and his family to go to the hospital.

The witness who owned the automobile which was struck by appellee testified that he observed appellee at the scene and later at the first filling station where the officer further questioned witnesses. This witness said that he did not see appellee use the telephone; that appellee acted as though “he was nuts” and was speaking incoherently; and that he had blood on his face.

The appellant further adduced evidence that in several instances appellee’s insurance coverage was can-celled because of nonpayments resulting from disputes as to the amount of premium and scope of coverage; that he was charged about 10 times and convicted once for giving a check with insufficient funds. Appellee explained that these overdrafts were caused by a partner in the construction business withdrawing funds from the bank and that he, appellee, had “picked up” all the checks.

As we understand the record in this case, the only issue presented to the chancellor was whether the telephone call from the appellee to the appellant’s agent, resulting in the binder for insurance, occurred before or after 8:05 p.m. The state policeman saw the accident and fixed the time at exactly 8:05. From that time until approximately 9 p.m. the appellee was in this officer’s custody and observation (except possibly one to two minutes) and he never saw the appellee use a telephone. The officer corroborated appellee’s testimony as to the extent of his injuries and his irrational condition. The chancellor found:

“* * * When we accept the policeman’s testimony, which was not disputed, we reach the inescapable conclusion that the phone call was made prior to 8 p.m. It is the Court’s opinion that the evidence on this point preponderates in favor of defendant. Stated differently, plaintiff has failed to sustain its burden of proof that this was a post-accident insurance contract.”

The court also found that the appellant had not established a fraudulent purpose in securing the insurance coverage.

On appeal a chancellor’s decree will not be reversed where factual issues are in dispute unless the court’s findings are against the preponderance of the evidence. Scroggins v. Bowen, 249 Ark. 1155, 464 S. W. 2d 79 (1971). When the evidence is conflicting or evenly poised or nearly so, the chancellor’s judgment on the question of where the preponderance of the evidence lies is considered persuasive. In the case at bar, when we consider all the evidence and especially the investigating officer’s testimony, as did the chancellor, we cannot say as a matter of law that his findings are against the preponderance of the evidence.

Affirmed.

Byrd, J., not participating.


text:
    Faye SMITH v. STATE FARM MUTUAL AUTOMOBILE INS. CO.
    5-5787
    477 S.W. 2d 186
    Opinion delivered March 6, 1972

      Lightle, Tedder & Hannah, for appellant.

      Cockrill, Lasser, McGehee, Sharp if Boswell; By: Frank L. Watson, for appellee.
   Frank Holt, Justice.

Appellant and her husband had previously secured separate judgments against appellee’s insured, Loleta Goble. See Smith v. Goble, 248 Ark. 415, 452 S. W. 2d 336 (1970). The appellee insurer paid the entire policy limits of $10,000 to appellant’s husband and $7,641.60 to appellant for her injuries. However, the appellee refused to pay her any part of the additional $5,000 which the jury awarded her for loss of consortium. This resulted in the present action. The trial court, sitting as a jury, found the issues in favor of the appellee and dismissed appellant’s complaint. For reversal the appellant asserts that the recovery for loss of consortium was expressly included within the terms of the policy. Appellant argues that loss of consortium constitutes damages within the purview of Goble’s policy clause which provides coverage for damages resulting from * * (a) bolily injury sustained by other persons * * * ” and that the company bound itself to pay her for “* * * damages for care and loss of services” resulting from personal injuries. Appellant asserts that since consortium is a compensable element of damages arising from bodily injuries, citing Missouri Pac. Trans. Co. v. Miller, 227 Ark. 351, 299 S. W. 2d 41 (1957), her $5,000 consortium damages are included as coverage by the terms “care and loss of services.”

The appellee does not take issue with this assertion. However, appellee correctly relies upon the provision in the Goble policy which limits appellee’s liability. This provision reads:

“Limits of Liability — * * * Coverage A. The limit of liability stated in the declarations as applicable to ‘each person’ is the limit of the company’s liability for all damages arising out of bodily injury sustained by one person in any one accident. * * *”

This provision clearly and unambiguously limits the recovery for damages for bodily injuries sustained by any one person in any one accident. In the case at bar the limit of liability is $10,000. We agree with the trial court that since appellant’s husband was paid the full amount of the policy limits for his bodily injuries, the appellant cannot recover her derivative claim for loss of consortium in excess of the $10,000 policy limits. See Sheffield v. American Indemnity Co., 140 S. E. 2d 787 (S. C. 1965); 7 Am. Jur. 2d Automobile Insurance § 195; 13 ALR 3d Insurance — Limits of Liability § 4 p. 1234.

The appellee having fulfilled its obligation by paying the full limit of its liability, it necessarily follows that we find no merit in appellant’s contention that appellee is estopped to deny the full amount is not due and owing; nor can appellant complain that appellee was negligent in its failure to settle appellant’s claim within the policy limits.

Affirmed.


author: Carleton Harris, Chief Justice.

text:
    ARK. STATE HIGHWAY COMM’N. v. ROWE et al and FEDERAL LAND BANK of ST. LOUIS, mortgagee
    5-5788
    477 S.W. 2d 486
    Opinion delivered March 13, 1972

      Thomas B. Keys and Bedford G. Webb, for appellant.

      Graves ir Graves, for appellees.
   Carleton Harris, Chief Justice.

This is a highway condemnation case in which the Arkansas State Highway Commission acquired 24.46 acres of land out of a 118 acre tract owned by Joseph Lacie Rowe and wife, said tract being acquired for the construction of a portion of Interstate Highway 30 in Hempstead County. On trial, three expert appraisers testified, two for appellees, and one for appellant. Mr. Charles Wilburn, using the comparable sales approach, testified to damages in the sum of $27,146.00. Mr. Dorsey McRae testified that just compensation for the Rowe’s property would amount to $27,471.00, and Mr. Kenneth McMurrough testified for the commission that just compensation to the Rowes would be the sum of $11,250.00. Under instructions from the court, and without objection, the jury viewed the premises, and subsequently returned a verdict for appellees in the amount of $27,146.00. From the judgment so entered, the commission brings this appeal. For reversal, appellant asserts that “The verdict of the jury is excessive in that there is no substantial evidence to support it because, there is no fair and reasonable basis for the opinion of value of Charles Wilburn, upon whose damage testimony the verdict was based.”

Appellant abstracts only the testimony of Wilburn (not too thoroughly) and then opens its argument by stating “The jury returned an award in the exact amount of Wilburn’s testimony. Obviously, the jury completely disregarded the testimony of all other value witnesses. Therefore, the award must stand or fall upon Wilburn’s testimony alone.”

We do not agree with this statement, nor does appellant áte any authority that where the jury returns a verdict in the exact amount of the figure used by a witness, then and in that event, it is established that the testimony of no other witness was considered. To the contrary, we have long held that if there is any evidence of a substantial nature, the verdict will be sustained. In Missouri Pacific Railroad Co. v. Henderson, 194 Ark. 884, 110 S. W. 2d 516, this court said:

“Where there is any evidence of a substantial nature, which, by positive statement or reasonable inference, when given its strongest probative value, tends to support the finding of the jury, the verdict then will be sustained, although from the record presented to this court, it might seem to be against the preponderance of the credible evidence.”

This case has been cited with approval numerous times, including Arkansas State Highway Commission v. Kennedy, 225 Ark. 844, 349 S.W. 2d 132. We also have cases where the substantial nature of the testimony of a particular witness has been attacked, and we have agreed that the evidence complained of was not substantial, but we have then pointed out the testimony of other witnesses that did meet the test of substantiality, fully supported the verdict, and affirmed the judgment. Arkansas State Highway Commission v. Coffman et al, 247 Ark. 302, 445 S.W. 2d 92. Here the substantiality of the testimony of McRae has not been attacked. This is not to say that we find Wilburn’s testimony was not substantial, though we agree that the testimony of McRae (whose opinion of damage was $325.00 higher than that of Wilburn) is more specific in its details as to similarities between the Rowe property and other properties with which it is compared.

It might also be mentioned that, during the testimony of Wilburn, only two objections were made by department counsel, and in each of those instances, the objection was sustained. There was no motion to strike Wilburn’s testimony as insubstantial.

The record reflects substantial evidence in support of the award, and we so find.

Affirmed.

      Of course, if a jury returned a verdict in the exact amount of the damages mentioned by the witness, and such figure was the highest testified to, the conclusion reached by appellant would be sound.


text:
    C. S. HICKS v. The EXCHANGE BANK AND TRUST Company
    5-5815
    478 S.W. 2d 54
    Opinion delivered March 13, 1972
    [Rehearing denied April 24, 1972.]

      G. E. Snuggs, for appellant.

      Spencer ir Spencer, for appellee.
   Carleton Harris, Chief Justice.

The facts in this litigation are rather unusual. Felix Hicks died on February 12, 1968, and among his effects was a savings account passbook issued by the Exchange Bank and Trust Company. This passbook reflected a deposit in the name of C. S. Hicks in die amount of $175.00, dated October 8, 1932, and withdrawals of $25,00 each on November 25, 1932, and December 3, 1932, thus leaving a balance of $125.00. On June 26, 1970, C. S. Hicks, appellant herein, instituted suit against the Exchange Bank and Trust Company, appellee, asserting that, including accrued interest at tíre rate of 3 percent compounded semi-annually, the bank was indebted to appellant in the total amount of $401.00. It was, asserted that the bank had refused to permit the withdrawal of this amount from the savings account, claiming that the account had been dosed; that Hicks had been damaged in that amount, and should also have punitive damages in the sum of $1,000.00 by virtue of the bank’s violation of its provisions in its contract with him. The bank answered, admitting that at one time there was such an account, but it was asserted that the account had been dosed for many years and that Hicks had been aware of that fact. Oh trial, the Union County Circuit Court, sitting as a jury, held with the bank and dismissed appellant’s complaint From the judgment so entered, appellant brings this appeal.

Appellant’s claim is predicated on section 5 of the “Rules of Savings Deposits” which appears in the passbook. That portion relied on reads as follows:

“Withdrawals of deposits, and the interest thereon, may be made by a depositor personally. No withdrawals of deposits or interest shall be made unless the depositor’s pass book be produced and the withdrawal entered therein.”
The balance of that section reads as follows:
“Provided, however, that if the depositor shall prove to the satisfaction of the officers of the bank that his pass book has been lost, stolen or destroyed, and shall furnish to the Bank satisfactory indemnity against any claim which may at any time be made against the Bank on account thereof, the officers of the Bank may make payment to the depositor without the production of such book.”

Proof on the part of appellant, 94 years of age, is rather vague, and conflicting to some extent. Hicks testified that he put $175.00 in the bank, but he subsequently stated that his brother made the deposit “through me”. He said that he received the two $25.00 items but did not get the $125.00. Appellant also testified that he or his wife had possession of the passbook at all times. He did not remember when he had been in the bank but he stated “I ain’t never did no business with that bank”. Hicks was asked if he had ever taken the passbook to the bank and the record then reveals the following:

“A. No, I never did. You see, my brother, he put that money in there for me. He put it there for me and he knew whenever I wanted anything for the baby, you see, he’d just go and get it.
Q. I see. The brother put the money in for you and then when you needed anything, he’d go and get it out for you?
A. That’s right.
Q. Now the bank book shows that $25.00 was taken out in 1932. Did your brother take that out for you?
A. I’m quite sure he did.
Q. You didn’t go in and take it out?
A I’m qui te sure he did.
Q. You didn’t go in and take it out?
A. (The witness shakes his head in negation.)
Q. And it shows that $25.00 was taken out again in 1982. Did your brother take that out for you?
A. He taken the money out. He did whatever I wanted.
Q. He went in and got the money for you?
A. Yes.
Q. Well, did he keep the book so that he could get the money out?
A. Oh, yes.”

Exie Hicks, wife of appellant, 82 years of age, testified that she knew nothing about the deposit, other than what was shown in the book, which had been obtained after the death of Felix. She didn’t know whether all the money had been drawn out or not, other than what the passbook reflected. Irma Jean Massey, a daughter, stated that the book was brought to her father a few days after the death of Felix, and that her husband went to the bank about six weeks after the uncle’s death to see about it.

N. G. Hammond, an employee of the bank, testified that he was also associated with appellee in 1932; that he knew Felix Hicks, who did quite a bit of business with the bank; that he did not know C. S. Hicks. Ledger sheets were introduced which reflected that a deposit was made on October 3, 1932 for $175.00, withdrawal on November 25 of $25.00, withdrawal on December 3 of $25.00, and withdrawal of the balance of $125.00 on December 31 of same year. The witness stated that the account was closed at that time. Hammond said that he did not remember the particular transaction, and in response to interrogation, he testified that “a customer could come in, didn’t have his book, and if he was well known to the bank they would go ahead and pay the check if the signature corresponded thereon.”

As earlier stated, appellant’s case is predicated entirely on the passbook and on the other hand, appellee’s defense is largely based on the ledger sheet. There are circumstances however that favor appellee, the principal one being that it is extremely unusual for any person to make no withdrawals from a savings account for over 36 years, and, what is more unusual, to make no inquiry about the status of the account, particularly when there is no evidence that any bank statements were ever sent to C. S. Hicks at his address shown in the book; nor is there evidence that any interest was ever credited to the account, or paid to anyone. Likewise, it is very much out of the ordinary for one, who has a savings account, to permit his brother to keep the passbook for that period of time. In 10 Am Jur 2d Banks § 454 p. 425, it is said:

“It seems that the presumption of payment from lapse of time may apply to a bank deposit. Thus, where no demand for payment of a checking account had been made for 23 years, it was held that the presumption of payment applied. While it is conceded that the presumption may be overcome, it is said that clear and convincing proof is required to overcome it and entitle the depositor to recover where no claim or demand has been made for over 20 years.”

It seems clear that the finding of the passbook among the effects of Felix Hicks precipated this litigation. It is established that the money was placed in the bank by Felix, and the first two withdrawals were made by him. The record does not reflect whether Felix was authorized to draw on this account. Hammond testified that in those days, if the bank knew a customer, it would permit a withdrawal without the book being presented. Since Felix had made the two previous withdrawals, and there had been no complaint, it is easy to see that a third request for withdrawal by Felix would have been honored. There are a lot of surmises that could be made. But it must be remembered that here, on appeal, we are only concerned with whether there was substantial evidence to support the ruling by the trial court. We hold that the ledger sheet showing the account closed, together with the other circumstances herein mentioned, constitutes substantial evidence to support the judgment.

Affirmed.

      Appellant testified that his wife was taking care of Felix’s wife’s baby at the time.


author: George Rose Smith, Justice.

text:
    Cheryl Ann HOUSE v. Alice FINNEY
    5-5817
    477 S.W. 2d 482
    Opinion delivered March 13, 1972

      Cockrill, Laser, McGehee, Sharp & Boswell, for appellant.

      Martin, Dodds, Kidd, Hendricks ir Ryan, for appellee.
   George Rose Smith, Justice.

This action was brought by the appellee, Mrs. Finney, to recover damages for an injury to her right knee sustained when the taxicab in which she was riding as a passenger collided with a car being driven by the defendant-appellant. There was no issue of comparative negligence. The jury returned a $1,000 verdict for the plaintiff. This appeal is from the trial court’s action in granting the plaintiff a new trial, on the ground that the amount of the verdict is inadequate.

The question presented is not quite the same as that considered in our earlier cases. The controlling statute provides that a new trial shall not be granted on account of the inadequacy of the damages in a personal injury case if the award equals the actual pecuniary injury sustained. Ark. Stat. Ann. § 27-1902 (Repl. 1962). We have construed the statute to mean that if the verdict exceeds those damages which are subject to exact pecuniary measurement, such as medical expenses, then the statute prohibits the granting of a new trial if the only asserted error is the inadequacy of the award. Harlan v. Curbo. 250 Ark. 610, 466 S.W. 2d 459 (1971); Munson v. Mason, 245 Ark. 686, 434 S.W. 2d 815 (1968); Law v. Collins, 242 Ark. 83, 411 S.W. 2d 877 (1967).

At the trial Mrs. Finney proved, in addition to her claim for pain and suffering, medical expenses and other measurable pecuniary damages totaling $1,198.60. Even though the verdict was less than that amount, the appellant insists that the trial judge abused his discretion in granting a new trial, for the reason that not all of Mrs. Finney’s medical expenses were necessarily attributable to the injury which she sustained in the collision between the taxicab and Mrs. House’s car. It was shown that Mrs. Finney had twisted her right knee a few months before the accident now is issue. She was still receiving treatment for that original injury when the knee was again injured by reason of Mrs. House’s negligence. Mrs. Finney also injured the knee at least to some extent in fells sustained after she was hurt in the taxicab.

The jury was instructed, in the language of. AMI (Civil) 2203 (1965), that Mrs. Finney could recover for the full extent of her injury, even though it was an aggravation of a pre-existing condition, but she could not recover for any pain or disability that she would have suffered even though the taxicab accident had not occurred. The appellant now argues that the jury’s verdict for $1,000 must be taken to indicate that the jurors followed the court’s instructions by deducting from Mrs. Finney’s actual expenses of $1,198.60 an amount attributable to injuries for which the appellant is not liable.

If the situation were completely reversed — that is, if Mrs. Finney were complaining of the trial judge’s denial of her motion for a new trial — then the appellant’s argument would have more persuasive force than we can attribute to it upon the actual facts now before us. It must be remembered that the statute in question is a restriction upon the trial judge’s power and duty to set aside a verdict which he finds to be against the weight of the evidence. Here the trial judge, having heard the testimony as it was given, apparently concluded that a decision by the jury to reduce the plaintiff’s award for the reason now urged by the appellant would be against the preponderance of the evidence. If so, it was his duty to set aside the verdict and grant a new trial. Since we cannot say with certainty (as we could in the Law case, supra) that the jury’s verdict exceeded the recoverable pecuniary loss, it follows that no abuse of the trial court’s discretion in the matter has been demonstrated.

Affirmed.


author:
George Rose Smith, Justice.
      John A. Fogleman, Justice,

text:
    STATE of Arkansas v. William COSENTINO
    5690
    477 S.W. 2d 460
    Opinion delivered March 13, 1972

      Ray Thornton, Atty. Gen., by John D. Bridgeforth, Asst. Atty. Gen., for appellant.

      Paul Johnson and Louis Art Dodrill, for appellee.
   George Rose Smith, Justice.

The appellee was charged by information with the unlawful possession of marihuana, an offense described in the information as a felony. The appellee demurred to the information, on the ground that the asserted offense is only a misdemeanor under Article IV, § 1, of Act 590 of 1971, the Uniform Controlled Substances Act. Ark. Stat. Ann. § 82-2617 (Supp. 1971). This appeal is from an order sustaining the demurrer.

The trial court correctly held the offense to be a misdemeanor, for the reasons stated in Bennett v. State, also decided today. 252 Ark. 128, 477 S.W. 2d 497. That holding, however, requires that the present appeal be dismissed, for in a misdemeanor case the State cannot appeal from an interlocutory order, such as the one sustaining a demurrer. State v. Langstaff, 231 Ark. 736, 332 S.W. 2d 614 (1960). Without deciding the point, we call attention to the possibility that the State’s privilege of appealing from interlocutory orders in felony cases, under Ark. Stat. Ann. § 43-2706 (Repl. 1964), may have been abrogated by §§ 13 and 14 of Act 333 of 1971. See Ark. Stat. Ann. §§ 43-2706 and -2720.1 (Supp. 1971).

Appeal dismissed.

Fogleman, J., concurs:

John A. Fogleman, Justice,

concurring. I agree that the appeal should be dismissed. I do not agree that the offense charged was only a misdemeanor for the reasons stated in my opinion in Bennett v. State, 252 Ark. 128 477 S.W. 2d 597.

      Ark. Stat. Ann. § 43-2706 (Repl. 1964) allowing interlocutory appeals by the State was repealed by Act 333 of 1941.


author: Lyle Brown, Justice.

text:
    Preston CANTRELL et ux v. The PRUDENTIAL INSURANCE COMPANY of America et al
    5-5800
    477 S.W. 2d 484
    Opinion delivered March 13, 1972

      Ben M. McCray, for appellants.

      Evans, Farrar ir Callahan, for appellees.
   Lyle Brown, Justice.

This is a suit to determine the disposition of the proceeds of a veteran’s life insurance policy. The real contestants are the surviving parents of the veteran as opposed to the claim of Donya Dee Kilgore on behalf of her illegitimate child, she contending that the veteran was the father of the child. The chancellor held that the proceeds should go to the child and the parents of the veteran appeal.

In February 1968, Donya Dee Kilgore, a single girl, gave birth to a male child. She forthwith filed a complaint and affidavit in the Garland County Court alleging that Jerry Dale Cantrell was the father of the child. She asked for monthly support for the child and for her lying-in expenses. In June 1968 the cause came on for hearing, wherein young Cantrell executed and filed in that court an affidavit that he was the father of the child and was agreeable to paying support money and lying-in expenses. The affidavit was notarized by his attorney. Judgment was accordingly entered.

In January 1969 Jerry Dale Cantrell was inducted into the armed forces. He applied for, and was granted, a serviceman’s life insurance policy in the principal sum of $10,000. He elected not to name a beneficiary but did designate that the proceeds be paid in thirty-six monthly installments. In the absence of a beneficiary, it was provided under the automatic features of the policy that the proceeds would go first, to the widow; second, to the child or children of the serviceman; and third, if no child or children, to the parents of the serviceman. Cantrell died in Vietnam.

The question shortly arose as to the disposition of the funds, the mother on behalf of the child laying claim thereto and the serviceman’s parents claiming the money. Suit was started by The Prudential Insurance Company of America filing a bill of interpleader. They paid into the registry of the court all accrued sums and are so depositing the monthly accruals. Arkansas Bank & Trust Company of Hot Springs was designated as guardian of the child’s estate. All proper parties are before the court.

Appellants, the parents of the veteran, argue under their first point that under our statutes and case law, this illegitimate child cannot inherit from the veteran. We have a descent and distribution statute covering illegitimate children. Ark. Stat. Ann. § 61-141 (Repl. 1971). There having been no marriage between the parties, the child would not, under that statute, inherit from Jerry Dale Cantrell. The same is true under our holdings in Bell v. Bell, 249 Ark. 959, 462 S.W. 2d 837 (1971), and Parker v. Hadley, 227 Ark. 161, 296 S.W. 2d 391 (1956). This is not a case calling for the application of our laws of descent and distribution. We are dealing with a federal statute which, under the circumstances in this particular case, says the proceeds shall go to the child of the deceased veteran. 38 USCA § 770. Those jurisdictions of which we are aware which have treated the subject, have given the word “child” its natural meaning to include illegitimate as well as legitimate children. Metropolitan Life Ins. Co. v. Thompson, 368 F. 2d 791 (1966).

A New York statute provides that an illegitimate child inherits from its father if the court enters an order of filiation during the lifetime of the father. 17B McKinney § 4-1.2. In Prudential Insurance Company of America v. Hernandez et al, 314 N.Y.S. 2d 188 (1970), the veteran took out an insurance policy and did not name a beneficiary. Upon his death, a contest arose over the benefits of the policy as between two illegitimate children and the parents of the veteran. There had been no order of filiation entered during the lifetime of the father. The court waived aside the filiation requirement. “However, the better and more modern view is to abolish the unchosen birth given shackles of illegitimacy and to confer filial equality wherever possible.” It was pointed out that in support of the birth registration of the children the veteran executed instruments acknowledging his paternity. The court said: “The application of the statute appears even more irrational when examined under the light of the unrefuted formal acknowledgments of paternity.”

Prudential Insurance Co. v. Jack et al, 325 F. Supp. 1194 (1971), is in point. Like the case before us, this was a contest between the parents of the serviceman and his illegitimate child. It was stipulated that the serviceman informally acknowledged that he was the father of the child. The court reviewed the legislative history of the servicemen’s insurance program and concluded that it was the legislative intent that the term “child” include illegitimate children if the recognition of parenthood was made in writing. Such an acknowledgement was made in a letter to the child’s mother. The state law of descent and distribution of the state of residency was not mentioned in the opinion and we conclude it was not even argued.

Metropolitan Life v. Thompson, supra, is in point. That was a contest over the proceeds of a federal employee’s life insurance policy as between the mother of the deceased and an illegitimate child. The child was illegitimate under New York law. The court held that the meaning of the term “child,” in the absence of provisions to the contrary, was a federal question. It was specifically held that the local laws of inheritance had no application; and it concluded that the word “child” as used in the act and under ordinary connotation, included an illegitimate child.

The other point for reversal is that the trial court erred in permitting the introduction of an affidavit introduced in the bastardy proceedings in the Garland County Court. There is no merit to that contention. When the serviceman was apprised of the instigation of the bastardy proceeding he hired an attorney. That affidavit, to which we have heretofore referred, was made a part of the county court record. The affidavit and the judgment of the county court (which has never been attacked) were introduced in the proceedings in this case. We are cited no reason why those complete proceedings should not have been introduced. The affidavit actually amounted to sworn testimony before the county court and was made a part of the county court record with the full knowledge of the serviceman’s employed counsel. In fact his attorney notarized it.

The decree is affirmed.


author: Lyle Brown, Justice. John A. Fogleman, Justice,

text:
    MISSOURI PACIFIC RAILROAD Company and A. J. MOORE v. Elva Green WARD, Adm’x
    5-5819
    477 S.W. 2d 835
    Opinion delivered March 13, 1972
    [Rehearing denied April 17, 1972.]

      William J. Smith and Boyce R. Love, for appellants.

      Gordon, Gordon if Eddy, for appellee.
   Lyle Brown, Justice.

William Ward, the lone occupant of a pickup truck, was killed at a rural railroad crossing near Plumerville in Conway County. Appellee, the administratrix of his estate, recovered judgment for $75,000 for the widow and $10,000 for mental anguish to each of three adult children, a total of $105,000. Appellants advance five points for reversal. Only a few of the details relating to the collision are pertinent to a determination of the issues. Such facts as are important will be related as we discuss the points for reversal.

Point I. The court erred in refusing to give the jury verdict forms which would permit separate findings for or against the two separate defendants. At the conclusion of the testimony all the defendants except the railroad and the engineer were removed from the case. Also, the issues upon which appellee predicated claim to liability were reduced to the single issue of blowing the whistle or ringing the bell. If the engineer was negligent in not ringing the bell or blowing the whistle, and if that negligence was the proximate cause of the collision, both the railroad and the engineer would be liable. If the engineer did in fact ring the bell or blow the whistle, for the requisite time then neither defendant would be liable. Consequently, we do not perceive any error in submitting only one form of verdict as to liability of the two defendants.

Point II. The trial court should have granted a mistrial when attorney for appellee in closing argument stated that the railroad crew is always present to testify but that motorists are always killed and unavailable to testify in crossing accidents. In discussing the requirement that the railroad employees must blow the whistle or ring the bell, the following colloquy occurred:

Mr. Gordon, for appellee: The reason for it is obvious. A locomotive, if it ever strikes anything, generally he doesn’t live to tell what happened to him. Mr. Ward is not here to tell you about whether or not he looked. It’s very seldom when we have a railroad crossing accident that people in the vehicle are ever here to tell you about their side of the story.
Mr. Love, for appellants: Your Honor, I’m going to object to that testimony. . .We want to ask for a mistrial on the basis of it.

The trial judge admonished the jury not to consider the statements made in closing arguments that were outside the record. (Appellant would have been entitled to a stronger admonition had it been requested.) The motion for a mistrial was overruled.

Mr. Gordon’s argument was not proper; however, we think any prejudicial effect the remarks was cured by the admonition of the court. The trial court has a wide range of discretion in matters of this nature and we should not reverse unless a prejudicial effect is obvious. The trial judge is in better position than we to determine the effect of any unwarranted argument. Many of our cases so hold, among which are Kansas City Southern Ry. Co. v. Murphy, 74 Ark. 256, 85 S.W. 428 (1905); and Briley v. White, 209 Ark. 941, 193 S.W. 2d 326 (1946).

Point III. The trial court was in error in permitting appellee’s attorney to elicit testimony from Bernard Hardeman that he was in position to have heard the whistle or the bell if sounded. The same issue was before this court in the recent case of Missouri Pacific R.R. Co. v. McDaniel, 252 Ark. 586, 483 S.W. 2d 569. Our holding was adverse to appellants’ claim under this point. It is what is known as “shorthand knowledge” and not an opinion. Baltimore C. & A. Ry. Co. v. Turner, 136 A. 609 (1947); Chicago C. & A. Ry. Co. v. Dillon, 15 N.E. 181 (1888).

Point IV. It was prejudicial error for the court to per mit the introduction of three photographs of the truck in which the decedent was riding. We agree that the introduction of the pictures served no useful purpose. They revealed the point of impact but that was irrelevant. Concededly, at the time they were introduced there were several issues of negligence still in the case, such as failure to keep a lookout, and one or more of the pictures may have been at that time appropriate as going to issues which were later withdrawn. Be that as it may, we are unable to say that the trial court abused its discretion. Whether photographs are helpful to the jury is to be determined by the presiding judge and again, considerable discretion is vested in the trial court. Dermott Grocery & Comm’n. Co. v. Meyer, 193 Ark. 591, 101 S.W. 2d 443 (1937).

Point V. The court erred in failing to give a requested instruction concerning the law that when a train is plainly discoverable by other means, signals cease to become a factor. Appellants offered and were refused this instruction:

When the presence of a train approaching or occupying a crossing is plainly discoverable by means other than lights, signals or flag men, then the failure to have crossing lights, crossing signals or a flag man at the crossing and the failure of the trainmen to ring the bell or blow the whistle are not relevant factors for your consideration. (Italics supplied.)

The language we have italicized covers factors which were not issues in the case and resulted in making an abstract statement of the general law. As early as 1854 this court condemned instructions containing statements of legal propositions having no bearing on the case made by the evidence. The State Bank v. McGuire, 14 Ark. 530. More recently on the point is the case of Harkrider v. Cox, 230 Ark. 155, 321 S.W. 2d 226 (1959).

The trial court did not state a reason for refusing the instruction but if there was a sound reason for refusing it, we should approve the action.

Point VI. The verdicts are excessive. The elements of recovery on behalf of the widow were for loss of support and for her mental anguish. The deceased was forty-five years of age and his widow was fifty-three years old. For several years immediately prior to his death Mr. Ward worked on a large farm. For the years 1968, 1969, and 1970, his wages averaged $3,378. He was furnished a house; he was furnished a pasture for his cattle which he bought, fed out, and sold; he raised hogs, chickens, and rabbits; he bought and sold used furniture; in the winter he trapped for mink and racoon; and he raised a truck garden each year, consuming and selling the products therefrom. In addition to his regular average salary he was paid a bonus averaging fifty cents to one dollar for each day he worked on the farm. He was sober, industrious, and frugal, and most of his earnings went to support his home and family.

Now as to the widow’s mental anguish. We find these statements in the abstract of her testimony. “We liked to do things together. We both liked to fish and we went fishing quite frequently. We went to the car races near Oppelo. . .It is terribly lonesome without my husband and I still miss him. . .1 have difficulty sleeping and I have been depressed.” We have many times said there is no standard by which mental suffering may be evaluated. The jury saw and heard the witness testify and was in better position to judge of her mental anguish than is this court. Furthermore, we have no way of knowing the precise amount allowed for her mental anguish. All in all, we are unable to say that the award for the widow is excessive when it covered loss of contributions, services, society, companionship, consortium, and mental anguish.

We turn now to the mental anguish awarded the three children. We find no error in the award given the youngest son, William Ward. He was twenty years old at the time of his father’s death and lived with his parents. There was evidence that the son was “terribly upset” and that emotional disturbance has continued since that time. As to the two daughters, they are married and have established homes for themselves. We have searched the abstract and find no substantial evidence that their grief was more than normal. Peugh v. Oliger, 233 Ark. 281, 345 S.W. 2d 610 (1961). The awards made to the two daughters are set aside.

Affirmed as modified.

Byrd, J., dissents as to modification. Fogleman, J., concurs.

John A. Fogleman, Justice,

concurring. I concur in the result and majority opinion. I feel, however, that the instruction set out in Point V is inherently erroneous for the reasons stated in my dissent in Koch, Adm’r. v. Mo. Par. R. R. Co., 248 Ark. 1251, 455 S.W. 2d 858.


author: John A. Fogleman, Justice.

text:
    Berthola ALSTON v. M. H. BITELY Jr. et al
    5-5710
    477 S.W. 2d 446
    Opinion delivered March 13, 1972

      Brockman, Brockman ir Gunti, for appellant.

      Sam F. Cole, for appellee Bilsky.

      Coleman, Gantt, Ramsay ¿r Cox, for appellee and cross-appellant Bitely.
   John A. Fogleman, Justice.

This appeal brings into question the correctness of the amount or portion of the debts of appellant and her former husband, I. T. Alston, to M. H. Bitely, Jr., and E. C. Hardin, Sr., for which she was held liable and lands assigned to her as dower held to be security. We find that there was error in determining these amounts which requires, further proceedings in the chancery court.

Prior to 1960, M.H. Bitely, Sr., and E. C. Hardin, Sr., had both financed the Alston farming operations. A sizeable indebtedness to both had accumulated, and neither was willing to make additional loans. It was agreed that, if I. T. Alston could obtain a loan from which he would make certain payments to Bitely and Hardin, each of them would subordinate his liens on I. T. Alston’s property to that lender. As a result of this agreement, Alston obtained a loan of $11,000 from Metropolitan Life Insurance Company, and gave a first mortgage on all his lands as security. Payments were made by Alston to Bitely and Hardin from the proceeds of this loan. About one month later — on February 6, 1960 — I. T. and Berthola Alston joined in mortgages in favor of Bitely and Hardin to secure the balances due upon their respective debts. It was specified in these instruments that the Bitely mortgage was subject to that of Metropolitan and the Hardin mortgage subject to both.

The Bitely debt of $11,450 was evidenced by six promissory notes for $1,908.33 each bearing interest at 10 percent per annum from date until paid, executed by I. T. and Berthola Alston on February 10, 1960, the first of which was due on December 10, 1960, and another on the same date in each succeeding year. The Hardin debt of $9,683.38 was divided into seven notes of $1,383.34 with interest at 6 per cent per annum from date until paid, each signed by I. T. and Berthola Alston with the same date of execution and annual maturity as the Bitely notes. Thereafter, appellee M. H. Bitely, Jr., succeeded to the ownership of the Bitely debt. In 1960 and during each subsequent year, Bitely Sr. or Jr. loaned I. T. Alston substantial sums for crop production. A separate account of these loans was kept by the Bitelys. Eash was secured by a mortgage on the crops and a mortgage on equipment, cattle and hogs owned by Alston. The proceeds of each annual crop were applied to the reduction of the debt for that year. Bitely thought that Mrs. Alston might have signed one or two of these crop mortgages. He did not remember her having signed any of the notes for these loans. She denied that she had signed any such note or mortgage. The crop proceeds were insufficient to pay these production loans in every year except 1962, when the excess was applied on the Metropolitan debt. Unpaid balances include the following:

1960 - $3,497.21; 1961 - $2,963.19; 1963 - $2,144.64

On February 23, 1964, the unpaid balance on the total Bitely debt amounted to $20,019.63. After the 1964 crop the total had increased to $25,929.48, and at the end of 1965 to $27,984.77. Bitely testified that the crop loans were additional advances secured by the mortgage which contained a statement that it was security for any indebtedness Bitely might hold against the mortgagors by reason of future advances.

In October, 1963, the Alstons separated, and Berthola was subsequently granted a divorce from I. T. The decree of divorce was entered in June, 1966, and a decreee setting aside 117 acres of the property of I. T. Alston to Berthola for life was entered on April 15, 1968. This tract was part of the mortgaged land. In 1966, Bitely knew of the Alston domestic difficulties when Alston requested a five-year extension of his indebtedness. An extension agreement was entered into between Alston and Bitely on April 2, 1966. The total indebtedness then amounted to $28,480.43. In the agreement, Alston acknowledged that this debt was secured by the 1960 real estate mortgage and stated that he was the owner of the land subject to his wife’s dower.

The extension was further evidenced by a new note executed by I. T. Alston only. It provided for annual payments of $5,696.09 plus accrued interest at 6 per cent per annum on January 1 of each year beginning with 1967. The agreement contained this clause:

It is further understood and agreed that a new note in the amount of $28,480.43 is executed simultaneously herewith and shall be to the exclusion and not in addition to any note previously executed for said indebtedness or any part thereof.

Bitely did not surrender the original notes, however, and still held them when he filed this foreclosure suit on March 13, 1970. Appellant did not join in either the extension agreement or the new note. Before this agreement was made she had asked Bitely the amount of the total debt, and put him on notice that she would not be responsible for any later advances.

In 1967, Bitely loaned Alston $2,104.22 more than was repaid. After advancing money for payment of taxes on the land and the Metropolitan payments, the total debt amounted to $30,884.05 in 1968. Bitely testified that the accrued balance, including all interest charged, amounted to $38,399.78 on August 17, 1970. No payment was ever made on the 1960 notes to either Bitely or Hardin. Application of crop proceeds to the annual crop loans was in accord with I. T. Alston’s instructions and the agreement between him and the Bitelys.

E. C. Hardin sought foreclosure of the lien of his mortgage. He contended that the crop loan advances made by Bitely did not take precedence over his third mortgage and that it was prior and paramount to the Bitely lien based on the extension agreement. I. T. Alston pleaded the statute of limitations against the Hardin notes maturing prior to 1965. Berthola Alston pleaded the statute as to the entire Hardin debt.

In addition to her general denial, appellant pleaded the statute of limitations as a complete defense to the Bitely foreclosure action, alleged that the extension agreement constituted a novation relieving her and the land assigned to her of the entire Bitely claim, and asserted that her rights were superior to those of any other party. She counterclaimed for award of the lands to her free and clear of the Bitely lien, or of the value of her life estate from the proceeds of any sale. She also cross-complained against I. T. Alston for indemnification of any loss she might sustain.

The decree setting aside the 117-acre tract to appellant prorated the indebtedness against this portion at 22.44 per cent of the total debt secured by mortgages. Mrs. Alston testified that she had paid her proportionate part of the taxes and Metropolitan payments coming due after she took charge of these lands and rented them.

Appellee Sidney Marvin Bilsky is the current owner of a judgment rendered against I. T. Alston in favor of Sam Levine on September 11, 1961. The lien of this judgment expired after three years [Ark. Stat Ann. § 29-131 (Repl. 1962)] but was revived on October 3, 1969. Bilsky, along with numerous other junior lieners and judgment creditors of I. T. Alston, was a defendant in the foreclosure action instituted by Bitely.

The opinion of the chancellor which was incorporated in the court’s decree included the following findings pertinent to this appeal:

1. The extension agreement removed the bar of the statute of limitations as to I. T. Alston only and all of the Bitely notes except the last one. are barred as to Berthola Alston, so that Bitely was entitled to personal judgment against both Alstons for the principal amount of the last note with accrued interest and against I. T. Alston for the balance of the indebtedness, or $35,491.45..
2. All of the Hardin debt was barred as to both Alstons except the notes due in 1965 and 1966, and the bar was not removed by any testimony relating to the indebtedness given by the Alstons in the divorce action.
S. “Future advances” made by Bitely were optional, not obligatory.
4. The Hardin lien had priority over the additional advances made by Bitely, because the latter, knowing of the lien of the former, had a duty to notify Hardin if and when such advances were made, even though the Hardin mortgage was specifically made subject to the Bitely lien.
5. Bilsky took priority over the future advances for the same reason the Hardin lien did.
6. The priorities of the parties to this appeal were as follows:
Claimant Amount Debtor
(1) Bitely $1908.33 plus interest (last note) Both Alstons
(2) Bitely The first five notes plus interest I. T. Alston
(3) Hardin Two notes of $1,383.34 each plus interest Both Alstons
(4) Bilsky $1,775.61 plus interest Trust at 6 per cent since 8/1/69 I. T. Alston
(5) Bitely All indebtedness in excess of (1) and (2) above up to $38,399.78 I. T. Alston
7. The property of both Berthola and I. T. Alston should be sold by a commissioner and the proceeds applied first to expenses of sale, second to judgment creditors according to the priorities above listed, and third to the Alstons according to their rights as determined in the divorce action with appellant’s cash value computed according to Ark. Stat. Ann. § 50-701 — 706 (Supp. 1969).
8. Appellant should be allowed to pay her propotionate amount to the indebtedness as set out in the opinion, in which event the lands assigned to her would be withheld from sale.

After this opinion was filed the court was reminded by Hardin’s attorney that there had been a waiver of the statute of limitations by appellant as to the Hardin debt. The chancellor then advised interested counsel that he would hold that only the first three Hardin notes, those barred at the time of the allotment of the 117 acres to appellant, were subject to this defense.

The decree, filed December 3, 1970, followed the chancellor’s opinion for the most part. The following judgments were granted to the parties here, with priorities in the order listed:

Daily Int.

Creditor Prin. & After Attorney Int. 11/11/70 Fee Costs Debtor

(1) Bitely 1979.89 1979.89 .52 .52 125.00 125.00 I. T. Alston & 24.92 Berthola Alston 24.92 jointly & severally liable (2) Bitely 19,798.95 2.60 259.48 I. T. Alston

(B) Hardin -gg.34 .46 130.50 130.50 I. T. Alston 8c Berthola Alston jointly 8c severally liable

b. 4550.67 .46 261.01 Berthola Alston

(4) Bilsky 1908.69 .29 I. T. Alston

(5) Bitely 14,641.04 (Int. after 184.60 date of decree) I. T. Alston

One of the holdings contained in the decree was that, for purposes of payment, the joint and several judgments against the Alstons were to be divided equally. It would appear from this holding and the decree that Berthola Alston was held liable for one-half of the debt represented by the last Bitely note and the last two Hardin notes and for the full amount of the preceding two Hardin notes. Perhaps the court intended that appellant be enabled to have her lands withheld from sale by the payment of these amounts, but the portion of the decree giving directions for the sale of the lands appears to be inconsistent with this possibility.

The court barred all right, title and interest of both Alstons in all the real estate, directed the sale of all the mortgaged lands on January 15, 1971, to the highest bidder on a credit of three months, with approved security, but provided that in case a judgment creditor became the purchaser, he would be required to give his note only for the amount by which his bid exceeded the amount of his judgment and “according to its priority.” The proceeds were to be applied first to costs, next to the payment of the judgments in favor of the respective parties, with any balance to be paid into the registry of the court pending further orders. The sale appears to have been mandatory for no conditions were stated under which the commissioner had any alternative to proceeding with it. No grace period for payment was allowed. No specific mention was made in these directions of the right of appellant to protect her life estate from sale. It appears that the only way she could have protected her position would have been by payment of all debts declared liens because lien creditors who might purchase were not required to pay any sums into court over and above the amount of the lien. There was not even a fund from which she could have been awarded the value of her life estate over and above the liens to which it was subject unless the bid exceeded all judgments rendered in the case. In effect, this made her lands subject to the lien for all additional advances by Bitely, even though the court properly held that she was not bound by the extension agreement.

After appellant gave notice of appeal, it appears that sale was made for $34,162.69 to Bitely and Hardin as joint bidders, with Bitely having 246/342 interest and Hardin 96/342. They paid nothing into the court registry. The sale was confirmed over appellant’s objection.

Appellant first asserts that the chancery court erroneously held her liable, jointly with I. T. Alston, for all of the Hardin debt instead of 22.44 per cent thereof. In this respect we think the chancellor erred. All except two of these notes were barred by the statute of limitations. As to these notes, the Alstons were jointly and severally liable to Hardin, regardless of any rights that appellant might have for indemnity against I. T. Alston, and all the lands are subject to the lien for this part of the debt. The error in the Hardin judgment against appellant arises from the court’s misconstruction of a waiver of appellant’s plea of the statute of limitations by lifting its bar to all except the first three notes.

Appellant’s waiver was stated at the trial before any testimony was heard. Her attorney then stated that she was waiving the plea of the statute as to the percentage of the debt to Hardin allocated to her in the divorce case (22.44 per cent) as to all notes not barred by the statute of limitations on April 15, 1968. This would mean that her waiver made her liable to Hardin for 22.44 per cent of his notes which became due in 1963 and 1964 in addition to her liability on the notes later maturing, and her life estate is subject to a lien for all this liability. It is true that an answer by appellant’s attorney to a single subsequent question by the court might be construed to be a complete waiver of the statute as to the entire obligation on the 1963 and 1964 notes, but, when this answer is considered in the entire exchange taking place between the attorneys and the court at the time it was given, no room for doubt is left as to the extent of the waiver. The chancellor must have fallen into error because of his failure to recall that there had been any waiver and his assumption, when reminded of it, that the waiver as to these notes was unlimited. As a result, appellant would have been required to pay an excessive amount on the Hardin debt in order to withhold her life estate from the sale, if indeed the decree permitted this at all.

Appellant’s next point for reversal is based upon her contention that the extension agreement between I. T. Alston and Bitely effectively relieved her of any liability to Bitely except the amount due on the 1965 note, for which she and her former husband were jointly liable. This contention is consistent with the opinion rendered by the chandellor but does not seem consistent with the decree, which not only permitted Bitely to credit his judgment for the entire amount of the indebtedness due him from I. T. Alston upon his bid at a sale which included appellant’s life estate, but also directed the commissioner to allocate the proceeds of sale to the judgment creditors in order of priority with only the excess over all liens to be held for later distribution. In effect, then, the decree made the Bitely debt for which appellant had no liability a lien on her life estate for all additional advances, as well as for that portion of the debt for which she had no liability because of the bar of the statute of limitations, which she had not waived.

Appellant next contends that the extension agreement constituted a novation and relieved her entirely of any obligation, not only for the additional advances but also for all the debt represented by all the notes. Although it appears that the statute of limitations had barred collection of any of the additional advances from appellant, along with the first five Bitely notes, we must consider the effect of this agreement because the last original note is not barred. This point then turns upon the effect of the extension agreement as a novation. If there was not a novation between I. T. Alston and Bitely, then there was none as to appellant, even if she could claim the benefit of a transaction to which she was not a party. The burden of establishing the novation releasing appellant was upon her. Simmons National Bank v. Dalton, 232 Ark. 359, 337 S.W. 2d 667; International Minerals and Chemical Corp. v. Caplinger, 241 Ark. 1055, 411 S.W. 2d 526. Appellant relies upon the language of the extension agreement earlier quoted for evidence that there was, as a matter of law, a novation. We do not agree.

In order to constitute a novation, there must be a clear and definite intention of the parties that such is the purpose of the agreement. Simmons National Bank v. Dalton, supra; Cockrill v. Johnson, 28 Ark. 193; Riddick v. White, 194 Ark. 1010, 110 S.W. 2d 9. See also John Wannamaker New York, Inc. v. Comfort, 53 F. 2d 751 (5th Cir. 1931), 81 A.L.R. 133, cert. denied, 285 U.S 560, 52 S. Ct. 457, 76 L. Ed. 948 (1931). There must be an intention on the part of the creditor to release the original debtor. Brewer and Son v. Winston, 46 Ark. 163; Denman v. Bruce-Rogers Co., 190 Ark. 1098, 82 S.W. 2d 844. The question to be determined is whether by the execution and delivery of the extension agreement, the parties clearly intended to extinguish the old debt and rely entirely on the new, or to keep the old debt alive and merely accept the new as new security or evidence of the debt. See Young v. Farmers Bank & Trust Co., 248 Ark. 613, 453 S.W. 2d 47. The existence of this intention, if it is not expressly declared, must be decided from all the circumstances in the case, including the subsequent conduct of the parties. Home Life Ins. Co. v. Arnold, 196 Ark. 1046, 120 S.W. 2d 1012; Elkins v. Henry Vogt Mach. Co., 125 Ark. 6, 187 S. W. 663. See also, John Wannamaker New York, Inc., supra. The issue is one of fact if there is any conflicting evidence or if the terms of the agreement are capable of more than one construction. International Minerals and Chemical Corp. v. Caplinger, supra. See Denman v. Bruce-Rogers Co., supra; Elkins v. Henry Vogt Mach. Co., supra. We have said that the intention must be so evident as to leave no room for doubt. Cockrill v. Johnson, supra; Riddick v. White, supra.

Where the intention to release an old obligation by acceptance of a new one is not expressly stated, one of the strongest indications of a contrary intention is the retention of the original evidence of debt by the creditor. Brewer and Son v. Winston, 46 Ark. 163. See also, Farmers’ National Bank v. Jones, 234 Ky. 591, 28 S.W. 2d 787, 70 A.L.R. 335 (1930); John Wannamaker New York Inc., v. Comfort, supra. In determining whether there has been a novation by substitution of debtors and a discharge of the lien of a mortgage given by the original debtor, significance has been accorded to the fact that the original debtor was ignored in the transaction. Rose v. Million, 147 Ark. 550, 228 S.W. 376. It has been said that where a new note is not the obligation of all the parties liable upon the original note, there is no presumption that the former was given and accepted as a discharge of those liable on the latter. Farmers’ National Bank v. Jones, supra.

The agreement was negotiated and executed without including or considering appellant as a party. The only reference to her in the instrument is I. T. Alston’s representation that he owned the mortgaged lands subject to the dower interest of his wife. Bitely testified upon inquiry by the chancellor made for clarification of previous statements by the witness that he kept the original notes so they would still be in force. There was a provision that in case of conflict between the terms of the extension agreement and the original note and mortgage, the former should prevail, followed by another, in which Alston confirmed the original instruments as modified by the new agreement and acknowledged that Bitely, Jr., was the owner of the mortgage made to Bitely, Sr. The clause upon which appellant relies might be construed, in light of other terms of the agreement, to mean simply that the new note included, but was not cumulative to, the original notes. At least, the matter is not free from doubt.

Where there is a conflict in the evidence pertaining to the issue of novation, we will not reverse where we are unable to say that the decree of the chancery court was against the preponderance of the evidence. Norden v. McAllister, 207 Ark. 1101, 184 S.W. 2d 459. The chancellor’s opinion and the court’s decree constituted a finding of fact adverse to appellant on this issue We cannot say that the preponderance of the evidence does not support the finding.

Appellant argues that she should not be held liable for more than one-third of the notes not barred, relying on such cases as Less v. Less, 131 Ark. 232, 199 S.W. 85, and Salinger v. Black, 68 Ark. 449, 60 S.W. 229. In neither of those cases does it appear that the widow was a comaker and jointly and severally liable, as was appellant, so there was no error in rejecting the arguement. In those cases it was recognized that the lien of the mortgagee was not affected by the assignment of dower or the apportionment of the indebtedness. Of course, Bitely’s lien for any advances made for the payment of taxes and for payments on the Metropolitan mortgage debt, to the extent that appellant did not contribute her pro rata share, extends to her life estate as well as to the reaminder and all the other lands. Tolson v. Pyramid Life Ins. Co., 221 Ark. 492, 254 S.W. 2d 53.

On cross-appeal, Bitely contends that the chancellor should have held appellant personally liable for all additional advances made prior to the separation of the parties. Inasmuch as we agree with the chancellor and appellant that the statute of limitations had run in her favor, we must affirm on cross-appeal insofar as this point is concerned.

We find merit in Bitely’s contention, however, that there was error in the holding that the Levine judgment held by Bilsky was prior to Bitely’s lien for the additional advances. It was conceded at the commencement of the trial that the lien of this judgment dates from October 3, 1969. Even though the additional advances made by Bitely prior to this date were optional rather than obligatory, the Bitely lien is clearly superior to that of the judgment. Liens acquired before the revivor of the judgment became superior to it. See Drumm Commission Co. v. Simms, 89 Ark. 165, 116 S.W. 183.

A judgment lien is subject to all other existing liens which are valid as to the landowner, because the judgement lien does not attach to the land but only to the judgment debtor’s interest therein. Carroll v. Evans, 190 Ark. 511, 79 S.W. 2d 425. Judgment creditors are not innocent purchasers and the judgment lien is subject to every equity which existed against the land at the time it comes into existence. Fears v. Futrell, 216 Ark. 122, 224 S.W. 2d 362; McGuigan v. Rix, 140 Ark. 418, 215 S.W. 611; Carroll v. Evans, supra. In Pulaski Federal Savings & Loan Assn. v. Carrigan, 243 Ark. 317, 419 S.W. 2d 813, this court repeated an earlier holding that if the landowner’s interest is subject to any infirmity or condition by reason of which it is eliminated or ceases to exist, the lien ceases with it. The existing equities need not be of record, and lack of notice to the judgment creditor is immaterial. See Snow Bros. Hardware Co. v. Ellis, 180 Ark. 238, 21 S.W. 2d 162; McGuigan v. Rix, supra; Carroll v. Evans, supra. Cf. Williams-Echols Dry Goods Co. v. Bloyd, 169 Ark. 529, 276 S.W. 1. In view of the language of the mortgage and of the extension agreement of April 2, 1966, it cannot seriously be argued that the Bitely mortgage was not intended to secure the additional advances, that it was not a valid lien insofar as I. T. Alston and Bitely are concerned, or that the mortgage did not stand as security for advances made up to the date of the revivor of the judgment lien. See Curry v. Commercial Loan & Trust Company, 241 Ark. 419, 407 S.W. 2d 942. Furthermore, when we consider the language of the Bitely mortgage, the circumstances attending its execution, the course of dealings between the parties before and after its execution, and the purposes for which the advances were made, it is clear that this mortgage was security for the additional advances made in this case. State Nat. Bk. v. Temple Cotton Oil Co., 185 Ark. 1011, 50 S.W. 2d 980.

It appears from the record, however, that Bitely may have made advances to Alston after the revivor of the Bilsky judgment lien. This presents a more difficult problem, and we do not seem to have any decisions controlling this particular issue. We have said, however, that where the making of future advances is entirely optional, with the mortgagee, those made prior to the attaching of a junior lien are secured by a recorded mortgage securing them and that the general rule is that the mortgage is an effective lien as to a subsequent lien or encumbrance of which the mortgagee does not have actual notice. Ashdown Hardware Co. v. Hughes, 223 Ark. 541, 267 S.W. 2d 294. We have also held that when advances are optional, the mortgagee cannot, after notice that a subsequent lien has attached, deplete the value of the equity to the disparagement of its lienors by advances, which, if refused, would not have been in force. Ashdown Hardware Co. v. Hughes, supra; Superior Lumber Co. v. National Bank. of Commerce, 176 Ark. 300, 2 S.W. 2d 1093. In both of the cited cases another type statutory lien, i.e., a materialman’s lien, was involved as the junior encumbrance. In the earlier case, the mortgagee was denied priority as to moneys advanced after it had notice of the lien.

There is a divergence of authority on the particular question involved, but the majority rule is supported by. the more recent and better-reasoned cases. It is that the lien of a prior recorded mortgage securing optional future advances is superior to an encumbrance intervening between the giving of the mortgage and the making of the advance, if the mortgagee does not have knowledge or actual notice, as distinguished from mere record notice, of the intervening encumbrance. Annot., 138 A.L.R. 566, 579 (1942). This rule is consistent with our statements in the cases involving materialmen’s liens, and at least one of the cases cited by us in Superior Lumber Co. v. National Bank of Commerce, supra, is cited by the annotator as supporting the majority rule. There is nothing in this record to indicate that Bitely had actual notice of the Bilsky judgment prior to his filing of the foreclosure suit, so his mortgage lien takes priority over the Bilsky judgment for the entire Alston debt.

We have reached the conclusion that, because of the errors indicated, the cause must be remanded for further proceedings. The personal judgments against Berthola on both the Bitely and Hardin debts are excessive, and the Bilsky judgment should not have any priority over her life estate since it was not a lien at the time the property division was made in the divorce proceeding. Perhaps the decree could be modified here to restate the amount of the judgment against Berthola Alston and the priorities of the judgment liens; however, doing so would ignore any right appellant might have had to protect her life estate from sale. We have concluded, however, that she was not entitled to protect her estate from sale by paying merely the amount of the judgments against her. She executed a relinquishment of dower and homestead in both the Bitely and Hardin mortgages. To the extent of the debt secured by the mortgages, her dower interest was relinquished and extinguished, insofar as the mortgagees were concerned. Appellant took the lands assigned to her subject to the lien of the mortgages, and the mortgagees had the right to have all the lands sold for the satisfaction of the debts secured. Crosser v. Crosser, 121 Ark. 64, 180 S.W. 337; Hewitt v. Cox, 55 Ark. 225, 15 S.W. 1026, 17 S.W. 873. This does not mean that appellant’s life estate stood as security for the entire debt of I. T. Alston under the circumstances of this case.

A relinquishment of dower endures for the life of the principal conveyance and no longer, and if the conveyance is satisfied, becomes inoperative or is extinguished by operation of law, the relinquishment of dower is no longer effective. Gainey v. Anderson, 87 S.C. 47, 68 S.E. 888 (1910); In re Lingafelter, 181 F. 24 (6th Cir. 1910), 32 L. R. A. (n.s.) 103. This does not mean, however, that Berthola Alston’s life estate is subject only to the lien of that part of the Bitely debt which had not been barred by the statute of limitations as to her. The Bitely mortgage was prevented from becoming inoperative by the extension agreement executed by I. T. Alston. It has been established by a respectable authority that the life of a mortgage may be extended before it has been extinguished by the operation of the statute of limitations by the act of a husband, who was a mortgagee, suspending the running of the statute, so that the relinquishment of dower remains effective. Tracy Loan & Trust Co. v. Luke, 72 Utah 231, 269 P. 780 (1928); 2 Jones on Mortgages, Eighth Edition (1928), 1032, et seq., § 1536. In spite of the fact that I. T. Alston’s extension agreement did not remove the bar of the statute as to Berthola, it did prevent the relinquishment of dower from becoming ineffective, so that the lien of the mortgage remained operative. That lien secured all of the Bitely notes and all future advances to the date of the notice given Bitely by Berthola Alston that she would not be further responsible.

The actual property division between I. T. and Berthola preceded the filing of the foreclosure suit, but this did not have the effect of limiting the right of either mortgagee to a sale of the estate of both parties in the pro perty to satisfy his lien, if that is necessary to satisfy debts which are a lien on appellant’s life estate. The purpose of division of property in divorce cases under Ark. Stat. Ann. § 34-1214 (Repl. 1962) is to end all controversies as to dower. Beene v. Beene, 64 Ark. 518, 43 S.W. 968. We have always considered the statutory property division as dower. See Glover v. Glover, 153 Ark. 167, 240 S.W. 716; Biddle v. Biddle, 206 Ark. 623, 177 S.W. 2d 32; Bradshaw v. Atkins, 216 Ark. 757, 227 S.W. 2d 441; Brimson v. Brimson, 227 Ark. 1045, 304 S.W. 2d 934; Narisi v. Narisi, 233 Ark. 525, 345 S.W. 2d 620. The life estate of appellant is, in effect, assigned dower.

We are unable to determine the actual amount of the advances made by Bitely over and above the debt evidenced by the six notes prior to the notice that appellant would not be further responsible, because the exact date of that notice is not shown. We only know that it was at some time prior to the execution of the extension agreement. The plea of the statute of limitations by appellant was an affirmative defense since the bar of the statute does not appear upon the face of the pleadings. The burden of proving an affirmative defense lies upon the defendant asserting it. Ark. Stat. Ann. § 28-101 (Repl. 1962). See also Kempner v. Stephens, 186 Ark. 877, 56 S.W. 2d 580; Patton v. Ashley, 8 Ark. 290. Whenever the bar of the statute of limitations does not appear from the pleadings or evidence on behalf of the plain tiff, the burden of proof is upon the defendant who pleaded the statute as a defense to establish its application to bring him within its terms. McCrite v. Hendrix College, 198 Ark. 1149, 133 S.W. 2d 31; Smith v. Milam, 195 Ark. 157, 110 S.W. 2d 1062; Yaffe Iron & Metal Co. v. Pulaski County, 188 Ark. 808, 67 S.W. 2d 1017; St. Louis I. M. & S. Ry. Co. v. Berry, 86 Ark. 309, 110 S.W. 1049. It follows, therefore, that when, as here, a part of an indebtedness is barred by the statute of limitations, and the remainder is not, the burden of showing the specific amount barred is upon the party pleading the statute. Sanders v. Merchants State Bank of Centralia, 349 Ill. 547, 182 N.E. 897 (1932); Golden v. Lerch Bros., 203 Minn. 211, 281 N.W. 249 (1938); Buck v. Newberry, 55 W. Va. 681, 47 S.E. 889 (1904). See also Annot. 8 Ann. Cas. 340, 341; 54 C.J.S. 523, Limitation of Actions, § 386.

We are unable to determine the exact portion of the existing debt barred by the statute of limitations in this case. At the time of the execution of the extension agreement, the first Bitely note was already barred, so the extension agreement was ineffective to prolong the lien to secure this note as to appellant. It also appears that additional advances were evidenced by annual notes, which would have been due at the end of the respective crop seasons. The 1960 advances on which there was a principal balance of $3,497.21 would have been barred before the execution of the extension agreement. The balance stated in the extension agreement obviously included these items which had been barred, along with accrued interest thereon. With the exception of these items, in the absence of other evidence, we can only take the balance stated in the extension agreement as being the amount of the unbarred debt which would have been a lien on appellant’s life estate as well as upon I. T. Alston’s interest in the land. Of course, after she gave notice that she would not be further responsible, the lien on her interest would not secure any advances made after that date, except for payments on the first mortgage and for taxes to the extent appellant did not contribute her pro rata part.

The priorities established by the chancellor then should be revised insofar as the lien on the entire estate in the lands is concerned as follows:

PRIORITIES AS TO WHOLE ESTATE

Claimant Debtor

(1) Bitely $1,908.33 plus (last note). interest Both Alstons

(2) Bitely The 2nd, 3rd, 4th and 5 th notes and additional advances for 1961, 1962, 1963, 1964 and 1965 plus any I. T. Alston thereafter made for tax and first mortgage payments to which Berthola Alston did not contribute her pro rata part, plus interest

(3) Hardin 2 notes of $1,383.34 each, Both Alstons plus interest.

Even though the lien of the mortgage extended to the entire estate, appellant should have been permitted, in equity, to have the husband’s interest remaining after the assignment of dower to her first exposed to sale. A court of equity should direct that a sale be made in such a manner, as to protect the interests of the holders of rights acquired in property subsequent to the execution of the mortgage, and, in order to do so, will order the portion not conveyed by a mortgagor to be sold first and other property sold only in the event that the property not conveyed fails to bring enough to satisfy the decree. Hughes, Arkansas Mortgages (1930), p. 348, § 411. This principle has been applied in favor of minors claiming a homestead interest in a portion of lands mortgaged by their mother by requiring that the remaining lands be first sold before resort was had to the lands claimed as homestead. Littell v. Jones, 56 Ark. 139, 19 S.W. 497. It has also been applied to protect the homestead of the mortgagor. McMillan v. Palmer, 198 Ark. 805, 131 S.W. 2d 943. It has been applied at the instance of a widow to protect her homestead rights in her husband’s land. Bank of Hoxie v. Graham, 184 Ark. 1065, 44 S.W. 2d 1099. We have said that the law is so solicitous of the homestead right that a secured creditor will be required to exhaust his nonexempt security first, even when a loss to common creditors would result. Sims v. McFadden, 217 Ark. 810, 233 S.W. 2d 375: Appellant should be. in no worse position with reference to her assigned dower. Homesteads are protected because of our policy to protect the family home. Bank of Hoxie v. Graham, supra. The law has always been ' solicitous of a widow’s dower. Rush v. Smith, 239 Ark. 706, 874, 394 S.W. 2d 613. The wife’s dower right may be protected by ordering that-the husband’s interest be first sold, or her dower right excepted and reserved from sale. 3 Jones on Mortgages, Eighth Edition'(1928) 558, § 2085. Some recognition was given to this right in the chancellor’s findings, in stating that her interest should be withheld from sale upon her making certain payments. This privilege was not accorded her in the decree and subsequent proceedings.

Other alleged errors are either moot by reason of our disposition of the issues heretofore treated or inlikely to arise in further proceedings. Remand will be necessary because appellant was prevented from having her life estate withheld from sale without the payment of an excessive amount due to the errors indicated. Her husband’s interest, i.e., the entire tract should be first offered for sale, subject to appellant’s life estate in 117 acres. The proceeds of this sale should be applied first to those portions of the debts to Bitely and Hardin for which I. T. Alston alone is liable and then to the joint liabilities of. I. T. and Berthola Alston, If any balance then remains it shall, be held for later application. Berthola Alston’s life estate shall then be subjected to sale, after she has been afforded a reasonable time within which to pay all re* maining debt which constitutes a lien thereon. The proceeds of this sale shall be first applied to the joint liabilities of I. T. and Berthola Alston remaining unpaid after application of the proceeds of the first sale, then to the payment of any remaining indebtedness of I. T. Alston which is a lien on appellant’s dower and then to that part of the Hardin debt for which she alone is liable, i.e., 22.44 per cent of the notes maturing, in 1963 and 1964 with interest. Any surplus that may then remain from this sale shall be paid to Berthola Alston.. After the payment of the joint indebtedness of the parties, any surplus from the sale of I. T. Alston’s interest shall be applied to the pay? ment of the Bilsky judgment and any balance then remaining to I. T. Alston.

If Bitely should bid at the first sale, he may credit upon his bid only the amount of the debts due him by I. T. Alston, and shall be required to give security for the payment of his bid, if successful, in excess of those amounts. If Bitely should bid at the second sale, he shall be entitled to credit for any remaining balance due him which constitutes a lien on appellant’s life estate and shall be required to give security only for the excess of his bid over that amount, if he shall be the highest bidder. If Hardin or Bilsky should bid at either sale, he shall be required to give security for his entire bid.

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

      Of course, notice to a purchaser at an execution sale might be necessary. See Apperson & Co. v. Burgett, 33 Ark. 323.

      Item (2) would actually be the amount of debt recognized in the extension agreement ($28,480.43) less Item (1) and less the 1960 additional advances ($3,497.21) with interest at 10 per cent from January 1, 1961, to April 2, 1966, the date of the extension agreement. This item would have amounted on April 2, 1966, to $20,068.39, and would bear interest thereafter. This calculation is subject to adjustment to add first mortgage and tax payments made by Bitely to which appellant did not contribute pro rata.