author: Paul Ward, Associate Justice. McFaddin, J., Sam Robinson, Associate Justice,

text:
    Black v. Bollinger.
    5-1678
    317 S. W. 2d 130
    Opinion delivered November 3, 1958.

      Reid & Burge and Bernal Seamster, for appellant.

      Frank C. Douglas, for appellee.
   Paul Ward, Associate Justice.

Appellees raised and sold cotton in 1956 to Manila Gin Company, but were unable to cash the gin’s checks given them- for the purchase price. They instituted this action against the Gin Company (i. e. the two partners owning and operating the Gin), The Corning Bank at which the Gin Company did business, and L. G. Black who was connected with the Bank and also was a creditor of the Gin Company. There were other defendants originally bnt they are not material to this opinion.

Since one of appellant’s contentions is that the trial court rendered its decision on a question not raised in the pleadings, the material portions of the complaint will be abstracted at length following a statement of the factual background leading up to this litigation. Because of the disposition hereafter made of this case many details will be omitted.

Background. Prior to 1952 the Manila Gin Company was owned and operated as a partnership by L. G. Black (appellant) and K. S. Jackson. In May of that year Black sold his interest to Jackson, resulting in Black holding Jackson’s notes in the amount of $12,642.50, payable in three installments on December 31, 1953, 1954 and 1955 and secured by a second mortgage on the gin property. Nothing had been paid on these notes when this litigation began on November 21, 1956. Before the ginning season started in 1956 Jackson sold an interest in the Gin to U. S. Griffith. Jackson and Griffith, who were in need of financial aid, were doing business with the First National Bank of Blytheville. Later, on about September 14, 1956, at Black’s suggestion, Jackson and Griffith started doing business with The Corning Bank. It seems that it was the policy of the gin company to purchase the cotton which farmers brought to it for ginning. Briefly, the arrangement with The Corning Bank was this: The bank furnished the gin company cash to purchase the cotton; when the gin company made a purchase it would issue its check for the purchase price on the bank, and would then redeem the check with cash; then the gin company would place the cotton in a government warehouse and receive negotiable warehouse receipts, and when the gin company exhausted its cash on hand it would take the redeemed checks to the bank and receive cash to the amount of $100 for each bale of cotton purchased. Apparently the gin company would retain the warehouse receipts or sell them and (presumably) turn the money into the bank. It is apparent that the bank would be required to carry an overdraft •for the gin company since it paid more for the cotton than $100 per bale. On October 6, 1956 Black endorsed Jackson and Griffith’s note to the bank for $6,800 whereupon the bank agreed to advance $125 per bale. It seems that the bank’s, security for the ever increasing overdraft was the warehouse receipts.

Appellees, J. N. Bollinger, W. O. Roach, and Frank Nowlin were farmers in the Manila vicinity and had been customers of the gin company for several years. In the fall of 1956 they sold cotton to the gin company under the arrangement above mentioned, but the gin company was unable to redeem their checks. When these checks were presented to the bank on or about October 16, 1956 payment was refused and they have never been paid. At that time the bank refused to advance any more money to the gin company which (according to the bank statement) owed the bank $19,961.70. On November 3, 1956 the gin company increased its debt or overdraft to the amount of $20,057.70. On December 1, 1956 the bank sold, with the consent of the gin company, warehouse receipts which had been turned over to it and received therefor the sum of $27,390.42. This amount, however was not sufficient to cover the overdraft of $20,057.70 plus the said $6,800 and plus other advances made by Black to help keep the gin in operation. There was of course no money available to take up the checks held by Bollinger, Roach and Nowlin, hence this litigation.

Pleadings. The complaint, in all material parts, states in substance:

“. . . these plaintiffs have reason to believe that a great number of warehouse receipts for cotton belonging to these plaintiffs, and other customers of said Manila Gin Company, have been placed with The Corning Bank; that such a plan and scheme was for the purpose of fraudulently securing money which the said K. S. Jackson and his partner did not intend to use in paying for the cotton they claimed to have bought, but in order to pay the defendant L. G. Black (Laney Black) . . . ; that it was all done with the fraudulent intent to hinder, cheat and delay these plaintiffs; that snch frandnlent scheme was known to the said defendants who benefited or were to benefit from snch fraudulent purchase of said cotton. ’ ’

The amended complaint states:

“The defendants K. S. Jackson, Sam Griffith, L. G. Black and The Corning Bank entered into a scheme and plan whereby said K. S. Jackson and Sam Griffith would buy cotton from the customers of the Manila Gin Company, (owned by said K. S. Jackson and Sam Griffith, and under deed of trust to L. G. Black) and would surrender the warehouse receipts for such cotton to The Corning Bank, get a portion of the price of such cotton paid over to said K. S. Jackson and Sam Griffith, and when the cotton was sold would then pay the balance due on such cotton to L. G. Black, knowing all the time that said K. S. Jackson and Sam Griffith did not have sufficient money to fully pay for the cotton they bought, and knowing that some of said cotton was subject to landlord’s lien for rent and some was under mortgage to the Planters Production Credit Association.”

“That under this plan and fraudulent scheme, the said bank was not an innocent purchaser of said warehouse receipts and cotton and knowing that said K. S. Jackson and Sam Griffith had not paid the producers and owners of such cotton and did not intend to pay for such cotton . . . That the transaction was not in the usual and ordinary course of a banking institution, was not bona fide and without fraud in its inception and accomplishment. ’ ’

“These plaintiffs further allege that in making this fraudulent scheme to get money to pay L. G. Black, and for K. S. Jackson and Sam Griffith to use, the bank was fully aware that the cotton covered by the warehouse receipts were not paid for, and that the checks issued by Manila Gin Company on The Corning Bank would not be paid.”

The prayer was for a marshalling of assets, for subrogation, for judgment against Jackson, Griffith, and Black, and for “full and complete relief.”

After a lengthy hearing the trial court, among other things found: The Manila Gin Company is indebted to each of the plaintiffs (appellees) in the amount sued for; The Corning Bank dealt at arms length with the parties at all times, and; Black did not enter into an intentional and deliberate conspiracy with Jackson and Griffith to defraud the plaintiffs. The court then said that “The real problem ... is whether defendant L. G. Black assumed and exercised such control over the finances of the Manila Gin Company during 1956 that he became liable as a partner to these plaintiffs.” (emphasis supplied.) Following this the court entered a decree against Jackson, Griffith, and Black in favor of Bollinger for $2,681.86, in favor of Roach for $1,073.44:, and in favor of Nowlin for $872.66. Also a decree was rendered against all the above in favor of Borowsky Brothers for $97.77. Black is the only one who has appealed.

It is strongly insisted by appellant Black, and we agree, that the court erred in rendering a decree against him on a ground or theory not contained in the pleadings. Those portions of the complaint copied above show plainly, we think, that appellees sought recovery against Black on the sole ground that he had entered into a fraudulent plan or scheme with Jackson, Griffith, and The Corning Bank to use some of the proceeds from the operation of the gin to repay old debts to himself and consequently thereby make it impossible for the plaintiffs to collect their claims. There were no allegations in the complaint to put Black on notice that he was being sued as. a partner. Nor was any testimony introduced which would have given him such notice. Without detailing the testimony it suffices to say that such testimony was consistent with the alleged ground of a conspiracy or fraudulent scheme and consequently no notice of a partnership. Therefore the action of the trial court cannot be justified by the well established rule that the court may treat the pleadings to conform to the testimony. The rule applicable here is clearly stated in 30 C. J. S., Equity, § 403, pp. 820-821:

“After a hearing and submission of the cause, the court is reluctant to permit an amendment, and an amendment will not then be permitted, the effect of which would be materially to change the issues or introduce new issues, unless, at least, an opportunity is given to introduce further proofs.”

The above rule has been approved repeatedly by this court. In Butler v. Butler, 176 Ark. 126 (at page 128), 2 S. W. 2d 63 we said:

“If appellants had desired to raise the issue of the extent of the homestead on account of its value, they should have done so in their complaint, in apt time, so that it could have been met by pleading on behalf of appellees, and by proof. The court did not therefore err in excluding this evidence and in refusing to permit appellants to amend.” , ,

In the case under consideration the plaintiffs did not offer to amend the complaint. On the other hand, the court not only rendered its decision on an issue not raised by the pleadings but also refused to allow appellant to introduce further proof on that issue. In Price v. Price, 215 Ark. 425 (at page 428), 220 S. W. 2d 1021, the court, referring to Kirby’s Digest § 6145 which corresponds to Ark. Stats. § 27-1160, approved this statement: “Under statutes like this it has been uniformly held that no amendment can be allowed after the commencement of a trial which introduces into the case a new cause of action.” For the error indicated the decree of the trial court must be reversed.

Appellant insists that the cause should not only be reversed but that it should also be dismissed. In support of this appellant says there is no evidence to support the finding of liability on the basis of a partnership, and after a careful examination of the record on this point we are forced to agree. For the reason indicated below we have concluded, however, that the cause should not be dismissed. Since reaching this conclusion it would serve no useful purpose to detail the testimony. Suffice to say there is no testimony that Black was a partner in that he took any part in actually running the gin, or that he in any way led anyone to believe he was doing so. There is no testimony that he induced appellees or anyone else to patronize the gin or induced them to withhold their checks. All Black did, according to the record, amounted to helping Jackson and Griffith finance their gin operation through The Corning Bank, and there is no showing that he received any gin proceeds to apply on any old debts.

We have concluded that, in the interest of justice to appellees, the cause should be remanded for a more detailed accounting of the proceeds of the operation of the gin, if appellees should so desire. We do this because all parties and the trial court seem to think there should have been sufficient funds from the gin operation to pay all claims, because no attempt was made to account for all the proceeds, and because there is nothing to indicate clearly how the credits given to Jackson and Griffith are tied in with the bank overdraft.

This court has heretofore remanded causes in chancery where it appeared that further development was necessary. See: Langhorst v. Rogers, 88 Ark. 318, 114 S. W. 915, and Massey v. Tyra, 217 Ark. 970, 234 S. W. 2d 759.

Therefore the cause is reversed for the reason above indicated, and it is remanded for further development along the lines indicated if appellees so desire.

McFaddin, J.,

dissents as to reversal and concurs as to the remand.

Millwee, J., Smith, J., and Bobinson, J., dissent as to remand.

Ed. F. McFaddin, Associate Justice (Dissenting in Part and Concurring in Part). My views in this case are as follows:

(1) I think the prayer of the plaintiffs’ complaint was sufficient to support the Court’s decree finding Black liable, entirely aside from any proof of conspiracy. Here is that portion of the prayer:

“Plaintiffs pray for judgment to which each may be entitled when the case is heard and as shown by the facts; * * *
“Plaintiffs further pray for the marshalling of assets, for subrogation where any of their cotton or cottonseed have been delivered to any of the defendants, or where warehouse receipts have been pledged or delivered to any of said defendants, * * * and for complete and equitable relief to which the court may find each plaintiff is entitled, and for all costs herein expended.”

(2) I think Black was liable to plaintiffs even in the absence of any evidence of conspiracy. Mr. Black admits that while 164 bales of the cotton were still unsold, the plaintiffs came to him and asked if there would be any equity in the 164 bales sufficient to pay their checks. The plaintiffs say (and the Trial Court evidently believed them) that Black told them that when the cotton was sold he would let them know. Bollinger gave Black his telephone number.

Black and his son took the compress receipts on this lot of 164 bales of cotton, had it resampled, sold the cotton without consulting the gin, the bank, the plaintiffs, or anyone else. "When the money came back to the bank the total was $27,390.42. The bank paid itself (which it had a right to do) the amount of its claim in excess of $20,000.00. Then occurred the situation which I think makes Black liable. Without notifying the plaintiffs he directed the bank to take from the remaining proceeds of the sale of the cotton enough to pay the $6,800.00 note and interest which he had endorsed for the gin company. He thereby preferred himself as a creditor over these plaintiffs. Mr. Black’s handling of the situation did not stop at that point: there was left a balance of $370.39, and Mr. Black had that amount credited to the Clay County Cotton Company, which was one of his own organizations. There is no showing — nor is there any claim — that the gin company owed the Clay County Cotton Company anything.

Under these facts and others in the record, I think Mr. Black became liable to the plaintiffs as an inter-meddler in the affairs of the gin company and that equity should grant the plaintiffs relief against Mr. Black for his intermeddling. In 33 C. J. 269, an intermeddler is defined as, “a person who officiously intrudes into a business to which he has no right; one who enters himself into a situation on his own initiative”. In 54 Am. Jur. 188, in discussing intermeddling with property as making the intermeddler a constructive trustee, the rule is stated, “A constructive trust may arise where one wrongfully intermeddles with or assumes the management and control of property of another”. To sustain the text there are, among others, the cases of Garney v. Jarvis, 46 N. Y. 310, 7 Am. Rep. 335; Bailey v. Bailey, 67 Vt. 494, 32 A. 470, 48 A.S.R. 826; and Morris v. Joseph, 1 W. Va. 256, 91 Am. Dec. 386. These eases do not present factual situations like the one at bar, but they recognize the broad equitable principle that an intermeddler. makes himself liable. There is an annotation in 38 L. Ed. 55 on the liability of a person as a trustee ex maleficio from his act of intermeddling. Even though Black was not a partner in the gin company, he certainly intermeddled with its affairs and sold cotton and got a part of the proceeds, in violation of his promise to the plaintiffs that he would notify them when the cotton was sold. Under these facts, I think it is within the broad power of equity to hold Mr. Black liable as a trustee ex maleficio for intermeddling. So I would affirm, the Chancery decree against Mr. Black.

(3) But the other members of the Court vote to reverse the case; and so, in order to allow the plaintiffs an opportunity to try to salvage something against Mr. Black, I agree that the cause should be remanded for further development.

Sam Robinson, Associate Justice,

(Dissenting). The appellees tried their case on the theory of fraudulent collusion between the bank, Jackson, Griffith and Black, all of whom were named as defendants, to cheat and defraud the appellees. The alleged fraud was not proved. Of course, Jackson and Griffith were liable on the worthless checks given to appellees, and default judgments were rendered against them. But there was no finding of fraud on the part of Black or the bank, and the decree was in favor of the bank. Black was held to be liable solely on the theory that he was a partner with Jackson and Griffith. The majority opinion points out that there is no testimony that Black was a partner with Jackson and Griffith, and no evidence to the effect that he caused anyone to believe he was such a partner. It is further shown that he did not induce anyone to patronize the gin or induce anyone to withhold their checks. And the opinion states: “All Black did, according to the record, amounted to helping Jackson and Griffith finance their gin operation through the Corning Bank, and there is no showing that he received any gin proceeds to apply on any old debts.”

There was no finding of fraud. In fact, the bank, one of the alleged conspirators, has been dismissed from the case, and there is no evidence of Black’s being a partner with Griffith and Jackson. Hence, I fail to see how Black could be liable. It is therefore my opinion that the action should be dismissed, and I respectfully dissent from the action of this Court in remanding the case for new trial.

I am authorized to say that Mr. Justice George Rose Smith joins in this dissent.


source: Caselaw Access Project

author: Paul Ward, Associate Justice.

license: Public Domain

text:
    Farmers Union Mutual Ins. Company v. Watt, et ux.
    5-1691
    317 S. W. 2d 285
    Opinion delivered November 3, 1958.
    [Rehearing denied December 1, 1958]

      Chas. A. Wade, for appellant.
    No brief filed for appellee.
   Paul Ward, Associate Justice.

Appellees, Cordell L. Watt and his wife, brought suit against appellant, Farmers Union Mutual Insurance Company, on a fire insurance policy covering their dwelling and smokehouse which were completely destroyed by fire, and covering their cellar which was damaged by fire. The complaint contained all the necessary allegations to establish liability. Appellant’s answer consisted of a denial of each and every material allegation in the complaint.

The cause was tried before a jury, resulting in a verdict and judgment in favor of appellees as prayed. The record contains approximately 20 pages of testimony on behalf of the Watts, 10 pages on behalf of the insurance company, and 6 pages of instructions by the court.

On appeal appellant has not abstracted any of the evidence or any of the instructions. Thus it is seen that appellant has failed to abstract the record as required by Rule 9 (d) of this court.

For the above indicated failure to abstract the record this court must, under the holding in Porter v. Time Stores, Inc., 227 Ark. 286, 298 S. W. 2d 51 and other cases cited therein, affirm the judgment of the trial court, and it is so ordered.

Affirmed.


author: Sam Robinson, Associate Justice.

text:
    Reese v. Cox.
    5-1703
    317 S. W. 2d 135
    Opinion delivered November 3, 1958.

      Sam Sexton, Jr. and Ralph W. Robinson, for appellant.

      Batchelor & Batchelor, for appellee.
   Sam Robinson, Associate Justice.

In 1914 appellee, J. B. Cox, and his sister, Josephine, purchased 40 acres of land which was conveyed to them jointly. Title to an undivided one-sixth interest in 20 acres of this land is involved in this appeal. At this point it may be helpful to identify the parties to this action and their relatives who appear in the record. Josephine Cox, Marie Cox, Eugene Cox and the appellee, J. B. Cox, were brothers and sisters. Josephine died in 1934, leaving one child, Savannah, who is the appellant. Arizona Cox is the wife of J. B. Cox. Savannah Reese, the appellant, daughter of Josephine Cox, is in possession of and is the undisputed owner of the west 20 acres of the original 40 acres purchased by her mother, Josephine, and her uncle, J. B. Cox. She claims, however, that she also owns a one-sixth interest in the east 20 acres. This appeal is from a decree holding that J. B. Cox is the owner of the entire east 20 acres.

While J. B. Cox was in the Army during the first World War, in the fall of 1918 or spring of 1919, Josephine had a fence constructed from north to south, dividing the 40 acres in half. It appears that from then on, Josephine was in possession of and claimed title to the west 20 acres of the 40, and J. B. was in possession of and claimed title to the east 20; Josephine built a house on the west 20, and her daughter, Savannah, the appellant in this case, has lived on the west 20 for more than 30 years. It appears from a preponderance of the evidence that in 1934, in anticipation of not living much longer, Josephine, wanting to save the west 20 acres for the benefit of her daughter, Savannah, but being apprehensive of Savannah’s dissipating the property at that time, conveyed her interest in the 40 acres to her spinster sister, Marie, with the understanding that Marie would save the property for the use and benefit of Savannah. Marie died in 1949 without having actually conveyed the property to Savannah.

Although it appears that the 40 acres had not been divided between J. B. and Josephine by mutual conveyances, it does appear that they both considered that J. B. owned the east 20 and Josephine owned the west 20. The east 20 joined J. B.’s home place. He had possession of the east 20, farmed a part of it, pastured part of it, put a stock pond on it, planted fruit trees, made a garden, and treated it as his own, and it was fenced to itself. Likewise, the west 20 was fenced, and Josephine built a house thereon and occupied it. It is not likely that she would have built a house on land that she did not consider her own. Marie died in 1949, without having actually conveyed the property to Savannah, but it was realized by Savannah that she had an interest in the property, and she lived on it without paying rent to anyone. She wanted to build a new house on the west 20 acres, but it appeared that the property had descended from Marie to J. B., Eugene and Savannah, and at Savannah’s request J. B. and his wife, Arizona, and Eugene all executed a deed to Savannah to the west 20 acres of the 40. Savannah claims that the consideration for this conveyance was her action in getting a job for Arizona, bnt her testimony in that respect is not convincing. On direct examination she testified:

“Q. Do you claim the west 20 acres as your property?

A. Well, Ido.

Q. How do you claim that?

A. Well, they gave me — after my auntie died, they gave me a deed to it, bnt I knew all the time that I had an interest in her part of it after she passed away. ’ ’

It appears that all the interested parties considered all along that the west 20 acres belonged to Savannah; that her mother, Josephine, had left it with Marie in trust for Savannah. Therefore, without hesitation J. B., his wife, Arizona, and Eugene gave Savannah a deed to the west 20 acres without any consideration whatever.

But Savannah says that as an heir of Marie she owns a one-third interest in an undivided one-half of the 20 acres that had been in the possession of J. B. for about 40 years. J. B. contends that Josephine gave him a deed to the east 20 acres in 1919 and that the deed was lost without having been placed of record. The evidence of a lost deed is very weak and we do not believe that J. B. could prevail on that theory. But we do think that the evidence is overwhelming to the effect that since 1919 he has been in possession of and has claimed to be the owner of the east 20 acres of the 40 acres, and that Savannah has known all along that J. B. claimed to own the east 20 and that her mother, Josephine, claimed to own the west 20.

During the years from 1934 to 1948, inclusive, J. B. paid the taxes on the entire 40 acres, and Savannah reimbursed him for one-half thereof. In 1949 Savannah paid the taxes and J. B. reimbursed her. Subsequent to 1949, which was the year J. B., Eugene and Arizona executed to Savannah a deed to the west 20 acres, Savannah has paid the taxes on the west 20 acres and J. B. has paid on the east 20 acres. Appellant attaches much significance to the fact that at one point in his testimony J. B. stated that prior to 1956 he made no claim that Savannah owned no interest in the east 20 acres. We do not think the witness’ testimony is fairly open to the construction placed on it by appellant. It is perfectly clear from his testimony as a whole that J. B. has claimed title to the east 20 acres since 1919. We do not think there is a shadow of a doubt that his reason for not demanding a deed from Savannah to the east 20 acres at the time he executed a deed to her to the west 20 acres was that he thought he owned the east 20 acres and no deed from her was required, but a deed to Savannah was necessary to give her record title to the west 20 acres because of the deed from Josephine to Marie. Moreover, it is highly significant that at the time, in 1949, when Savannah requested a deed to the west 20 acres, she made no claim to any interest in the east 20 acres. Nor does Eugene, as an heir of Marie, the same as Savannah, make any claim to ownership of any interest in the east 20 acres, but says that the entire 20 acres belongs to J. B.

Appellant points out, and we agree, that “where the adverse claimant has entered as a tenant in common, it is necessary for such claimant to give notice, either actual or by unmistakable acts, to his cotenants that he is holding adversely, or the statute will not run against such cotenants.” See Woolfolk v. Davis, 225 Ark. 722, 285 S. W. 2d 321. In the case at bar the evidence is completely convincing that Savannah knew for more than seven years before this action was commenced that her uncle, J. B. Cox, was claiming to be absolute owner of the east 20 acres. In Jones v. Morgan, 196 Ark. 1153, 1158, 121 S. W. 2d 96, we said: “It is true there is no testimony that Morgan ever said to his sister or brothers, or to those claiming through them, ‘I am claiming this land as my own; I deny your interest in it; take notice of my attitude!’ Nothing of this kind occurred; and yet, for more than thirty years, his conduct, his sitúation, and Ms actions in dealings affecting the property, were tantamount to a declaration of hostility to the claims of all persons . . . (including those) descending from the Morgans.”

Affirmed.


author: Carleton Harris, Chief Justice. Ed F. McFaddin, Associate Justice,

text:
    Little v. Holt.
    5-1637
    318 S. W. 2d 157
    Opinion delivered November 10, 1958.
    [Rehearing denied December 22, 1958]

      Rex W. Perkins & David J. Burleson, for appellant.

      Hubert L. Burch <& John Wm. Murphy, W. B. Put-man, for appellee.
   Carleton Harris, Chief Justice.

This appeal presents the question of sufficiency of the evidence to warrant cancellation of a deed for failure of consideration, the consideration therefor being an agreement by appellees Holt to support and care for appellant Little for the remainder of his life. On January 15, 1952, T. E. Little, then 68 years of age, the owner in fee simple of a 107 acre farm in Washington County, executed and delivered to James and Arlene Holt, husband and wife, a warranty deed conveying said property to the Holts in consideration of their oral agreement to support and care for him for the balance of his life. Mrs. Holt is Mr. Little’s great-niece. Appellant lived with appellees on the said farm from shortly after that date until March 11,1957, at which time he commenced living at the Haws boarding home, near Fayetteville, where he has remained since that time.

On April 1, 1957, Mr. Little filed a complaint in the Washington Chancery Court, setting out the conveyance and agreement with the Holts, alleging that appellees had breached the agreement to support and care for him, and praying that the conveyance be cancelled and held for naught, and that the title to said property be decreed to be in him.

In the meantime, on March 12, 1957, the Holts had conveyed the property (87 acres, including improvements) to J. M. Summers and wife, which deed was allegedly also executed by T. E. Little.

The Holts answered with a general denial, further pleading laches and estoppel, and the Summers answered that they had received a deed from the Holts and Little; that they were bona fide purchasers for value without notice, and that Little was estopped to question the authenticity of either the deed executed and delivered by him to the Holts, or the one executed by him and the Holts to them. They further filed a cross-complaint against the Holts, stating that they had paid the latter $6,500 for the property, and asking alternative relief against them in said amount, should the conveyance he set aside, and praying a lien on the property. On trial of the issues, the court found for appellees Holt as against Little, and further dismissed the cross-complaint filed by the Summers against the Holts. From such decree dismissing his complaint, appellant brings this appeal.

Before entering into a discussion of appellant’s contention of a breach of contract by the Holts, we will consider the validity of the deed received by the Summers. This deed was admittedly signed by the Holts and allegedly signed by Little. Mr. Holt testified that he took the deed to Little at .the Haws home, and the old man signed it. G-oldie Jones, an employee of the Uni versity, was to take the acknowledgment, but was unable to go at that particular time. Approximately a week later she went to the home, along with Holt, his brother, and Mr. Summers and his son, to see Mr. Little for the purpose of taking the acknowledgment. From her testimony:

“At first he was confused, he didn’t know whether he had signed it or not, and the more he talked, he decided he didn’t sign it; however, I got his signature for my own personal benefit.

* * #

Well, I asked him if he would acknowledge his signature, and he looked at it awhile; well, he didn’t know whether it was or not, and then, he was a little confused and talked around there, and then he decided he didn’t. There ivas a lot of conversation.”

She further stated that Mr. Little told Mr. Summers that he had no objection to Holt selling the farm. From the testimony and a comparison of Mr. Little’s signature (taken from exhibits), with the signature on the Summers ’ deed, the court found that Mr. Little had executed the instrument. We are unable to say that this conclusion was incorrect. From cross-examination of the Holts, appellant’s counsel indicated that they attached some importance to the fact that Mr. Little’s signature was even obtained, i. e., if he had no interest in the property or if the contract had been observed by the Holts, why obtain a useless signature? We attach no significance to this fact. Under the agreement by which the Holts received the deed from Little, it would seem a proper precautionary step to take; however, the evidence reveals that this was done because of the requirement of an attorney examining the abstract, and acting on behalf of the purchasers. We consider that the Summers were innocent or bona fide purchasers for value.

We now turn to appellant’s contention that the court erred in holding that the evidence, offered in behalf of his allegations, was insufficient to establish a breach of the agreement by the Holts. In addition to the parties, eleven witnesses testified for appellant, and eight for appellees, though the testimony of one of appellant’s witnesses was probably more favorable to appellees than to appellant. Several of these witnesses were distantly related to appellant and Mrs. Holt. Appellant’s nearest relatives were nephews, but in the early part of 1951, Little, who had lived alone for several years, commenced living with the Holts. He lived in their home for eight months to a year before entering into the agreement, which is the subject of this lawsuit. Following the agreement, and execution of the deed, the parties moved to the Little home. There, extensive repairs, according to Mrs. Holt’s testimony, in the amount of approximately $3,000, were made on the premises by the Holts. In the fall of 1955, Mr. Little moved to a granary back of the house to live. Appellant says that these appellees forced him to move to this building, while the testimony on their part is that he asked to move out to himself, because the operation of a TV set, and the children’s noise disturbed him. A bed, stove, and chairs were placed in the granary, and repairs were made on the building for the purpose of making it more livable. The evidence disclosed, however, that wide cracks were left in some places, and the building was cold in the wintertime. In addition to being moved from tbe house, the evidence of mistreatment upon which appellant relies for a concellation of the contract, is briefly as follows. Mr. Little testified that the children mistreated him and would hit him; that Mr. Holt knocked him down on one occasion; that the family would not permit him to eat his meals with them; that they would lock him out of the house when away; that they gave him no money, and did not look after him. Several witnesses, including one of the nephews, testified that they went to the granary to visit appellant in approximately January, 1956, and found the place dirty, cold, and but little food on the premises. Little himself was dirty and clothes filthy; there was human excrement in the bed, on his person, and around the doorway. It appears from the evidence that the testimony of the several witnesses relative to these conditions, referred to this particular period, except the evidence of Mrs. Winifred Smith, a welfare worker, who found somewhat similar conditions on a visit about a year later. Henry Brewster, the nephew, testified that he visited his uncle from one to three times a year; that since Little started living with the Holts, he had visited him about eight times, and had found him in the granary twice — in January, and October of 1956. Following the first time he found appellant in the granary, complaint was made to the Holts, and the old man was taken back into the house. Subsequently, according to appellees’ testimony, again at Mr. Little’s request, the latter went back to the granary, and stayed there until March, 1957, when he went to the Haws Nursing Home. Appellant’s witnesses testified that Little lost a great deal of weight, and became quite feeble after taking up his abode with the Holts. We are a little prone to wonder, as did the Chancellor, why some of those who testified about the conditions in the granary, took no steps to aid appellant, not even to building a fire. Brewster made an affidavit relating the provisions of the contract, which was recorded at the court house, hut this, of course, was for the primary purpose of placing prospective purchasers of the property on notice, rather than bringing to Mr. Little any physical benefit. One could gain the impression that this nephew was possibly more interested in what happened to the property than what happened to his uncle. After one of the friends wrote a letter to the welfare department at Little’s request, Mrs. Smith, heretofore referred to, paid a visit. Appellant was declared eligible for welfare payments in May, 1956, and drew checks from that time. Little requested Mrs. Smith, in February, 1957, to help him get into the boarding home (apparently already aware of the existence of this home), and subsequently, was moved there. Mrs. Smith testified she advised him that his welfare check would be increased sufficiently to take care of the additional expense. The testimony reflects that after moving to the Haws boarding home, Mr. Little had a more robust appearance, ate well, kept his room tidy, was able to control his bowels, and went to the bathroom on necessary occasions.

On the other hand, the Holts testified that they took care of him in accordance with the living standard of the other members of the family; that he came to live with them while they still resided in Lincoln, and was taken into the home because none of the other relatives would have him; that his habits, and failure to control his bowels, contributed to this reluctance by closer relatives. Mrs. Holt testified that she generally cleaned his room and washed his clothes twice a week, and never less than three times every two weeks. She stated that, while living in the house, because of the, fact that appellant would dip his hands into the food bowls on the table, he was placed at another table to eat by himself, but received the same food as other members of the family, and in whatever amounts he desired. After obtaining a job, in January, 1957, Mrs. Holt testified that she would prepare his meals before she left. She denied that Mr. Little had been locked out of the house, stating that only the front door was locked. Physical mistreatment of Mr. Little was denied, though she did say that on occasion, the young children would “pick at him,” for which she would whip them. Mr. Holt testified that he gave the old man $2 to $5 per week for tobacco and spending money, denied that he had ever physically abused appellant, stated that he was perfectly willing for Little to return and live with them, and that the agreement with the old man would be observed. The evidence reflects that the Holts called a physician to attend appellant on two occasions, it once being necessary to go after the doctor, as the telephone was out of order. Several witnesses living in the vicinity testified that Little had never complained to them about any mistreatment, and there was evidence to substantiate the Holts’ contention that Mr. Little went to the granary of his own accord. In short, the testimony in this case was in irreconcilable conflict.

We note that while appellant’s witnesses testified as to the weakened condition of Mr. Little, even their testimony reveals that he was able to visit his friends, some 2% or 3 miles away, once or twice per week. Mr. Little walked this distance, and on several occasions, bought a large sack of groceries in the Summers community, and carried it back home. We also observe the testimony relative to the changes in appellant’s attitude and habits after moving to the Haws home. It is nnnsnal for one to suddenly acquire the habit of tidiness, and to industriously clean his room, where he had not done so before. Likewise unusual is the fact that though unable to control his bowels for several years, this affliction ceased soon after appellant moved to different surroundings. One might well be led to believe, that because he was dissatisfied with the arrangements made, Mr. Little really did not make too much effort to look after himself until leaving the premises. While we consider that the conditions testified about in January, 1956, existed, and were extremely bad, still it must be remembered that Little had already lived with the Holts for close to five years, and there is no evidence, other than appellant’s testimony, which indicates any sort of mistreatment during that period. We do not consider the Holts responsible for the application for welfare assistance, since he first applied in 1948, several years before he started living with them; nor does the testimony reflect that the Holts ever received any part of his welfare check. We feel that important evidence as to whether appellees had observed their part of the contract, is shown by the introduction of Little’s application to the welfare department for assistance on May 1, 1956. Appellant was interviewed by Mrs. Smith, and she talked with him and filled out his application. Upon completion, she read the application to him, and he signed it. Paragraph B states: “The source of my (our) support during the past year has been: By Mr. and Mrs. Holt for more than five years.”

The testimony of the various witnesses, contradictory as it is, unquestionably makes this a difficult case to determine. Of course, under such circumstances, the finding of the Chancellor becomes even more persuasive. The trial court apparently listened intently to the testimony of the witnesses, and at the conclusion of the trial, rendered a lengthy oral opinion from the bench. A portion of that opinion indicates that the Chancellor was not too impressed by some of the testimony presented on behalf of appellant. It is true, that when simply reading the evidence from the transcript as to conditions in the granary, one’s feelings are momentarily outraged, hut when observing a witness from the stand, noting his apparent interest or lack of same in the case, the manner in which he answers questions, such as extreme eagerness or hesitancy, etc., a court can receive an entirely different impression. This, of course, is the reason for the rule, that while we try Chancery cases de novo, the findings of the Chancellor will not be disturbed on appeal unless they are clearly against the preponderance of the evidence. After carefully studying the testimony and exhibits in this case, we are unable to say that the findings of the trial court are against the weight of the evidence.

Let it be remembered that the contract provides that the Holts shall take care of Mr. Little for the balance of his life. It is still their obligation, and if Mr. Little returns to their home, it is incumbent that they do so. The termination of this litigation in a manner adverse to appellant’s contentions, does not affect any future cause of action based upon a subsequent breach of the agreement. A refusal, or a failure, to properly provide for the old man could well subject the Holts to a suit for damages, based on a breach of contract. It may well be that if appellant has received careless attention in the past, this litigation may serve the useful purpose of providing more careful attention to his needs in the future.

Since this litigation involves title to real estate, the cause is remanded solely for the purpose of entry of a decree, declaring the Summers bona fide purchasers and quieting title in them as against the parties herein. In all other respects, the decree is affirmed.

Holt, McF addin and Ward, JJ., dissent.

Ed F. McFaddin, Associate Justice,

(Dissenting in part). Insofar as the Summers are concerned, I agree to the affirmance, because Little signed the deed to them. But as between Little and the Holts, I maintain that the decree should be reversed and the cause remanded with directions to render a judgment in favor of Little and against the Holts for the value of the 107 acre tract as of January 12, 1952, when Little conveyed the same to the Holts.

In 1952 Little owned a farm of 107 acres, was self-sustaining, and not entitled to State Welfare assistance. He conveyed the farm to the Holts in consideration of their promise to take care of him the rest of his life. Now they have denuded him of his property and he is in a nursing home and dependent on State Welfare assistance for his existence. The majority opinion says that Little can go back to live with the Holts if he desires. Back to the corn crib? That is where he was. No. He will stay in the nursing home; the State of Arkansas will pay the bills; and the Holts are the winners.

I maintain that Little should have judgment NOW against the Holts. He could then assign the judgment to the State and something might be salvaged.

Mr. Justice Holt and Mr. Justice Ward join in this dissent.

       He lived with the Holts from eight months to a year in their home at Lincoln before deeding his own property to them.

       20 acres had several years earlier been conveyed to W. C. Little.

       This conveyance was not filed for record until about an hour and a half after appellant’s suit was filed, but that fact is not material to determination of this cause.

       On April 4, Little amended his complaint, setting out that he did not sign the deed to the Summers, that if his signature appeared, it had been obtained by trickery and fraud, and asked that the deed to Summers also be cancelled, set aside, and held for naught.

       On an old envelope.

       From the Chancellor’s oral Opinion: “But the thought that occurs to me is that if a person, a kinsman is found in such a terrible shape, a fellow ought to be able to overcome his inhibitions long enough to at least build a fire for him. Now, that is not to say that Mr. Beaty didn’t tell the truth when he testified as to what he found down there. But it just raises that question as to whether the actual suggested deplorable and terrible condition was quite as bad as Mr. Beaty let on that it was. The Court cannot understand why any person, white or black, finding any other person in a condition like that wouldn’t have done something about it, right then and there. And when asked why he didn’t try to do something himself to give the old gentleman some relief, Mr. Beaty said that he just couldn’t stand the smell, so he just left * * * Now, the same thing is true of Mr. Williams. He seemed to be rather worked up about the fact that the old man didn’t have money to pay for his haircuts and shaves, and appeared to be hungry, and dirty and ragged and messed up. But as far as actually doing anything to alleviate the situation, there is nothing Mr. Williams appears to have done. Perhaps he shouldn’t have done anything; perhaps there was nothing he could have done. But this sense of outrage which appears on the witness stand seems just a little bit off color when it is squared up with what it seems like a fellow would have done under the circumstances then and there.”

         He first received $28 per month, then $31, and finally $60, after moving to the Haws home.

       The Holts had five children, ranging in age from 7 to 13.

       The chancellor in discussing the conditions in the corn crib said: “So, I think we can take it as settled, as far as the testimony is concerned, that the situation described by Mr. Beaty and Mr. Brewster was just about what actually existed there; and it was a pitiable state for any person to be in.”


author: J. Seaborn Holt, Associate Justice.

text:
    Blauser v. Blauser.
    5-1656
    317 S. W. 2d 267
    Opinion delivered November 10, 1958.

      Terral, Rawlings & Boswell, for appellant.
    No brief filed for appellee.
   J. Seaborn Holt, Associate Justice.

Appellee, J. C. Blauser, sued appellant, Montene Blauser, for divorce on October 24, 1955. They were married in October 1953. Montene answered denying appellee’s right to a divorce, and asked for support, separate maintenance and costs. A hearing resulted in an award to Montene of $25 per month, beginning on April 15, 1956, and eaeh month thereafter, for her support and maintenance, during the pendency of the above divorce action, plus $50 fee for her attorney.

On March 25, 1957, appellant was given a judgment in the amount of $275 against appellee for arrearage in support payments and an attorney’s fee of $75 and on appellee’s motion his complaint for divorce was dismissed. Thereafter, on April 2, 1957, Mrs. Blauser filed suit for divorce and asked that she be awarded her property rights in 12 head of cattle owned by her husband on which she alleged “that there is a mortgage on said cattle in favor of First State Bank of Conway in the sum of $700 with an unpaid balance of approximately $500 and that defendant is earning approximately $300 per month.” Summons was duly served on appellee April 8, 1957. On April 10, 1957 execution was issued on the March 25 judgment against the above cattle and the above bank was made a party to the process. The sheriff’s return showed a chattel mortgage dated April 4, 1957, properly filed on April 6, 1957, and made to H. M. Castleberry in the amount of $1,220 on the above cattle.

On November 6, 1957, trial was had on appellant’s divorce action above, which resulted in a decree awarding her a divorce, and a one-third interest in appellee’s cattle, subject, however, to the two mortgages held by the bank and H. M. Castleberry. This appeal followed.

For reversal appellant relies on the following point: ‘ ‘ The lower court erred in failing to set aside the mortgage from appellee to H. M. Castleberry in the sum of $1,220 filed for record April 6, 1957 after appellant filed suit for divorce and property rights on April 2, 1957.”

We hold that the trial court was correct in refusing to set aside the mortgage from appellee to H. M. Castle-berry, on the cattle in question, for the reason that H. M. Castleberry was not made a party to appellant’s suit. On this issue the court found: . . the court holds . . . that the mortgagee, H. M. Castleberry, who holds a mortgage on the cattle described in the mortgage . . . , not being made a party to this action, . . . the plaintiff, although decreed to own a one-third interest in the property of the defendant, is not entitled by reason of H. M. Castleberry not being made a party here in order that his rights under the mortgage might be adjudicated, ... to proceed against the cattle described in said mortgage for the reason that Castleberry is not a party to this suit.”

The governing rule in the situation here presented, is stated in Peebles Garage v. Downey, 195 Ark. 31, 111 S. W. 2d 454. In that case there was involved an automobile sales contract and a purchase money note and mortgage which had been hypothecated with a bank and the bank’s interest was attacked, without having made the bank a party to the suit. We there said: “It appears to be undisputed that the note and mortgage given by appellee to appellant were hypothecated with the Portland bank. The Portland Bank is not a party to this litigation and its interest could not be affected by the decree of the court which attempted to cancel the said note and mortgage. So far as this record discloses, the Portland bank is an innocent holder, for value and in due course of business, but whether so or not, that part of the decree cancelling same in the hands of the bank cannot be sustained.” See also Avera v. Rice, 64 Ark. 330, 42 S. W. 409. Castleberry has not had his day in court, to which he was entitled.

Accordingly the judgment is affirmed.


author: Ed. F. McFaddin, Associate Justice.

text:
    Rose Lawn Cemetery Assoc., Inc. v. Scott.
    5-1647
    317 S. W. 2d 265
    Opinion delivered November 10, 1958.

      Hardin, Barton, Hardin & Garner, for appellant.

      Warner, Warner & Bagon, for appellee.
   Ed. F. McFaddin, Associate Justice.

This appeal involves a strip of land 25 feet wide across the south side of the East Half of the Northeast Quarter of a certain section. The appellees (plaintiffs below) are: (a) the three children of Dr. Cons. P. Wilson (being Lucy Lewis Scott, Jane Wilson Smith, and Cons. P. Wilson III), who claim all his interest in the land; and (b) two sisters of Dr. Cons. P. Wilson, Jr. (being Mrs. Jim C. Wilson Ward and Mrs. Susie C. Wilson Ozment). The appellees, as plaintiffs below, claimed: (a) that they were the owners and entitled to the possession of the land in controversy; and (b) that the defendant had taken possession of the land, erected barricades, and refused to surrender possession. The prayer of the complaint was for .a mandatory injunction requiring defendant to remove the barricades and surrender possession. The defendant — Rose Lawn Cemetery Association, Inc. — denied the plaintiffs’ claim of ownership and claimed title in itself to the land in controversy. Trial in the Chancery Court resulted in a decree for the plaintiffs, and the defendant prosecutes this appeal.

I. Deraignment Of Title The plaintiffs had the burden of proving that they were the owners of the land in controversy. The common source of title to the entire eighty acre tract (E% NE%) was Mrs. Mary J. Collins, who devised the eighty acres and other property, one-half to her son, Elias D. Collins, and the other one-half to the four children of her deceased daughter, these children being the grantees in the deed next to be mentioned. Here are the subsequent conveyances after the devise by Mrs. Mary J. Collins:

(1) In 1912 Elias D. Collins conveyed all his interest in the entire eighty acre tract to his co-tenants, being (a) Dr. Cons. P. Wilson, Jr.; (b) Nellie C. Wilson; (c) Jim C. Wilson; and (d) Susie C. Wilson.

(2) In 1916 Dr. Cons. P. Wilson, Jr. conveyed his one-fourth interest in the eighty acre tract to his three co-tenants, being his sisters, Nellie C. Wilson, Jim C. Wilson Ward, and Susie C. Wilson Ozment. In this deed from Dr. Cons. P. Wilson to his sisters, following the description of the eighty acres, there was this language: “EXCEPT a strip of land 25 feet wide off of the south end of said tract, which is reserved as a roadway for use of the parties hereto.” The above quoted language is the beginning point of this suit. We will discuss it in Topic III, infra.

(3) In 1919 Nellie C. Wilson, Jim C. Wilson Ward, and Susie C. Wilson Ozment (grantees in conveyance No. 2 above) conveyed by general warranty deed to their father, Cons. P. Wilson (Sr.) the entire eighty acre tract (E% NE%) without any exception clause as was contained in the conveyance No. 2, supra. The effect of this deed is discussed in Topic II, infra.

(4) In 1922, for $1.00, Dr. Cons. P. Wilson, Jr., Susie C. Wilson Ozment, and Jim C. Wilson Ward made a deed to Nellie C. Wilson, conveying the East Half Northeast Quarter, “EXCEPT a strip of land 25 feet wide off of the south end of said tract which is reserved as a roadway for use of the parties hereto.” We mention this conveyance only to show that it was three years subsequent to the time when Cons. P. Wilson, Sr. had already received a general warranty deed from his three daughters, with no such exception clause as to the 25 foot strip. The 1922 deed between the children of Cons. P. Wilson could not have affected the title that Cons. P. Wilson had already received, since there is no sufficient showing that Cons. P. Wilson, Sr. acquiesced in this 1922 deed.

(5) In 1930 Cons. P. Wilson, Sr. (grantee in conveyance No. 3, supra), joined with his daughter, Nellie C. Wilson (being one of the grantors in conveyance No. 3 and being the grantee in conveyance No. 4), conveyed to The United Cemeteries of Arkansas, Inc. by general warranty deed the entire East Half Northeast Quarter without any exception clause as to the 25 foot strip.

(6) In 1952 The United Cemeteries of Arkansas, Inc. and its stockholders conveyed to Fentress & Crane the East Half Northeast Quarter, “EXCEPT a strip of land 25 feet wide off the south end reserved for roadway.”

(7) In 1952 Fentress & Crane conveyed to appellant, Rose Lawn Cemetery Association, Inc. the East Half Northeast Quarter, “EXCEPT a strip of land 25 feet wide off the south end reserved for roadway.”

(8) In 1957 the stockholders of the United Cemeteries of Arkansas, Inc. (the corporation being dissolved) conveyed to Rose Lawn Cemetery Association, Inc. the entire eighty acres (E% NE14) for the purpose of conveying whatever had been reserved by the corporation in its deed to Fentress & Crane in conveyance No. 6, supra.

II. The Title Claims Of Mrs. Ward And Mrs. Ozment. From conveyance No. 3 in the deraignment of title, it is apparent that all of the three sisters of Dr, Cons. P. Wilson (Nellie C. Wilson, Jim C. Wilson Ward, and Snsie C. Wilson Ozment, grantees in conveyance No. 2, supra) conveyed all of their interest in the entire eighty acres (E% NE%) to their father, Cons. P. Wilson (Sr.) in 1919, because that deed had no language of exception. We regard the said conveyance No. 3 as completely disposing of all title claims of the appellees, Mrs. Jim C. Wilson Ward and Mrs. Susie C. Wilson Ozment, because their 1919 deed to their fáther contained covenants of general warranty which would pass any rights they might then have or might thereafter have acquired in any part of the entire East Half Northeast Quarter. Section 50-404 Ark. Stats.; Grayson-McLeod Lbr. Co. v. Duke, 160 Ark. 76, 254 S. W. 350; Hayes v. Gordon, 217 Ark. 18, 228 S. W. 2d 464.

III. The Title Claims Of The Children Of Dr. Cons. P. Wilson, Jr. Dr. Cons. P. Wilson, Jr. died in 1932; and whatever interest he had in the eighty acres, i. e., in the exception for the roadway as contained in conveyance No. 2 above, is owned by three of his children, who are some of the appellees herein. Any title claim of the said appellees as children of Dr. Cons. P. Wilson, Jr., must depend on the language their father used in the deed as shown in conveyance No. 2, supra. This language was: “EXCEPT a strip of land 25 feet wide off of the south end of said tract, which is reserved as a roadway for use of the parties hereto.’.’ ■

The question is whether this quoted language created an easement appurtenant (so as to run with the land), or an easement in gross (so as to be personal to Dr. Cons. P. Wilson and the grantees in conveyance No. 2), and to end with the life of the parties — i. e. the grantor and the grantees in the said conveyance No. 2. The distinction between the two kinds of easements (appurtenant and in gross) has been a frequent source of litigation. See Am. Jur. Vol. 17A, p. 624 et seq., “Basements” § 9 et seq.-, and see also annotation in 130 A. L. R. 1253 entitled, “Assignability and divisibility of easement in gross or license in respect of land or water.” We reach the conclusion that the quoted language created a right personal to the parties to the deed. See Field v. Morris, 88 Ark. 148, 114 S. W. 206; and Ft. Smith Gas Co. v. Gean, 186 Ark. 573, 55 S. W. 2d 63. So nothing passed to Dr. Cons. P. Wilson’s heirs in the Bast Half Northeast Quarter. The fact that those heirs thought they acquired something cannot be used to prove their title. The deraignment in Topic I supra establishes that they received no title since their father’s easement was personal and ended at his death.

The question in this litigation is whether appellees proved their title. There is absent here any substantial claim of adverse possession by appellees or appellant; the only issue is the ownership as between the parties; and the appellees fail to prove their title. Any question of the rights of the general public to a roadway by dedication in any of the conveyances, or in any other way, is outside the purview of this litigation.

The decree is reversed and the cause is remanded, with directions to dismiss the complaint.

       In addition to the deraignment of title the abstract shows mortgages executed by some of the title holders at various times, but these have no effect on the deraignment of title, and are without significance to the decision herein.

       In some places the name is spelled Susie and in others, Susan; but there is no question about the identity.


author: George Rose Smith, J.

text:
    Burnside v. Futch. The Farmerville Bank v. Futch.
    5-1632
    317 S. W. 2d 717
    Opinion delivered November 10, 1958.
    5-1638
    Opinion delivered November 10, 1958.
    [Amended on Rehearing December 8, 1958]

      Spencer & Spencer, for appellant.

      Brown & Compton, for appellee.

      Brown & Compton, for appellant.

      Spencer & Spencer, for appellee.
   George Rose Smith, J.

These two appeals involve different phases of the same litigation and have been consolidated in this court. In the more important of the two appeals, Case No. 5-1632, the basic issue is that of priority as between a judgment lien held by the appellants Burnside and a mortgage lien asserted by the appellee Farmerville Bank. The chancellor held that the bank’s mortgage is valid and that it constitutes a first lien against the property that both creditors are pursuing. We have concluded that the chancellor’s decision was erroneous, because the bank’s mortgage was discharged by payment on January 14, 1957.

The property in question, a drive-in theater near El Dorado, ivas formerly owned by Carson J. Futch, a now insolvent debtor who incurred both the obligations sued upon in this case. The bank’s claim preceded that of the Burnsides in point of time. Futch borrowed at least $23,000 from the bank, evidenced by what is referred to in the record as a hand note, and executed two separate mortgages to secure the debt. One of the mortgages Avas given in 1952 to secure what is called a real estate note, in the amount of $15,000, and co\7ered a farm owned by Futch in Louisiana, where the bank is domiciled. The other mortgage Avas executed in 1953, to secure another $15,000 real estate note, and conveys the tract of land now in controversy, upon which a theater was constructed. Under the bank’s practice the hand note represented Futch’s actual indebtedness; the tAvo real estate notes and mortgages were attached to the hand note as collateral security.

In 1954 Carson J. Futch entered into a contract by which he agreed to sell the theater property to E. J. Burnside, Jr., for $75,000. Burnside and his father, as partners, made payments totaling $13,000 upon the purchase price. On October 31, 1956, the Burnsides filed suit to rescind the contract and to recover their payments, it being alleged that certain outstanding mineral interests rendered Futch’s title unmerchantable. By a decree rendered on February 28, 1957, the chancellor granted the Burnsides’ request for rescission and aAvarded them a judgment against Carson J. Futch for the $13,000 that had been paid. The decree declared that the Burnsides’ judgment lien should he effective as of the filing of the notice of lis pendens on October 31, 1956. The bank was not originally a party to the suit for rescission, but it intervened on March 26, 1957, to assert its mortgage lien.

It seems clear that Futch, while the Burnsides’ suit was pending, decided to denude himself of his lands in Arkansas and Louisiana. On January 14, 1957, he conveyed the Louisiana land to his brother, Robert T. Futch. On the same day Robert T. Futch went to the bank and borrowed $16,000, which was advanced to him in cash. With that money and about $8,000 of his own Robert paid in full Carson’s indebtedness to the bank, which then totaled about $23,900. The bank marked Carson’s hand note as paid and concedes that this transaction extinguished Carson’s personal liability to the bank. The bank did not, however, mark as paid Carson’s real estate note for $15,000, secured by the Arkansas mortgage, which had been attached to Carson’s hand note as collateral security. Instead, the bank attached that real estate note and mortgage to Robert’s $16,000 hand note, as collateral security. Robert’s note was also secured by a new mortgage that he executed upon part of the Louisiana land he had received from Carson. On the following day, January 15, Carson conveyed the Arkansas land to Robert for a consideration of $10 and the assumption of the mortgage debt (which had actually been paid by Robert the day before).

On March 15, 1957, the bank filed a foreclosure suit upon Carson’s $15,000 real estate note and mortgage. This suit was consolidated with the Burnsides’ suit for rescission, in which the court had already rendered a decree and ordered a sale of the property. The chancellor’s opinion upon final hearing in the consolidated case erroneously states that Robert had already assumed the Arkansas mortgage debt when he paid Carson’s hand note on January 14. Upon this mistaken premise the chancellor concluded that there had been no break in the continuity of the mortgage lien, Robert’s personal liability having been merely substituted for Carson’s. The decree accordingly upheld the bank’s lien and awarded it priority.

The bank seems to have acted, in reliance upon the law of Louisiana, but of course the validity of a lien on Arkansas land is to be determined by Arkansas law. Midland Valley R. Co. v. Moran etc. Co., 80 Ark. 399, 97 S. W. 679, 10 Ann. Cas. 372. The chancellor,’ treating Robert as a purchaser, applied a rule analogous to that stated in Walker v. Mathis, 128 Ark. 317, 194 S. W. 702, where we held that payment of a mortgage by a subsequent purchaser will be regarded as an assignment when that course is necessary to protect the purchaser’s right to subrogation. Here Robert T. Futch has not asked for subrogation and is hardly in a position to do so, as his promise to pay the mortgage debt was apparently the only consideration he gave for the property.

It seems clear enough that Robert’s payment of Carson’s indebtedness on January 14 extinguished the lien of the mortgage on the theater property. As Hughes points out in his treatise on Arkansas Mortgages, § 272: “Payment of the debt instantly and of itself discharges the mortgage.” It goes without saying that there can be no lien when there is no debt, for a lien is purely a security device. At the close of business on January 14 it could not seriously have been contended that the bank had a lien on Carson’s Arkansas land. The debt had been paid in full by Robert, who did not own the land and had not assumed the mortgage. Robert, it is true, owed the bank $16,000, but that obligation was secured by a different mortgage upon land in Louisiana. The discharged lien of the Arkansas mortgage could not be revived by the bank’s attempt to reissue the paid note as collateral security for a debt owed by Robert, who had no interest in the Arkansas land and thus had no power to encumber the title. Hughes, supra; Bailey v. Rockafellow, 57 Ark. 216, 21 S. W. 227. It is immaterial that Robert later tried'to assume the discharged indebtedness, for the break in the continuity of the bank’s lien is fatal to its claim to priority. The decree awarding a prior lien to the bank must therefore be reversed.

In Case No. 5-1638 the bank appeals from the order confirming the sale of the property. The court had directed that the real and personal property be sold separately. At the sale the bank bought the real property for $9,000 and bought certain items of personal property for $3,613.75. The Burnsides bought other items of personal property for $749.50.

The bank now contends that even though its mortgage contained only a metes-and-bounds description of the land, with no reference whatever to personal property or appurtenances, all the fixtures and equipment of the drive-in theater became real property within the mortgage description and were therefore part of the real property that the bank bid in at the judicial sale. To support this theory the bank president and Carson J. Futch testified that the money was lent to enable Futch to construct the theater and that both parties intended for the mortgage to cover all the personal property that was later used in the operation of the theater.

Even if it be assumed that the unexpressed intention of the parties to the mortgage could, as between themselves, extend the mortgage to cover property not described in the instrument, that question is not before us, for we are holding in the companion appeal that the mortgage is not a lien on the property. Instead, the issue is whether the real estate purchased by the bank at the judicial sale includes certain property that the court below found to be personalty. Some of the disputed items, such as a cot, an office desk, chairs, a lamp, etc., were not affixed to the realty at all. Other items, such as a motion picture projector, sound equipment, etc., could be removed without damage to the land. We art; of the opinion that the chancellor was correct in holding these articles to be personal property. Anderson v. Southern Realty Co., 176 Ark. 752, 4 S. W. 2d 27.

The decree in Case No. 5-1638 is therefore affirmed.


text:
    Robertson v. Robertson.
    5-1659
    317 S. W. 2d 272
    Opinion delivered November 10, 1958.

      Eugene M. Hunger, St. Louis, Mo.; Langston & Walker, Wayne Foster, for appellant.

      George M. Booth <& John L. Bledsoe, for appellee.
   George Rose Smith, J.

This is the second appeal in a suit by the appellants, M. O. Robertson and his daughter Mary Etta, against the appellee, Opal Robertson, who is the divorced wife of M. O. Robertson and the mother of Mary Etta. In the original complaint Mary Etta sought an accounting for rents collected by her mother upon forty acres that the mother and daughter own as tenants in common, and M. O. Robertson sought to set aside his conveyance to Opal of an undivided half interest in the land. The chancellor in effect sustained a demurrer to the original complaint and dismissed the suit. On the first appeal, 227 Ark. 978, 302 S. W. 2d 810, we held that Mary Etta’s complaint for an accounting stated a cause of action and that M. O. Robertson should have been given time to amend his part of the complaint. The cause was remanded with directions that the suit for an accounting be reinstated and that M. O. Robertson be given time to amend.

Upon remand the plaintiffs filed an amended complaint alleging, in addition to théir original causes of action, that Opal Robertson held her undivided half interest in the forty acres upon a constructive trust for Mary Etta. After a trial on the merits the chancellor required Opal to account to her daughter for one half of the rents, but he refused to impress a trust on the land or to set aside Robertson’s conveyance to his former wife. This appeal is from the latter rulings.

The appellee insists that upon remand the trial court should not have permitted the plaintiffs to assert a new cause of action by amendment, since this was outside the scope of our directions on the first appeal. The rule is, however, that the pleadings may be amended after an appeal that merely reverses a ruling on demurrer, there having been no hearing on the merits. American Inv. Co. v. Sager, 175 Ark. 67, 299 S. W. 374.

The asserted constructive trust is said to have arisen when Robertson conveyed the land to his wife and daughter on September 5, 1947. A divorce suit was then pending between Robertson and his wife, and the deed was executed pursuant to an agreement settling the couple’s property rights. Although the deed was absolute in form, the appellants offered proof to show, that the purpose of the conveyance was to provide a means of support for Mary Etta, whose custody was being awarded to Opal, that Opal was named as a grantee only to enable her to manage the property for the minor child, and that Opal orally agreed that the land would belong to Mary Etta when she reached her majority. Mary Etta became of full' age shortly before the case was heard below.

The appellants’ proof is insufficient to establish a constructive trust. A grantee’s oral promise to hold the land for a third person is unenforceable under the statute of frauds, but a constructive trust will be imposed if it is shown by clear and convincing evidence that the grantee’s promise was intentionally fraudulent or that the grantor and grantee were in a confidential relation. Walker v. Biddle, 225 Ark. 654, 284 S. W. 2d 840; Rest., Trusts, § 45. In this instance neither condition is shown by the required standard of proof.

To bring about a constructive trust the oral promise must be falsely given, with no intention of performance, so that it amounts to a misrepresentation of fact. Rest., Trusts, § 44, Comment b; Armstrong v. Armstrong, 181 Ark. 597, 27 S. W. 2d 88. Here there is nothing to indicate this state of mind on the part of Mrs. Robertson except the bare fact that more than ten years later she refused to carry out the asserted agreement. All the rest of the evidence tends to rebut the suggestion that the promise was consciously false. Both the appellants testify that Mrs. Robertson conceded until about the time this suit was filed that the land belonged to Mary Etta. In 1948, in connection with a second divorce suit after the couple had remarried, Mrs. Robertson signed a separation agreement which recited that the land had been deeded to her and the child for the support and maintenance of the child. These matters certainly indicate that the promise, if it was made, was given in good faith. We are by no means convinced that this mother deliberately set out to defraud her eight-year-old daughter, whose custody she sought and won in the divorce suit that was pending at the time.

The proof also negatives the existence of a confidential relation between Robertson and his wife when the deed was executed. The two were already estranged and had signed a separation agreement bringing their marital duties to an end. The husband alone was represented by an attorney, who prepared the deed and supervised its execution. If the instrument did not express the true intention of the parties, the omission must be attributed to Robertson’s reliance upon the advice of counsel rather than to a reliance upon the confidence that a husband reposes in his wife when the two are living together in harmony.

Robertson’s alternative request for a cancellation of the deed is based upon the fact that the Robertsons were married, in 1935, about three weeks before Mrs. Robertson obtained a divorce from her first husband. Robertson says that he did not learn until 1954 that his first marriage to the appellee was void. On this basis he contends that the appellee was not legally entitled to a property settlement in 1947 and that the conveyance should therefore be canceled.

There are two answers to this reasoning. First, Robertson has insisted all along that his only purpose-in executing the deed was to provide for the support of his daughter, and there is no reason to think that he would have been less generous to his child had he known that the marriage was invalid. Secondly, although the first marriage was void, the Robertsons married and divorced each other a total of four times. The last three marriages were legal, and at least one of the later divorces was obtained by Mrs. Robertson. There is no proof that this undivided half -interest in forty acres of land is more than she was entitled to receive upon the dissolution of the valid marriages.

Affirmed.


text:
    Garrett v. Butler.
    5-1651
    317 S. W. 2d 283
    Opinion delivered November 10, 1958.

      Wiley A. Branton, for appellant.

      Sam M. Levine, for appellee.
   Paul Ward, Associate Justice.

This appeal deals with the restoration of a lost will, and with legal rules and presumptions as related to facts which, for the most part, are undisputed.

Rev. John H. Garrett died on September 26, 1956, leaving no spouse or issue but a number of collateral heirs. When no will was found immediately his brother, George Garrett, was appointed administrator of the estate which consisted primarily of a house and lot valued at $2,500.

On April 19, 1957 Thomas A. Butler (a nephew of the deceased’s late wife), appellee, petitioned the Probate Court for the restoration of a lost will which purportedly devised a large portion of the estate to him. All heirs of the deceased were given notice of the petition. George Garrett, the administrator, and Theodore Jones (to whom some of the estate property had been sold) filed a general denial. Upon a full hearing the trial court found the issues in favor of Butler, and this appeal follows.

The only point relied on for a reversal is thus stated by appellants: “The court erred in finding that the proffered will should be restored as a lost will and admitted to probate. ’ ’ The above point suggests two questions to which we shall direct our discussion. One, was the execution of a lost will proven and, Two, if so, was the will revoked?

One. There is little doubt that Rev. John H. Garrett did execute a will leaving to appellee the property in controversy. In fact this is not seriously questioned by appellants. The proof shows that such a will was written by the deceased’s attorney and that it was properly executed and witnessed. A carbon copy of the original will, introduced into the record, shows it was executed in January 1950.

Two. "Whether or not the original will was revoked presents a more difficult question, although the testimony relating thereto is not in conflict.

Appellee, in substance, testified: I am 43 years old and have lived in Chicago for the past 10 years, but prior to that time I lived in Pine Bluff, Arkansas, with Rev. Garrett, — from 1925 to 1941; I considered him my father, he put me through school, supported me, and treated me as a son; Rev. Garrett sent me a will in January 1950, and also wrote me a letter dated January 12, 1950 in which he said to keep the will; I read the will and it seemed to be identical with the copy which has been introduced; On January 24,1956 Rev. Garrett wrote me to send him the will because he wanted to put it on record and I sent it to him sometime in February or March; After that (in August) I visited deceased — he was almost deathly sick when I arrived, but I noticed no difference in the way he treated me; He gave no indication he had made any changes in his will, and; In about two weeks he died and I returned to Chicago. Before leaving, and after Garrett’s death I looked for the will and couldn’t find it but I did find the envelope in which I returned the will in a drawer in his room. George Garrett and others were present when I was looking for the will. Clarence Burton, a witness for appellee, testified: Rev. Garrett talked with me as though Butler was his son; He confided in me about his affairs; 1 was with Rev. Garrett every night for about two weeks before he died; He discussed with me the disposition of his property about a month before he died; He had given me a $1,000 insurance policy, and he told me to present it at his death and that Tom Butler would be the administrator, and; He also said Butler would know what to do with the rest of his property. Frank Anderson, who lived in Pine Bluff 14 years and who lived in the house with Rev. Garrett 6 years, said he signed for the letter (containing the will) which appellee sent from Chicago; that he saw deceased looking at the envelope several times; that he saw George Garrett and his aunt looking through deceased’s papers after he died; that there were a number of people prowling through his effects; that George was in his house about 2 weeks before Rev. Garrett died, and a lot of people had access to where the deceased kept his papers; that he saw the envelope while Butler was there about two weeks before Rev. Garrett died. The testimony of the wife of Frank Anderson was to the same effect.

No testimony was offered on behalf of the appellants.

It is appellants’ firm contention that the will of Rev. Garrett was revoked and that the trial court erred in not so holding. This contention is bottomed on Ark. Stats. § 60-304. This section, in all parts material here, reads as follows:

“No will . . . shall be allowed to be proved as a lost or destroyed will, unless the same shall be proved to have been in existence at the time of the death of the testator, or be shown to have been fraudulently destroyed in the life time of the testator.”

It is then pointed out by appellants that there is no direct and positive evidence showing the will was in existence at the time of Rev. Garrett’s death, or that it was fraudulently destroyed before his death. In the absence of such evidence and since it is admitted that the will could not be found, say appellants, the law presumes Rev. Garrett revoked his will. To show there is such a presumption appellants quote from 57 Am. Jur., Wills, § 549. We agree with appellants, and also note that the same presumption was recognized in Rose v. Hunnicutt, 166 Ark. 134. (at page 137) 265 S. W. 651 where we said: “It will be presumed that a testator destroyed a will executed by him in his lifetime, with the intent of revoking same, if he retained custody thereof, or had access thereto, and if it could not be found after his death.” It must be admitted that the facts in the case under consideration fall within the provision set out in the above quotation. However, immediately following the above the court said this: “This presumption may be overcome by proof.” This court also said in Porter v. Sheffield, Administrator, 212 Ark. 1015, 208 S. W. 2d 999 and in Bradway v. Thompson, 139 Ark. 542, 214 S. W. 27, that such a presumption of revocation could be overcome with proof. In the Bradway ease, which dealt with a factual situation similar to that here involved, the court considered the same statute as is now § 60-304 above quoted from, and sustained the trial court’s holding that the presumption of revocation had been overcome.

After careful consideration of the weight to be given to the facts and circumstances in this case as set forth above, we cannot say the trial court’s finding is against the weight of the evidence. The proof is clear that Rev. Garrett made the will in question, and that he had good reasons for making appellee his chief beneficiary; that nothing occurred to change-or alter those reasons; that he indicated to disinterested witness shortly before his death he expected appellee to have some control over his affairs after his death and; that there is a total absence of any testimony he tried or wanted to make any change in or revoke his will. There are also in the record other circumstances which the trial court had a right to consider. During Rev. Garrett’s last illness many people had the opportunity to handle and destroy or misplace the will. One of these was the appellant, George Garrett, who was an interested party and who failed to testify.

The vital question with which we are concerned of course is whether or not the will was revoked. We are confronted with no proof but with a presumption only that it was revoked. We think the testimony and attending circumstances are sufficient to overcome that presumption. As was said in the Bradway case, supra, in speaking of the problem facing the trial judge in this kind of a case: “It was not indispensable that he should determine what became of the. will. It was enough that he should find that it was not revoked or cancelled by the testator.”

We do not agree with appellants that the burden was on appellee to overcome the presumption of revocation by clear, satisfactory and convincing evidence. The rule which appellants would apply has apparently been adopted in some other jurisdictions, but we have held that, in snch cases, only a preponderance of the evidence is required. See Bradway and Reynolds, supra.

Affirmed.


text:
    Stover v. Holman.
    5-1670
    317 S. W. 2d 722
    Opinion delivered November 10, 1958.

      Garlos B. Hill, for appellant.

      J. E. Simpson, for appellee.
   Sam Robinson, Associate Justice.

In the year 1922 J. A. Holman died intestate, leaving a widow and seven children, and a homestead consisting of 120 acres. On the 23rd day of July, 1945, appellant, J. S. Stover, entered into a written contract with the widow whereby he agreed to purchase, and Mrs. Holman agreed to sell, the 120 acres. Mrs. Holman agreed to perfect the title and to give Stover possession of the property while necessary procedure was being taken to enable her to give him a warranty deed to the property. The purchase price was $700, of which $10 was paid in cash. On the 12th day of December, 1945, Mrs. Holman and four of her children executed to Stover and his wife a warranty deed to the land. However, two of Mrs. Holman’s children who had become of age did not sign the deed; also not parties to the deed were two minor children of a deceased child. Later, by proper procedure, the interest of the minors was conveyed to Stover. Stover’s deeds were placed of record and he took possession of the property.

Luring the trial of this cáse Mrs. Holman testified that although the deed had been'' executed by her and four of her children, it was not actually delivered to Stover, and she does not know how he acquired it.

A short time after Mrs. Holman and four of the children executed a deed to Stover, they executed and delivered a warranty deed to Carl Holman, another son of Mrs. Holman. Carl had not conveyed to Stover; neither had Thelma Frazier, a daughter of Mrs. Holman, conveyed to Stover, but she executed and delivered to her brother, Carl Holman, a deed to her interest in the property. Assuming that the deed from Mrs. Holman and four of her children to Stover was not delivered, then the deeds to Carl Holman by Mrs. Holman and all of his brothers and sisters then living conveyed to him title to their interest in the property. There is no question about the validity of the conveyance to Stover by the two minors of their interest in the property.

On May 1, 1947, appellee here, Carl Holman, filed suit against appellant, Stover, and his wife, alleging, among other things, that he, Holman, owned a 6/7ths interest in the property. Stover answered and denied the allegation. Later, on the 8th day of December, 1947, the suit was dismissed for failure to prosecute. On the 15th day of December, 1956, the present suit was filed by Stover to clear the title. He claims the property by deed and by adverse possession. • The trial court held that Stover owns a 5/7ths interest and .Carl Holman owns 2/7ths interest. It will be recalled that Carl and his sister, Thelma Frazier, had never signed a deed to Stover, but -that Thelma Frazier did convey to Carl Holman.

Stover has appealed, contending that he owns all of the property by deed and by adverse possession. Begardless of the validity of the deed to Stover by Mrs. Holman and four of the children, the fact remains that Mrs. Holman and five of the children (there is no contention that Stover does not own the l/7th interest acquired from the two minor children of a deceased child) conveyed their interest in the property to appellee, Carl Holman, and even though it can be said that at one time Holman and Stover were cotenants, Stover has acquired by adverse possession all the interest Carl Holman ever owned. The deeds to Holman by his mother and sisters and brothers were executed and delivered in 1945. Incidentally, the conveyance of a homestead by the widow amounts to an abandonment which affords grounds of reentry by the holders of the title in remainder. Murphy v. Graves, 170 Ark. 180, 279 S. W. 359; Bowen v. Black, 170 Ark. 237, 279 S. W. 782; Clark v. Friend, 174 Ark. 26, 295 S. W. 392.

Subsequently Carl Holman filed a partition suit in which he made Stover a party and claimed to own an interest in the property. Stover answered and denied that Holman owned any interest. Later, on December 8, 1947, the suit was dismissed for failure to prosecute. Certainly at that early date Holman knew that Stover was denying Holman’s claim of ownership, and moreover, the record shows conclusively, beyond a shadow of a doubt, that Holman has been well aware of the fact that Stover has had possession of the property and was claiming ownership of all of it. In addition to other evidence in the case to the effect that Holman knew of Stover’s claim of ownership, Holman testified:

“Q. . . . You have never collected any rent?

A. No, never collected nothing.

Q. You haven’t paid any taxes on it?

A. No, he (meaning Stover) said it was his.

Q. Carl, when did you first learn that Mr. Stover was in charge out there, of that place?

A. Well, lie took charge, I reckon, just as they made him ont a deed.

Q. When did yon learn about it?

A. Well, I can’t tell you exactly when it was, anyway it was when we started the suit up here against him, 1945, I guess it was.

Q. When he took possession?

A. Well, I knowed it when I went down there — where he run me off.

Q. In other words, he told you to get off?

A. He told me to get off.

Q. Told you that he owned the place?

A. That (it) was his and he was claiming it.

Q. You know he has been there ever since?

A. I ain’t been back.

Q. As far as you know he has?

A. Yes.

Q. Now you filed suit here in ’47?

A. Yes, sir.”

Although appellant, Stover, at one time was a co-tenant with appellee, Carl Holman, Stover has acquired good title to the property under the law of adverse possession. In the recent case of Reese v. Cox, 229 Ark. 623, 317 S. W. 2d 135, we said: “Where the adverse claimant has entered as a tenant in common, it is necessary for such claimant to give notice, either actual or by unmistakable acts, to his cotenants that he is holding adversely, or the statute will not run against such cotenants.” Citing Woolfolk v. Davis, 225 Ark. 722, 285 S. W. 2d 321. See also: Jones v. Morgan, 196 Ark. 1153, 121 S. W. 2d 96. The record in the case at bar shows conclusively that Stover gave Carl Holman notice that he was holding adversely to any claim of ownership on the part of Holman.

Reversed.


author: Carleton Harris, Chief Justice.

text:
    Sullivan v. Fanestiel.
    5-1660
    317 S. W. 2d 713
    Opinion delivered November 17, 1958.

      Joe E. Purcell, for appellant.

      Bailey, Warren d Bullion, for appellees.
   Carleton Harris, Chief Justice.

On October 12, 1956, around 6:40 p.m., an automobile collision occurred at the intersection of Main and Fourth Streets in the town of Bryant, Saline County, Arkansas, between automobiles operated by Leon Sullivan, who was traveling north on Main Street, and A. A. Fanestiel, who had been traveling south on Main Street, and at the time of the collision, was making a left turn into Fourth Street. Traveling in the Fanestiel automobile were five other passengers, Lena Fanestiel, wife of Mr. Fanestiel, Zora Reed and husband, and D. J. Wagner and wife. Mrs. Fanestiel and Mrs. Reed received personal injuries. On January 16, 1957, Sullivan instituted suit in the circuit court against Fanestiel seeking $1,400 for damages to Ms automobile, and $1,000 for personal injuries. Fanestiel answered with a general denial, and also filed cross complaint seeMng $300 for damages to Ms automobile, and $3,500 for personal injuries. Mrs. Fanestiel, Mrs. Reed and Mr. Wagner filed suit in tbe circuit court against Sullivan, asking damages for personal injuries allegedly sustained by them in the collision. By agreement of counsel, representing all parties concerned, an order was entered consolidating tbe cases for trial. On October 23, 1957, tbe cause proceeded to trial and tbe jury returned a verdict finding Sullivan 60% negligent and Fanestiel 40% negligent; finding Sullivan’s total damages as $1,528, Fanestiel’s total damages in tbe amount of $412, Zora Reed’s total damages as $1,552.38 and Lena Fanestiel’s total damages as $655.33. After making tbe necessary mathematical calculations pursuant to tbe comparative negligence statute (Act 191 of tbe General Assembly of 1955), and tbe necessary offsets, judgment was entered for Sullivan against Fanestiel in tbe sum of $364. Mrs. Reed was given judgment against Sullivan in tbe amount of $1,552.38, and Mrs. Fanestiel was given judgment against Sullivan in the amount of $655.33. From tbe judgment, appellant brings this appeal.

For reversal, Sullivan first contends that tbe trial court erred in refusing to instruct tbe jury relative to unavoidable accident, and second, that Interrogatory No. 6 (which prorated tbe negligence as 60% to Sullivan and 40% to Fanestiel) was concurred in by only eight jurors, and tbe verdict of tbe jury was accordingly void.

After an examination of tbe evidence, we have reached tbe conclusion that there was no error in tbe court’s refusal to submit tbe instruction on unavoidable accident. Appellant’s contention seems to be largely based on tbe fact that Fourth Street, east of tbe intersection, was narrow, with a narrow culvert and ditches along each side, precluding an angle turn. It is argued that bad it not been for tbe narrowness of tbe street and culvert upon which. Fanestiel was attempting to enter, he could have completed the turn and been out of the intersection before appellant’s automobile reached him. Of course, Mr. Fanestiel was in a position to observe the street when he got ready to make the turn, and further, Mr. Sullivan testified that Fanestiel cut in front of him when he (Sullivan) was not more than five feet from the intersection. Fanestiel testified that Sullivan “whipped around” another car, which had stopped and was waiting for him (Fanestiel) to make his turn, and struck him. “Of course, his car was coming so fast, it hit me. It hit me before I got clear across.” As stated in Uncapher v. Baltimore & O. R.R. Co., 127 Ohio St. 351, 188 N. E. 553:

“An unavoidable accident is such an occurrence or happening as, under all the attendant circumstances and conditions, could not have been foreseen or anticipated in the exercise of ordinary care as the proximate cause of injury by any of the parties concerned.

Can there be an unavoidable accident when one of the parties is negligent? Most certainly not.”

This collision was certainly caused by somebody’s negligence, and the jury found that both were negligent.

The case was submitted to the jury on six interrogatories. Four of these were signed only by J. C. New-comb, foreman, as the answer given by the jury was unanimous. One was signed by eleven jurors, including the foreman, and No. 6 appears as follows:

“If your answers to Interrogatories No. 1 and No. 3 are ‘Yes’, then answer this question: Using 100% to represent the total negligence involved in the collision, what percentage of negligence do you find attributable to each of the following parties?

Leon Sullivan:..................................................................60%

A. A. Fanestiel: ............................................................40%

(S) J. C. Newcomb Foreman

“Herbert James Sam Curtis Ernest J. Carlisle Eddie Hunnicutt Roy Martin Earl Crosswhite Henry J. Cohrt H. Montgomery”

Appellant contends that this interrogatory was only signed by eight members of the jury, such contention being based on the assumption that Newcomb signed merely as foreman. Appellant argues that, to concur in the answer to the interrogatory, Newcomb would have had to sign again. We do not agree. Article II, Section 7 of the Constitution of Arkansas, as amended by Amendment No. 16, states:

“The right of trial by jury shall remain inviolate, and shall extend to all cases at law, without regard to the amount in controversy; but a jury trial may be waived by the parties in all cases in the manner prescribed by law; and in all jury trials in civil cases, where as many as nine of the jurors agree upon a verdict, the verdict so agreed upon shall be returned as the verdict of such jury, provided, however, that where a verdict is returned by less than twelve jurors all the jurors consenting to such verdict shall sign the same. ’ ’

This interrogatory was signed by nine jurors. The word, “Foreman”, appearing under the signature of New-comb, is, in our view, mere surplusage.

Finding no reversible error, the judgment is affirmed.

         Wagner took a nonsuit, and his suit was dismissed by the court without prejudice.