text:
    MOHAWK RUBBER COMPANY, Employer, and THE TRAVELERS INSURANCE COMPANY, Insurance Carrier v. Fred L. BUFORD, Employee
    75-364
    535 S.W. 2d 819
    Opinion delivered April 26, 1976

      Wright, Lindsey & Jennings, for appellants.

      Youngdahl, Larrison & Agee, for appellee.
   John A. Fogleman, Justice.

This is a workmen’s compensation case. The question for decision is the liability of the insurer for medical services provided by a physician selected by the injured employee rather than one of a panel of physicians designated by the employer pursuant to Rule 21 of the Workmen’s Compensation Commission, which is a partial implementation of Ark. Stat. Ann. § 81-1311 (Repl. 1960).

On 24 October 1972, appellee Fred Buford suffered a compensable spinal injury while working in the employ of Mohawk Rubber Company at its West Helena facility. He reported the injury to his supervisor but did not then see a physician and worked the remainder of that day and the following day. On the 26th of October, Buford, on his own initiative, visited his family physician at Marianna, where appellee lived. That physician made x-rays of the injury and referred Buford to Dr. Robertson, a Memphis neuro-surgeon, for an appointment on 30 October. Appellee knew at this time that appellants had retained a panel of doctors to be used by injured employees, and he had been treated by one of them, Dr. Traylor, a chiropractor, for a previous compensable injury. He also knew that there had been letters on the bulletin board with reference to the use of company doctors for treatment of job-related injuries.

On 29 October, appellee reported his injury to Mrs. Joann Smith, an employee of Mohawk charged with the administration of such affairs. He explained to her the visits he had made and arranged with doctors of his own choosing. Mrs. Smith advised him that it was a company policy that he use one of the “company doctors,” a panel of five Helena medical doctors and a chiropractor retained by the company who, if necessary, would refer appellee to a group of specialists in Little Rock. She further told him that the company would not pay for the services of a physician other than a member of its retained panel or a specialist referred by one of the panel. But appellee expressed a preference for his own doctor. He objected to Mrs. Smith to having to go all the way to Little Rock which is further from his home in Marianna than is Memphis in order to see a specialist and told her, with regard to treatment by Dr. Robertson, “I’ll pay it.” He eventually agreed to accept an appointment with Dr. Traylor. Mrs. Smith phoned Dr. Traylor and arranged for an appointment for 30 October, which appellee did not keep. Instead, he saw Dr. Robertson in Memphis.

Appellants controverted appellee’s claim for the expenses of treatment he received in Memphis on grounds that Workmen’s Compensation Commission Rule 21 permits the employer to furnish medical treatment in the first instance of its own choosing. That rule, in pertinent part, reads:

The employer and/or insurance carrier has the right and duty in the first instance to provide prompt medical care to injured employees through physicians and hospitals of the respondents’ choice.

After a hearing on the claim, a referee held appellants liable for appellee’s medical expenses. On appea’ to the Workmen’s Compensation Commission, it was again held that appellants were liable for these medical expenses on the strength of Commission Rule 23, which permits a deviation from Rule 21, whenever good cause is shown, insofar as compliance may be found to be impossible or impractical. The commission cited as one of the circumstances where a deviation had been permitted as “when claimant receives treatment through a chain of referral initiated by the first treating physician.” Appellee suggests (and the commission agreed) that, having already entered upon a chain of referral when appellants offered the services of the physicians on the panel, he was justified in going to Dr. Robertson and should be reimbursed for this expense. See Zeeb v. Workmen’s Compensation Appeal Board, 62 Cal. Rptr. 753, 432 P. 2d 361 (1967). The commission concluded:

In this case, the claimant saw his family physician in Marianna because it was more convenient than traveling the distance between Marianna and Helena to see a company physician. We find the claimant’s actions reasonable under the circumstances and his further treatment appears to have been reasonable and necessary through a normal chain of referral. In fact, there is no contention by respondent that the treatment given was either excessive in cost or failed to achieve satisfactory results. The record reflects that the claimant has returned to normal work duties and has been released with no permanent disability even though a ruptured cervical disc is suspected, all of which strongly suggest that the conservative treatment administered was highly successful.

Appellants argue on appeal that there were no circumstances to justify a deviation from Rule 21 in this case, submitting that the relative convenience for appellee to visit his family doctor and the resultant establishment of a chain of referral were not “criteria for excusing non-compliance.”

Ordinarily, the decisions of the Workmen’s Compensation Commission will be affirmed if there is any substantial evidence to support them and the question of whether the evidence is substantial in nature is one of law. Cummings v. United Motor Exchange, 236 Ark. 735, 368 S.W. 2d 82. But, where the decision is based upon the application of the commission’s own rules, we must also view it in deference to the commission’s treatment of these rules.

The Workmen’s Compensation Commission is empowered to make such rules and regulations for the administration of the Workmen’s Compensation Law as may be found necessary. Ark. Stat. Ann. § 81-1343 (9). Any reasonable construction or interpretation given such rules is certainly entitled to great weight upon judicial review, even if it is not controlling. Walker v. International Paper Co., 230 Miss. 95, 92 S. 2d 445 (1957); Winslow v. Carolina Conference Ass’n. of Seventh Day Adventists, 211 N.C. 571, 191 S.E. 403 (1937); Employer’s Mutual Liability Ins. Co. v. Dept. of ILHR, 62 Wis. 2d 327, 214 N. W. 2d 587 (1974); Russomanno v. Leon Decorating Co., 282 App. Div. 18, 121 N.Y.S. 2d 732 (1953); Honeywell Inc. v. Haley, 216 S. 2d 745 (1968); Kramer v. Chapman & Gerber, Inc., 235 S. 2d 489 (Fla., 1970). See also, Christian v. Industrial Commission, 13 Ariz. App. 285, 475 P. 2d 770 (1971). Certainly, if an administrative agency’s interpretation of its own rule is not contrary to statute or irreconcilably contrary to the plain meaning of the regulation itself, it may be accepted by the courts. Employers Mutual Liability Ins. Co. v. Dept. of ILHR, supra. Furthermore, even if rules made by the commission may not be disregarded, they may be relaxed by it. See In Re DaLomba’s Case, 352 Mass. 598, 227 N.E. 2d 513 (1967); Wasson v. Tulsa Dairy Supplies, 315 P. 2d 773 (Okla., 1957).

Where the commission’s rules have the effect of establishing guidelines or standards, some relaxation of them, in the discretion of the commission, is permissible. Anheuser Busch, Inc. v. Industrial Commission, 29 Wis. 2d 685, 139 N.W. 2d 652 (1966). Great weight should be accorded the findings of the commission with reference to compliance with its rules and regulations, since it, being authorized to make them, is in a superior position to determine whether they have been complied with. Libby, McNeill & Libby v. Alaska, 109 F.S. 101 (D.C., Alaska, 1952). Consequently, testimony must be weighed in its strongest possible light in favor of the commission’s Industrial Board findings. American Casualty Co. v. Jones, 224 Ark. 731, 276 S.W. 2d 41. The controlling consideration in the interpretation of a workmen’s compensation statute is that the act must be liberally construed with all doubts resolved in favor of the claimant, which is necessary to effectuate the beneficient and humane purposes of the act. Hartz Seed Co. v. Thomas, 253 Ark. 176, 485 S.W. 2d 200.

First of all, this is not the sort of situation with which we dealt in Sallee Bros. v. Thompson, 208 Ark. 727, 187 S.W. 2d 956, in applying Ark. Stat. Ann. § 81-1320 (a) (Supp. 1975), which reads, in part:

No agreement by an employee to waive his right to compensation shall be valid, and no contract, regulation or device whatsoever, shall operate to relieve the employer or carrier, in whole or in part, from any liability created by this act. . .

There is no assertion that appellee’s comment “I’ll pay it” constituted such an agreement. All parties agree that the injury was indeed compensable in nature.

The general rule is that, where a panel of physicians is retained by an employer, as here, and an employee engages other medical services and disregards the panel made available to him, the employer is not liable for the expense of the private care. Larson’s Workmen’s Compensation Law § 61.12 at 10-446. Accord, Caldwell v. Vestal, 237 Ark. 142, 371 S.W. 2d 836.

Here appellee knew of the availability of the company doctors but chose to visit his family physician and the Memphis specialist to whom he was referred since both were closer to his home town, Marianna and thus more convenient to visit than the company doctors in Helena and specialists in Little Rock. In Caldwell v. Vestal, supra, where we awarded payment of medical expenses to the claimant who had made an unauthorized change of physicians, we cautioned:

Our holding is not intended to, and does not, give an injured workman unrestricted freedom to reject the medical care offered by his employer.

We said that an employee who does so acts at his own peril in disregarding a warning that an expense will not be covered by his insurer, despite the fact that there may be circumstances in which me employer will remain liable notwithstanding (see Bell Telephone Co. v. Brown, 256 Ark. 54, 505 S.W. 2d 207) but found, in that situation, no sound basis for exempting the employer from liability. So the question before the commission was, granting that appellee acted at his own peril in electing not to visit Dr. Traylor, whether his reasons for doing so were such as to justify the application of Rule 23 to permit a deviation from Rule 21.

Viewing the testimony in the light most favorable to the commission’s findings, we agree that appellee’s visits to the doctors in closer proximity to his home than those offered by appellants were certainly more convenient or even more practical for him. But more importantly, we find that, in these circumstances, the Commission exercised its discretion and we are unable to say that it was abused. The central rule defining the circumstances under which a claimant may himself incur compensable medical expense may be put as follows: If the employer has sufficient knowledge of the injury to be aware that medical treatment is necessary, he has the affirmative and continuing duty to supply medical treatment that is prompt, in compliance with the statutory prescription on choice of doctors, and adequate; if the employer fails to do so, the claimant may make suitable independent arrangements at the employer’s expense. Larson’s Workmen’s Compensation Law § 61-12 at 10-450.

In the instant appeal appellee reported the injury to his supervisor but was neither relieved from work nor referred to Mrs. Smith who administered the medical program. According to appellee, nothing specifically was said by either party at the time of the injury about his seeing a physician and his supervisor did not even take the time to report his injury until four hours later. Appellant fully informed appellee of its provisions for medical care and offered the services of the panel of physicians only when appellee reported to Mrs. Smith, at which time appellee had already procured medical attention independently. We cannot say that appellee had no justification for his independent procurement of medical care, although he admits he was aware of the existence of the panel of physicians retained by his employer. Draney v. Industrial Accident Commission, 95 Cal. App. 2d 64, 212 P. 2d 49 (1949). Under these circumstances, the Commission concluded that the appellee’s independent procurement of medical treatment was reasonable. See Zeeb v. Workmen’s Compensation Appeals Board, supra; cf. Pacific Indemnity Co. v. Industrial Accident Commission, 220 Cal. App. 2d 327, 33 Cal. Rptr. 649 (1963) and Montyk v. Workmen’s Compensation Appeals Board, 245 Cal. App. 2d 334, 53 Cal. Rptr. 848 (1966).

Viewing the evidence most favorably to the commission’s findings and giving due deference to its interpretation and application of its own rules, we cannot say that it erred.

The judgment of the circuit court affirming the decision of the commission is affirmed.

      Although the evidence is, for the most part, not in conflict, we have, as usual, viewed it in the light most favorable to the commission’s findings.


source: Caselaw Access Project

author: J. Fred Jones, Justice.

license: Public Domain

text:
    R. C. MABRY et al v. Betty MABRY and William H. HODGE, Administrator
    75-366
    535 S.W. 2d 824
    Opinion delivered April 26, 1976

      John B. Hainen, for appellants.

      Tackett, Moore, Dowd & Harrelson, for appellees.
   J. Fred Jones, Justice.

This is an appeal by R. C. Mabry and other collateral heirs of Gordon Mabry, deceased, from a summary judgment of the probate court in favor of Betty Mabry, the widow and sole devisee under the will of the decedent, whereby a will contest instituted by the appellants was dismissed.

The facts appear as follows: On January 22, 1972, the decedent, Gordon Mabry, then 64 years of age, married the appellee Betty Sue Mabry, then Betty Sue Canada who was 40 years of age. On February 27,1975, during his last illness, Gordon Mabry executed his last will and testament in which he directed that after his just debts were paid, all the rest and residue of his estate should go to his wife, Betty Sue Mabry, and he nominated Betty Sue as executrix.

Mr. Mabry died on March 17, 1975, and his will was duly filed for probate by the appellee Mrs. Mabry. On April 11, 1975, the appellant-surviving brothers and sisters of the decedent filed an instrument designated “Will Contest” alleging invalidity of the will because of incompetency. On June 16, 1975, the appellee Betty Sue Mabry filed a motion for summary judgment alleging the death of Gordon Mabry and her marital relationship to him as above set out. She alleged that the decedent left no descendants surviving him and that, under the provision of Ark. Stat. Ann. § 61-149 (b) (Repl. 1971), she was entitled, as surviving widow, to inherit his entire estate. She alleged that the petitioner-appellants, being collateral heirs, had no standing to contest the last will and testament of Gordon Mabry.

The appellants responded with the contention that Mrs. Mabry had “abandoned the marriage” and was, therefore, not entitled to take under § 61-149 (b).

After some preliminary proceedings and a partial hearing in the matter, the probate court agreed with the appellee Mrs. Mabry and granted her motion for summary judgment. The probate court concluded its final order as follows:

“The Motion For Hearing as filed wherein opponents of the probate of the Will of Gordon Mabry seek to introduce proof on the matter of ‘continuously married’ is denied.”

The appellants contend on appeal to this court that “the trial court erred in refusing to hear evidence and testimony offered by will opponents that surviving wife had abandoned the marriage so as not to qualify under Arkansas statute 61-149 (b) as ‘continuously married.’ ”

Ark. Stat. Ann. § 62-2113 (Repl. 1971) provides as follows:

“An interested person may contest the probate of a will, or any part thereof, by stating in writing the grounds of his objection thereto and filing the same in the court.”

Just any collateral heir is not necessarily an “interested person” with a right to contest the probate of a will under this statute.

In Hawkins v. Hawkins, 218 Ark. 423, 236 S.W. 2d 733 (1951), a decedent willed his property to his wife and willed SI.00 to a previously adopted son, explaining in his will that the son was first adopted by him and later adopted by other parties. The widow offered the will for probate and the brothers and sisters of the decedent filed a petition to set aside the will on the grounds of lack of mental capacity and because of undue influence. In that case we said:

“Appellants prosecute this appeal from the judgment of the lower court and in the briefs and oral arguments of both sides we are confronted with the question of whether or not appellants are interested persons and, therefore, whether or not they have any standing in court to contest the validity of the will. The answer to that question depends on whether or not Clyde Eugene Brown, as an adopted child, can inherit from the deceased even though the said child had again been adopted by other parents several years before the death of the deceased and the same relationships still existed at the time of the death of the testator.
* # *
Having come to the conclusion that Clyde Eugene Brown is an heir to the estate of Jacob B. Hawkins the same as if he were a natural son it must naturally follow that appellants, who are the brothers and sisters of the said Hawkins, cannot be interested persons in the sense that they can maintáin a suit to contest the validity of Hawkins’ will. Since the legal heir was not made a party to this suit the judgment of the lower court was a nullity. We of course express no opinion as to the validity of the will as that question is not before us.”

At the time of our opinion in Hawkins, supra, in 1951, a widow only had dower and homestead interest in her husband’s estate and had no interest as an heir by descent and distribution. However, by Act 303 of 1969, Ark. Stat. Ann. § 61-149 (b) (Repl. 1971), a surviving spouse is made an heir where she survives the husband and he dies intestate and is survived by no descendants. This section provides that the heritable estate of an intestate shall upon his death pass to his children and to the descendants of such children who predecease the intestate. Then subsection (b) of § 61-149 provides as follows:

“(b) Second, if the Intestate is survived by no descendant, to the Intestate’s surviving spouse unless the Intestate and such surviving spouse had been continuously married less than three [3] years next preceding the death of the Intestate, in which event the surviving spouse will take merely 50% of the Intestate’s heritable estate.”

In the case at bar the decedent Mr. Mabry was survived by no descendants. There is no question that the appellee Betty Mabry was the surviving spouse of the decedent and was the surviving spouse at the time of his death. The appellants contend, however, that the appellee Betty Mabry had not been “continuously married” to the decedent within the meaning of § 61-149 (b), supra, and that the trial court erred in failing to hear and consider evidence that the appellee Betty Mabry “abandoned” her marriage with the decedent. We find no merit in this contention. It is quite true that the appellee had only been married to the decedent three years and two months at the time of his death. But there was no evidence proffered and no contention made on the part of the appellants that a divorce and remarriage intervened between the time Mr. Mabry and the appellee Betty Mabry were married on January 22, 1972, and the date of his death on March 17, 1975.

The proffered proof on the part of the appellants was to the effect that the appellee Mrs. Mabry was very inattentive to the decedent; that she disposed of a considerable amount of his property during their marriage; that she had abandoned the decedent on a number of occasions and for a period during his last illness. As a matter of fact the appellants proffered testimony to the effect that the appellee Mrs. Mabry was living the life of a free and unmarried person while dissipating the money and property of her husband. But, be that as it may, we are of the opinion that the probate judge was right in refusing to hear and consider such testimony for the purpose it was offered in this case.

It is entirely possible that one spouse may abandon the other and it is common knowledge that in many instances they do so under circumstances giving grounds for divorce. But neither spouse, individually or in collusion with the other, may effectively nullify, suspend or interrupt the binding force of their marriage contract by mere abandonment, and such abandonment does not end the marital status. A state of marriag can only be dissolved during the lives of the parties to the marriage by annulment under Ark. Stat. Ann. § 55-106 (Repl. 1971), or by divorce under Ark. Stat. Ann. § 34-1201 et seq. (Repl. 1962 and Supp. 1975).

As already stated, the appellants failed to allege or offer to prove either an annulment or divorce' of the marriage between the decedent and the appellee Betty Sue Mabry, so we conclude that the order of the probate court must be affirmed.

The order is affirmed.


author: Frank Holt, Justice.

text:
    Robert HOWELL and TALL TIMBER DEVELOPMENT CORPORATION v. WORTH JAMES CONSTRUCTION COMPANY
    75-367
    535 S.W. 2d 826
    Opinion delivered April 26, 1976

      Spitzberg, Mitchell & Hays, by: Beresjord L. Church for appellants Tall Timber Dev. Corp.

      Smith, Williams, Friday, Eldredge & Clark, for appellees and cross-appellant.
   Frank Holt, Justice.

The appellant Tall Timber Development Corporation is the owner and developer of Tall Timber subdivision. In March, 1973, Tall Timber Development Corporation entered into a contract with the appellee Worth James Construction Company. Pursuant to this contract, the appellee constructed water and sewer lines for the subdivision. The appellee was fully paid the contract price of $363,672.22. In October, 1973, the appellant Tall Timber entered into a separate contract with appellant Howell (who does not favor us with a brief) under which Howell did the trenching for the installation of the underground power cables for the subdivision. The appellee brought suit against both appellants for damages in the sum of $8,961.88 which it allegedly suffered as a result of broken water lines in the course of Howell’s trenching operations. The trial court, sitting as a jury, awarded judgment against both appellants, jointly and severally, in the amount of $7,000, holding, inter alia, that:

By so providing in its contract, the owner became in effect the bonding company for Howell and is liable to the plaintiff as one of the utility contractors which was intended to be protected by the provision in its contract requiring the retainage of 40% of the contract price. ****This judgment shall also be against Tall Timber Development Corporation on the basis that its president, John D. “Doug” Toney, made a verbal assurance to the plaintiff on May 28, 1974, that it would stand behind Robert Howell.

Appellant Tall Timber first argues for reversal that the trial court erred in holding that it was liable to appellee by virtue of the provisions of its contract with Howell. That contract provides in pertinent part:

Performance Bond Provisions as set out in paragraph 4 or any other part of this contract is hereby waived provided the owner shall retain 40% of any amounts due contractor until all damages, if any, to other utility lines have been repaired and installation accepted by Arkansas Power & Light Company. Then, owner shall release to contractor all of the retainage except 10% which shall be retained by the owner until the installation has been accepted by all appropriate governmental and utility agencies, at which time the 10% shall be paid to the contractor.

Appellant Tall Timber asserts that apparently the trial court’s holding was based on a third-party beneficiary theory and argues that there is absolutely nothing in the record to indicate that the quoted provision was intended by either party to the contract, Tall Timber or Howell, to benefit the appellee or anyone else other than the contracting parties. Also there was no provision for payment by Tall Timber to any damaged utility contractor or any other person and there was no existing obligation from Howell to the appellee at the date of the contract. Tall Timber argues further that the clear intent of the provision was to protect it, not some third party like the appellee. We cannot agree with appellants’ contentions.

It is true, as Tall Timber asserts, the presumption is that parties contract only for themselves and a contract will not be construed as having been made for the benefit of a third party unless it clearly appears that such was the intention of the parties. Walker v. Wittenberg, Delony & Davidson, Inc., 242 Ark. 97, 412 S.W. 2d 621 (1967). In the case at bar, there is substantial evidence that it was the clear intention of the parties to contract for the benefit of appellee and that appellee was a beneficiary of their contract. We have repeatedly held that a contract made for the benefit of a third party is actionable by such third party. Freer v. J.G. Putnam Funeral Home, Inc., 195 Ark. 307, 111 S.W. 2d 463 (1937); Spears Mining Co. v. Shinn, 93 Ark. 346, 124 S.W. 1045 (1910); and H. B. Deal & Co., Inc. v. Head, 221 Ark. 47, 251 S.W. 2d 1017 (1952. See Restatement, Contracts, § 135. Also Comment, Enforceability of Third-Party Beneficiary Contracts in Arkansas, 5 Ark. L. Rev. 66 (1950-51). In Freer, supra, we said:

The intention of the parties, so far as these may be determined, may be examined to gain understanding of the meaning of the parties by the language employed, and their conduct in relation thereto may help to clarify what might otherwise be doubtful.

In 17 Am. Jur. 2d, § 314, it is said:

It is not essential, in order to enable a third person to recover on a contract made and intended for his benefit, that he knew of the contract at the time it was made. The fact that he did not act upon the faith of, or in reliance upon, the contract does not defeat his recovery.

In Carolus v. Arkansas L&P Company, 164 Ark. 507, 262 S.W. 330 (1924), we said:

Where from the language of the contract itself, or the testimony aliunde, it could be said that it was the intention of the parties to the contract to confer a direct benefit upon a third person, then such person may sue on the contract. It is not necessary that the person be named in the contract, if he is otherwise sufficiently described or designated, he may be one of a class of persons if the class is sufficiently described or designated.

Here the contract provides that Tall Timber will retain 40% of any amount due Howell until all damages to other utility lines have been repaired. By the terms of the contract, Tall Timber agreed to waive performance bonds for Howell and in effect became the surety for Howell. Clearly, the intent of the retainage provision of the Tall Timber-Howell contract was to provide bonding for Howell for damages he might cause to other utility lines. Therefore, it could logically be found that appellee Worth James is a third party beneficiary for whom this provision was specifically designed. This result is also buttressed by the testimony of a witness that the president of Tall Timber assured appellee that “as far as he was concerned that Howell was their contractor and they would stand behind him.”

Since we hold the trial court’s finding, that Tall Timber is jointly liable to appellee as a third party beneficiary, is supported by substantial evidence, we deem it unnecessary to consider Tall Timber’s next contention that the trial court erred in finding it was additionally liable because it made a binding verbal assurance to appellee.

Appellants also assert that the appellee’s proof was insufficient to sustain the amount of damages awarded. The trial court found and awarded appellee judgment against Tall Timber and Howell jointly and severally in the amount of $7,000. Tall Timber argues that appellee failed to introduce any evidence as to the direct cost of repairs of any break or combination of breaks which was caused by Howell. Appellants argue further that appellee’s damages are completely in the realm of speculation and should not be charged against either Howell or itself. We cannot agree. No citation is required that on appeal we need consider only that evidence which is most favorable to appellee and affirm if there exists any substantial evidence to support the finding of a jury or the court sitting as a jury. Appellant Howell testified that he may have been responsible for up to seventeen or eighteen breaks. One witness testified that Howell admitted responsibility to him for thirty-two or thirty-three breaks. There was also evidence of a total of sixty-two “actual breaks” caused by Howell. Another witness testified that from December 13, 1973, to February 6 or 7, 1974, the only reason appellee’s crew worked on the subdivision site was for the sole purpose of repairing the breaks caused by Howell. Appellee introduced an itemized statement of the total expense of $8,961.88 incurred by it for repair of breaks allegedly caused by Howell. Appellee presented evidence of invoices and payrolls to support those items. One witness testified that it took longer to repair the lines broken by Howell than to build the whole water system. There was ample substantial evidence to sustain the finding of the amount of damages awarded appellee.

Appellee Worth James contends on cross-appeal that the trial court erred in refusing to grant it a materialman’s lien on the property of Tall Timber. Appellee, as cross-appellant, argues that it is entitled to a materialman’s lien under Ark. Stat. Ann. § 51-601 (Repl. 1971), which provides in pertinent part:

Every mechanic, builder, artisan, workman, laborer, or other person who shall do or perform any work to or upon, or furnish any material, fixtures, engine, boiler or machinery for any building, erection improvement to or upon land * * * under or by virtue of any cpntract with the owner or proprietor thereof, or his agent, trustee, contractor or subcontractor, upon complying with the provisions of this act, shall have for his work or labor done, or materials **** furnished a lien upon such building, erection or improvement upon the land. . . .

Appellee argues that the materialman’s and laborer’s lien statute was designed to protect those who expend their money and efforts in improving the property of others; that appellee fits exactly into the catagory of those whom the statute was designed to protect, and that there is no persuasive reason as to why the lien statute would not apply for the work done by appellee. Appellant Tall Timber responds that appellee is not entitled to a materialman’s lien against Tall Timber’s real property for any amount, whatever its damages ocasioned by the actions of Howell. Tall Timber argues that whatever the expense to appellee of damaged lines occasioned by Howell or by anyone else, it is not “under or by virtue of any contract with” Tall Timber or any agent, contractor, or subcontractor of Tall Timber. Appellant submits that not even the most liberal construction of our lien laws would permit appellee to have a materialman’s lien against Tall Timber’s land and improvements for its claim against Howell.

We agree with appellee on its cross-appeal with respect to being entitled to a materialman’s lien. In Gillison Discount Building Materials, Inc., v. Talbott, 253 Ark. 696, 488 S.W. 2d 317 (1972), we said “The necessary contract can be by express agreement or implied from the circumstances or conduct of the parties.” In the case at bar appellee’s contract with Tall Timber required that appellee construct and complete a water distribution system which would be acceptable to the city. Tall Timber had notice from appellee of the continuing damages being caused by Howell, Tall Timber’s contractor, and stood by and allowed appellee to make the necessary repairs which were required to meet the city’s requirements. These repairs inured to Tall Timber’s benefit by improvements to its property. Furthermore, Tall Timber’s president assured appellee it would stand behind Howell. As indicated, appellee should be awarded a materialman’s lien against Tall Timber’s real property for the amount of appellee’s judgment.

Appellee next asserts on cross-appeal that the trial court erred in its failure to award a judgment for appellee for the full amount of $8,812.11. As indicated, $7,000 was awarded. Appellee argues that the proof shows that appellee is entitled to judgment against Tall Timber for $8,812.11 and there is no evidence to support a reduction of that amount. Therefore, we should direct the trial court to enter judgment for the full amount sought. We cannot agree. Where the trier of the facts, as here, awards more than a mere nominal sum based upon substantial evidence, the courts are without authority to increase it. Wharton v. Bray, 250 Ark. 127, 464 S.W. 2d 554 (1971); and Fulbright v. Phipps, 176 Ark. 356, 3 S.W. 2d 49 (1928).

For the error indicated on the cross-appeal, the judgment is reversed and the cause remanded for proceedings not inconsistent with this opinion. Otherwise, the judgment is affirmed on direct and cross-appeal.

Affirmed on direct and reversed in part on cross-appeal.


author: Carleton Harris, Chief Justice.

text:
    Tommie D. COLDING v. STATE of Arkansas
    CR 75-203
    536 S.W. 2d 106
    Opinion delivered May 3, 1976
    [Rehearing denied June 1, 1976.]

      Ed Daniel, for appellant.

      Jim Guy Tucker, Atty. Gen., by: Robert A. Newcomb, Asst. Atty. Gen., for appellee.
   Carleton Harris, Chief Justice.

A jury convicted appellant, Tommie D. Golding, Jr., of possession of heroin, and fixed his punishment at five years of confinement in the Department of Correction. From the judgment so entered, Golding appeals, arguing that the trial court erroneously failed to suppress the heroin found on his person pursuant to an allegedly unconstitutional search.

The facts pertinent to the challenged search are not disputed, nor is the validity of the search warrant itself challenged. The warrant commanded the executing officers to search the Ebony Pal, a bar, which had in its employment one Ronald Golding. The affidavit for the warrant stated that Dilaudid, heroin, and other controlled substances were believed to be concealed on the premises, along with the records of illegal sales of controlled substances. The affidavit further stated that reliable informants had made narcotics purchases at the Ebony Pal from Ronald Colding and from unidentified sources, and that neighbors and local businessmen had complained to police about suspected narcotics traffic and “drug related disturbances” at the bar. The affiant, Detective H. L. Walters, also said that police had kept the bar under surveillance for approximately three hours, and “[d]uring this surveillance several known narcotics dealers came to this establishment.”

At the hearing on the motion to suppress, Detective Richard Fulks testified that he was the first of ten officers to enter the building for the search. Upon entry, he saw appellant and three other persons; he did not know appellant personally. Fulks went to the counter, identified himself as a police officer, and asked who was running the club. When appellant answered that he was running the club at that time, Fulks gave him a copy of the search warrant and told him to place his hands against the wall. According to Fulks, the police had information that substantial amounts of narcotics were dealt at the club, and they believed that a majority of the club’s habitues were armed. Accordingly, the first priority of the searching officers was to secure the establishment and to check all persons therein for weapons.

Detective Ron Bulierwel! was the officer who frisked appellant for weapons. Bulierwell said that while he was “patting down” appellant he felt a “suspicious bulge” in appellant’s right rear pocket. Bulierwell testified that he knew that appellant’s billfold was in his left rear pocket, and he also knew from his experience as a narcotics officer that dealers usually packaged heroin for street sale in tinfoil packets inside plastic bags. When he removed the “suspicious bulge” from appellant’s pocket, it proved to be a plastic bag containing tinfoil packets; the detective opened one packet and found that it contained a powdery brown substance. At that point Bulierwell arrested appellant and gave him the warnings required by Miranda v. Arizona, 384 U.S. 436. The court denied the motion to suppress.

On trial, additional facts were developed, viz., Bulierwell testified that in the course of the frisk he determined that the bulge in appellant’s pocket was definitely a plastic bag before he pulled it out, and the officer also testified that while Colding generally cooperated with the search, the appellant did at one point try “to push back off the wall, come around and get me” after Bullerwell had commenced the frisk.

The most authoritative federal decision concerning this type of search involved facts quite similar to the instant appeal. In Guzman v. Estelle, 493 F. 2d 532 (5th Cir. 1974), Guzman, convicted in Texas courts of possession of heroin, petitioned for federal habeas corpus, alleging that the search that uncovered the narcotics on his person had violated his Fourth Amendment rights. The basis of Guzman’s argument was that the police who conducted the search had a warrant authorizing only a search of the premises on which he was found, since the warrant did not name Guzman specifically. Guzman also contended that a warrantless search of his person could not have been justified because no probable cause existed and because the search exceeded the scope of a permissible frisk for weapons.

The court reviewed the facts in detail. Before going to a suspected narcotics dealer’s house, the Texas police had obtained a warrant authorizing the search of the residence; the affidavit for the warrant stated that the owner of the house, Soliz, had been observed trafficking in drugs in the house, and that police surveillance had disclosed the presence of known drug users in the house. The officers executed the warrant by giving, a copy to Soliz’s wife and proceeding through the house. They found Guzman in a bedroom; he jumped to his feet and appeared to be startled and frightened. An officer frisked Guzman for weapons and detected an object in his right front pocket, which he removed; it was a fingerstall containing six gelatin capsules of heroin.

The Fifth Circuit reasoned that “the fact that [the searching officer] felt such an object in the course of the pat-down must be considered in determining probable cause.” Noting that users and sellers of narcotics frequently carry drugs on their persons in easily disposable and salable forms such as capsules, the court pointed to the fact that “the criminal activity recited in the warrant involved not only the possession of narcotics, but their sale, that is, the transfer of narcotics from one person to another.” Under the circumstances, the court observed, “it would not be unreasonable, for example, to assume that [Guzman] was a customer or dealer who was purchasing or selling narcotics and was holding same in his pocket.” The court concluded:

“in light of these and the aforementioned elements, [the searching officer] was not required to ignore the object he discovered in the course of his frisk. A search for narcotics may be justified where an officer’s search for weapons unexpectedly produces evidence providing or contributing to probable cause to believe that a person possesses narcotics. See Pace v. Beto, 5 Cir. 1972, 469 F. 2d 1389, 1390-91.

After finding that probable cause existed for the search, the Guzman court turned to the issue of whether “this case presents exigent circumstances to justify the search of appellee without obtaining a warrant.” The court ruled that such circumstances did exist, stating:

“After appellant had been frisked, the officers had probable cause to believe that he concealed narcotics in his pocket. Unless appellant was briefly detained and his pocket searched, he could walk from the premises with the contraband. It would be unreasonable in this situation to expect the police to seek a warrant prior to their search — and after their frisk — of appellant in the hope that appellant would be at the Soliz premises when they returned. [Citations omitted.] Clearly, time was of the essence: if appellant’s pocket was not searched immediately, either appellant would flee or the contraband on his person would be removed or destroyed. The Fourth Amendment does not protect under such circumstances. Searching appellant without a warrant was reasonable under the Amendment, for ‘the exigencies of the situation made that course imperative.’ ”

Another case remarkably similar to the instant appeal is Poole v. State, 247 So. 2d 443 (Fla. App. 1971). Officers obtained a warrant for the search of Poole’s residence, but it did not name Poole; the warrant was based on information from confidential informants that they had purchased drugs in the residence. When the officers entered the building, they asked Poole who was in charge of the premises, and he said that it was he. The officers read the warrant to him and began the search, and noticed “an unnatural bulge under [Poole’s] clothing in the area of his crotch. As a result of such suspicious circumstance, [Poole] was searched and a plastic bag containing a quantity of marijuana was removed from the area where [Poole] had attempted to secrete it. It was not until after the evidence was discovered and the search of the premises completed that appellant was arrested and charged with the offenses for which he was ultimately convicted.”

Poole appealed his conviction of possession of marijuana, making the same argument as appellant in the instant case — “that although the search warrant involved in this case authorized a search of the premises and curtilage, it did not authorize a search of all persons who might be found on the premises at the time the search was conducted.” The Florida court rejected this argument and affirmed the conviction, stating:

“When appellant acknowledged to the officers that he was in charge of the premises, they were justified in more carefully scrutinizing his outward appearance and demeanor than they would have been under other circumstances. It was with the information furnished them by the confidential informers [about drug traffic on the premises] in mind that they observed a bulge in appellant’s clothing within the area of his crotch. Such a condition was, to say the least, unusual and justified further exploration by the officers in order to determine whether at that moment appellant was engaged in illegal drug traffic which they were informed was being conducted on the premises. Since the officers were in appellant’s dwelling under lawful authority conferred upon them by the court which issued the search warrant, and had reasonable cause to suspect that appellant was engaged in or connected with the unlawful activity against which the search warrant was directed, we are not persuaded that the search which they made of appellant’s person which was triggered by the unusual bulge appearing in the crotch of his trousers was so unreasonable in a constitutional sense as to condemn the contraband seized as a result of that search.”

Other cases, the rationale of which would uphold the search in the instant case, are Guerra v. State, 496 S.W. 2d 92 (Tex. Cr. App. 1973), cert. denied, 415 U.S. 975; State v. De Simone, 60 N.J. 319, 288 A. 2d 849 (1972); Guzman v. State, 461 S.W. 2d 603 (Tex. Cr. App. 1970); Samuel v. State, 222 So. 2d 3 (Fla. 1969); Hernandez v. State, 437 S.W. 2d 831 (Tex. Cr. App. 1968), cert. denied, 395 U.S. 987; People v. Pugh, 69 Ill. App. 2d 312, 217 N.E. 2d 557 (1966).

It is apparent that the court did not err in admitting the evidence.

Affirmed.

      The court did not actually reach the question of whether Guzman could have been validly searched pursuant to the authority of the narcotics search for the premises, deciding the case simply on the basis of the fact that the weapons frisk produced probable cause for a warrantless search.

      A fingerstall is a small rubber protector that clerical personnel place over fingertips to avoid cuts while turning pages.

      Stated differently, this means that the search for narcotics is not tainted by the fact that probable cause for this later search derives, solely or partially, from an earlier search for weapons.”


author: John A. Fogleman, Justice. Conley Byrd, Justice,

text:
    Babe FLETCHER et al v. James HURDLE and Shirl HURDLE, Individually and as Co-Executors
    75-245
    536 S.W. 2d 109
    Opinion delivered May 3, 1976
    [Rehearing denied June 1, 1976.]

      W. B. Howard, for appellants.

      John R. Henry, for appellees/cross-appellants.

      Barrett, Wheatley, Smith & Deacon, for cross-appellee.
   John A. Fogleman, Justice.

This action originated as a suit in ejectment brought by Nash Fletcher, Gerald Fletcher, Bruce Fletcher, Rose Fletcher Crabtree and Joann Fletcher States against James Hurdle and Shirl Hurdle, the co-executors of the will of Betty Roach, deceased, and her only devisees. These defendants, appellees here, claimed title to the real property involved under their decedent’s will. They asserted that she had title by the virtue of a warranty deed executed by Barbara Jean Stephens, the sister of the plaintiff-appellants. These parties, along with Barbara Jean Stephens, were heirs of Asbury Fletcher, who died intestate. The Asbury Fletcher heirs, who originated the suit, will hereafter be referred to as the plaintiff-appellants. Barbara Jean Stephens will be referred to as Barbara Jean. The appellees, who cross-appealed on the dismissal of a third party complaint against the executor of the estate of Barbara Jean will be referred to as the Hurdles.

Babe Fletcher, the brother of Asbury Fletcher, intervened, claiming that he was the owner of an undivided one-half interest in the lands in question in fee simple as a residual devisee under the will of I. N. Fletcher, deceased, the father of Asbury and Babe Fletcher. At the time of the trial, the plaintiff-appellants took the position that they were the owners in fee simple of an undivided five-twelfths interest in the land in question. On the basic issue the positions of the plaintiff-appellants and the intervenor-appellant are identical.

I. N. Fletcher was the common source of title claimed by all parties. He died on September 20, 1950. The issues turn upon the proper construction of his will and of a deed executed by the plaintiff-appellants to their sister Barbara Jean. The pertinent provisions of the will of I. N. Fletcher are:

3. I devise and bequeath to my granddaughter, Barbara Jean Fletcher, for and during her natural life, then to the heirs oi her body, if any, and if not then to Asbury Fletcher, his heirs and assigns, the following described real estate situated in Craighead County, Arkansas to-wit: [describing the lands in controversy].
7. After payment of all specific bequests and devises herein, I hereby devise and bequeath the entire residue of my estate, real, personal, or mixed to my two sons Asbury Fletcher and Babe Fletcher in equal parts.

Asbury Fletcher died October 11, 1956, leaving the plaintiff-appellants and Barbara Jean as his surviving heirs at law. Barbara Jean claimed title as an heir of her father Asbury Fletcher and by virtue of a quitclaim deed executed by the plaintiff-appellants on December 6, 1956. Barbara Jean died without issue in March of 1974, having conveyed the lands in controversy to Betty Roach by warranty deed dated September 12, 1968. The appellants contend that paragraph three of I. N. Fletcher’s will created a life estate with alternative contingent remainders, so that the testator retained a divestible reversion which, when Barbara Jean died without having heirs of her body, but surviving her father Asbury, vested the fee title in the appellants by virtue of the residuary clause of I. N. Fletcher’s will. On the other hand, the Hurdles contend that their title comes through Asbury Fletcher as a contingent remainderman under the will of I. N. Fletcher, but that his heirs took as remaindermen, and the interest of all the heirs merged in Barbara Jean through the quitclaim deed to her in December, 1956. That deed was entitled “Quitclaim Deed” and by it the plaintiff-appellants did thereby “grant, sell and quitclaim unto the said Barbara Jean . . . the following lands,” to wit:

All of our interest and possibility of remainder by reason of the will of our Grandfather, recorded in Probate Record Book 1, at page 116, Records of Craighead County Lake City District, as to [the lands in controversy].

The appellees alleged, but did not prove, that at the time of the deed to Barbara Jean, her grantors knew that she was incapable of bearing children. Jury trial was waived and the cause was submitted to the court on the pleadings, stipulations of counsel and oral testimony. The circuit judge found that appellants had no interest in the land in controversy and dismissed the complaint and intervention. The judgment was based upon oral findings of the circuit judge. Among other things, he found that:

I. N. Fletcher, by specifically listing and naming the subject property, attempting to convey it to his granddaughter Barbara Jean, for her life, then to her children, and if no children, to Asbury Fletcher and his heirs, did divest himself of the subject property to the heirs of Asbury Fletcher in fee, whether by a vested remainder or to the heirs of Asbury Fletcher, or his devisee, of the reversionary interest to the heirs of Asbury Fletcher. I. N. Fletcher intended to, and did, divest himself of the property by paragraph three of his will and the property did not constitute a part of the residual estate disposed of in paragraph seven.

We agree with appellants that the circuit court erred in treating paragraph three of the will as creating a vested remainder, either in Asbury Fletcher, who predeceased the life tenant, or in his heirs. Of course, the devise to Barbara Jean Fletcher for life, “then to the heirs of her body, if any,” vested only a life estate in Barbara Jean, with remainder to the heirs of her body. Ark. Stat. Ann. § 50-405 (Repl. 1971). The words “if any,” are certainly indicative that any remainder in the heirs of the body of Barbara Jean was contingent, if there could otherwise have been any doubt about the matter.

A remainder is contingent when the remainderman cannot be ascertained until the death of the life tenant and no title passes until the happing of the contingency, i.e., the death of the life tenant. Eversmeyer v. McCollum, 171 Ark. 117, 283 S.W. 379. Where the estate in remainder is limited to take effect either to a dubious or uncertain person or upon a dubious and uncertain event, the remainder is contingent. Wallace v. Wallace, 179 Ark. 30, 13 S.W. 2d 810. Where the right of the remainderman to succeed to the enjoyment of the estate depends upon some contingency which may never arise or where the person who is entitled to succeed to possession is not, and may never be, ascertained, or is not in being, the remainder is contingent. Hurst v. Hilderbrandt, 178 Ark. 337, 10 S.W. 2d 491; Wise v. Craig, 216 Ark. 144, 226 S.W. 2d 347. It is the uncertainty of the right of enjoyment and not the uncertainty of actual enjoyment that renders a remainder contingent. National Bank of Commerce v. Ritter, 181 Ark. 439, 26 S.W. 2d 113. Where the persons who may take under a will are uncertain and cannot be ascertained until the life tenant dies, the remainder is contingent. National Bank of Commerce v. Ritter, supra. See also, Steele v. Robinson, 221 Ark. 58, 251 S.W. 2d 1001 (overruling Deener v. Watkins, 191 Ark. 776, 87 S.W. 32, in Hurst v. Hilderbrandt, supra, viz:

The distinction between contingent and vested remainders is well made by a quotation from 23 RCL 500, § 32, in Hurst v. Hilderbrandt, supra, viz:

The fundamental distinction between the two kinds of remainders is that in the case of vested remainder, the right to the estate is fixed and certain, though the right to possession is deferred to some future period, while, in the case of a contingent remainder, the right to the estate as well as the right to the possession of such estate is not only deferred to a future period, but is dependent on the happening of some future contingency. The broad distinction between vested and contingent remainders is this: In the first there is some person in esse known and ascertained who, by the will or deed creating the estate, is to take and enjoy the estate, and whose right to such remainder no contingency can defeat. In the second it depends upon the happening of a contingent event, whether the estate limited as a remainder shall ever take effect at all. The event may either never happen, or it may not happen until after the particular estate upon which it depended shall have been determined, so that the estate in remainder will never take effect.

That the remainder to the heirs of the body of Barbara Jean was contingent is beyond cavil. Appellees do not contend otherwise.

Turning then to the subsequent clause in paragraph three of the will, and applying the well-established rules of property distinguishing between vested and contingent remainders, we come to the inevitable conclusion that any remainder in Asbury Fletcher was a contingent remainder, because the remainder could not possibly have vested unless Barbara Jean predeceased him without having heirs of her body. Any estate in Asbury Fletcher was necessarily dependent upon the happening of this contingency. The remainder was obviously to a dubious or uncertain person or upon a dubious or uncertain event. The person or persons who might take under this clause of the will were uncertain and could not be ascertained until the death of the life tenant. If Barbara Jean had left an heir of her body, the remainder over would have been gone forever, insofar as Asbury Fletcher or his heirs are concerned. That contingency would have defeated any remainder in Asbury Fletcher and no estate would ever have vested in him. See Hurst v. Hilderbrandt, supra; Wise v. Craig, supra. In the absence of any showing to the contrary there is a presumption that a woman may have issue so long as life continues. Wise v. Craig, supra. Cf. Steele v. Robinson, supra; Greer v. Parker, 209 Ark. 553, 191 S.W. 2d 584. As previously pointed out, there was no evidence to indicate that Barbara Jean was incapable of bearing children.

If there were any lingering doubt about the contingency of the remainder to Asbury Fletcher, the use of the word “then” immediately following the creation of the life estate in Barbara Jean denotes the time the fee would vest, i.e., at the time of Barbara Jean’s death. Reynolds v. Nicks, 205 Ark. 1046, 172 S.W. 2d 239. Where the interest of a remainderman is contingent upon his surviving the life tenant and he dies during the continuance of the life estate, he takes no interest in the land under the remainder and no interest devolves upon his heirs. Cox v. Danehower, 211 Ark. 696, 202 S.W. 2d 200; Wise v. Craig, supra. It is clear that the interest of Asbury Fletcher was contingent upon his surviving Barbara Jean.

Appellees argue, however, that the contingent remainder to Asbury Fletcher descended to his heirs at law. In advancing this argument, they attempt to distinguish Wise v. Craig, supra. But the rules there announced clearly apply in this case. See also, Cox v. Danehower, supra.

Appellees seize upon 33 Am. Jur. 618, § 152, for a qualification of the general rule that a contingent remainder does not pass by descent. The application of the principle espoused by appellees depends, however, upon the certainty of the person who is to take and the lack of necessity for his surviving some particular time or event as a part of the contingency upon which the remainder is intended to take effect. It is unnecessary for us to pass on the validity of the rule for which appellees contend, because the clear language of the will required that Asbury Fletcher survive his daughter Barbara Jean before any estate vested in him. A contingent remainder can hardly become vested in a person who is not in being. The only way that any contrary intention could be found in this clause of the will would be by resort to an impermissible construction of the words “his heirs and assigns” following the naming of Asbury Fletcher. Of course, these words cannot be more than words of limitation. It is presumed that the word “heir” is used in its primary legal sense, i.e., as a word of limitation, in the absence of qualifying or explanatory words which are repugnant to the acceptance of the word in its strict legal sense. Ryan v. Ryan, 138 Ark. 262, 211 S.W. 183. In determining the intention of the testator, the question is not what the testator meant, but it is the meaning of his words. Galloway v. Darby, 105 Ark. 558, 151 S.W. 1014. The addition of the words, “and assigns,” is merely declaratory of the power of alienation which the taker possesses without them and they cannot operate to enlarge the grant or defeat its express limitations. Watson v. Wolff-Goldman, 95 Ark. 18, 128 S.W. 581. See also, Alexander v. Morris & Co., 168 Ark. 31, 270 S.W. 88. The words “heirs and assigns” are to be taken in their technical sense to denote the character of the estate or the extent of the interest to be taken by a named devisee and, as such, are words of limitation, and cannot be words of substitution. Galloway v. Darby, supra. The rule in Shelley’s case has such an impact in Arkansas that it is to be applied, regardless of the intention of a testator or grantor, who cannot disavow the rule, even in express words. Bishop v. Williams, 221 Ark. 617, 255 S.W. 2d 171. In other words, this language cannot be taken as a substitution of the heirs and assigns of Asbury Fletcher, for him, as a remainderman, if he should not be living at the time of the death of Barbara Jean without heirs of her body.

We find nothing in Ark. Stat. Ann. § 61-101 (1947) to support the argument of appellees. The definition of real estate in Ark. Stat. Ann. § 61-120 (1947) eliminates any such possibility. One cannot be “seized or possessed” of a contingent remainder as is required when those two sections are read together. Furthermore, Ark. Stat. Ann. § 61-137 (Repl. 1971) is inapplicable to this situation because it was not in effect at any time critical to the issues here.

The characterization of the interest remaining after the death of Barbara Jean and its disposition remain to be determined. It is quite clear that under Arkansas law a grant to one for life with remainder to the heirs of his body leaves a divestible reversion in the grantor, which would remain in him if the grantee should die without bodily heirs during the lifetime of the grantor. Hutchison v. Sheppard, 225 Ark. 14, 279 S.W. 2d 33; Davis v. Davis, 219 Ark. 623, 243 S.W. 739 (in which we corrected a misnomer of this reversion as a possibility of reverter in LeSieur v. Spikes, 117 Ark. 366, 175 S.W. 413).

But here we have alternative remainders. Alternative remainders, limited upon a single precedent estate, are always contingent. Wise v. Craig, supra; Cox v. Danehower, supra. It would be helpful to examine the nature of a reversion, as distinguished from a remainder, and to consider the effect of the failure of alternative contingent remainders. The distinction was clearly made in Wilson v. Pharris, 203 Ark. 614, 158 S.W. 2d 274. There we pointed out that a remainder is an estate limited to take effect in possession immediately after the expiration of a prior estate created at the same time and by the same instrument. We also pointed out that a reversion is the residue of an estate left in the grantor to commence in possession after the determination of some particular estate granted out by him and that, unlike a remainder, which must be created by deed or devise, a reversion arises only by operation of law. Furthermore, in quoting from 23 RCL p. 111, Reversions, we said:

... At common law, if a man seised of an estate limits it to one for life, remainder to his own right heirs, they take not as remaindermen, but as reversioners; and it will be, moreover, competent for him, as being himself the reversioner, after making such a limitation, to grant away the reversion. The same result is reached when an ultimate remainder in fee is contingent. Until it vests there is a reversion in the grantor or devisor md his heirs.

By application of the rules of property hereinabove set out, I. N. Fletcher created a life estate in Barbara Jean, alternative contingent remainders to the heirs of the body of Barbara Jean and Asbury Fletcher and left in himself a reversion. Such a reversion is divestible and may pass by deed or inheritance and, in the absence of a grant by deed in the lifetime of the creator, it will pass by will, and in the absence of a specific devise, will pass under the residuary clause of the will of the holder of the reversion. Wilson v. Pharris, supra. Luster v. Arnold, 249 Ark. 152, 458 S.W. 2d 414; Hutchison v. Sheppard, supra; Davis v. Davis, supra; Nuckolls v. Mantooth, 234 Ark. 64, 350 S.W. 2d 512; Core, Transmissibility of Certain Contingent Future Interests, 5 Ark. Law Rev. 111, 125 (1951). Thus, the reversionary interest in I. N. Fletcher passed under the residuary clause in the will to Babe Fletcher and Asbury Fletcher. This made Babe Fletcher the holder of an undivided one-half interest in fee upon the death of Barbara Jean. Consequently, the holding of the circuit court was erroneous as to him.

The reversionary interest in I. N. Fletcher could not possibly have passed to Asbury Fletcher under paragraph three of the will because to so hold would mean that no remainder, contingent or otherwise, was created in Asbury Fletcher by paragraph three. The basis of the trial court’s holding in this respect was that, by making the devise to Asbury Fletcher and his heirs, the testator divested himself of the property to the heirs of Asbury Fletcher in fee, regardless of whether the interest was a vested remainder or a reversionary interest. The fallacy of this holding has been pointed out in our treatment of the signficance of the word “heirs” in paragraph three.

We cannot agree, however, that the plaintiff-appellants are not bound by their quitclaim deed to their sister Barbara Jean. It is true that ordinarily a contingent remainder cannot be conveyed by deed. Hurst v. Hilderbrandt, supra; National Bank of Commerce v. Ritter, supra. But see, Clark v. Rutherford, 227 Ark. 270, 298 S.W. 2d 327. On the other hand, the conveyance by the plaintiff-appellants of all their interest as to the property would carry the reversionary interest, even if they didn’t realize they had it. Nuckolls v. Mantooth, supra; Core, Transmissibility of Certain Contingent Future Interests, 5 Ark. Law Rev. 111, 121. Although we would agree that the interest passed to the plaintiff-appellants by descent from Asbury Fletcher, vye do not agree with these appellants that the words “by reason of the will of our grandfather” limit the words “all of our interest.” The limitation is upon the possibility of remainder. This divestible reversion was a present and not a prospective interest held by the plaintiff-appellants. So even if the limitation is upon “our interest,” the result is the same. In this respect, the holding of the circuit judge was correct, and his judgment should be affirmed to that extent.

This brings us to the cross-appeal. Appellees filed a third party complaint against the executor of the estate of Barbara Jean. This pleading was authorized by order of the circuit court. In it the appellees alleged that the property was conveyed to their decedent by general warranty deed dated September 12, 1968, executed by Barbara Jean and that if appellees should be evicted and ousted from the property or any part thereof, the eviction would be a breach of the covenants of warranty in that deed, that the third party defendants had taken no action to defend the suit and that, if evicted, they were entitled to recover from the third party defendant either the consideration of $30,000 given for that deed for breach of warranty or a fraction thereof proportionate to the value of the property from which they were evicted and ousted.

The circuit' court dismissed that third party complaint and, properly so, upon the court’s holding on the other points. In view of the disposition we make of the case on direct appeal, this part of the judgment must be reversed on cross-appeal. The cause of action of appellants did not accrue until the death of Barbara Jean. Luster v. Arnold, supra. It is true that a covenant of warranty is not broken until eviction, but a constructive eviction is sufficient, so we do not agree with the cross-appellees that the action was prematurely brought. See Security Bank v. Davis, 215 Ark. 874, 224 S.W. 2d 25; Smiley v. Thomas, 220 Ark. 116, 246 S.W. 2d 419; Ark. Stat. Ann. § 27.1134.1 (Supp. 1975).

The judgment of the circuit court is affirmed on direct appeal as to the plaintiff-appellants and reversed and remanded for the entry of a judgment in favor of appellant Babe Fletcher consistent with this opinion. The judgment of the circuit court on the third party complaint is reversed on cross-appeal and the cause is remanded with directions to reinstate the third party complaint.

Harris, C.J., and Jones and Byrd, JJ., dissent.

Conley Byrd, Justice,

dissenting. The majority somewhat syliogistically reasons that since the testator gave alternative contingent remainders under paragraph three of his will then it follows that Asbury Fletcher had to survive the life tenant before his interest under paragraph three could pass by descent to his children. At page six of the majority opinion, they state “the clear language of the will required that Asbury Fletcher survive his daughter Barbara Jean before any estate vested in him.” Both suppositions are erroneous. The will of I. N. Fletcher, in so far as here pertinent provides:

“KNOW ALL MEN BY THESE PRESENTS:
That I, I. N. Fletcher, of Craighead County, Arkansas, being of sound mind and disposing memory and above the age of twenty-one years, do hereby make, publish and declare this to be my last will and testament, and do hereby revoke all other Wills or codicils thereto heretofore by me made, that is to say:
1. I direct that as soon after my death as practicable all of my just debts, including burial expense be paid.
2. I here devise to my son, Asbury Fletcher, in fee simple, the following described real estate situated in Craighead County, Arkansas, to-wit:
The Southwest Quarter (SW 14) of the Northeast Quarter (NE 14 ) Section Eight (8), Township Fourteen (14), North, Range Six (6) East and also the South Three (3) acres of the Northwest Quarter (NW 14) of the Northeast Quarter (NE 14) of said Section Eight (8).
3. I devise and bequeath to my granddaughter, Barbara jean Fletcher, for an4 during her natural life, then to the heirs of her body, if any, and if not then to Asbury Fletcher his heirs and assigns, the following described real estate situated in Craighead County, Arkansas, to-wit:
All that part of the West Half of the Southeast Quarter (SE14) of Section Five (5), Township Fourteen (14) North, Range Six (6) East which lies South of Thompson Creek Drainage Ditch containing approximately Eighteen (18) acres and Twenty (20) acres in the Northwest Quarter (NW 14) of the Northeast Quarter (NE14) of Section Eight (8), Township Fourteen (14) North, Range Six (6) East bounded on the West by the west line of said Northwest Quarter (NW14) of Northeast Quarter (NE 14) of Section Eight (8) and on the South by the North line of the three (3) acre tract described in Paragraph number two (2).
4. I he eby devise to my son Babe Fletcher, in fee simple, the following described real estate situated in Craighead County, Arkansas, to-wit:
All that part of the North Half (N Vi) of the Northeast Quarter (NE 'A) of Section Eight (8), Township Fourteen (14) North, Range Six (6) East of which I am the owner at the date of this Will, except that portion devised to Barbara Jean Fletcher under paragraph three (3).
Said North Half (N V?.) of Northeast Quarter (NE XA) of said Section Eight (8) is an Eighty (80) acre tract of which I originally owned Seventy-eight (78) acres, a Mr. Gipson now owns one and one-half (1 Vz) acres and Charles McDuffee Three (3) acres, leaving Seventy-three and a half (73 Vi) acres, more or less, of which I am the owner, but of which I have devised Twenty (20) acres to my Granddaughter Barbara Jean Fletcher as shown above. I also devise to my son Babe Fletcher the fractional North Half (NVi) of Northwest Quarter (NW XA), Section Nine (9) containing Thirty-three and ninety hundredths (33.90) acres, more or less, and the North four and Sixty-five hundredths (4.65) acres of the Southwest Quarter (SW!4) of the Northwest Quarter (NW XA) of said Section Nine (9), both in Township Fourteen (14) North, Range Six (6) East.
5. I hereby bequeath to my daughter, Mattie Velma McDuffee, the sum of Three Thousand and No/100 (S3,000.00) Dollars.
6. It is intended and I so direct that if at my death any liens exist upon any of the real estate herein devised, then that said liens be released and discharged by payment of the amounts owing so that the title in fee simple, free and clear of all encumbrance will vest in the devisees; and that such payments be made by my Executors out of the residue of my estate.
7. After payment of all specific bequests and devises herein, I hereby devise and bequeath the entire residue of my estate, real, personal, or mixed to my two sons Asbury Fletcher and Babe Fletcher in equal parts.
99

That the intention of the testator is of prime importance in determining the rights of the parties under the provisions of a will can be seen in Cox v. Danehower, 211 Ark. 696, 202 S.W. 2d 200 (1947), cited and relied upon by the majority, which states:

“At the outset we are confronted with the fact that an interpretation of only one item of a will is sought by the parties and the whole will is not before us. The entire will is not set forth in the pleadings and does not appear in the record. One of the cardinal rules in the construction of wills is that it is the court’s duty to ascertain the intent of a testator, and in doing so such intent is not to be determined by one clause only, but must be gathered from a full consideration of the entire will. In the case at bar, however, the parties seem willing to assume that a consideration of the other portions of the will would not aid their respective contentions, and are content to rest their case upon the devise above quoted. Acting upon this assumption, we proceed to determine whether the language of this devise alone supports the conclusion reached by the Chancellor.”

When we remember that Barbara Jean Fletcher is the daughter of Asbury Fletcher, it is at once obvious to me that the testator wanted the land given to Barbara Jean to go back to Asbury if she should die without heirs of her body. There is nothing in any clause of the will that requires Asbury to survive Barbara Jean. Any assertion by the majority to the contrary is unsupported by provisions of the will.

There is nothing in Wise v. Craig, 216 Ark. 144, 226 S.W. 2d 347 (1949), that supports the majority view that Asbury must survive his daughter. The will in the Craig case specifically provided what would happen if the remaindermen did not survive the life tenant, in the following words:

“In case any of my said nephews and nieces are dead at the time of the death of my daughter, Sallie, then the descendants of such deceased devisee shall take such share as would have gone to such nephew or niece if living.”

The real issue in the instant case is whether the interest of Asbury Fletcher is inheritable since he did not survive the life tenant. I think there is no question that it is. In L. Sims and A. Smith, The Law of Future Interests, § 135 (2d ed. 1956), in a discussion on whether survivorship is a condition precedent, it is stated:

“In a large number of cases in which the discussion proceeds as if the problem were merely whether the remainder is vested or contingent, the real question involved is simply whether there is a requirement that a certain devisee must survive until his interest becomes possessory; it being conceded that he has not so survived. In many of such cases the whole discussion of the distinction is irrelevant, because exactly the same result would be reached if the remainder in question were treated as contingent or as vested subject to complete defeasance on the death of the remainderman before the termination of the particular estate. Thus, in a limitation to A for life and then to B and his heirs if he survives A, the interest of B ends when he predeceases A, whether we classify the interest as contingent or as vested subject to complete defeasance. More dangerous are the cases in which it does make a difference how the interest is classified and in which the courts get involved in a- peculiar mingling of fallacies concerning the meaning of the terms ‘vested’ and ‘contingent.’ On the one hand, these cases seem to assume that if there is no condition precedent of survivorship, the remainder is necessarily vested (thus purporting to give the term ‘vested’ the meaning: ‘not subject to a condition precedent of survivorship’). On the other hand, they assume that all contingent remainders are necessarily subject to a condition precedent of survivorship. Both of these assumptions are invalid and do not conform to the normal meanings of the two terms in question. As to the first, it is true that if there is a condition precedent of survivorship, the remainder in question is contingent, but the converse is not true. If survivorship is not a requisite, it does not follow that the remainder is vested. A remainder may be subject to some other condition precedent which renders it contingent, even though there is no condition that the devisee must survive until the termination of the preceding estate.
The second assumption — that all contingent remainders are subject to an implied condition of survivorship — is equally invalid. While it is true that the courts will sometimes imply a condition precedent of survivorship (and thus make the remainder contingent), it is also true that some contingent remainders are inheritable, and thus capable of transmission even though the holder thereof does not survive until the interest becomes possessory.
These cases represent an area of the law which engenders confusion because of the narrow meaning which is given to the term ‘vested’ and because of a failure to appreciate that the question of whether there is a requirement of survivorship is not synonymous with the question of whether the remainder is vested or contingent.”

In 23 Am. Jur. 2d Descent and Distribution § 32 (1965), we find, contrary to the suggestion of the majority opinion in the second full paragraph on page six, the following statement:

“As a general rule, a contingent remainder passes under the statute of descent and distribution. Similarly, in the case of an executory interest, where the fee is limited to commence in the future upon a contingency, the fee passes, until the contingency happens, in the usual course of descent to the heirs at law.
. . . While contingent interests have sometimes been considered as subject to an implied condition of the donee surviving the particular estate, seemingly just because they are subject to some condition precedent, this is not logically sound where the contingency refers only to the time of enjoyment and possession and not to the time for the title to pass or for the determination of the person taking.”

That it was not necessary for Asbury Fletcher to survive the life tenant is eminently supported by Black v. Todd, 121 S.C. 243, 113 S.E. 793 (1922). In that case the will devised the property to Corrinna Mystis Harris for life, the remainder to her children, if any, and if no children then to Mary Brown for life with remainder to her children, if any, and if none then to Samuel P. Black. Corrinna Mystis Harris outlived both Mary Brown and her children, all of whom died without issue. After the death of Corrinna Mystis Harris without children, the court held that a conveyance from the children of Mary Brown was valid as against the claims of Samuel P. Black.

For the reasons stated, I respectfully dissent.

Harris, C.J., and Jones, J., join in this dissent.

      Now repealed.


author: John A. Fogleman, Justice.

text:
    Philip C. BATES and Shirley J. BATES v. George R. SIMMONS and Jewel Ann SIMMONS
    75-389
    536 S.W. 2d 292
    Opinion delivered May 3, 1976

      Gean, Gean & Gean, by: Roy Gean Jr. and Lawrence W. Fitting, for appellants.

      N. D. Edwards, for appellees.
   John A. Fogleman, Justice.

Appellants brought this action to rescind a contract for the purchase of property from the appellees, asserting misrepresentation, mutual mistake and failure of consideration. The contract was entered into on November 24, 1969. For a consideration of $17,500, payable at the rate of $150 per month, plus interest, and an additional payment of $500 per year beginning in 1970, the Simmonses sold the Bates property described as:

All of Block D, Town of Graphic, Arkansas, including the store building, dwelling house and all other structures and improvements of every kind, sort and description situated on said property. . . .

The store building was not located on Block D, but on adjacent property, and the purchasers were put in possession and occupied a dwelling house on Block D and the store building at least until May, 1975, when they were evicted from the store building by William Roberts, who had purchased the land on which the store building was located at a sale for partition among the owners. The Bates purchase was made upon the representation that the Simmonses held a 99-year lease on the store building site.

Appellants made all payments called for in the contract prior to the eviction and met all other contractual obligations except for keeping the property insured against loss by fire and windstorm. Appellants filed this suit shortly after the eviction, alleging that the store building was material to the bargain and that, because there was a fatal defect in the seller’s title thereto, appellants had sustained “damages” in the sum of $12,400. This figure, however, represented the total payments made by appellants under the contract and appellants actually sought to return the lot purchased and the dwelling house, cancel the contract and recover these payments.

Appellees answered with a counterclaim labelled “cross-complaint,” alleging that appellants had breached the contract by failing to carry insurance on the property after July 16, 1971, and by disposing of store fixtures and equipment. Appellees asked that the contract be terminated and that they have judgment for the balance due under it.

The chancery court, by decree, found appellants had defaulted in the performance of the contract by failing to keep the property insured and that appellees had defaulted because they were unable to deliver the store building and held that the contract became null and void in March, 1975, at the time of the purchase of land on which the store building was located by Roberts. The court held that appellants occupied the premises as tenants after March 1, 1975, and entered judgment in their favor for monthly payments in excess of $100 per month made thereafter and prorated the annual payment. The court also decreed that all prior payments made by appellants under the contract be treated as rent, and that damages to the two parties were too nearly equal to permit the award of any judgment in any specific amount to either. Appellants were given 30 days within which to vacate the property.

Appellants’ first point for reversal is the action of the chancellor in allowing appellees to amend their pleadings at the conclusion of the evidence on behalf of appellants. Actually the motion was made at the very beginning of the trial, when appellees made an oral request that their pleadings be amended to ask allowance of credit against any recovery by appellants for the cost of restoring the house to its condition when sold, for the store business and fixtures and for the reasonable rental value of the property. The chancellor took this oral motion under advisement, but granted it after denying appellees’ motion to dismiss the complaint for insufficient evidentiary support.

Appellants complain that this request came some three months after issue was joined and radically changed the cause of action for foreclosure under the contract originally asserted in appellees’ pleadings. In considering the court’s action, we note that a variance between pleading and proof is not to be considered as material unless it had actually misled the adverse party and that the court may, at any time, in the furtherance of justice, amend any pleadings by inserting new allegations material to the case, upon such terms as may be proper. Ark. Stat. Ann. § 27-1155 (Repl. 1952) and 27-1160 (Supp. 1975).

The chancellor in allowing the amendment offered appellants a continuance if they were taken by surprise, but their attorney stated that they would like to dispose of the case on that day and did not want to take any additional time unless absolutely necessary. We note that both appellant Philip Bates and an expert witness testified on behalf of appellants as to rental values.

We will not reverse the trial court’s action on requests for amendment of pleadings at the trial unless there has been a manifest abuse of discretion and material prejudice to the adverse party. Rucker v. Martin, Phillips & Co., 94 Ark. 365, 126 S.W. 1062; Cole v. Branch & O’Neal, 171 Ark. 611, 285 S.W. 353. See also Hogue v. Jennings, 252 Ark. 1009, 481 S.W. 2d 752. Since appellants were seeking a rescission, the parties were entitled to be placed, as nearly as circumstances would permit, in their respective positions at the time of the sale. Berland’s Inc. of Tulsa v. Northside Village Shopping Center, 447 P. 2d 768 (Okla., 1968); Cruse v. Clawson, 137 Mont. 439, 352 P. 2d 989 (1960); James v. Hogan, 154 Neb. 306, 47 N.W. 2d 847 (1951). An amendment specifically requesting that this be done in the manner asked did not so substantially change the issues that allowing the amendment was an abuse of discretion unless it could be said that appellants had been so misled that the court’s action took them by surprise. The court’s offer of a continuance was proper under the terms of Ark. Stat. Ann. § 27-1160. The failure to take advantage of it or to ask for a continuance after appellants’ evidence was heard certainly indicates that appellants’ surprise was not so great that they felt unable to controvert appellees’ evidence on this point. We find no manifest abuse of discretion in the court’s action. See Royal Service Co. v. Whitehead Construction Co., 254 Ark. 234, 492 S.W. 2d 423.

It appears to us that there was error in the holding that appellants were in default for failure to keep the property insured. We find a clear preponderance of the evidence to indicate that the failure to carry this insurance for some four years was known to Mr. Simmons. The insurance was cancelled in July, 1971, because the carrier discontinued the writing of such insurance in unincorporated areas, such as Graphic. When this was reported to Simmons, he requested that Mr. Bates obtain insurance elsewhere. Bates testified that he was able to find only one company writing this insurance in Graphic, but the premium was $54 per year per $1000 of value as against $8 previously paid. Bates testified that when Simmons inquired he told Simmons he could not afford the insurance at this price, and that Simmons neither objected nor requested Bates to obtain the insurance or to surrender the property. Simmons does not appear to have actually denied this testimony. He did say that he never told Bates that he did not require insurance. It does clearly appear that appellees did not assert any rights arising from this alleged default until they filed their “cross-compláint” in this case. Any error in this respect, however, is harmless because a clear preponderance of the evidence shows appellants’ entitlement to rescission and the trial court did not give judgment for the balance due under the contract. Rather than do so, the court attempted to restore the parties to the situation in which they were when the contract was made.

Appellants also complain of the trial court’s finding that they were in default for failure to defend the title to the store building. The evidence shows that Mr. Bates had discussed the situation with Mrs. Simmons shortly after the service of process in a partition suit brought by co-owners of the land on which the building was located. He had given her a copy of it, which she promptly returned. No formal demand was made upon appellees to defend the title. Mr. Bates testified that he asked Mr. Simmons to deliver a copy of the 99-year lease to the attorney for the plaintiffs in the partition suit. He said that he took no other action to protect his rights relative to the store building because this attorney assured him that the store building belonged to the Bateses and that the land beneath it was not involved in the partition suit. He also stated that the heirs who were parties to the partition suit had agreed that he was entitled to use the store building site under a 99-year lease. This lease had not been mentioned in the contract of sale, no assignment of it to appellants was ever made, and Mr. Bates only asked Mr. Simmons to put a piece of paper purported to be the lease in a safety deposit box. Appellants took no steps to defend the partition suit, or to intervene in it, to remove the building or to contest the right of the purchaser at the partition sale to possession of it. There was evidence that the building could have been moved onto Block D.

Even if there were a duty on the part of the appellees to defend in the partition suit, appellants might well have acted to preserve their rights or minimize the loss, at least by attempting to remove the store building before the partition sale. Not having done so, they are in no position to complain about the chancery court’s holding in this regard, particularly in view of the fact that there was no cross-appeal from the chancellor’s holding appellees were also in default for failure to defend the title to the store building. Lindenborg v. M & L Builders and Brokers, Inc., 302 N.E. 2d 816 (Ind. App., 1973). Cf. Baston v. Davis, 229 Ark. 666, 318 S.W. 2d 837; Childress v. Tyson, 200 Ark. 1129, 143 S.W. 2d 45.

Appellants say that the chancellor erred in holding that damages to the parties were too nearly equal to award any judgment to either. But appellants conclude the argument by pointing out that neither party pleaded or proved damages. Since this is true, any error in harmless.

The most difficult question presented on this appeal arises from appellants ’ contention that the chancellor erred in considering the payments made under the contract as rent. We have concluded that the evidence does not support this holding. As we have pointed out, any liability based on contract terms that might have resulted from appellants’ failure to carry insurance is unfounded. As appellees pointed out, both parties ultimately asked that the contract be cancelled and rescinded, and the problem to be resolved was restoring the status quo, as nearly as possible. This was not to be easily accomplished because appellants had occupied and used the property for more than five years, during which time all payments called for by the contract had been made. It was stipulated that 68 monthly payments of $150 and five annual payments had been made and that the total amounted to $12,700. Possession had been held by appellants for 70 months. Witnesses for appellees placed the average rental value of the dwelling house during this period at $100 per month. A witness for appellants placed it at $37.50 per month. Appellants occupied the store building 64 months. Appellees’ expert witness fixed the rental value of this building at $75 per month, as against $37.50 per month stated by appellants’ expert.

Clearly appellees were entitled to be restored to the property sold. After five years of use and occupancy, it is hardly reasonable to say that by merely surrendering it to appellees, appellants had restored them to their precontract condition. But this restoration or return to status quo is governed by equitable principles, so applied in each case as will best subserve the undoing of wrong. Dermott Land & Lumber Co. v. Walter A. Zelnicker S. Co., 271 F. 918 (8 Cir., 1921); Berland’s Inc. of Tulsa v. Northside Village Shopping Center, supra. Although Mr. Bates testified that the physical condition of the house at the time of the trial was comparable to its physical condition at the time he took possession, for some reason he said that he did not feel that he was required to return or restore the property in the same condition that he received it and added that any deterioration had been due to natural aging and not because of abuse or neglect. On the other hand, Mr. Simmons testified that the house had been remodeled at the time the contract was entered into but was considerably run down at the time of the trial, and pointed out specific items that would require repairs, replacements and renovation. The expense for this restoration was not shown. The testimony of the expert witnesses as to the present value of the house and lot varied widely. Appellees’ expert valued it at $17,500, except for ordinary wear and tear since the sale. He did not state what the value would have been if the normal depreciation had been taken into consideration. It was his opinion that the property was worth $10,000 at the time of the sale. Appellants’ expert was of the opinion that the present value of the house was only $6,000. We would be unable to say from the evidence what adjustment, if any, should be made for restoring the dwelling house to its previous condition.

The chancellor decreed that appellants pay rent to appellees at the rate of $100 per month from the date of eviction. We consider this a finding that the current rental value was at that rate. It was the average rental value during appellants’ occupancy as fixed by appellees’ expert. It is considerably in excess of the rental fixed by appellants’ expert. The basis each of these witnesses used was subject to question because neither found a really comparable situation on which to base his opinion. The chancellor’s finding seems to accord more weight to the testimony of appellees’ expert, and we cannot say that it was erroneous to do so. In view of the very indefinite testimony about the relative condition of the property and its comparative value, and the lack of evidence of costs of repairs, it seems that the only practical means of restoration to appellees is by allowance of rent. Certainly, the requirement that appellants, as purchasers, pay rent to appellees, the sellers, for the time appellants occupied the property is equitable. Troxell v. Sandusky, 247 Ark. 898, 448 S.W. 2d 28.

For the house, we have arrived at the conclusion that the chancellor’s finding as to rent to be paid after March 1,1975, is fairly representative of average rental values over the period of occupancy by appellants. Appellants were also liable for interest on the rental value for each month. Otherwise, appellees would not be restored to status quo. Lutz v. Cunningham, 240 Iowa 1037, 38 N.W. 2d 638 (1949); Kunde v. O’Brian, 214 Iowa 921, 243 N.W. 594 (1932); Halcomb v. Ison, 140 Ky. 189, 130 S.W. 1070 (1910). See also, Storthz v. Williams, 86 Ark. 460, 111 S.W. 804.

This brings us to the problem of the store building. Its use as a store was discontinued by appellants in October, 1974, for economic reasons. Thereafter, appellants used it for storage of insulation used in a business commenced by Mr. Bates, and he said that it was useful for that purpose. But it developed that appellees had never been in position to deliver title to it, because the lease for the land it occupied had expired in 1963. In spite of this, the landowners seem to have laid no claim to the building but the purchaser at their partition sale successfully obtained possession of it. Obviously, appellees had possession of the building in 1969 or they could not have delivered possession to appellants, who had the use of it at all times for 68 months.

When the contract is rescinded because of the failure of the vendor’s title, he cannot ordinarily recover from the purchaser for the use and occupation, prior to rescission, of the land to which the title failed. Hough & Wood v. Birge, 11 Vt. 190 (1839); Griffith v. DePew, 3 A K Marsh (Ky.) 177, 13 Am. Dec. (1820). Upon rescission in equity, the courts require the purchaser in possession to account for rents during his occupancy as an offset to, or abatement of the consideration recovered, only when it appears that the purchaser cannot be made liable therefor to the owner of the paramount title to the property. Curtis v. Brannon, 98 Tenn. 153, 38 S.W. 1073, 69 LRA 760 (1897). When the purchaser is accountable to the actual owner for rents, the offset is not allowed. Webb v. Conn, 1 Litt (Ky.) 83, 13 Am. Dec. 225 (1822).

Applying equitable principles, appellants are entitled to recover the purchase money paid, with interest from the date of each payment. Shelton v. Ratterree, 121 Ark. 482, 181 S.W. 288. There should be credited against this total, the rental value of the dwelling house and grounds ($100 per month) with interest on the rental value for each month. No credit should be allowed for use and occupancy of the store building.

We conclude that appellees are not entitled to have the value of the store fixtures and the good will of the business they had been conducting there as part of their restoration to the position they occupied at the time of the sale. These were not a part of the property sold under the contract. Mr. Bates testified that he bought the stock, fixtures and equipment for $4,000 by a separate agreement and paid George R. Simmons by check for that amount on November 14, 1969 and exhibited the check. Simmons claimed that this payment was for inventory alone and did not include fixtures of the value of $2,000, most of which were probably not permanently affixed to the building. According to Simmons, these fixtures were a part of the property sold under the contract, but we do not agree with him that they should be considered as “structures and improvements” under the written contract, and we are inclined to accept appellants’ testimony in view of the fact that these items are not described in the contract.

Since real estate is involved, we remand the case to the chancery court for the entry of a decree consistent with this opinion.