text:
    J. W. WOODS v. Dr. William K. WRIGHT
    5-6173
    493 S.W. 2d 129
    Opinion delivered April 23, 1973

      House, Holmes &r Jewell, by: Robert L. Robinson Jr., and John B. Driver, for appellant.

      Hall, Tucker & Lovell, for appellee.
   John A. Fogleman, Justice.

Appellant contends there was error in a decree requiring him to specifically perform a contract for the sale of an undivided two-thirds interest in a 400-acre tract of land in Searcy County to Dr. William K. Wright. Appellant himself was a purchaser from J. A. Gates and Doris M. Gates, his wife. We find no reversible error on any of the four points relied upon by appellant, viz:

I. Appellant is a bona fide purchaser for value, and his equity in the 400 acres is superior to that of appellee, Wright, who should be restricted to his remedy of rescission and recovery of his purchase price from appellee, Gates.
II. The appellee, Doris M. Gates, never signed the contract of sale, and the equity acquired by the appellee, Wright, under the contract of sale is subordinate to that of Doris M. Gates, who was a tenant by the entirety with Wright’s vendor.
III. The appellee, J. A. Gates, was acting as agent for the appellee, Wright, when he sold the 400 acres in dispute to the appellant, Woods.
IV. The complaint-at-law filed by the appellee, Wright, is barred by the statute of limitations found in Ark. Stat. § 37-209.

On May 11, 1966, J. A. Gates entered into a written agreement for the sale of an undivided two-thirds interest in the land to Dr. Wright for $20,000 and an undivided one-third interest to Leon D. Hogg for $10,000. Wright paid $17,500 in cash and gave his note for $2,500 due in six months, which he paid approximately 30 days after its due date. Hogg was to have paid $4,000 cash and did sign a note for $6,000. He never paid anything on his obligations. The contract of sale provided that default by one of the purchasers would not affect the rights of the other. Gates and his wife Doris executed a deed to Wright and Hogg on May 18, 1966 without specifying the respective interests of the grantees. This deed was placed in escrow at Citizens Bank of Marshall, Arkansas, along with the contract of sale. Neither was ever recorded, even though the escrow agreement mentioned the recording of the deed. Having received no payments, other than those made by Wright, from either Hógg or Wright, Gates gave notice to Hogg on more than one occasion that he considered the contract of sale canceled and the money paid forfeited. He also notified the escrow agent to the same effect and the bank released the documents held by it to Gates, at his request, sometime in 1967.

On August 18, 1969, the Gateses conveyed the property by warranty deed to Woods, as trustee for an undisclosed beneficiary. Gates, for several months prior to this conveyance, had advertised the property for sale in Houston, Texas newspapers as “repossessed property,” and Woods had inquired about the property as a result. Gates advised appellant of the previous transaction and Woods required that Gates and wife convey by warranty deed and furnish title insurance. Appellant did not consult either Wright or Hogg before purchasing. All three lived in Houston.

In early 1971, Wright called Gates and the escrow agent and inquired about a deed to the property. Gates advised Wright of the sale to Woods and stated that he had considered the contract of sale to him and Hogg canceled in 1967 for nonpayment of the purchase price.

Wright instituted this suit on July 2, 1971. J. A. and Doris M. Gates, who do not appeal, filed an answer. Woods also answered by general denial, except for the admission that he had obtained a warranty deed from the Gateses on or about August 18, 1969.

It was admitted that Woods had been advised of the contract with Wright and Hogg, but Woods stated that J. A. Gates advised him that this contract had been canceled on account of the failure of the purchasers to pay the purchase price agreed upon. Woods claimed that he held title for himself and J. Frank Arterburn and that each owned an undivided one-half interest.

After hearing the testimony, the chancellor made extensive findings, which included the following:

1. Doris M. Gates signed the original copy of the contract with Wright and Hogg, which had been lost, misplaced or destroyed.
2. Mrs. Gates ratified the contract by joining her husband in the execution of the deed placed in escrow at Citizens Bank of Marshall.
3. The check for $2,587.50 of Dr. Wright was accepted and cashed by J. A. Gates and this fully discharged his obligations to the Gateses for a two-thirds interest in the land.
4. The Gateses had no right to cancel this contract or to obtain possession of the deed executed by them.
5. Woods is not an innocent purchaser for value, because he was advised of the transaction before his purchase and was shown the contract and had the opportunity to inspect it.

The court held that the deed to Wright and Hogg should be recorded, but divested Hogg of the title to an undivided one-third interest and vested it in Woods, as trustee. Hogg had executed a quitclaim deed of his interest to J. A. and Doris Gates on October 30, 1967. We shall discuss the points relied upon by appellant in order.

Appellant states that we must decide whether the disclosure to Woods of the unrecorded contract of sale with Wright and Hogg coupled with the disclosure by J. A. Gates of the actions taken thereunder by Gates to cancel the contract put Woods on sufficient notice to prevent his being a bona fide purchaser for value. We cannot say that the finding of the chancellor in this respect is clearly against the preponderance of the evidence. There is adequate evidence that Woods was informed of facts which would have put a reasonable man on inquiry to ascertain the rights of Woods in the transaction. His inspection of the contract should have disclosed to him that the default of one of the purchasers would not affect the rights of the other, that the sellers were obligated to place a deed, along with a copy of the contract, in escrow with Citizens Bank at Marshall, that there was no contract provision for forfeiture by the purchasers or cancellation by the sellers and that the contract called for the payment of most of the purchase price in cash. Yet Woods apparently accepted Gates’ statements at face value and made no inquiry of either Wright, Hogg or the bank, even though he and his associate came to Marshall before contracting to buy the property. Although he admitted in a discovery deposition that this information triggered some questions in his mind, Woods did not eve'n remember whether he asked Gates why the land was repossessed. He seemed to recall that Gates had related something about a down payment by Wright, but couldn’t recall the amount. Even though the property was advertised for $17,000, Woods offered only $14,000, knowing that the previous sale had been at $30,000. Woods knew that Gates had withdrawn the contract of sale from escrow.

It was only necessary that appellee show by a preponderance of the evidence that appellant had notice of such facts and circumstances as would put a man of ordinary intelligence and prudence on inquiry which, if diligently pursued, would lead to knowledge of his rights. Grayson v. Hughes, 166 Ark. 173, 265 S.W. 836; Valley Planing Mill Co. v. Lena Lumber Co., 168 Ark. 1133, 272 S.W. 860. Such proof may be made by circumstantial evidence. Krow & Neumann v. Bernard, 152 Ark. 99, 238 S.W. 19. Whatever is notice enough to excite attention, put a party on guard and call for inquiry is notice of everything to which the inquiry might lead, and whenever one has sufficient information to lead him to a fact he shall be deemed conversant with it. Henderson v. Ozan Lumber Co., 216 Ark. 39, 224 S.W. 2d 30; Millman Lumber Co. v. Bryant, 213 Ark. 277, 209 S.W. 2d 878. See also Holloway v. Eagle, 135 Ark. 206, 205 S.W. 113; Love v. Bryson, 57 Ark. 589, 22 S.W. 341; Reynolds v. Moseley, 32 F. 2d 979 (8th Cir. 1929). We find no error in this respect.

The chancellor found that the contract was signed by Doris Gates. He stated that he based his finding upon the testimony of J. A. Gates, the acceptance of the escrow by the bank, which the court inferred would not have been done unless both the grantors named in the contract had signed it, and a ratification by her through joining her husband in the execution of the deed to Wright and Hogg. The original of the contract had been lost and an unsigned carbon copy was introduced in evidence. Gates’ testimony as to his wife’s signature is somewhat equivocal. He was called as a witness by appellee and on direct examination testified that she had signed it before it was sent to Houston and repeated this admission after his attention was called to the fact that no signature of any party appeared on the copy exhibited. Later, on cross-examination, he professed confusion about the contract signed by his wife and said that he was mistaken in his testimony in that he was under the impression that the contract referred to was the original draft made by his attorney in Marshall, which had been signed by his wife. He explained that this draft was never signed by all parties and that he had signed the redraft, about which he was asked on direct examination, but that his wife had not. The first draft listed Wright as the only purchaser. The letter of transmittal by which Wright and Hogg sent the contract to the bank to be held in escrow referred to the contract as a contract of sale for 400 acres of land from J. A. Gates and Doris Gates to Wright and Hogg. Wright’s check for $17,500 payable to the bank for credit to the account of J. A. Gates and Doris M. Gates bears her endorsement. The note which Wright executed and paid was made payable to J. A. Gates and wife, Doris M. Gates. The deed placed in escrow with the bank was signed by Mrs. Gates. Mrs. Gates, a defendant in the action, did not testify and we find no explanation of this omission. When all these facts are considered together, we cannot say that the findings of the chancellor, who saw and heard Gates testify, were clearly against the preponderance of the evidence. In this respect we do not consider significant the fact that the deed did not specify that Dr. Wright was to have a two-thirds interest and Hogg one-third, as the contract provided, in view of the fact that the deed did not conform to the first draft of the contract, where Wright was to have been the sole purchaser. It was at least an attempted compliance with the contract. In weighing the testimony of Mr. Gates and considering the failure of Mrs. Gates to testify, the significance of their potential liability under their warranty to Woods cannot be overlooked.

> — i H-i I — <

As appellant points out, the testimony upon which he relies to establish an agency relationship between Wright and Gates is sparse indeed. He relies upon testimony of Dr. Wright that at a conference in his home when Gates was endeavoring to sell the land to Wright, Gates stated that he would be able to turn the property over within a year at a sizeable profit and would sell the property for Wright if Wright would buy it, coupled with Wright’s explanation of his lack of interest in the first contract under which he was to be the only purchaser. In making that explanation, Wright stated that the draft had to be revised to include Hogg as a purchaser and to substitute a deferred note and a down payment for a full cash payment in order to keep Gates interested in selling the property. It does not appear that this ingenious argument was advanced in the trial court and the issue does not appear to have been raised there. Gates certainly did not purport to have been acting as agent for Wright in selling the lands to Woods and his testimony lends no support to this argument. He could hardly have been acting as Wright’s agent if he was taking the position, as he did, that all rights of the appellee were forfeited.

IV.

We find no basis upon which we can sustain appellant’s argument that Wright’s cause of action was barred by Ark. Stat. Ann. § 37-209 (Repl. 1962) because it was not filed until more than five years after May of 1966, the month in which the contract was dated. A short answer to this contention might be that Gates, who did not appeal, pleaded the statute, but Woods did not. The Gateses moved to dismiss because of the bar of the statute, but Woods only demurred to the evidence. Be that as it may, Wright’s cause of action did not accrue before the note was due November 12, 1966. This would be the earliest date for the commencement of the running of the statutory period. While appellant argues that the contract provided for immediate delivery of the Gates deed, we do not so construe it. The contract provided that the deferred purchase money be secured by a vendor’s lien on the face of the deed and that the deed and contract be placed in escrow with the Citizens Bank of Marshall, to whom all deferred payments were to be made, and by whom proper receipts and acquittances were to be executed, but that the ’deeds were to be filed of record to reflect consideration of $10.00 and other considerations. It also prohibited the cutting of any timber, with certain exceptions, during the “life of the contract.”

If there had been no money to be paid and nothing had remained to be performed by Wright as purchaser to obtain delivery of the deed on the date the contract was signed appellant might be correct in his contention, because the cause of action would have accrued at that time. See Harris v. King, 16 Ark. 122. It may well be that Wright’s cause of action did not accrue until Gates repudiated the contract, because Gates was the holder of the legal title as a constructive trustee for the purchaser from the moment the contract was executed. McKim v. McLiney, 250 Ark. 423, 465 S.W. 2d 911; Williams v. Young, 71 Ark. 164, 71 S.W. 669; Harris v. King supra. In any event, Gates did accept the payment made by Wright in December 1966, and Wright was in no position to demand a conveyance pursuant to the contract, particularly for an undivided two-thirds interest, until this note was paid. Since the suit was brought within five years from the due date of the note the bar of the statute did not apply.

Since appellant has failed to demonstrate error in the decree, it is affirmed.


source: Caselaw Access Project

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

license: Public Domain

text:
    J. T. WILLIAMS v. Carl LEE d/b/a Carl LEE AGENCY
    5-6200
    493 S.W. 2d 122
    Opinion delivered April 23, 1973

      R. H. Mills, for appellant.

      Eugene Coffelt, for appellee.
   J. Fred Jones, Justice.

Carl W. Lee filed suit in chancery court against Harold Bryan and his wife and J. T. Williams and his son, Floyd, for $6000 in real estate brokerage commission. The case was transferred to circuit court where a jury was waived and a trial before the court resulted in judgments against Bryan for $3,000 and against J. T. Williams for $3,000. Only Williams has appealed.

Lee is a licensed real estate broker engaged in the real estate and insurance business in Benton County, Arkansas. The appellant Williams owned real estate in Seadrift, Texas, and advertised it for sale or trade in a Benton County newspaper. Mr. Lee saw the advertisement, got in touch with Mr. Williams by phone and Williams came to Benton County to look at property Lee had listed for sale. Lee took Williams to see some land belonging to a Mr. J. T. Smith in southern Missouri, and took him to see a farm in Benton County belonging to Harold Bryan and his wife. Williams was not interested in trading for the Smith property in Missouri but did become interested in trading for the Bryan farm. Bryan went with Williams to Texas and inspected Williams’ Seadrift property. Mr. and Mrs. Bryan then went with Williams to Williams’ attorney in Fort Smith and had a sales agreement drawn and deeds prepared for the exchange of their properties. No cash was involved in the transaction. The agreement signed by Mr. and Mrs. Bryan and Mr. and Mrs. Williams was notarized in Fort Smith on May 27, 1971. The deed from Mr. and Mrs. Bryan was made to Teddy Floyd Williams, the son of appellant J. T. Williams, and notarized by Mr. Max Cooper, a practicing attorney and notary public in Rogers, Arkansas, on July 10, 1971.

When Mr. Lee learned that the deed from the Bryans to Williams had been filed for record, he filed his complaint alleging that the Bryans had listed their property with him for sale or trade; that he had caused Williams to become interested in the purchase of the property, and that as a result of Lee’s services Mr. and Mrs. Bryan executed their warranty deed to Teddy Floyd Williams conveying the property to him on July 10, Í971. He alleged that J. T. Williams was the real purchaser and the conveyance to Teddy Floyd Williams was executed with the willful and deliberate intention of deceiving and defrauding him out of his real estate commission. He alleged that prior to July 10, 1971, Harold Bryan and J. T. Williams agreed to pay him the sum of $3,000 each as a real estate commission. He alleged that as a result of the deceit, fraud and conspiracy practiced by the defendants, he was entitled to a judgment against them in the sum of $6,000. Mr. and Mrs. Bryan, as well as J. T. Williams, filed their answers denying the allegations in Lee’s complaint. On his appeal to this court Williams has designated the points he relies on for reversal as follows:

"The Court’s finding that Appellee was not a volunteer is against the weight and preponderance of the evidence and constitutes reversible error.
The Court’s finding that the acceptance of the services of a real estate broker, knowing he was a broker, entitles such broker to a real estate commission, is against the law and evidence and constitutes reversible error.
The Court’s reliance upon custom and usage in determining the question of fact as to the existence of an agreement for a real estate commission is against the law and the evidence and constitutes reversible error.
The Court committed prejudicial error in refusing to let Richard Hurd testify.”

We find it unnecessary to devote much time to the separate discussion of the points because as we interpret the trial court’s findings, .the judgment was based on a finding that Williams agreed to pay one-half of the real estate commission in the amount of $3,000, and if there is any substantial evidence to sustain this finding, we must affirm. Courtney v. G. A. Linaker Co., 173 Ark. 777, 293 S. W. 723. See also Vanemburg v. Duffey, 177 Ark. 663, 7 S. W. 2d 336.

Mr. Lee testified that the Bryans listed their property with him for sale or trade at a list price of $110,000. This was admitted by Bryan and was not denied by Williams. Lee said the listing was an “open listing” as most of his listings are, and that an “open listing” simply means a “verbal listing.” Much of the testimony in this case, however, was directed toward evidence of a “verbal listing” by Mr. Williams of his Texas property for sale or trade by Mr. Lee, and Mr. Lee’s right to dual commissions on the exchange of the properties between Williams and Bryan. Mr. Lee did not allege, or even suggest, such listing in his complaint. In the trial court’s findings he did comment on portions of the large body of law pertaining to real estate commissions under such circumstances, but the judgment against Williams was based on his separate agreement to pay $3,000 as one-half of Lee’s commission, all of which could have been charged to or collected from Bryan. We do not agree with Mr. Lee’s statement that an “open listing” simply means a “verbal listing.” See Miller v. Jones, 54 Tenn. App. 31, 387 S. W. 2d 627. What we said in Bennett v. Wisdom, 248 Ark. 702, 453 S. W. 2d 396, is applicable to the situation in the case at bar. In Bennett we said:

“The fact that Wisdom is a licensed realtor vests him with no benefits in this case outside the affirmative provisions of his contract with Bennett. Perhaps such contract should be within the statute of frauds but it is not. Dallas v. Mosely, 150 Ark. 210, 233 S. W. 1084; Blanton v. Jonesboro B & L Association, 176 Ark. 315, 3 S. W. 2d 964. So long as a realtor’s right to a commission may rest in oral contract, such contract may be proved by oral testimony; and so long as a contract may be proven by oral testimony, trial courts and juries must resolve conflicts in such testimony.”

We deem it unnecessary to set out the testimony in detail. We have carefully reviewed the entire record and there is no question that Lee had a verbal contract or listing to sell or trade the Bryan property. Both Lee and Williams admit and recognize such agency. There is no question that Lee showed the Bryan property to Williams and that Williams was immediately interested in trading.

As a matter of fact both Bryan and Williams seem to admit that Lee has earned a real estate commission on the transaction and the amount of it is not questioned. Williams contends that Bryan should pay it and Bryan contends that Williams should pay half. Lee and Bryan testified that Williams agreed to pay one-half of the commission but Williams denied he ever agreed to pay any of the commission. Mr. Lee said he first took Williams to look at the Smith property he had listed in Missouri and then showed Williams the Bryan farm. He said that after he showed Williams the Bryan farm they returned to the Bryan driveway and that Mr. Bryan was in the pickup truck with him and Williams. He then testified as follows:

“Q. Now, did you have a deal closed at that time? Did you have a firm agreement that there was going to be a sale between these people or trade?
A. We had an agreement, Mr. Williams agreed to trade right there in the pickup truck and then that was when we got down to the commission part and each one agreed to pay me three thousand dollars a piece.”

Mr. Lee testified that under his agreement with Bryan his commission would have been $7,200 at 6% but that in the event of a trade he agreed to reduce his commission to $6,000.

Mr. Bryan testified in part as follows:

“Q. Was there — did Carl Lee make any statement there in your presence and J. T. Williams’ presence in regard to a real estate commission? And if so, what amount it was?
A. My place was listed at one hundred ten thousand dollars and J. T. Williams had his place, at that time, at a value of approximately one hundred fifty thousand dollars evaluation. Carl Lee rounded out the figure at one hundred thousand dollars and figured a commission on that on a trade, which would be six thousand dollars. Each one paying three thousand dollars. And I made the statement then I will do whatever is right.
Q. What did J. T. Williams say?
A. I don’t recollect what J. T. Williams said.”

Mr. Bryan said that after he entered into the contract with Mr. Williams at the attorney’s office in Fort Smith, he took his listings out of the newspaper and didn’t want Mr. Lee to know he had traded with Williams. He said that Williams had convinced him that Lee was not entitled to a commission. He testified that when he went to Max Cooper’s office to sign the deed, his wife was worried that Mr. Lee might later claim his commission and she did not want any kind of lawsuit. He said Williams agreed at that time that if they were sued and had to pay a commission, he would pay one-half of it. He then testified that he and Williams went to see a Mr. Hurd with the idea of transferring title to the farm to Mr. Hurd, who would in turn transfer it back to Williams “after everything cooled off.” He said the property was not transferred to Hurd but that Mr. Williams kept coming back with different ideas and finally said to put the title in Teddy Floyd’s name. He said that up to a point, he tried the best he could to avoid paying a commission to Mr. Lee, but that in order to clear up his integrity and character, he now desires to pay him. He said he was not thinking about his integrity and character at the time he was dealing with Williams but that his wife was.

Mr. Cooper testified that Williams made the appointment to have the Bryan deed acknowledged; that he recalls Mrs. Bryan being upset about the possibility of litigation over the realtor’s commission but he does not recall what was said. Mr. Hurd was called as a witness by Williams. He was not permitted to testify as to conversations between Bryan and Williams out of the presence of Lee. He did testify that he was acquainted with Bryan and Williams; that they came to see him and that he had never known or seen Bryan prior to that one time. Bryan said it was Williams’ idea to deed the property to Hurd until things “cooled off” and Williams said that it was Bryan’s idea. Mrs. Bryan did not testify.

Mr. Williams testified that Mr. Lee called him in regard to the advertisement he had placed in the Rogers newspaper and that he told Mr. Lee he was interested in trading for a farm. He said he wanted a farm in Benton County where his other farmland was located, but that Mr. Lee first showed him some land in Missouri and there was nothing at all mentioned about a realtor’s commission. He said that Mr. Lee next showed him a rooming house which he had listed and then showed him the Bryan farm. He said after looking at the corners of the Bryan land they drove back to the Bryans’ house and that Mr. Bryan was in Lee’s pickup truck with them most of the time at the Bryan farm. He said he heard Mr. Lee say something to Mr. Bryan about a commission, “he told Harold he would have to pay something. I don’t hear too well, but I believe he said that.” Mr. Williams denied that he ever did discuss paying Mr. Lee a commission. He said he told Mr. Bryan and Mr. Lee he was interested in the property but would have to talk with his son before making a firm offer to trade. He said he took Mr. Bryan to Texas to inspect the Seadrift property and after returning from Texas, he and Mr. Bryan went to Fort Smith and had his attorney draw up an agreement on the exchange of properties. He said on July 10, which was a Saturday, Mr. and Mrs. Bryan came to his home; that Mrs. Bryan was upset and wanted to know what to tell people, whether they had a trade or not. He said that under their agreement the Bryan deed was not to be made until later but Mrs. Bryan wanted to get the deal over with. He said he then called Mr. Cooper who agreed to meet them at his office so they went to Max Cooper’s office where Mr. and Mrs. Bryan executed their deed. He then testified as follows:

“Q. Was there any conversation at that time about a commission owed to Carl Lee?
A. Uh, yes, Mrs. Bryan was very upset about the commission all the way through and she made the statement there to Mr. Cooper and then she said, we’ll just go ahead and get this over and go by and take care of that with Mr. Carl Lee.
Q. All right, did you at that time make any agreement to pay a commission?
A. I did not.”

Mr. Williams denied that he was insisting that the Bryans close the deal and on this point he testified on cross-examination as follows:

“Q. Okay, in other words, Bryan was insisting on the deed being made, is that correct?
A. Mr. Coffelt, ever since this come up, Mrs. Lee, pardon me, Mrs. Bryan was very upset and they come to our house and they wanted to back out of the deal. And we told them we would back plumb out, and we give ’em, they said then, we sat and talked a while, and they wanted to wait until Wednesday to make up their minds. And we waited until Wednesday and then we went down there and they said they made up their minds to go ahead through with the deal. Now, that’s the truth of the whole thing.”

Mr. Williams said that Mrs. Bryan was considerably upset all along; that she talked about paying Carl Lee and tried to get Mr. Bryan to go pay Mr. Lee. He said that Bryan left and then came back and said that Mr. Lee had agreed to take a cow and calf for his commission.

Mr. J. T. Smith testified that he had some property in Missouri listed with Mr. Lee for sale or trade, and Mr. Lee brought Mr. Williams to look at the property. He said that Lee told him and Williams that if they traded properties, the real estate commission would be equally shared by them. He said that Mr. Williams was present and heard the statement made by Mr. Lee, but that he does not know what Mr. Williams’ response was. He then concluded his testimony as follows:

“A. Well, he told us that we would share the commission.
Q. But you didn’t know anything about what the agreement he and Mr. Williams actually had, did you, about the listing of the property in Texas?
A. No, not a thing.
Q. And you said when he told you that the commission would be shared that you don’t remember what Mr. Williams’ response was, do you?
A. No.”

On rebuttal Mr. Bryan denied that he called Mr. Williams and insisted that they execute the deed and get the transaction out of the way.

The proffered testimony of Hurd had he been permitted to testify was to the effect that Bryan approached him about taking title to the property. Bryan denied that he suggested the conveyance to Mr. Hurd in order to beat the real estate commission. He admitted that he and Williams went to see Mr. Hurd about taking title to the property. He said, however, that he had never met Mr. Hurd and that it was Mr. Williams who asked Hurd about taking title to the property to avoid payment of realtor’s commission.

Hurd’s testimony would have been admissible had the proper foundation been laid, but it would only have gone to the credibility of the testimony of Bryan and Williams as to which one suggested temporary title in Hurd and the reason therefor. There is little question that both Bryan and Williams went to considerable length in avoiding the payment of a commission to Lee.

The evidence clearly indicates that Williams was anxious to trade properties as soon as he saw the Bryan property. The evidence also clearly indicates that Mrs. Bryan was upset about the entire transaction and especially about the possibility of having to pay a commission on the trade. Williams first said that when the Bryans came to his home on July 10, Mrs. Bryan was upset because she was unable to tell people whether there had been a trade or not and the Bryans wanted to get the transaction over with. On cross-examination he said the Bryans were wanting to back out of the deal and wanted to wait until Wednesday before executing their deed. The trial court might well have reasoned that in order to save the deal Williams did offer, in Max Cooper’s office, to pay one-half the commission as Bryan testified he did. This evidence would tend to corroborate Lee’s testimony that Williams promised to pay one-half of the commission in the amount of $3,000 if the trade was consummated. In any event, the trial court correctly found from a preponderance of the evidence, that Mr. Lee was not a volunteer in bringing the parties together and that Mr. Williams as well as Mr. Bryan knew that Mr. Lee would expect to charge a commission on the trade made between them. The attorneys argued the law on evidence as to dual agency and commissions as well as to a real estate agent’s status as a volunteer. The trial court reviewed some of the law as related to the various arguments made by the attorneys but as we interpret the record, the trial court rendered the judgment on findings as follows:

“. . . considering all the circumstances and the later action by the defendant indicates to me that the defendant knew that he would expect a commission. And this indicates to me that the commission was, as has been testified, discussed as being split, because here is something else that this court knows and every other court knows; and that is, that it is an almost inflexible rule in real estate trades in this area that where there is a trade of equity for equity or property for property, and no cash or hard money changes hands, that each party pays presumably half or at least a part of the brokerage fee depending on the relative value of the property in trade. And in this case the testimony was that there was an agreement as to a fifty-fifty split, and it’s reasonable. I have no other way to decide the fact questions on whether there was an agreement as to commission or not. When one side says there was, and the other side says no there wasn’t except on what is reasonable under the circumstances. And what probably took place because of the circumstances that have been related in evidence and on that basis I find that there was such an agreement. And that the commission was owed because the parties interfered and prevented the broker from completing the transaction.”

Certainly such mere announcement by Mr. Lee, as testified by Mr. Smith, that if the parties trade properties the real estate commission will be equally shared by them, does not create a binding contract for the payment of commission. Neither does custom and usage alone create binding contracts. As we interpret the above finding, the trial court did not rely upon custom and usage in determining the question of fact as to the existence of an agreement for a real estate commission. As we interpret the trial court’s findings, he based his findings on evidence that Williams agreed to pay one-half of the real estate commission to Lee in the amount of $3,000 and in the light of the circumstances, including local custom, he did not find the testimony that Williams did agree to pay one-half of the commission to be unreasonable. We conclude that the judgment must be affirmed.

Judgment affirmed.

Harris, C.J., and Fogleman, J., dissent.

John A. Fogleman, Justice,

dissenting. I dissent because it seems obvious to me that the court into consideration local custom and usage as a circumstance in determining where the preponderance of the evidence lay on the question whether there was an agreement on the part of appellant to pay a real estate commission.

I am authorized to state that the Chief Justice joins in this dissent.


author: Conley Byrd, Justice.

text:
    Albert T. SCOTT v. STATE of Arkansas
    CR 73-7
    493 S.W. 2d 143
    Opinion delivered April 23, 1973

      William C. McArthur, for appellant.

      Jim Guy Tucker, Atty. Gen., by: Gene O'Daniel, Asst. Atty. Gen., for appellee.
   Conley Byrd, Justice.

Appellant Albert T. Scott seeks to set aside his guilty plea to a robbery charge on the ground that the charge should have been dismissed for failure to prosecute within the speedy trial provisions of Ark. Stat. Ann. § 43-1708 (Repl. 1964), to wit:

“If any person indicted for any offense, and committed to prison, shall not be brought to trial before the end of the second term of the court having jurisdiction of the offense, which shall be held after the finding of such indictment, he shall be discharged so far as relates to the offense for which he was committed, unless the delay shall happen on the application of the prisoner.”

The record shows that a robbery occurred on October 14, 1967, in which appellant and two other persons were involved. Charges were filed on November 22, 1967, while appellant was a fugitive. He was not arrested until September 24, 1970. The September term of court commenced on September 28, 1970, and did not end until the March term began on March 1, 1971. During the March term appellant entered a plea of guilty on July 7, 1971.

The record conclusively shows that appellant after his arrest was brought to trial before the end of the second term commencing after his arrest. Thus he does not bring himself within the terms of the statute. See Stewart v. State, 13 Ark. 720 (1850).

Affirmed.


author: Frank Holt, Justice.

text:
    Henry Allen REDDING v. STATE of Arkansas
    CR 73-16
    493 S.W. 2d 116
    Opinion delivered April 23, 1973

      L. K. Collier and Rice L. Van Ausdall, for appellant.

      Jim Guy Tucker, Atty. Gen., by: Frank B. Newell,
      Deputy Atty. Gen., for appellee.
   Frank Holt, Justice.

By information the appellant was accused of the crime of robbery with the use of a firearm. A jury found the appellant guilty of robbery and assessed his punishment at three years imprisonment in the state penitentiary. Also, an additional three years was imposed by the jury for the use of a firearm. The trial court ordered the sentences to run consecutively. For reversal the appellant contends that Ark. Stat. Ann. §43-2336 — 2338 (1971 Supp.), our “firearm statute,” is unconstitutional. The statute permits a separate appeal from the judgment on the use of a firearm and it is only from this part of the judgment that the appellant appeals. In pertinent part § 43-2336 reads:

“***[A]ny person convicted of any offense which is now, or may hereafter be, classified by the laws of this State as a felony, and the person so convicted employed any firearm of any character as a means of committing or escaping from said felony, may, in the discretion of the sentencing court, be subjected to an additional period of confinement in the State penitentiary for a period not to exceed seven (7) years.***”

§ 43-2337 provides that any additional sentence shall run consecutively.

In Johnson v. State, 249 Ark. 208, 458 S.W. 2d 409 (1970), we set aside that portion of the trial court’s judgment which added a seven year penalty for the use of a firearm in a robbery. We found that necessary because of two procedural defects: (1) the use of a firearm was not alleged in the information and (2) the court made an independent determination as to the use of the firearm and then added a seven year sentence to the 15 year sentence the jury had imposed. Therefore, we said appellant was deprived of his constitutional right to be informed of the nature of the accusation against him as well as the right of trial by jury.

In the case at bar these procedural defects do not exist. The trial court first, by standard instructions, submitted to the jury the robbery issue and a verdict form as to the guilt or innocence of the defendant of the crime of robbery. After the jury returned a verdict of guilty, the trial court then submitted to the jury a verdict form authorizing the jury to assess a penalty (3 to 21 years, § 41-3602) for the crime of robbery. At the same time the court instructed the jury “that if you find beyond a reasonable doubt that the robbery was committed through the use of a firearm, you may, in your discretion, assess an additional penalty not to exceed seven (7) years.” A verdict form was, also, submitted authorizing the jury, in its discretion, to assess additional punishment (0 to 7 years, § 43-2336) for the use of a firearm. The jury as previously indicated, assessed a penalty of three years for robbery and a separate or additional sentence of three years for the employment of a firearm. Therefore, it cannot be said there was any infringement upon the constitutional rights of the appellant with respect to being informed as to the nature of the charge as well as trial by jury of a factual issue.

The thrust of appellant’s argument is that the firearm statute is unconstitutional on its face inasmuch as it contains language which permits an additional sentence to be imposed in firearm cases “in the discretion of the sentencing court.” By using the words “sentencing court,” the appellant asserts that the legislature intended the trial judge as the fact finder in the use of a firearm and imposition of a sentence and, therefore, contravenes the constitutional right of a trial by jury as guaranteed by the Ark. Const., Art. 2, § 7.

In statutory construction it is well established that an act of the legislature is presumptively constitutional and all doubt as to its validity must be resolved in favor of the act unless it is clearly incompatible with our constitution. Bush v. Martineau, 174 Ark. 214, 295 S.W. 9 (1927). If the words used by the legislature are sufficiently flexible then the act should be construed to effectuate the legislature’s intention. Standard Oil Co. of Louisiana v. Brodie, 153 Ark. 114, 239 S.W. 753 (1922). As was observed in the concurring opinion in Johnson v. State, supra, the “court” in criminal trials in our state ordinarily consists of judge and jury and the words “the sentencing court” have no definite meaning.

When we apply our rules of statutory construction, we hold the act is constitutional. We are of the view that the legislature’s use Of the words “sentencing court” was intended by the legislature to refer either to the judge or the jury and that the factual issue as to the use of a firearm is to be determined by the trial court if a jury is waived and otherwise by the. jury as in the case at bar.

Affirmed.

Fogleman, J., not participating.


author: Carleton Harris, Chief Justice.

text:
    Jerry BOYETTE v. STATE of Arkansas
    CR 73-18
    493 S.W. 2d 428
    Opinion delivered April 30, 1973

      Louis W. Rosteck, for appellant.

      Jim Guy Tucker, Atty. Gen., by: O. H. Hargraves, Deputy Atty. Gen., for appellee.
   Carleton Harris, Chief Justice.

Appellant, Jerry Boyette, was tried by the Pulaski Circuit Court (Fourth Division), sitting as a jury, on a charge of possessing stolen property, two air conditioners, was found guilty, and sentenced to five (5) years imprisonment in the Arkansas Department of Correction. From the judgment so entered, appellant brings this appeal. For reversal, three (3) points are asserted which we proceed to discuss, though not as separate points since they are closely related.

It is contended, that the. State failed to prove, that appellant was in possession of alleged stolen goods. Ed Presley, a Pulaski County Deputy Sheriff, arrested Boyette on May 22, 1972, in the salvage yard of the Southwest Auction Company in Little Rock. This company was owned by Dick Emerson. Presley and another officer had driven by this location after receiving a tip, and they observed appellant unloading, from a U-Haul truck, three (3) cartons. They turned around, went back to the salvage yard, stopped, and observed Boyette in the back end of the truck, which contained about fifteen (15) more cartons, later proved to contain air conditioners. Emerson was present in the building but the officers did not see him do any unloading. They learned that a number of air conditioners belonging to Oklahoma Tire and Supply Company were missing from the company warehouse, and Detective Keith Rounsavall subsequently opened all the cartons and testified that they contained air conditioners. A rental contract bearing Boyette’s name was found in the glove compartment of the truck, this contract reflecting that the truck had been rented on May 21, 1972, at 11:00 A.M., and was to be returned on May 22 (date of the arrest).

Charles Per key, Assistant Manager of Oklahoma Tire and Supply Company, testified that sixty-three (63) air conditioners were missing from the company warehouse in Little Rock. The sheriff’s office had taken several pictures of air conditioners, including close-ups of two (2) of the cartons found in the truck, these cartons containing air conditioners, and bearing the stock number, the model number, and serial numbers. The witness said that the stock at the warehouse had not been checked since March 14. Perkey did not actually see the air conditioners themselves, only the cartons, but he testified that the manufacturer places the serial number on the outside of the box as well as on the air conditioner itself. He said that the two (2) air conditioners constituting Exhibits 8 and 9 were of the value of $273.05.

At the conclusion of the State’s case, counsel for appellant moved that the case be dismissed on the basis that the witnesses only saw some cartons which purportedly contained air conditioners; the motion was denied. In making this motion, it would appear that the testimony of Rounsavall was overlooked.

Boyette testified that he had been acquainted with Emerson for several years, the latter operating a secondhand store, and holding an auction every other Friday night. Appellant stated that on the 21st of May, Emerson asked if he (Boyette) knew where Emerson could “get some televisions” and Boyette told him that he did not. Further, Boyette testified:

“I told him I was going to Old Mexico, that I’d been down there and bought some pictures and stuff and then he wanted to know if I was going in my truck or what I was going to do. I told him I was going to rent a truck. He said, well he needed a used truck and that if I’d go with him that he’d pay part on a truck if I’d rent it and let him use it, so I did.”

The U-Haul truck was then rented. Still further, from the record:

“Well, I let him use the truck that day. He was going to move some stuff from the auction or something he’d bought or something, I don’t know just what, he’s going to move something, so I let him use the truck, and the next morning when I go to pick up the truck, he told me that he had some stuff on there and we had to unload it. *** Well, I takened the truck and go on over to his place of business and I sat over there and waited and waited and waited till he. he was a long time about getting there and I kept waiting, so I started to go back to his house to see what was the matter. About that time he come up over there and he wanted to know if I knew anybody that I could get to help unload them things. And I told him I did not.”

Boyette testified that he unloaded two (2) of the boxes which he assumed contained air conditioners, and that Emerson had also unloaded one (1) before the arrest was made. When asked by his attorney if he knew the merchandise had been stolen, Boyette responded:

“Well, from the way he was. acting, I, I had it figured, but I didn’t say nothing. I mean, he never did say nothing about it was stolen. I didn’t ask him where he got it.”

It is argued that under the proof, Boyette was not guilty of possession. In his brief, appellant states:

“The question is — does the fact that the defendant was seen unloading some cardboard boxes and was inside the truck, constitute possession? It is candidly admitted that without some valid explanation, it might be. But, the defendant plausibly explained that he had let Dick Emerson use the rented truck the day before, and that he was not aware that the truck was loaded with anything until Dick Emerson told him the next day. He then took the truck to Dick Emerson’s place of business and waited until Emerson arrived, and both started unloading the truck. There is nothing to dispute the defendant’s testimony.”

That Boyette actually had possession of the stolen merchandise, of course, cannot be denied since, as stated by appellant, he was unloading cartons when first observed by the officers, and was in the back end of the truck apparently preparatory to continuing the unloading when arrested. It is, of course, axiomatic that the court was not required to accept or believe appellant’s explanation. Whether he was telling the truth was a fact question to be determined by the circuit court, sitting as a jury. There were, however, additional facts which conflict with the contention of innocence. Boyette testified “I had it figured,” meaning that he thought the property was stolen, and he mentioned that Emerson had wanted him to take the truck “with that stuff on it” to Texas. There is another fact, however, that is even more incriminating and indicates that his contention of innocence could not be taken at face value. It has earlier been mentioned that a rental contract had been found in the glove compartment of the truck, this contract reflecting that the truck had been rented on May 21 at eleven o’clock a.m. and was to be returned the next day _at eleven o’clock. Boyette admitted that he had entered into the contract and admitted signing it. Let it be remembered that he also testified that this U-Haul truck had been rented for the purpose of going to Old Mexico, where he intended to pick up some pictures and “stuff” that had been previously purchased. Yet, according to his testimony, because Emerson put up a $25.00 deposit, Boyette postponed his trip in order that Emerson could use the truck overnight. Of course, it would be impossible for one to drive from Little Rock to the nearest point in Old Mexico on May 22 and return by 11:00 P.M., and, for that matter, it would be well nigh impossible to make the same trip had he started at 11:00 A.M. on the 21st.

In the case of Daniels v. State, 168 Ark. 1082, this court said:

“The rule has long been maintained by this court that unexplained possession of property recently stolen constitutes legally sufficient evidence to warrant a conviction, either of larceny or receiving stolen property. Sons v. State, 116 Ark. 357; Mays v. State, 163 Ark. 232. The weight to be given to the testimony and the inference to be drawn therefrom are questions for the jury. It was a matter for the jury to determine the reasonableness and sufficiency of the explanation given by the accused of his possession of the stolen property.”

Appellant, in his brief, frequently mentions that Emerson was not arrested, but we are here only concerned with the guilt or innocence of Boyette. On cross-examination, counsel for appellant only asked Officer Rounsavall if Emerson was arrested and when the reply was in the negative, the matter was not pursued further. In cross-examining Presley, several questions were asked, but here again, upon asking if Emerson had been arrested and receiving a reply in the negative, the matter was not pursued further, i.e., no questions relative to why he was not arrested, why he was not subpoenaed, etc. were asked.

The circuit court, sitting as a jury, heard all of the evidence and it was the court’s function to weigh these facts and render its decision. We think and hold that there was substantial evidence to support the verdict.

Affirmed.

      Appellant, in his brief, also states that the "possession” (by Boyette) is not based on the cartons which the deputy sheriff obsa'ved Boyette unloading, but two (2) of the cartons that were in the back end of the truck. No objection of this nature was made during the trial; for that matter, when observed by the officers, Boyette appeared in possession, and engaged in the continuous unloading of all merchandise in the truck.

      Subsequently, on cross-examination, the record reveals the following:
      “Q Well, you testified a minute ago that you had a pretty good idea that the stuff was hot. Why did you think it was hot?
      A Because he was coming back wanting the truck, wanting to go on to Texas. He said something about me taking the'truck with that stuff on it to Texas and I told him I would not.”

      It cannot be determined from the carbon copy of the contract in the record whether the return was to be at 11:00 A.M. or 11:00 P.M.

      From the record:
      “Q Did you question him about it? Mr. Emerson?
      A We asked him who he was buying it from.
      Q Well, I ask you did he admit unloading any?
      A No.
      Q Huh?
      A No, sir.
      Q Did you ask Mr. Emerson who he was buying it from?
      A Right.
      Q In other words, he was involved in stolen merchandise? Is that what you’re saying?
      A He hadn’t bought anything, as far as I know. I don’t know—
      Q (Interposing) Has Mr. Emerson been arrested?
      A No, sir.”


author: George Rose Smith, Justice.

text:
    Zettie MOSLEY v. EL DORADO SCHOOL DISTRICT et al
    73-9
    493 S.W. 2d 427
    Opinion delivered April 30, 1973

      Camp if Thornton, for appellant.

      Shackelford if Shackelford, for appellees.
   George Rose Smith, Justice.

This workmen’s compensation claim is for disability and medical expense resulting from an operation to correct a ruptured disc in the claimant’s back. The Commission denied the claim on the ground that the claimant had failed to prove by a preponderance of the evidence that her back was accidentally injured in the course of her employment. The circuit court affirmed the Commission’s decision.

The appellant, although recognizing that the substantial evidence rule is controlling, in effect argues that the Commission’s decision is contrary to the preponderance of the proof. We, however, are not concerned with the weight of the evidence: The Commission’s findings have the force of a jury verdict and must be sustained if they are supported by substantial evidence. Herman Wilson Lbr. Co. v. Hughes, 245 Ark. 168, 431 S.W. 2d 487 (1968).

There is ample substantial testimony to support the Commission’s denial of the claim. Mrs. Mosley was employed by the appellee school district in the cafeteria kitchen. For some years she had occasionally experienced pain in her back. She testified that on or about February 15, 1969, she injured her back while lifting a box of oranges from a freezer. She was not disabled, however, and continued to work regularly for another month.

On March 14 the claimant again hurt her back at home while she was lifting a load of clothes at her washing machine. She testified that for the first time the pain ran down her leg. Two days later she consulted Dr. Turner, whose case history mentioned only the incident at the washing machine and went on to state: “She has had no previous episodes similar to this.” Mrs. Mosley admits that Dr. Turner must have obtained his information from her. Dr. Turner prepared for Mrs. Mosley an insurance claim in which it was indicated that the injury did not arise out of her employment. Dr. Turner diagnosed the claimant’s condition as a ruptured disc and suggested the possibility of surgery, which was actually done a few days later. Dr. Lester, the surgeon, testified that in his opinion the disc was already weakened and probably ruptured when Mrs. Mosley lifted the load of washing. Dr. Lester stated that the claimant’s work, involving the lifting of from ten to twenty pounds, could also have been an aggravating factor.

Upon the conflicdng substantial evidence in the record the Commission might have allowed the claim or might have denied it. The question here, however, is whether the testimony supports the finding that was made, not whether it would have supported the contrary conclusion. Reynolds Mining Co. v. Raper, 245 Ark. 749, 434 S.W. 2d 304 (1968). Upon the proof in the record we have no choice except to uphold the Commission’s decision.

Affirmed.


author: Lyle Brown, Justice.

text:
    SUPERIOR IMPROVEMENT COMPANY v. Lillian Aldridge HIGNIGHT
    73-8
    493 S.W. 2d 424
    Opinion delivered April 30, 1973

      Moses, McClellan, Arnold, Owen & McDermott, for appellant.

      Smith, Williams, Friday, Eldredge ir Clark, by: Boyce Love, for appellee.
   Lyle Brown, Justice.

This is a workmen’s compensation case. Appellee-claimant asserted that she suffered a compensable fall in the course of her employment and was sustained by a unanimous commission and the circuit court. Appellant here contends that the finding that claimant suffered a fall on appellant’s premises is not supported by substantial evidence; that if she did suffer such an occurrence it was not the cause of claimant’s injuries; and that error was committed in not finding that the healing period ended on or about September 1, 1971.

Appellee, a sixty year old widow, was a telephone solicitor for appellant at the place of business on Broadway in Little Rock. Appellant was engaged in the business of selling and installing aluminum siding, doing quite a volume of business. Solicitors would obtain business by calling prospects listed in the telephone directory. If a call resulted in a favorable reception, the name of the prospect would be given to a solicitor who would contact the prospect and endeavor to firm up a sale.

If appellee-claimant sustained a fall on appellant’s premises, then here are the facts in capsule form which sustain the contention. Appellee and Phyllis Wyatt were on duty at the company headquarters on the night of July 20, 1971, working in different rooms which appear to have been adjacent. We gather that there were four offices which joined. Between the warehouse and the offices there is a glass and appellee was sitting with her back to the glass with her headphone in place. Her attention was attracted by a noise or a shadow which caused appellant to look up. Through the glass she could see a man “in a staggering position and pathetic looking.” She hurriedly locked the door just to her back, which door was between the warehouse and the office. She called to Phyllis to lock her door because a man might be coming in on them. Phyllis locked the back door and then went to lock the door to the manager’s office. At the same time appellee went from her desk to the front office to lock the door that led in off the street. She was hurrying because she wanted to beat the man to the door. In the front office there was a box on the floor containing a substantial amount of literature and it was in appellee’s path. The box was almost as high as appellee’s knees. She tripped over the box and fell completely over it and on to a floor of concrete and tile. She hurriedly scampered to her feet and reached the door just as the man was reaching for the door knob. She managed to get it locked and the man turned and went down Broadway.

Phyllis walked into the front office and appellee reported the fall and complained of being hurt. They then went into appellee’s office and appellee sat down. Phyllis cleaned appellee’s hands, arms and knees, all of which were dirty from the fall. Phyllis did not see appellee fall because she was busy at the time of the incident locking the door which led to the warehouse. Phyllis verified that she got a glimpse of the intruder; that appellee reported the fall to her; that she cleaned appellee’s hands with a rag because they were dirty; and that she bathed appellee’s legs with alcohol. From the evidence abstracted we think it sufficient to reasonably deduce that appellee suffered a fall.

Appellant next contends that any fall appellee may have received was not the proximate cause of her injuries. Appellee is extremely overweight and had admittedly suffered for many years with intermittent attacks of thrombophlebitis in her left leg. At the time of the described occurrence her leg was swollen from that ailment and she kept it elevated while doing her telephoning. Therefore, says appellant, the condition of the knee was attributable to the phlebitis; appellant introduced medical testimony to that effect.

Appellee sought no medical aid that night, although she complained to Phyllis that she hurt her knee, that she believed she had a fractured rib, ^nd that her breast was injured. The next morning the pain was so great that she went to the emergency room of the hospital at about 7:30 a.m. and had them call Dr. Hoover. The doctor hospitalized appellee, where she remained under his treatment for ten days. “She was complaining of difficulty in breathing and pain in her knee. We examined her and took some x-rays, and she had a massive hematoma of her breast and was tender on her left side, and her knee was painful. The left knee was bruised and discolored, but x-rays of her knee and ribs were negative. I put a rib splint on her, and she was unable to walk so I hospitalized her.” The doctor concluded, with respect to the pain in the rib area, that appellant had a hemorrhage beneath the membrane which nourishes the bones in the ribs. “This condition causes one to hurt worse than broken ribs. . .”

Appellant introduced the testimony of Phyllis to the effect that the latter saw a bruise on the knee at the time she administered first aid. Dr. Hoover said he saw no evidence of an old bruise and that if the ruptured blood vessel is close to the skin the discoloration will occur instantaneously. “I saw bruises and discoloration the morning I treated her and it was ten times worse five days later.” It was also the doctor’s opinion that the fall was the cause of a flare-up of the thrombophlebitis.

When the testimony of appellee and Dr. Hoover is taken together we are unable to say that the commission was in error in finding that the injuries were attributable to the fall.

Appellant’s final contention is that appellee’s healing period ended on or about September 1, 1971. The contention is based substantially on the fact that, as appellant interprets the testimony, Dr. Hoover testified that by September 1 the patient had made considerable progress and consideration should be given to going back to work. (The controversy about the ending of the healing period arises from the fact that appellee had a flare-up with her knee and was again hospitalized from September 18 to October 4). Dr. Hoover explained the back-to-work suggestion in these words:

On September 3 I suggested that she enlarge her activities by attempting to drive her car and if she could sustain a normal degree of activity then I would have assumed that she could go to work. However, before she got through with the test period, she developed additional problems and got to where she definitely could not work.

Dr. Hoover further testified that he attributed the knee problem in September to the fall in July. “The thrombophlebitis flare-up that I saw on September 14, in my opinion, was caused by the fall and injuries that she got on July 20, 1971.”

We are concerned only with whether there was substantial evidence to support the commission. Allied Telephone Co. v. Rhodes, 248 Ark. 677, 454 S.W. 2d 93 (1970). In evaluating the evidence we interpret it in a light most favorable to the commission’s findings. McCollum v. Rogers, 238 Ark. 499, 382 S.W. 2d 892 (1964). And, as said in McCollum, on disputed questions of fact we cannot Set aside the commission’s findings. Even though the evidence would support another conclusion, or if the preponderance of the evidence would indicate a different result, we still affirm the commission if reasonable minds could reach the conclusion reached by the commission. Oak Lawn Farms v. Payne, 251 Ark. 674, 474 S.W. 2d 408 (1971).

Affirmed.


author: John A. Fogleman, Justice.

text:
    H. S. WYNN et al v. SKLAR & PHILLIPS Oil Company et al
    5-6059
    493 S.W. 2d 439
    Opinion delivered April 30, 1973

      Chambers if Chambers, for appellants.

      McKay, Chandler if Choate; Keith, Clegg if Eckert; E. M. Anderson; and J. Bruce Streett, for appellees.
   John A. Fogleman, Justice.

This appeal was submitted upon a stipulated record. The case involves the question of proper distribution of royalties under a tract of land. The parties agree that the matter turns entirely upon the interpretation of an instrument entitled “Royalty Deed” executed on April 4, 1921, by T. M. Talley and his wife to J. M. Talley. The questions involved will be better understood by a description of the various instruments relied upon by the parties. In chronological order, they are:

1. Warranty deed dated November 4, 1919, executed by T. M. Talley, Jr., and wife, conveying the 87%-acre tract which is the subject of this litigation to J. H. Merrett, which contains the following clause:
The said Grantors of this Deed of Conveyance T. M. Talley, Jr. and M. S. Talley his wife, do hereby Reserve all the oil and minerals rights on the above described Lands, and hold the right to operate on the said land for same.
2. Lease dated November 22, 1919, by which T. M. Talley and wife leased the lands to J. M. Talley for the sole purpose of mining and operating for oil and gas, for a term of five years and as long thereafter as oil or gas or either of them is produced by the lessee, his successors or assigns. This lease required delivery to the lessors of 1/8 of all oil produced from the leased premises; payment of $200 per year for gas from each well where gas only was found, while gas was used off the premises, and the furnishing of gas to the lessees free of cost for all stoves and lights in dwelling houses on. the premises during the same period; and the payment of $25 per year for gas produced from any oil well and used off the premises. The following are the provisions other than that set out above pertaining to the life of the lease:
The parties of the second part further agree that in case operations for either the drilling of a well for oil or gas is not commenced and prosecuted with due diligence within one year from this date then this grant shall immediately become null and void as to both parties; provided, that second parties may prevent such forfeiture from quarter to quarter for three years by paying to the first party the sum of 25 cents per acre per year until such well is commenced. And it is agreed that the completion of such well shall be and operate as a full liquidation of all rent under this provision during the remainder of the term of this lease. * * *
All money that may become due under this grant payable Farmers Bank & Trust Co. or payable direct to T. M. Talley. It is further agreed that upon failure of second parties, their heirs or assigns, to pay said sum of 50 cents per acre within thirty days after the expiration of any rental date, this lease shall be and become null and void.
(It was stipulated that no production was ever had under this lease. The record is silent as to the drilling of wells or payment of delay rentals.)
3. The deed entitled “Royalty Deed” dated April 4, 1921, by T. M. Talley and wife conveying unto J. M. Talley and unto his heirs and assigns forever “a one eight (being all the Royalty retained by us) undivided interest of, in and to all the oil, gas and minerals on, in and under the * * * lands * * * granting to the said J. M. Talley, his heirs and assigns, the right of ingress to and upon said lands for the purposes of securing, storing and removing oil and gas, and the right of occupancy of said lands for and only for the purposes of storing, securing and removing oil and gas.” The warranty clause read:
And we hereby covenant.with said J. M. Talley that we will forever warrant and defend the title to the said interest in the oil, gas and mineral on, in and under said lands against all lawful claims whatever.
4. A deed from J. M. Talley entitled “Royalty Deed” dated April 5, 1921, conveying to J. H. Merritt “a one-sixteenth (being one-half of all the royalty retained in said land by T. M. Talley and sold to J. M. Talley by the said T. M. Talley, 4-4-1921) undivided interest of, in, and to all the oil, gas and minerals on, and under the *** lands ***.”
5. An oil and gas lease dated January 28, 1927, by which T. M. Talley, Jr., leased the lands to J. M. Talley for the sole purpose of mining and operating for oil and gas for a term of five years or as long thereafter as oil or gas is produced from the land. The lessee agreed to deliver to the credit of the lessor, free of cost, 1/8 of all oil produced and saved, to pay $200 per year for each well producing gas only, until such time as the gas should be utilized or sold off the premises, when the grantor would be paid 1/8 of the value of the gas and to furnish lessor with gas free of cost for all stoves and inside lights in the main dwelling house on the land, and to pay the lessor 1/8 of the proceeds of sale of gas produced from an oil well and used off the premises or for the manufacture Of casing-head gas. This lease contained provisions for termination and delay rentals which were similar to those in the first lease.
6.Mineral deed dated May 3, 1947, by which T. M. Talley conveyed to Mattie Moore an undivided 7/8 interest in and to all of the oil, gas distillate and other minerals in and under and that may be produced from the lands.
7.Mineral deed dated August 4, 1948, by which Mattie Moore conveyed to T. M. Talley an undivided 7/16 interest in and to all of the oil, gas, distillate and other minerals in and under and that may be produced from the lands. This deed contained the following parenthetical statement:
(It is the intention of the grantor herein to convey to the grantee herein 38.28125 full mineral acres.)
8.Mineral Deed dated August 16, 1948, by which Mattie Moore conveyed to Pauline Dominy an undivided 7/16 interest in all of the oil, gas, distillate and other minerals in and under and that may be produced from the lands. This deed also recites the intent to convey 38.28125 mineral acres.
9.Mineral Deed dated March 26, 1955, by which Pauline Dominy conveyed to J. M. Talley an undivided 7/16 interest in all of the oil, gas, distillate and other minerals in and under and that may be produced from the lands.

If we consider the various meanings which have been accorded the word “royalty,” and treated the. parenthetical clause as controlling, the deed might be taken to have conveyed any of the following: (1) the “royalty” payable under the lease described in item 2, which was then only slightly more than two years old; (2) fee title to 1/8 of the minerals in place, with all attendant incidents, with the parties considering the 1/8 interest and “royalty” as synonymous and inserting the parenthetical clause in an effort to clarify the interest conveyed; (3) a perpetual royalty either “participating” or “nonparticipating,” which constitutes a beneficial interest in future oil and gas production; (4) a beneficial interest in future production together with an interest in oil and gas in place; and (5) an interest that enabled the grantee to grant an oil and gas lease and collect the entire royalty paid thereunder. See Longino v. Machen, 217 Ark. 641, 232 S.W.2d 826; Keaton v. Murphy, 198 Ark. 799, 131 S.W. 2d 625; Arrington v. United Royalty Co., 188 Ark. 270, 65 S. W. 2d 36, 90 A.L.R. 765; Green v. Biddle, 21 U.S. 1, 8 Wheat. 1, 5 L. Ed. 547 (1823); Allen v. Thompson, 169 Ark. 169, 273 S.W. 396; 4 Summers Oil & Gas (Perm. Ed.) 8, § 572; Hanson v. Ware, 224 Ark. 430, 274 S.W.2d 359, 46 A.L.R.2d 1262: Annot. 4 A.L.R.2d 496 (1949).

The chancellor held that the deed conveyed a one-eighth interest in oil, gas and minerals under the lands. Appellants contend that the deed described in item 3 above conveyed “all of the royalty under the lands.” Appellants, in oral argument, described the interest they contend was conveyed as 1/8 of the production of the oil, gas and minerals from the lands. They rely on a definition of the word “royalty” in McDonald v. Sanders, 207 S.W. 2d 155 (Tex. Civ. App. 1947), as 1/8 interest in oil and gas produced and contend that the parenthetical clause describes the grant as being all of the “royalty” reserved in the deed to Merritt, which would leave Talley only a 7/8 working interest.

There would be no ambiguity in the deed except for the parenthetical clause relied upon by appellants. If this clause were omitted, the deed would simply constitute a conveyance of 1/8 of the oil, gas and minerals. See Smiley v. Thomas, 220 Ark. 116, 246 S.W.2d 419. This insertion, however, makes the granting clause ambiguous. See Melton v. Sneed, 188 Okla. 388, 109 P. 2d 509 (1940); Mabee Oil and Gas Company v. Hudson, 156 F.2d 450 (10th Cir. 1946). The construction of the deed depends to a great extent upon the sense in which the parties used the word “royalty.” The word cannot be so precisely defined as to enable us to say that what would otherwise be a deed for one-eighth of all oil, gas and minerals became a conveyance of one-eighth of the oil and gas produced, as appellants contend.

It has been said that a conveyance of a royalty interest and a conveyance of minerals in place appear so much alike to the average person inexperienced in such matters, one may easily be substituted for the other. Neel v. Rudman, 160 Fla. 36, 33 So. 2d 234 (1948). See also, Simson v. Langholf, 133 Colo. 208, 293 P.2d 302 (1956). In Longino v. Machen, 217 Ark. 641, 232 S.W.2d 826, we found it necessary to ascribe a meaning to the word in construing a deed. There we said:

We are aware that this term is sometimes loosely used to mean an interest in minerals in place, but it is well settled that the ordinary and legal meaning of the term is a share of the product or profit, to be paid to the grantor or lessor by those who are allowed to develop the property. It has often been pointed out that the ordinary meaning of royalty does not include a perpetual interest in oil or gas in the ground. Leydig v. Commissioner of Internal Revenue, 10 Cir., 43 F.2d 494; Bellport v. Harrison, 123 Kan. 310, 255 P. 52; Rist v. Toole County, 117 Mont. 426, 159 P.2d 340, 162 A.L.R. 406. On two occasions we have interpreted language not wholly dissimilar to that now before us as meaning royalty payments to the lessor rather than an interest in the minerals themselves. Keaton v. Murphy, 198 Ark. 799, 131 S.W.2d 625; McWilliams v. Standard Oil Co., 205 Ark. 625, 170 S.W.2d 367.

This court has, on occasion, used the word as if it were an interest in oil, gas and minerals in the land without reference to any existing or contemplated lease. See Allen v. Thompson, 169 Ark. 169, 273 S.W. 396.

The word has been accorded various meanings, in addition to those mentioned in Longino. One of these is discussed at BA Summers, Oil and Gas, Perm. Ed. 8, § 472, where the author said:

In some jurisdictions a grant or reservation of a royalty prior to lease has the effect of creating separate mineral fee estate in the oil and gas or in the right to produce them, but if such interest is restricted to the right to receive a portion of the oil or gas produced with no right in the owner thereof to join in future leases, or to receive a portion of the bonus or delay rentals, the interest is a perpetual nonparticipating royalty. This type of royalty may also be created during the existence of an oil and gas lease by a grant of a share of the royalties under the existing lease, together with a share of the royalties under future leases, but reserving to the grantor the sole power to execute future leases. The term “nonparticipating” is used to indicate that it is not necessary for the owner of the royalty to join in a lease of the land for oil and gas and that he is not entitled to share in the cash bonus or delay rental paid by a future lessee. The term “perpetual” as applied to this type of royalty is something of a misnomer, for such royalties may be created for years, for a definite term of years and as long thereafter as oil or gas is produced from the land, for life or in perpetuity.
.if. .if. .i>.
When royalties are sold apart from the interest in the land, an effort is usually made in all localities to transfer to the grantee more than all or a portion of the royalties under the existing lease. This is often •done by granting proportionate interests in the lessor’s reversionary interest in the minerals in place and the royalties under the existing lease. It may be done, however, by language of the deed indicating an intention to convey a perpetual royalty interest without an express conveyance of a proportionate interest in the minerals in place, or by an express grant of royalties under existing and future leases.

Our holding in Arrington v. United Royalty Company, 188 Ark. 270, 65 S.W. 2d 36, 90 A.L.R. 765, that royalties in gas and oil, until brought to the surface and reduced to possession, are interests in real estate and not personal property was premised primarily upon the holding in Green v. Biddle, 21 U.S. 1, 8 Wheat. 1, 5 L. Ed. 547 (1823), that the grant of a fraction of the royalties, rents and income from oil is a grant of that fraction of the oil in place.

We clearly recognize that a perpetual nonparticipating royalty may be created by deed. Hanson v. Ware, 224 Ark. 430, 274 S.W.2d 359, 46 A.L.R.2d 1262. We found there that such a royalty was created simply by construing the entire deed so that each clause was accorded a meaning consistent with every other clause in the deed. By doing so, we could say with certainty that the parties to the instrument had no intention to convey any title to the minerals themselves — a result that can hardly be justified here, because the quoted clause describing the grant appears to be self-contradictory if the ordinary, strict legal meanings of the respective words are utilized.

The difficulties presented in determining whether a mineral fee or royalty interest is conveyed by an instrument arise from justifiably different understandings of the meaning of the word “royalty” and from lack of precise terminology to describe the interest intended, and the courts can only arrive at the correct meaning in any particular instrument by considering it from its four corners and by resort to other aids commonly employed to construe ambiguous contracts and arrive at the intention of the parties. Wilson v. Stearn, 202 Ark. 1197, 149 S.W.2d 571; Clampitt v. Ponder, 91 F. Supp. 535 (W.D. Ark. 1950). See also, 3A Summers, Oil and Gas 296, 310, §§ 599, 601; Schnitt v. McKellar, 244 Ark. 377, 427 S.W. 2d 202; Annot. 4 A.L.R.2d 492 (1949); Picard v. Richards, 366 P. 2d 119 (Wyo. 1961); Purcell v. Thaxton, 202 Okla. 612, 216 P.2d 574 (1950); Lathrop v. Eyestone, 170 Kan. 419, 227 P.2d 136 (1951).

As pointed out in Longino, we held in Keaton v. Murphy, 198 Ark. 799, 131 S.W.2d 625, that a conveyance of “an undivided one-half interest of the one-eighth royalty held by the [grantor] in and to all the oil and gas in, under and upon the [described] lands ***” was not a conveyance of minerals in place but only of the royalty payable under a lease to which the conveyance was subject. But other provisions in that deed were harmonious with that construction. Because of the ambiguity in the deed before us, it was the duty of the trial court and now of this court to ascertain the intention of the parties to the deed and to try to make all parts of the instrument harmonize. Davis v. Collins, 219 Ark. 948, 245 S.W.2d 571. We must give all parts of a deed such a construction, if possible, that they may stand together. Citizens Inv. Co. v. Armer, 179 Ark. 376, 16 S.W.2d 15.

In seeking to harmonize different clauses of a contract, we should not give effect to one to the exclusion of another even though they seem conflicting or contradictory, or adopt a construction which neutralizes a provision, if the various clauses can be reconciled. We must ascertain the intention of the parties, not from particular words and phrases, but from the whole context of the agreement or deed. Continental Casualty Company v. Davidson, 250 Ark. 35, 463 S.W.2d 652; Schnitt v. McKellar, supra. In arriving at the intention of the parties, the courts may consider and accord considerable weight to the construction of an ambiguous contract or deed by the parties themselves, evidenced by subsequent statements, acts and conduct. Organized Security Life Ins. Co., v. Munyon, 247 Ark. 449, 446 S.W.2d 233; Arlington Hotel Co. v. Rector, 124 Ark. 90, 186 S.W. 622; Schnitt v. McKellar, supra. Courts may also acquaint themselves with and consider circumstances existing at the time of the execution of a contract and the situation of the parties who made it. Brown v. Windland, 249 Ark. 6, 457 S.W.2d 840; Schnitt v. McKellar, supra.

A very convincing argument could be advanced in support of the first alternative construction set out above. There is nothing to indicate that a well was not drilled on the land or that delay rentals were not paid. Yet, there are factors that militate against such a holding. The royalty or rental for gas wells in the lease was a stipulated sum rather than a fractional interest. Appellant also points out that the “royalty deed” conveys the interest to J. M. Talley and unto his heirs and assigns forever, the habendum clause contains similar language and the grantors covenanted that they would “forever warrant and defend the title to the said interest in the oil, gas and mineral on, in and under said lands.” (Emphasis ours.) And then the interest conveyed by a transfer only of the right to receive royalties under an existing unproductive lease would be of a very uncertain and speculative nature, and its purchase economically unreasonable, because it would terminate with the lease. That it is unwise to purchase such a limited royalty interest is said to be well understood in the industry. 3A Summers, Oil and Gas, Perm. Ed. 8, 25, 311, §§ 572, 576, 601. Furthermore, no reference is made in the deed to the prior lease, although it seems logical that some mention of this lease would have been made if it were still in force and the grantor only intended to convey the royalty he would receive thereunder. See Melton v. Sneed, 188 Okla. 388, 109 P. 2d 509 (1940); Clampitt v. Ponder, 91 F. Supp. 535 (W.D.Ark. 1950). Professor Summers (Oil and Gas, Vol. 3A, p. 311, § 601) has treated the probability of such a conveyance thus:

It seems safe to assert that in most royalty and mineral conveyances executed by oil and gas lessors the intent is to grant or reserve some fraction or percentage of the rents and royalties payable under the existing lease together with such other interest as will make the interest granted or reserved perpetual. Such other interest may be a nonparticipating royalty interest after the termination of the existing lease or a fraction or percentage of the lessor’s reversionary mineral interest, so that upon termination of the existing lease the grantor and grantee are tenants in common of the oil and gas in place.

But this construction would totally negate the clear meaning of the granting clause without the parenthetical expression. If the first alternative should be correct, however, neither party can complain. The court’s holding is more favorable to appellants than this possible construction, and appellees did not appeal from the decree.

Even though the use of the word “royalty” to describe an interest in minerals in place is a loose one, it is well recognized that such a definition is properly ascribed to the word under appropriate circumstances. Longino v. Machen, supra; Mabee Oil Co. v. Hudson, 156 F.2d 450 (10th Cir. 1946); Melton v. Sneed, supra; Elliott v. Berry, 206 Okla. 594, 245 P.2d 726 (1952). Professor Summers (Oil and Gas, Perm. Ed., Vol. 3A, p. 383, § 606) states that, because of confusion among royalty grantors between royalty and fee interests, the mineral fee in the first grant is often described as one-half of the royalty, rather than one-half of the mineral fee.

In Marias River Syndicate v. Big West Oil Co., 98 Mont. 254, 38 P.2d 599 (1934), it was held that a provision “reserving unto the said parties of the first part a 12/4 percent interest and royalty in and to all oil and gas and other minerals of whatsoever nature, found in or located upon or under said land or premises above described or that may be produced thereon” constituted a severance of the 12/4 percent interest from the oil and gas and other mineral in and under the land from the residue of the oil, gas and mineral and surface rights conveyed, so that the owners became tenants in common as to the oil and gas. The reservation of “an undivided one third (1/3) interest in and to all of the royalty of the gas, oil and mineral and the rights thereto, in or under the premises hereinafter described” was held to constitute a retention of a one-third interest in the oil, gas and mineral rights, by disregarding the strict definition of the word “royalty” in order to harmonize, and give meaning to, all the terms of the instrument and to make the deed operate according to the intention of the parties in Wilson v. Olsen, 167 Okla. 527, 30 P.2d 710 (1934).

The use of the words “in and under” the lands, or words of similar import has been held (even in Texas) to be consistent with a grant or reservation of an interest in the minerals in place under the ground and not with an interest in oil, gas and other minerals produced. Miller v. Speed, 259 S.W.2d 235 (Tex. Civ. App. 1952).

Appellants’ argument that the title of the deed requires us to construe the grant as they do is not persuasive. In Mabee Oil & Gas Co. v. Hudson, 156 F.2d 450 (10th Cir. 1946), the Circuit Court of Appeals for the Tenth Circuit sustained a holding that the word “royalty” should be construed to denote an interest in mineral rights themselves. While the caption of the instrument there being construed used the words “Royalty Interest,” the court said that the caption lent itself as readily to an interpretation that “royalty” was used in its broad sense as connoting a mineral interest as it does to an interpretation that the author referred to an interest in production under an existing lease, and held that it was properly construed to convey an interest in mineral rights when read in conjunction with the remainder of the instrument and other documents constituting written evidence of the transaction between the parties. It has also been held in other jurisdictions that the interest conveyed is to be determined by the language of the instrument of conveyance, rather than the title denominating it as a royalty deed. See Serena v. Rubin, 146 Kan. 603, 72 P.2d 995 (1937). An instrument entitled “Sale of Oil and Gas Royalty” and referred to by all the parties as a royalty conveyance was held to be a mineral deed because it “granted, sold, conveyed and delivered * * * an undivided one-half interest in and to all of the oil, gas and other minerals” in and under the land described for a period of 15 years and as long thereafter as oil or gas is produced from the premises. Sledd v. Munsell, 149 Kan. 110, 86 P. 2d 567 (1939).

Appellants urge that the inclusion of the “ingress and egress” clause in the deed in question is indicative that “royalty” was conveyed, citing Hays v. Phoenix Mutual Life Insurance Company, 391 P.2d 214 (Okla. 1964). There, however, the court’s holding was based as much upon the fact that an oil and gas lease covering the land was in force at the time of the execution of the deed before it as upon the specific clause. Furthermore, in Hays, the right of ingress and egress was less extensive than that involved here in that there was no authorization to go upon the premises for the purposes of prospecting for, severing and removing minerals as there is here. Under the authority of that case, in which the court quoted from 1 Williams and Meyers “Oil and Gas Law” § 202.3, the clause here is more consistent with a mineral interest than a royalty in the technical sense or in the sense urged by appellants. See also, Neel v. Rudman, 160 Fla. 36, 33 So. 2d 234 (1948). The court in Hays called attention to Doss Oil Royalty Company v. Lahman, 302 P.2d 157 (Okla. 1956), where it had held that “royalty” was construed in that state in its broad sense of denoting mineral rights where there is no oil and gas lease upon the property but in the sense of denoting an interest in production when the property is under lease. See also, Elliott v. Berry, 206 Okla. 594, 245 P.2d 726 (1952). The chancellor stated here that there was no evidence that the 1919 lease was in force at the time of the execution of the deed we are considering.

Even in Texas, there has not been a slavish and unswerving adherence to the definition extracted from McDonald v. Sanders, supra, by appellants. There, the word “royalty” used in a mineral deed is taken to mean one-eighth of the oil produced from the premises, only when it is not qualified by any language in enlargement of the term. Delta Drilling v. Simmons, 325 S.W.2d 222 (Tex. Civ. App. 1959). It is clearly recognized by the Supreme Court of Texas that the word may be given a broader meaning than that ordinarily and commonly used in the oil and gas industry in Texas. Griffith v. Taylor, 156 Tex. 1, 291 S.W.2d 673 (1956). It seems that the Texas courts go no further than to hold that the courts will take judicial notice that the usual royalty in an oil and gas lease is one-eighth of the oil and gas produced. Badger v. King, 331 S.W.2d 955 (Tex. Civ. App. 1959); State Nat. Bank of Corpus Christi v. Morgan, 135 Tex. 509, 143 S.W.2d 757 (Tex. Comm. App. 1940); Patterson v. Texas Co., 131 F.2d 998 (5th Cir. 1943).

In Acklin v. Fuqua, 193 S.W.2d 297 (Tex. Civ. App. 1946), the Texas Court of Civil Appeals, Amarillo District, held that a conveyance of “one-eighth of all the natural gas, oil, petroleum and substances being all the royalty in on or under the following described * * * tract of land * * *” transferred a mineral fee interest and not a royalty interest, saying that if the phrase “being all the royalty” is not in harmony with the remaining provisions of the instrument, it should not be accorded weight or dignity when it appears that the other terms have controlling effect. That court pointed out that the use of language granting the right to production by the words “together with the right to enter thereon, open mines, drill wells, lay pipe lines,” was in harmony with an intention to grant a mineral fee. The Texas court adhered to the same rules of construction to which we resort in Arkansas, i.e., that the intention of the parties must be gathered primarily from a fair consideration of the whole instrument and the construction given should harmonize with the terms of the deed, its scope, subject matter and purpose. That court also applied another familiar rule of construction in Arkansas, saying:

“The rule is that, where there is a repugnance between a general and a particular description in a deed, the latter will control.” In the instant case there is, at least, an apparent inconsistency, if not a repugnance, between the first part of the description, “one-eighth of all the natural gas, oil, petroleum and substances,” which is a particular description, and the phrase following, “being all the royalty,” which is a general description. Applying the said rule to the given description in the instant case the particular description of “one-eighth of all the natural gas, oil, petroleum and substances” should control and since the phrase, “being all the royalty” is general and does not seem to aid any in the description, such a phrase may be disregarded and held of no significance as was done in a similar case styled Jones v. Bedford, Tex.Civ.App., 56 S.W.2d 305, writ refused. Then such is also in harmony with still another rule approved by the Supreme Court in the case of Bruni v. Vidaurri, 140 Tex. 138, 166 S.W.2d 81, 94, stating that “A subsequent erroneous addition should not be permitted to limit or impair what has been definitely and certainly described.”

While Texas courts follow the rule in such matters that an ambiguous deed will be construed most favorably to the grantee, they subordinate it to the rule that every part of the deed must be harmonized and given effect, if possible. Kountz v. Kirby Lumber Co., 153 F.2d 695 (5th Cir. 1946), cert. denied, 329 U.S. 713, 67 S. Ct. 44, 91 L. Ed. 619 (1946). Although appellants argue that we should sustain their contention by construing the deed in this case most strongly against the grantor, it seems to be universally held that this rule of construction is one of last resort, to be applied only when all other rules for constructing an ambiguous deed fail to lead to a satisfactory clarification of the instrument, and that it is particularly subservient to the paramount rule that the intention of the parties must be given effect, insofar as it may be ascertained, and to the rule that every part of the deed should be harmonized and reconciled so that all may stand together and none be rejected. 23 Am. Jur. 2d 211, Deeds, § 163; 26 C.J.S. 813, Deeds, § 82. See Dierks Lumber and Coal Co. v. Meyer, 85 F. Supp. 157 (W.D. Ark. 1949).

In Doe v. Porter, 3 Ark. 18, we held that when two land descriptions, one particular and the other general, in a deed are contradictory, the particular shall prevail over the general. We also recognized that the construction shoul4 be upon the entire deed and every part of it, so that the whole deed may stand «together, if practicable, and every sentence and word made operative. We have consistently applied the rules stated in Doe and particularly relied upon them in holding that a particular land description restrains and limits a general description in Goforth v. Wilson, 208 Ark. 35, 184 S.W.2d 814.

Even though the words “one-eighth undivided interest of, in and to all the oil, gas and minerals on, in and under the following lands” might possibly be taken to be a broader and more comprehensive term than the word “royalty” when technical definitions are the measure, there is no room for doubting that “royalty” has a more varied and less specific meaning, when all of the common usages of the terms are compared. And then, when a qualifying or explanatory parenthetical phrase inserted in an otherwise complete granting clause conflicted with and was repugnant to clear and distinct operative words of the grant, as is the case here, it was held that the operative words prevail over the parenthetical clause. Knox v. Krueger, 145 N.W. 2d 904 (N.D. 1966). By similar reasoning, in construing a granting clause conveying “an undivided 1/8 of 1/8 royalty interest in and to all of the oil, gas and other minerals in and under and that may be produced from the following described land,” it was held that the word “royalty” should be omitted, because, by doing so, the instrument became clear and unambiguous and showed a conveyance of 1/64 of the oil, gas and other minerals in and under the land subject to the terms and provisions of a lease. Jones v. Bedford, 56 S.W.2d 505 (Tex. Civ. App. 1932).

The only way that all of the words in the deed of April 4, 1921, can be given a harmonious effect is by according the word “royalty” a non-technical meaning consistent with the remainder of the granting clause. We hold that the deed conveyed to J. M. Talley an undivided 1/8 interest in the minerals under the lands therein described. This result is the only one that is consistent with all pertinent rules of construction of ambiguous deeds.

When we consider subsequent actions of the parties, we find that in the 1927 lease from T. M. Talley, Jr., to J. M. Talley, there is no warranty of title by the lessor and the lease contains a “lessor estate” clause by which the royalties and rentals paid the lessor were to be in the proportion which the lessor’s interest bore to the whole and undivided fee, if the lessor owned less than the entire and undivided fee simple estate. This would seem to indicate recognition that there was an outstanding interest in the land or minerals but that T. M. Talley had retained the right to execute oil and gas leases and to receive royalties on account thereof. Such actions by grantors have assisted other courts in construing “royalty” in a conveyance to mean an interest in mineral rights. See Melton v. Sneed, 188 Okla. 388, 109 P. 2d 509 (1940). Much later, T. M. Talley conveyed an undivided 7/8 interest in and to all of the oil, gas and minerals in and under and that may be produced from the lands. The chancellor observed that this led him to believe that T. M. Talley thought he owned 7/8 of the minerals. We think there is some justification for this belief and that the subsequent conduct of T. M. Talley is consistent with our construction of the deed in question.

The decree is affirmed.

Jones and Byrd, JJ., dissenting.

      Use of the term “mineral acres” to describe an interest reserved or conveyed has been one factor influencing some courts to construe the interest as a mineral interest. Picard v. Richards, 366 P. 2d 119 (Wyo. 1961).

      The use of the word "forever” in the granting and habendum clauses has been held to relate to the person' to whom property is given and not to the estate, so it cannot operate to either add to or take from the estate granted by the words preceding it. Watson v. Wolff-Goldman Realty Co., 95 Ark. 18, 128 S.W. 581, Ann. Cas. 1912A 540.

      In Oklahoma the determination of the question whether the word “royalty” is used in its broad sense or in its restricted meaning may depend upon the existence of an oil and gas lease. Elliott v. Berry, supra; Purcell v. Thaxton, 202 Okla. 612, 216 P.2d 574 (1950). See also, Corlett v. Cox, 138 Colo. 325, 333 P.2d 619 (1958).

      It should be noted that in Oklahoma and California the doctrine of fee simple ownership of minerals in place is not recognized, but in both states a reservation or grant in perpetuity of royalty rights constitutes an interest in realty with incidents and attributes similar to fee simple ownerships. Simson v. Langholf, 133 Colo. 208, 293 P.2d 302 (1956).