text:
    Davidson v. Sanders.
    5-2676
    357 S. W. 2d 510
    Opinion delivered May 28, 1962.

      Dinning & Dinning and Burke & Roscopf, for appellant.

      George K. Cracraft, Jr., for appellee.
   Carleton Harris, Chief Justice.

This is an action by appellees, as children, grandchildren, and great grandchildren of Andrew Williams, deceased, who was the owner of certain lands in Phillips county (120 acres, more or less), against Otis Williams, grandson of Andrew Williams, alleging that they were the owners of such lands, through inheritance, as tenants in common; that though they had conveyed their interests in the lands to Otis Williams, and he thereby held legal title, appellant was actually holding the lands in trust for them. It was alleged that the title was placed in appellant for the sole purpose of obtaining a loan to pay off indebtedness against the property; that Otis Williams was to have the use of said lands “and as soon as the rents and profits were sufficient to pay said indebtedness that said lands would then be conveyed back to said heirs according to their original interests therein”; that demand had been made upon Williams to convey the property back, but that he had failed and refused to do so. Appellant answered, asserting, inter alia, that he was the owner of said lands, denying that he had made any agreement, verbal or written, to reconvey to appellees any part or portion of the lands involved in the proceedings, and specifically pleading the statute of frauds, laches, estoppel, and the five year statute of limitations applying to the commencement of actions against purchasers at judicial sales. Appellant, Abe J. Davidson, asserted that he held a mortgage on the property to cover advances made for the benefit of appellant Otis Williams, and that he was due the sum of $22,373.71, which amount constituted a first lien upon the property, and was superior to any claim of appellees. Davidson further alleged that if there was an agreement between Otis Williams and appellees to reconvey the property, he (Davidson) had no notice of same, and had made his advances to appellant Williams in good faith, and without any notice of any possible defect in title. At the conclusion of the trial, which covered several days, the court entered its decree, finding that Otis Williams held legal title to the lands in question, but “that said legal title now held by Otis Williams is held in trust nevertheless for the following named persons, to-wit:

Carrie Sanders, an undivided l/6th interest

Martha Smith, an undivided l/6th interest

The heirs at law of Julia Sawyer, an undivided l/6th interest

Otis Williams, an undivided 1/2 interest.

The court further finds that the heirs of Julia Sawyer are:

Nora Laws

Maurice Laws

Ira Laws

Katie Laws Sims

Catherine Laws

Walter Laws

Hazel Laws

Elnora Sawyer Griffin

Mary Sawyer Shaw

Jessie Sawyer

Gill Sawyer

Annie Nankins

Marie Vanderbilt

Each of whom is entitled to an undivided l/78th interest of said trust as the heirs at law of Julia Sawyer, deceased.

“The court finds that the purpose of said trust was to consolidate the title in Otis "Williams for the purpose of obtaining a loan with said lands as security to retire the lien against said lands for delinquent taxes.

“The court further finds that an implied trust was thereby created and brought into being by the actions of the parties and the execution and delivery of the deed by which the above undivided interests were conveyed to the defendant, Otis Williams, and that the said Otis Williams now holds legal title to said interest in said lands as trustee for the use and benefit of all of the above named parties.

‘ ‘ The court further finds that the purposes for which said trust was created had been accomplished and that the trust should be terminated and the respective interests of the tenants in common be determined and fixed by this decree. * * *

“The court further finds that the deed of trust executed by Otis Williams and wife to Abe J. Davidson . . . should be set aside in so far as same purports to affect the interest of any of the beneficiaries of the trust hereinabove declared, * * V’ From the Chancellor’s decree, appellants bring this appeal.

Evidence on the part of appellees reflected that in the year 1942, the heirs of Andrew Williams were on the verge of losing the lands. They were without money to pay taxes of any nature, and suits having been instituted by Little Cypress Drainage District, it was necessary that a loan be obtained in order to save the property. Mr. A. M. Coates, attorney of Helena, testified that Julia Sawyer, Carrie Sanders, and Otis Williams, discussed the matter with him; that subsequently, other heirs participated in the discussion. Miss Berniece Biegel was secretary to Mr. Coates, and served in that capacity for approximately 25 years. Miss Biegel was possessed of financial means, and indicated that she might be willing to make the loan, with Mr. Coates representing her in making the arrangements. According to Mr. Coates, Miss Biegel was unwilling to lend the money on account of so many undivided interests, and he suggested that the title be placed in one person, so that that person could act for all the heirs, secure the loan, and repay same through the rents and profits. According to Mr. Coates, it was understood that as soon as the indebtedness was paid, Otis Williams would reconvey the land to appellees, according to their respective interests. On April 4, 1942, a warranty deed was prepared, which was subsequently executed by Carrie Sanders, Martha Smith, Julia Sawyer, Maude Turner, Sylvester Williams and his wife, Celestine Williams, and Jelle Lee Holmes. Aline White declined to join in the plan, and three of the heirs were minors. A partition suit was filed in the name of Otis Williams, the complaint asserting that Williams, by virtue of the conveyance from appellees, had become the owner of all of the lands, with the exception of the interests of Aline White and the three minors. On November 23, 1942, a decree was rendered, finding that Williams, by reason of inheritance, and the warranty deed executed by appellees, was the owner of said lands (with the exception of the interests just mentioned), and the lands were ordered sold. At the partition sale, Miss Biegel purchased the property, and then executed a quitclaim deed to Otis Williams. According to Mr. Coates, this was all a part of the plan, and agreed upon by all participants. Williams and his wife then executed their notes and a deed of trust in favor of Berniece Riegel, to secure a loan of $1,653.93, same to become due in November, 1949.

Mr. Coates stated that he first learned in 1951 that Otis Williams denied that he was holding the property in trust for appellees. At that time, Otis still owed $1,479.00. According to the witness, a house on the place burned and Miss Riegel was holding $1,000.00, which had been paid by the insurance company, and which Otis desired to be applied on his individual indebtedness. Coates explained that this could not be done. <£I told her that she could not do that because that $1,000.00 belonged to the Andrew Williams heirs, and in keeping with the original agreement, she could not apply it to the individual debt of Otis Williams.” The witness stated that he explained this thoroughly to Williams, who came to his office on several occasions. About the same time, Miss Riegel assigned, for value received, her note, together with the deed of trust, to Mr. Davidson. Coates testified that he explained to Davidson why the money could not be applied on the personal indebtedness of Williams, and also informed Davidson about the trust arrangement.

Carrie Sanders, aunt of appellant Williams, testified that she and her sister, Julia Sawyer, together with Otis, went to the office of Attorney Coates to seek advice and help in paying the drainage taxes. She stated that the deed was signed purely as a matter of obtaining the loan, and it was understood her nephew would reconvey the property when the indebtedness was paid. Mrs. Sanders stated that she explained this agreement to Martha Smith, who joined in the deed. .Mrs. Sanders stayed on the property until 1950 or 1951, when she voluntarily moved.

Jesse Sawyer, son of Julia Sawyer, testified that his mother lived on the land until a short time prior to her death in 1953; that she farmed a part of the land after 1942, and that he had farmed a portion of it since 1946; that neither he nor his father had ever paid any rent to Otis Williams.

Annie Rankin, a daughter of Julia Sawyer, testified that on one occasion, she accompanied her mother, Carrie Sanders, and Otis Williams, and heard the agreement discussed (that the property would be conveyed back by Otis after the indebtedness on the land was paid).

Earl Smith, a son of Martha Smith, and grandson of Andrew Williams, testified that Otis Williams tried, in 1950, to buy his mother’s interest in the property for $250.

Lula Belle Coker, a daughter of Martha Smith, testified that she was present, along with Otis Williams, Marie Vanderbilt, and Carrie Sanders, when the deed was signed; that “Otis said that he was made the administrator over the place to get money to pay the drainage and he said, ‘Just like it stands, I can’t borrow no money and we have to make one the head of it and Aunt Julia and Aunt Carrie made me the head of it. * * # When all the notes have been paid, it will go back to us. * * *’ ”

Appellant Otis Williams (son of Frank Williams and grandson of Andrew Williams), testified that no trust agreement was mentioned, and it was never indicated that he was to reconvey the property to the other heirs at any future time. He stated that it was understood that Carrie Sanders and Julia Sawyer could continue living in the home for the rest of their lives; that he did not agree with any of the heirs to reconvey the property to them. He testified that at the time the house burned, he did not have enough money to pay off the indebtedness to Miss Riegel; that the insurance company delivered a $1,000.00 check to her, and he borrowed $479.00 from Davidson to add to the $1,000.00 in order to settle his indebtedness with her, bnt that Miss Eiegel would not take the insurance check. She did agree to take a check for the entire amount from Mr. Davidson, and this was done. He stated that Miss Eiegel would never turn the $1,000.00 check over to him. The witness admitted that while he was in the army, his Aunt Julia might have paid some taxes, and for the years 1954 and 1955, “Jesse slipped down here and paid them.”

Mrs. Maude Darby, sister of Otis Williams and a resident of Chicago, testified that the deed was mailed to her and she signed it; she signed “because they was going to lose the property”; that Otis made no agreement with her to deed the property back at a later time.

Jelle Lee Holmes, a granddaughter of Andrew Williams, stated that she signed the deed in 1942, at which time Otis Williams told her that he would pay her some money later; that her brother, Sylvester, signed with the same understanding. She stated that Otis, in 1951, gave her the money that he promised.

Abe Davidson, a cotton buyer of Marvel, testified that he had been furnishing and lending tenants money for forty-two years; that he had furnished Otis Williams for a period of over fifteen years, and would take chattel and real estate mortgages as security. The witness testified that in November, 1951, Williams was indebted to him in the amount of twelve or thirteen thousand dollars. Davidson testified that Williams asked for an additional $479.00 to pay to Miss Eiegel, but subsequently informed him that Miss Eiegel wanted a cheek for the entire amount he (Williams) owed her, $1,479.00. Davidson gave the check in that amount, and received from Miss Eiegel the notes and deed of trust signed by Williams. In January, 1952, Williams and his wife executed a real estate mortgage to Davidson, including the lands involved in this litigation, as security for the total indebtedness. Davidson testified that at the time of the execution of the mortgage, he had no knowledge that anyone, other than Otis Williams, was asserting any claim of ownership to the lands here involved. He stated that his brother checked the record, and fonnd nothing to show that there were claims against the property. He denied that he had been advised that anyone was claiming any interest in the lands other than appellant Williams, and stated that he had no recollection of any conversation with Mr. Coates. His brother, Sol Davidson, testified that he had checked the records at the court house, and found nothing against the property except the Eiegel mortgage; that he had never talked with Mr. Coates nor Miss Eiegel either before or after the loan was made.

Appellants assert that appellees are guilty of laches, and are also estopped from attacking Williams’ title. It is pointed out that the suit was instituted in the Phillips Chancery Court in June, 1956, more than fourteen years after the execution of the deed from appellees and the decree of the Chancery Court ordering sale of the lands and reciting Williams to be the owner (with the exception of the interests of Aline White and the three minors). We do not agree that the doctrine of laches has any application under the facts in this case. The fact that the deed was executed fourteen years before the institution of the litigation is of no consequence, for the indebtedness was not due to be paid until 1949, i.e., appellees could not, under their agreement, have expected the deed back before that time. However, the indebtedness was not retired in 1949, Miss Eiegel not being paid until 1951, and even then, the notes and deed of trust securing $1,479.00 of this indebtedness were assigned to Davidson. According to the testimony of that appellant, the indebtedness has not as yet been paid. As was stated in Walker v. Biddle, 225 Ark. 654, 284 S. W. 2d 840:

“Second, it is contended that since the Statute of Limitations, in the absence of concealment, runs in favor of the trustee of a constructive trust, Mathews v. Simmons, 49 Ark. 468, his suit is barred by the seven year statute. The answer is that the constructive trust did not arise at the moment the deed was executed. It is the transferee’s repudiation of his promise that brings the trust into being. The evidence indicates that Walker did not claim the land as his own until after his sister Mary’s death in 1947; so that bar of the statute had not fallen when this suit was brought in 1952.”

Appellants assert that appellees’ rights, if any, are barred by the statute of limitations. This argument has reference to § 37-108, Ark. Stats., which provides that all actions against a purchaser at a judicial sale, his heirs or assigns, shall be brought within five years of the date of sale. Miss Eiegel received a commissioner’s deed in January, 1943, and she conveyed the lands to Otis Williams a few days later. The suit was not instituted until June, 1956. It is contended that appellees are estopped from attacking the decree in the partition suit. Appellants state that the court’s decree, in the instant case, had the effect of (a) invalidating the finding of fact in the 1942 suit that Otis Williams was the owner of the property by reason of the execution of the deeds from appellees, (b) invalidating the sale and conveyance of 1942 by the commissioner appointed by the court, and (c) invalidating the deed executed by Miss Eiegel to Otis Williams. We disagree with this contention. The present suit is not an attack upon the decree in partition. Appellees have not contended that the decree is void or of no judicial effect. It is simply asserted that the title which Otis Williams acquired in that proceeding was impressed with the trust which appellees here assert. Of course, Williams held legal title to the property, and if Williams had conveyed the property to an innocent purchaser, such purchaser would have acquired a fee simple title. The facts in this case do not conform to the facts in the case of Hardy v. Hilton, 211 Ark. 991, 204 S. W. 2d 163, which is cited by appellants. In other words the principle declared in that case has no. application to facts that would establish a constructive trust. If the evidence was legally sufficient to establish the agreement between Williams and the appellees, i.e., that Williams was only holding as trustee, then the court action ’was only a part of the overall understanding between the parties in interest. According to appellees ’ evidence, the partition suit was agreed upon by all parties, in furtherance of the mutual .objective, and this being true, when Williams purchased the property, such act was in the nature of a redemption for the benefit of all the heirs.

Appellants contend that the evidence does not meet the legal test of Sufficiency to establish the trust. It is first contended that the “over-all plan” cannot be enforced under the laws of this state, since no written memorandum was prepared showing that the title was vested in Otis Williams as trustee. Appellants have reference to Section 38-106, Ark. Stats, (a part of the Statute of Frauds), which provides as follows:

“All declarations or creations of trusts or confidences of any lands or tenements shall be manifested and proven by some writing signed by the party who is or shall be by law enabled to declare such trusts, or by his last will in writing, or else they shall be void; and all grants and assignments of any trusts or confidences shall be in writing signed by the party granting or assigning same, or by his last will in writing, or else they shall be void.”

The very nest section, however, § 38-107, provides:

“Where any conveyance shall be made of any lands or tenements, by which a trust or confidence may arise or result by implication of ' law, such trust or confidence shall not be affected by anything contained in this act.”

For that matter, in Armstrong v. Armstrong, 181 Ark. 597, 27 S. W. 2d 88, we held that the provisions of Section 38-106 (then Section 4867, Crawford & Moses’ Digest) did not apply to a constructive trust. The facts in that case were rather similar to the present litigation. From the opinion:

“Monroe Armstrong testified that there was no agreement such as claimed by the appellees, but that, finding they would be unable to pay the $514 mortgage, they conveyed the land absolutely to him.

All the appellees, his brothers and sisters, testified in support of the allegations made by them, and their testimony was corroborated by that of disinterested witnesses, among whom was the justice of the peace who drew the deed from appellees to Monroe and took their acknowledgments. According to all this testimony, the deed was made to Monroe as the elder brother, so that he might secure money to pay the indebtedness then existing, and to manage the land and pay whatever indebtedness he might thus incur out of the rents and profits, and that, when this purpose was accomplished, he and his brothers and sisters would be the owners of the land, share and share alike. To our mind, this evidence is clear, satisfactory and convincing, and warranted the chancellor in the conclusion reached.

The contention of appellant, Monroe Armstrong, that this state of facts, if proved, would not entitle appellees to the relief prayed because of the statute of frauds cannot be sustained for the reason that the statute, § 4867, Crawford & Moses’ Digest, refers to express trusts, and the facts established by the evidence in this case establish a constructive or a trust ex maleficio, to which the statute has no reference.

It is well settled that equity impresses a constructive trust in favor of those entitled to the beneficial interest against one who secures the legal title by means of an intentional false verbal promise, who held the same for a certain specified purpose, and having thus obtained title he retains and claims the property as absolutely his own.”

See also Walker v. Biddle, supra. Appellant asserts there is no proof of fraud in this case, and accordingly, no grounds for declaring a constructive trust. Whether appellant Williams was guilty of fraud, is here of no consequence, and requires no discussion, for proof of fraud is not essential to the establishment of a constructive trust. In Robertson v. Robertson, 229 Ark. 649, 317 S. W. 2d 272, this Court said:

“A grantee’s oral promise to hold the land for a third person is unenforceable under the statute of frauds, hut a constructive trust will be imposed if it is shown by clear, convincing and satisfactory evidence that the grantors promise was intentionally fraudulent or that the grantor and grantee were in a confidential relationship.”

Under appellees’ theory, and proof, 'Williams stood in a confidential relationship with his aunts and other relatives, and the evidence offered on their behalf reflects that they reposed their trust and confidence in him, were depending upon him to protect their rights, and trusted him to reconvey to them their respective interests in the land. Black’s Law Dictionary, 4th Edition, defines a constructive trust as: “A trust raised by construction of law, or arising by operation of law, as distinguished from an express trust. ¡Wherever the circumstances of transaction are such that the person who takes the legal estate in property cannot also enjoy the beneficial interest without necessarily violating some established principle of equity, tlj|e court will immediately raise a constructive trust, anc| fasten it upon the conscience of the legal owner, so as to convert him into a trustee for the parties who in equity are entitled.to the beneficial, enjoyment.”

This brings us to a discussion of the most pertinent question in the litigation, vis., was the evidence, from which the court found a constructive trust, clear, cogent, and convincing? The testimony of Attorney Coates is particularly impressive, not because he was the only witness testifying who was not a relative, or had no apparent interest in the case, hut mainly because his testimony “ties in” with the circumstances that tend to throw light upon what actually transpired, and was agreed upon, between the parties. There certainly seems to he no reason why Mr. Coates would not have testified according to his best recollection; he evidently represented the entire family group, and the evidence re-, fleets no purpose that he could have had in stating that the agreement was anything other than what he understood it to be. As to the circumstances referred to, we mention the following:

It is admitted by Otis Williams that Miss Riegel would not turn over to him the $1,000.00 check from the insurance company; Mr. Coates testified that she followed his advice in that regard, since he explained that this money, under the agreement between the parties, belonged to all of the heirs.

Several of the appellees continued to live on the land without paying any rent, though Williams testified that he permitted them to do this. There was even testimony that he paid rent to some of the heirs.

Miss Riegel purchased the property at the commissioner’s sale, and then deeded it back to Otis Williams, taking a deed of trust as security for the money she advanced. This, of course, is in complete conformity with the testimony of Mr. Coates to the effect that the parties were endeavoring to place the title in one individual for the purpose of securing a loan. What other reason would Miss Riegel have for purchasing the property, except to further the agreement beween appellees and Otis Williams? Certainly, she was not trying to buy it in for herself, because, within a few days, she deeded it to Williams, and took the deed of trust. In other words, it is obvious that the partition suit, the purchase by Miss Riegel, and the conveyance from the latter to Otis Williams, were all part of a preconceived plan.

A very pertinent bit of evidence was the copy of a letter, offered as an exhibit, from Otis Williams to his commanding officer at Camp Robinson. This letter was written by Mr. Coates for Williams, the áttorney, according to his testimony, dictating the latter to his secretary, in the presence of appellant. The letter reads as follows:

‘ ‘ Sir:
I have recently been inducted into the United States Army and arrived here for duty Saturday, December 5th, 1942.
Before being drafted for service in the United States Army I farmed in Phillips County, Arkansas, on a tract of land of 120 acres that was owned by me and other heirs of Andrew Williams, deceased. This land is situated in a drainage district known as the Little Cypress Drainage District of Phillips County, Arkansas, and annual assessments had accumulated against the land to the extent of approximately $1,000.00. By reason of the fact that the title to the land was considerably involved with many heirs it was impossible for us to secure a loan on the land to pay the drainage district assessments and we were about to lose the land by reason of the nonpayment of these assessments.
The balance of the heirs placed the matter in my hands to look after and work out for them inasmuch as they were scattered over various parts of the country and in October of this year I employed an attorney, Mr. A. M. Coates, of Helena, Arkansas, to file a suit in the chancery court there to get the title to the land straightened out so that money could be borrowed on the land to pay the drainage district assessments.
The case was heard by the Chancery Court on the 23rd day of November, 1942, and a decree rendered and the land ordered sold and the same has been advertised for sale by the Commissioner appointed by the Court on the 18th of December, 1942. The next term of the Chancery Court in Phillips County, Arkansas, will be held on the 6th of January, 1943, at which time the sale will be confirmed by the Court and then I can proceed to close the matter by completing the loan on the land and paying the assessments to the drainage district and thereby save this land for myself and the other heirs.
Inasmuch as the matter was placed in my hands by the other heirs to handle for them it will be necessary that I execute all the loan papers in order to pay the drainage district assessments after the sale has been confirmed on January 6th, 1943.
Therefore, I wish to apply for a leave of absence from the Army, the time to be so arranged that I can be in Helena, Arkansas, on January 6th and 7th, 1943, as the papers above referred to cannot be completed until the sale is confirmed by the Chancery Court. * * * ”

Williams testified that he never read the letter, nor was it read to him, and that he had no idea of the contents; that Coates gave it to him sealed in an envelope, and told him to give it to his commanding officer. He stated that he did not know whether he signed it. Williams did subsequently write Coates stating that, “The letter you give me was a prince, and I will be there on the said days.” Aside from the fact that it is difficult to conceive of Williams getting the letter from Coates, delivering it to his commanding officer, and writing back as to its effectiveness — without ever knowing the contents thereof — this evidence is also a strong circumstance substantiating the testimony of Coates. Let it be remembered that Coates was the man consulted by both Williams and appellees Coates was the individual who prepared the deed — who instituted the 1942 complaint— who arranged the Riegel loan — and the Riegel purchase of the property. The letter, admittedly, was written approximately eight months after the conveyance from appellees, and only a few days after the Chancery Court decree of 1942, i.e., it was written at a time when the details of the agreement should have been clear in the mind of this attorney who suggested it — in fact, before the complete plan had been fully consummated, and at a time when no litigation was contemplated.

One of the strongest circumstances in the record, to substantiate the agreement as contended for by appellees, is the fact that Williams, in 1951, purchased the interests of Jelle Lee Holmes, and her brother, Sylvester Williams, and each of these grantors executed a deed to Williams at that time. Both Jelle Lee Holmes and Sylvester had joined in the deed of April 4, 1942, and Sylvester’s wife had released her dower and homestead rights. If there was no trust agreement in 1942, and the deed from appellees at that time was an outright and absolute conveyance to Otis Williams, why did he deem it necessary to obtain a second deed from Jelle Lee Holmes and Sylvester Williams? We are of the opinion that the evidence was clear, cogent, and convincing, and the Chancellor was justified in declaring a constructive trust in favor of appellees.

This leaves only the question of whether Davidson was a bona fide purchaser for value. Here, we leave the “clear, cogent, and convincing” rule, and determine this question on whether the Chancellor’s findings were against the preponderance of the evidence. Mr. Coates stated that he advised Davidson of appellees ’ interest in the property at about the time the insurance check was received by Miss Riegel, and her notes assigned to Davidson, fully explaining the state of the title and the reason the insurance check could not be applied to Otis Williams’ debt. This appellant testified that no such discussion took place. We are unable to say that the Chancellor’s finding was against the preponderance of the evidence, but we do feel that the court erred in not granting Davidson relief in the amount of the notes assigned to him by Miss Riegel, and any further amount that Davidson may have advanced to Williams solely for the use and benefit of this land. After all, Miss Riegel herself would have been entitled to the $1,479.00 from Williams, and Davidson “stands in her shoes” to that extent. This is to say that Davidson is not entitled to a lien on appellees’ interests in the lands for any amount of debt which was already in existence at the time he was assigned the Eiegel notes, or for amounts furnished Williams because of other transactions or securities. According to Davidson, Williams was already indebted to him in the amount of twelve or thirteen thousand dollars. It is impossible to determine from this record the exact amount this appellant would be due. The cause is therefore remanded to the Chancery Court with directions to ascertain and determine the proper amount due Davidson under our holding herein. In all other respects, the decree is affirmed.

       Miss Riegel was killed in an automobile accident on September 27, 1956, which Mr. Coates stated was the reason for his testifying in the case.

       This heir sold her interest in the lands to Otis Williams on December 4, 1942.

       Williams was indebted to appellant Davidson at that time for twelve or thirteen thousand dollars, due to loans and furnishings for a long number of years.

       Actually, Williams, over a period of about eight years, executed several deeds of trust in favor of Miss Riegel, to secure sums advanced to him.

       Emphasis supplied.

       The letter was written on December 2, .1942, which was, of course, prior to the sale of the property, the purchase by Miss Riegel at the sale, and prior to the conveyance to Williams by Miss Riegel.

       It is interesting to note that Miss Riegel filed a bill of inter-pleader in the Chancery Court in August, 1952, paying into the registry of the court the $1000.00 check, asserting the agreement between appellees and appellant Williams, as herein discussed, stating that Williams had subsequently purchased the l/6th undivided interest of Aline White and the l/12th undivided interest each of Sylvester Williams and Jelle Lee Holmes, and stating that several of the heirs were asserting a claim to the proceeds of the check, and she was unable to distribute same without risk of liability to herself.


source: Caselaw Access Project

author: Ed. F. McFaddin, Associate Justice.

license: Public Domain

text:
    Edens v. State.
    5026
    359 S. W. 2d 432
    Opinion delivered May 28, 1962.
    [Rehearing denied September 10, 1962.]

      Gus Camp, for appellant.

      J. Frank Holt, Attorney General, for appellee.
   Ed. F. McFaddin, Associate Justice.

Arnold Edens was convicted of the crime of obtaining property by false pretense (§ 41-1901 Ark. Stats.); and he prosecutes this appeal. The record is voluminous, and the motion for new trial contains sixty-five assignments, all of which are presented in the appellant’s brief and have been studied. We group and discuss them.

I. Preliminary Matters. A number of assignments relate to such preliminary matters as the signature on the information, a bill of particulars, endorsing the names of the witnesses on the information, motion for continuance, amount of bail, etc., etc.; but we find no merit in any of these. The Prosecuting Attorney signed and filed an amended information which gave the defendant all the particulars that the law requires. Copies of certain exhibits were furnished the defendant, and the list of State witnesses was given to him. The defendant was not entitled to receive copies of the statements that the Prosecuting Attorney had obtained from the various witnesses for the State, as this was a part of the Prosecuting Attorney’s work papers. Furthermore, we have held that the Discovery Statute (Act No. 335 of 1953) does not apply to criminal cases. Bailey v. State, 227 Ark. 889, 302 S. W. 2d 796. The Trial Court did not abuse its discretion in the rulings on any of these so-called preliminary matters.

II. Jurors. The appellant claims several errors as. to method of calling jurors, making up the panel, etc., etc.; but we find no error. The only matter meriting discussion is the claim that the Court erred in holding that Mr. Woolard was qualified; but we consider any error in this ruling to be harmless because of the condition of the record. Woolard had served as a juror within the previous two years and such service made him ineligible to serve at the time of this trial. (Act No. 205 of 1951, as now found in § 39-225 Ark. Stats. The Court held that such disqualification of Woolard could be waived by Woolard’s failure to claim such privilege. We think the two-year disqualification under Act No. 205 of 1951 is mandatory, and not something that the individual juror can waive. But the Court’s ruling as to the juror, Woolard, constituted harmless error. The record shows that the appellant excused Mr. Woolard by exercising one of the defendant’s eight peremptory challenges allowed by statute (§ 43-1922 Ark. Stats.); and we fail to find in the record that appellant was forced to be tried by any disqualified juror.

III. Sufficiency Of The Evidence. On appeal, we must view the evidence in the light most favorable to the jury verdict. (Eddington v. State, 225 Ark. 929, 286 S. W. 2d 473; and Carnal v. State, 234 Ark. 1050, 356 S. W. 2d 651.) So viewing it, the State proved the following facts now to be recited: John W. Becker and Baymond Becker owned certain lands in Lawrence County on which was located a rice dryer of the approximate value of $100,000.00. In accordance with a previous contract, the Becker brothers on September 3, 1958, joined with their wives and executed a warranty deed to the United Enterprises, a corporation organized and dominated by the appellant, Arnold Edens. This deed was executed and delivered in Edens’ office in Paragould, upon his representation to the Beckers that he had for them investment certificates in the “Investor’s Mutual, Inc.”, a company which Edens said he represented. Edens exhibited to the Beckers two certificates for shares in “Investor’s Mutual, Inc.” One was Certificate No. 22392055 to J. W; Becker and Exa Becker, Ms wife; and the other was certificate No. 22392054 to Baymond Becker and Myrtle Becker, his wife. Bnt Edens told the Beckers that “Investor’s Mutual, Inc.” had issued the certificates for twice as many shares or interests as the Beckers were entitled to receive, and that he would return the certificates to “Investor’s Mutual, Inc.” for reissuance for the correct number of shares or interests, and the corrected certificates would be delivered. Edens signed and gave to the Beckers a receipt which read: “Sept. 3, 1958. Beceived from John "W. Becker & Exa A. Becker, No Cash — Dollars — Cert. No. 22392055 5056:00 Investors Mutual. (Signed) Arnold E. Edens, Zone Mgr. 5311, Investors Diversified Services, Inc. ’ ’

The Beckers never received any certificate of any kind for shares or interests in Investor’s Mutual, Inc.; and it was testified by an auditor for Investor’s Mutual, Inc. that the Company had never issued a certificate with numbers like those on Edens ’ receipt, and that the Company had never issued certificates like those which Edens exhibited to the Beckers. In short, the certificates exhibited by Edens to the Beckers were forgeries.

The evidence already detailed, if believed, would establish that Edens obtained the deed from the Beckers on September 3, 1958 by representing and exhibiting to them two papers which he said were valid certificates, but which were in fact forgeries, and void and of no value. It was further testified that Edens never returned the deed to the Beckers. Three of our more recent cases, involving this false pretense statute, are Anderson v. State, 226 Ark. 498, 290 S. W. 2d 846; Karr v. State, 227 Ark. 777, 301 S. W. 2d 442; and Kerby v. State, 233 Ark. 454, 342 S. W. 2d 412. In accordance with the rules of these and other cases, we conclude that the evidence was sufficient to support a- conviction under § 41-1901 Ark. Stats., which reads:

“Obtaining personal property by false pretense. Penalty. Every person who with intent to defraud or cheat another, shall designedly by color of any false token or writing, or by any other false pretense, obtain a signature of any person to any written instrument, or obtain from any person any money, personal property, right of action, or other valuable thing or effects whatever, upon conviction thereof, shall be deemed guilty of larceny, and punished accordingly.”

Edens claimed that all of this September 1958 deed and certificate matter was done by him merely to favor the Beckers in their income tax problems with the United States Government; that the United Enterprises, Inc. held John W. Becker’s note for $413,000.00; that in 1959 the corporation did in fact receive a deed conveying the rice dryer property; and that the United Enterprises then duly credited the Becker note with $100,000.00. John W. Becker denied that he had ever signed any such note for $413,000.00; and that became a disputed issue in the case. But such explanation by Edens was a matter for the jury to decide. The jury chose to believe the Beckers’ version of the transaction; and we must conclude that the evidence is sufficient to sustain the verdict of conviction.

IV. Rulings As To Evidence. A large number of appellant’s assignments relate to the Court’s rulings as to admitting or excluding evidence, form of questions, etc., etc. We have carefully examined all of these assignments and find no reversible error. We mention only a few. Assignment No. 16 relates to the refusal of the Court to permit the appellant to question the prosecuting witness, John Becker, pertaining to his relationships with the United Enterprises. When the Court originally refused this cross-examination, the appellant made an offer to prove what the witness would testify. Later, in the course of the trial, John Recker was recalled and was then cross-examined as to moneys received from United Enterprises, the use of a telephone credit card, the insurance on his airplane, and various other matters which were in the previous offer of proof. Therefore, the appellant finally obtained his claimed right of cross-examination, and the first ruling was overcome.

Assignments 49, 50, and 51 relate to questions that the Prosecuting Attorney asked the defendant when he was on the witness stand. The Prosecuting Attorney inquired: “I will ask you, going to your credibility, if you did not defraud Mrs. Kelly Winfred Recker, a woman 72 years of age, out of $7,000.00.” Similar questions were asked concerning three other persons. In each instance the defendant answered that he did not defraud such named person; and that ended the inquiry. We find no error committed in the Court’s rulings in these matters. When a defendant takes the witness stand in his own behalf in a criminal trial, he submits himself to correct questions that may be asked him on cross-examination to test his credibility. Hunt v. State, 114 Ark. 239, 169 S. W. 773; and Castle v. State, 229 Ark. 478, 316 S. W. 2d 701. The questions here propounded went to the credibility of the witness. But when the defendant answered in the negative the inquiry stopped, and there was no effort to impeach him on these answers. So no error was committed in these matters.

Assignment 53 in the motion for new trial relates to the ruling of the court in permitting the State to introduce character witnesses to support the reputation of the prosecuting witnesses. This occurred in the State’s rebuttal. Assuming without deciding that the character and reputation of these witnesses had not been put in issue, nevertheless, a careful study of the record fails to disclose any objection or exception made by the defendant to the testimony of any of these character witnesses. So there are no exceptions on which-7.Q..;J?ase these assignments. .

V. Ruling On The Motion For New Trial: in the 'motion for new trial, the defendant, inter alia, sought to bring in the testimony of Mr. Linton Godowil, a: handwriting expert of' Memphis, Tenhéásee, to show that the witness John W; Recker had in fact" signed the note' for $413,000.00 to the United Enterprises. 'The' Trial Court overruled the motion' for new trial and the appellant claims that reversible error was thereby committed. We see no error in this regard because the testimony of Mr. Godown to support the motion for new trial was cumulative of the evidence that the defendant had offered on this same point in the trial in chief. Many pages in the record in the trial in chief are' concerned with the testimony as to whether John W. Recker signed the $413,00.00 note. What was said in Sellers v. Harvey, 220 Ark. 541, 249 S. W. 2d 120, is entirely apropos here:

“This court has consistently applied the following rules in considering an application for a new trial on the ground of newly discovered evidence under the seventh sub-division of Ark. Stats., § 27-1901: First, the testimony must have been discovered since the trial; second, it must appear that the new testimony could not have been obtained with reasonable diligence on the former trial; third, it must be material to the issue; fourth, it must go to the merits of the case, and not to impeach the character of a former witness; fifth, it must not be cumulative. John Robins v. Absalom Fowler, 2 Ark. 133; Mo. Pac. Transportation Co. v. Simon, 200 Ark. 430, 140 S. W. 2d 129.
“Another settled rule is that the motion is addressed to the sound discretion of the court and this court will not reverse for failure to grant it unless an abuse of such discretion is shown. Forsgren v. Massey, 185 Ark. 90, 46 S. W. 2d 20.”

VI. Other Assignments. As heretofore stated, the motion for new trial contains 65 assignments. To discuss each of them would unduly prolong this opinion. It is sufficient to say that we have carefully studied all of* them, and find none to possess merit.

Affirmed.

Ward, J., not participating.

       As regards jurors over 65 years of age being allowed to be excused from jury service, that is a personal privilege which the juror can waive (§ 39-104 Ark. Stats.); and, here, no juror over 65 years of age claimed his personal privilege to be excused.

       The statute was amended by Act No. 111 of 1959; but the date of the offense here charged was September 3, 1958; and we have a statute which provides that the subsequent repeal of a statutory offense does not affect the prosecution under the law as it existed at the time of the offense. (§ 1-104 Ark. Stats.)


text:
    Farr v. Traders & General Ins. Co.
    5-2697
    357 S. W. 2d 544
    Opinion delivered May 28, 1962.

      Charles C. Wine and LeRoy Autrey, for appellant.

      Shaver, Tackett & Jones, for appellee.
   Ed. F. McFaddin, Associate Justice.

This litigation results from an oil well “blow in.” Appellant, A. T. Farr, Jr., was drilling for oil in Lafayette County; about 9:30 p.m. on June 10, 1960, while the drill pipe was being removed, the well “blew in”, erupting like a volcano and sending oil, water, and mud hundreds of feet into the air; a large crater developed; the entire, rig was lost; and the semi-liquids coming from the well began to flow over surrounding land. Immediately after the “blow in” Farr employed H. R. Wootton, whose crew, working with bulldozers, was able to erect levees to minimize the damage to adjacent lands and streams. Two days later (Sunday, June 12th) the Haliburton Oil Well .Cement Company succeeded in “killing the well” and stopping the eruption. Wootton’s work of clearing the land by use of bulldozers continued for approximately three weeks; and the payment of Wootton’s charges of $7,325.00 is the matter of contention in this litigation..

Wootton recovered judgment against Farr for the amount claimed. Farr (appellant) then brought this action against the appellee, Traders & General Insurance Company (hereinafter called “Insurance Company”) claiming that under its policy issued to Farr the Insurance Company was obligated to pay the judgment Wootton had obtained against Farr. The Insurance Company denied liability; and trial to the Court, without a jury, resulted in a finding and judgment for the Insurance Company. This appeal ensued.

The policy which the Insurance Company issued to Farr was a liability policy, and not a property damage policy. So at the outset Farr concedes, with admirable candor, that the basis of his recovery is not the coverage in the policy but rather: (a) the actions of the insurance adjusters in authorizing the Wootton work; or (b) that Farr’s prompt employment of Wootton resulted in minimizing the Insurance Company’s liability for damages to adjacent land-owners, and the Insurance Company would be unjustly enriched if it did not pay the Wootton judgment against Farr. We examine these contentions.

I. The Actions Of The Insurance Adjusters. As aforesaid, the well “blew in” at 9:30 p.m. Friday night, June 10, 1960, and within two hours thereafter Farr had Wootton and , his crew building levees, minimizing the damage that the erupting' well might cause. The next day after the explosion, Farr’s bookkeeper notified the insurance agents who had issued the policy to Farr. Pursuant ,to such notification, the Insurance Company sent two independent insurance adjusters (J. C. Floyd and Carl W.. Pelley) to. inyestigate and report.. Floyd and Pelley visited the well site on Tuesday, June 14th, and discussed the matter with Farr. What was said in the conversation is a matter of dispute. Farr testified that the adjusters told him to continue the work and satisfy the property owners; hut the adjusters testified that they merely congratulated Mr. Farr on his promptness, investigated the full situation, and settled with the land owners for their property damage. The adjusters denied that they had any authority to bind the Insurance Company for Wootton’s work. Thus, there is a direct conflict in the testimony.

Later, and before Wootton had completed his work, he and Farr met with the insurance adjusters in Texarkana and the conversations that transpired at that meeting are likewise in dispute. Farr and his witnesses testified that the insurance adjusters agreed that the Insurance Company would pay Wootton’s claim within ten days after the work was completed and a final bill was submitted. On the other hand, Pelley and Floyd testified that they definitely informed Farr and Wootton that the adjusters had no authority to authorize payment of the bill and that the adjusters would send the bill to the Insurance Company for its decision. The Assistant Vice President of the Insurance Company testified that Pelley and Floyd were independent adjusters and had no authority to authorize the Wootton work or to assume liability for Wootton’s bill. Thus, there was a sharply disputed question of fact. The policy contained a provision that “. . . the company shall . . . reimburse the insured for all reasonable expenses . . . incurred at the company’s request . . .” (Emphasis our own.) But here the adjusters denied that they requested the work by Wootton; and the Insurance Company denied that the adjusters had any authority to make such request.

The Trial Court specifically found that the Insurance Company “. . . did not request Farr to build the levee: on the other hand, Farr voluntarily called Wootton and put him on the job.” In a well-worded and comprehensive opinion, the Trial Judge reviewed the applicable law and found, from the evidence, that Farr had failed to prove the authority of the adjusters, Pelley and Floyd, to assume for the Insurance Company the charges for the Wootton work. This finding of fact by the Circuit Judge has substantial evidence to support it, and has the force and effect of a jury verdict. Pate v. Fears, 223 Ark. 365, 265 S. W. 2d 954; Coward v. Barnes, 232 Ark. 177, 334 S. W. 2d 894. We affirm the Trial Court’s finding that the Insurance Company did not request the Wootton work or ratify the expenses incurred by Farr.

II. Farr’s Prompt Action As Minimising The Damages. The second point, relied upon by the appellant for reversal is, that the Insurance Company should pay Wootton’s judgment against Farr because Farr’s prompt action in employing Wootton minimized the amount of damage claims that the Insurance Company might have been required to pay. the Circuit Judge used this language as regards Farr’s efforts in minimizing the damages:

“The Court is not unmindful that the quick action of Farr undoubtedly worked to the benefit of Traders & General. The damming of the flow of debris prevented considerable property damage, which damage could have involved Farr’s insurance carrier. But it must be remembered that Farr’s expenditure was likewise beneficial to him. First, he maintained the good will of the landowners, and, secondly, if he had stood idly by and permitted damage to vast acreage plus pollution of Bodcaw Creek, he could conceivably subject himself to damage suits far in excess of his liability coverage.”

Notwithstanding the foregoing, the Circuit Judge could find no substantial evidence on which to base any recovery by Farr against the Insurance Company; and we are unable to say that the Circuit Judge was in error. By the terms of the policy, the Insurance Company agreed to pay, on behalf of Farr, “all sums which the insured shall become legally obligated to pay as damages . . • .” The evidence in the record before us leaves entirely to speculation just how much benefit the Insurance Company received from Farr’s action in employing Wootton. Judgments cannot be based on speculation; and a study of the record fails to disclose any damage claims for which the Insurance Company might have been liable if Wootton’s bulldozer work had not been performed. There is no evidence in this record that would support a court of law in deciding that the prompt action of Farr reduced the claims against him (for which the Insurance Company would have been liable) in the amount of $7,325.00, or any other amount. As aforesaid, verdicts and judgments cannot be based on speculation. “Conjecture and speculation, however plausible, cannot be permitted to satisfy the place of proof.” Missouri Pacific R. R. Co. v. Ross, 194 Ark. 877, 109 S. W. 2d 1246; Glidewell v. Arkhola Sand & Gravel Co., 112 Ark. 838, 208 S. W. 2d 4.

Affirmed.

Ward and Robinson, JJ., dissent.


author: George Rose Smith, J.

text:
    Hargett v. State.
    5037
    357 S. W. 2d 533
    Opinion delivered May 28, 1962.

      Claude F. Cooper, for appellant.

      J. Frank Holt, Attorney General, by Bussell J. Wools, Asst. Atty. General, for appellee.
   George Rose Smith, J.

The appellant was convicted of burglary and grand larceny and sentenced to imprisonment for nine years. In seeking a reversal of the judgment he questions the admissibility of his confession.

It is first suggested that the confession should have been excluded because there is no other evidence connecting the accused with the crimes. This is immaterial. An extra-judicial confession is sufficient to support a conviction if there is other proof that the offense was committed by someone. Ark. Stats. 1947, § 43-2115; Faraway v. State, 203 Ark. 912, 159 S. W. 2d 733. Here there was testimony that the drugstore in question had been broken into and that more than $300 in money and more than $70 in merchandise were taken.

The appellant’s principal contention is that his confession was not voluntarily given. Hargett, a young man of twenty-two, was arrested in Steele, Missouri, after he had apparently injured his leg in kicking out a glass door or window in a grocery store there. He waived extradition, and Captain Ford, a Blytheville police officer, was sent to bring him back to Arkansas. The confession was made to Ford.

Ford testified that he warned Hargett that any statement that he made could be used against him. Ford said that no threats or promises of reward or immunity were made. On cross-examination he stated candidly that he told Hargett that ‘‘ [I] would help him all I could. In fact, I helped the young man all I could. All I ever told him, I would help him all I could. ’ ’ He denied that this offer to help was conditioned on Hargett’s admitting the burglary. Ford also said that the accused was not complaining about his injured leg during their interview and that there was no promise to take him, to the hospital if he would confess.

From the evidence as a whole the jury were justified in believing that in the course of questioning the prisoner Ford made the general statement, but not as a specific inducement for a confession, that he would help Hargett all he could. The issue is not free from difficulty, but we are unwilling to say as a matter of law that Ford’s vague offer of assistance rendered the confession involuntary and inadmissible.

“Often the statement or conduct [of the interrogator] is not a clear and specific promise of immunity, reward or benefit. In such event the question of whether the statement or conduct was such as would and did induce hope of reward or benefit depends largely upon the circumstances of each case.” Underhill’s Criminal Evidence (5th Ed.), § 388. In Cornelius v. Moore, 208 Ala. 182, 94 So. 55, the sheriff told the accused that “any other way I can be a friend to you I will be glad to do it.” The confession was held to be admissible.

Similarly, in State v. Kwiatkowski, 83 N. J. Law 650, 85 Atl. 209, the prisoner asked an interpreter about obtaining bail, and he was told that the interpreter would help him as much as he could. In holding the confession to be voluntary the court pointed out that the interpreter’s offer was not held out to the prisoner as a consideration for his making a statement or confession.

Here the question of whether Hargett’s statements to Ford were voluntary was submitted to the jury under instructions that are not challenged. We are not convinced that the officer’s decidedly indefinite assurance of help was necessarily sufficient to induce Hargett to make an admission of guilt that he would not otherwise have made. The court properly left the question to the jury, whose verdict is conclusive.

Affirmed.


author: George Rose Smith, J. Jim Johnson, Associate Justice,

text:
    Riley v. Vest.
    5-2725
    357 S. W. 2d 497
    Opinion delivered May 28, 1962.

      Fanklin Wilder, for appellant.

      Jeta Taylor and Mark E. Woolsey, for appellee.
   George Rose Smith, J.

This is a child custody case. B. J. and Wanda Vest were the parents of- two infant children at the time of Mrs. Vest’s death in January of 1961. The father had been away in military service, and for some time before her death Mrs. Vest had been living with the children in the home of her parents, the appellants. After their mother’s death the children remained with the appellants, their maternal grandparents, for several months. Their father then picked them np and took them to the home of his sister, the appellee Pauline Horton, and her husband.

In August of 1961 the appellants filed the present petition, asking for custody of the children. The principal defendants are the children’s father, B. J. Vest, and his sister and brother-in-law, the Hortons. In the course of refusing to make any change of custody the chancellor conducted two separate hearings and entered two separate orders. The appellants have appealed from both the orders.

At the first hearing the grandparents sufficiently proved their own fitness to have the care of the children, but they rested their case without having shown that R. J. Vest was unfit to have the custody of his own children. The defendants accordingly demurred to the plaintiffs’ evidence. Without ruling upon the demurrer the chancellor announced that he would treat the petition as one for visitation rights. The record is not absolutely clear about what then happened, but it is a fair inference that the opposing attorneys conferred and agreed that the appellants should have the children on the fourth weekend of each month and that the paternal grandparents should have them on the second weekend. An order to that effect was duly entered, and this order is the first one appealed from.

We cannot say that the chancellor was wrong in taking the action that he did. The appellants ’ failure to show that Vest was not fit to have the care of his own children was a fatal omission, for a third person cannot deprive a parent of the custody of his own children without first proving that the parent is not a suitable person to have them. Verser v. Ford, 37 Ark. 27; Rayburn v. Rayburn, 231 Ark. 745, 332 S. W. 2d 230. That proof was wanting at the conclusion of the first hearing. The chancellor did not actually rule upon the defendants’ demurrer to the evidence, but in our opinion the demurrer might properly have been sustained, on account of the defect in the plaintiffs’ proof. The appellants criticize the chancellor’s order of visitation; but they were present at the hearing, and the record does not indicate that they expressed any dissatisfaction with their counsel’s agreement to the order. There is, of course, a presumption that an attorney of record is authorized to act for his clients. His action within the scope of Ms authority is binding upon his clients, even though they may later think it to have been unwise.

After the first hearing the appellants changed lawyers and engaged their present attorney. Some twenty-six days after the entry of the first order the appellants’ present counsel filed a motion for reconsideration, attaching six affidavits purporting to show that Vest was unfit to have the custody of the two children. This motion was presented to the chancellor (after the lapse of the term) and was denied. The second notice of appeal relates to that order.

We find no error. The request for a reconsideration is comparable to a motion for a new trial in a court of law or to a bill of review in a court of equity. If a litigant fails to develop his case fully when it is first heard upon its merits the law does not afford bim a second chance by permitting him to bring in additional proof that might just as well have been offered in the first instance. It is essential that he make a showing of diligence; that is, that for some valid reason he was unable to produce the missing evidence at the original hearing. Richardson v. Sallee, 207 Ark. 915, 183 S. W. 2d 508. That showing is absent here; to the contrary, it is indicated that the appellants’ witnesses on the issue of the father’s unfitness to have the children were present at the first hearing but were not called to the stand. Thus it cannot be said that the evidence was newly discovered or could not, with reasonable diligence, have been adduced at the original hearing.

Affirmed.

Johnson, J., dissents.

Jim Johnson, Associate Justice,

(Dissenting). Upon the strong showing made by appellants as to the unfitness of the appellees to be entrusted with the care and custody of these little children, I am convinced that the motion for Reconsideration should have been granted.

This is a child custody case which is before us on trial de novo. It is so well settled as to require no citation of authority to support the proposition that one of the paramount questions which should concern us the most is the welfare of the children. The superior position enjoyed by natural parents in questions of custody as cited in the majority opinion has always been reserved for those parents who are deserving of that position. My research fails to reveal an application of this rule in a single case where the suggestion of unfitness of a natural parents is nearly as strong as that made in the affidavits filed in support of appellants’ motion to reconsider. Therefore, it seems to me that since this is an Equity case and the trial court’s order specifically retained jurisdiction of the cause for the making of such further orders as the court might find to be proper and necessary, the cause should be remanded for further development so as to permit the appellants to properly present their proof on the most vital and startling matters alleged in their affidavits. These matters certainly go to the heart of the question of the welfare of the children.

To the extent indicated, I respectfully dissent.


author: Paul Ward, Associate Justice.

text:
    Minor v. Poinsett Lumber & Mfg. Co.
    5-2728
    357 S. W. 2d 504
    Opinion delivered May 28, 1962.

      Ward & Lady, for appellant.

      Barrett, Wheatley, Smith & Deacon, for appellee.
   Paul Ward, Associate Justice.

This is a Workmen’s Compensation case. Appellant received compensable injuries in April, July and October, 1960, while in the employment of appellee. He was allowed compensation through November 21,1960. Since December 2,1960 appellant has been unable to work, and the Commission and the circuit court held he was not entitled to further compensation. Hence, this appeal.

Generally stated, the pertinent factual circumstances are substantially as presently set forth. Appellant, who is married, began working for appellee late in 1959, after he had been given a physical examination. For several years prior to that time he was nervous and at times he was mentally disturbed. Because of this condition, and not primarily because of his physical condition, it was thought best not to have appellant testify. For that reason, no doubt, the record does not contain a detailed account of how the accidents occurred or the extent of the injuries. However, from statements made by appellant to the doctors and others, the following general picture emerges.

' On April 20, 1960 appellant was injured when he fell, from a tractor. His back was hurt, and he also complained of ^rouble with his eyes. He was examined by a doctor ..and after a four days ’ layoff, he returned to work. This injury was accepted by appellee as compensable.

Again, on July 27, 1960, appellant suffered another compensable injury which the referee said may have aggravated the injury of April 20, 1960. At any rate, appellant was off from work until October 18, 1960.

On the day following his return to work, appellant, while going to lunch, was struck by a car, and received still another compensable injury which, apparently, was more severe than the other two. Allegedly he was thrown upon the front of the automobile with such force that his head broke (or cracked) the windshield. At any rate, it is admitted that appellant received a large severe bruise on his left leg, and it appears likely he received other injuries also.

Petition. Appellant filed a petition with the Commission in which, among other things, it was stated:

(a) Prior to the injuries he had no physical impairment except his mental condition.

(b) As a result of the injuries he has been totally incapacitated to do any work for which he is suited.

(c) He has incurred medical bills to the extent of $700 and will incur such bills in the future.

Commission’s Findings. The following pertinent findings of fact were made: (a) Appellant suffered a compensable injury on April 20 and July 27, 1960 for which he has been paid (including medical bills) up to October 19, 1960; (b) Appellant suffered a compensable injury on October 19, 1960 when he was struck by a car, from which he was temporarily totally disabled until November 21, 1960 when he was released to return to work without permanent partial disability; (c) Appellant’s absence from work since December 2, 1960 is not the result of his aforementioned injuries; (d) Appellant’s coronary artery disease bears no causal relationship to said injuries — neither does his mental incompetency.

After a careful examination and consideration of the entire record, and being fully aware of the force and effect of the Commission’s findings of fact, we have been forced to the conclusion that there is no substantial evidence to support finding (d) set out above. It is undisputed that appellant is (or was) unable to work. His inability to work must have been caused by something— either the injuries or his coronary and mental condition. So the Commission must have meant that appellant was unable to work because of his mental and coronary condition, or one of such conditions. The Commission then obviously denied compensation because it found there was no causal relationship between the (admitted) injuries and appellant’s mental and coronary condition.

It is well established by our Court “that an injury which brings about an aggravation of a preexisting condition is compensable under our Workmen’s Compensation Law”. Hamilton v. Kelley-Nelson Construction Co., 228 Ark. 612, 309 S. W. 2d 323.

In the first place, it does not appear clear to us that the Commission attempted to answer this vital question: Was appellant’s mental and coronary condition aggravated by the injuries? If the Commission did mean to answer this question in the negative, then we think there is no substantial evidence to support such answer.

Dr. Robert T. Colbert, who apparently examined appellant more frequently than any other doctor, stated unequivocally several times that the accidents aggravated appellant’s nervous condition and also his coronary disease. Dr. Joe Verser, who examined appellant on March 7, 1961, stated he was not able to work and that his mental condition was the principal reason why. He also stated that appellant’s injuries could have aggravated his mental condition. The matter of aggravation was not mentioned one way or the other by Dr. Marcus J. Stewart, by Dr. R. C. Shanlever, or by Dr. Paul T. Drenning. Dr. Floyd A. Smith, Jr. may not have exactly agreed with the other doctors who said the injuries ag-v gravated appellant’s mental and coronary condition, but we do not think his testimony amounts to a positive disagreement. Dr. Smith, who only examined appellant shortly after he was injured on October 19, 1960, in a letter dated March 8, 1961, made this statement:

“Assuming that this individual did have a myocardial infarction on Dec. 13, 1960, I can not possibly conceive how this could be precipitated from an injury of the left lower leg, and neither do I believe that this injury aggravated the pre-existing mental derangement. ’ ’

It appears to us that Dr. Smith was not taking into consideration the same factors that were considered by the other doctors. To say that an injury to the left lower leg (on October 19, 1960) would not precipitate an infarction on December 13, 1960 is by no means the same thing as saying an injury to the back in April, another similar injury in July, and a severe injury in October would not aggravate a general nervous condition and a general coronary disease and hardening of the arteries.

Put another way, the real issue in this case is whether appellant would have been able to work longer if his injuries had not occurred. If he would have, then he is entitled to compensation under the principle announced in Frank Lyon Company v. Scott, 215 Ark. 274, 220 S. W. 2d 128; Bell v. Batesville White Lime Company, 217 Ark. 379, 230 S. W. 2d 643, and French v. Jonesboro Public Schools, 233 Ark. 879, 349 S. W. 2d 670. It is apparent the Commission did not consider appellant’s claim from this standpoint.

In accord with the conclusions heretofore expressed, the judgment of the trial court is reversed, and the cause is remanded to the circuit court with directions to remand to the Commission for further proceedings consistent with this opinion.

Reversed and remanded.


author: Sam Robinson, Associate Justice.

text:
    Delk v. Craig.
    5-2716
    357 S. W. 2d 522
    Opinion delivered May 28, 1962.

      McKay, Anderson & Crumpler, for appellant.

      William I. Prewett, for appellee.
   Sam Robinson, Associate Justice.

The issue here is whether the lessee of an oil and gas lease waited an unreasonable length of time after abandonment of the lease to attempt to remove from the premises personal property (trade fixtures) used in operating the lease, and whether by reason of such length of time the lessee has lost title to the personal property.

In 1938 H. A. McWilliams, owner of the land, executed an oil and gas lease to J. E. Childers. In 1948 Childers assigned the lease to the Hassie Hunt Trust (hereinafter called Hunt). Hunt operated the lease, producing oil or gas until March dr June, 1960. We do not think that in the circumstances it is material whether March or June was the last month of production. In any event, Hunt continued to have an employee look after the property and in February, 1961, for the consideration of $4,250.00, assigned the lease to Arthur Arnold. After making an investigation, Arnold reached the conclusion that the well on the property could not be operated at a profit and decided to abandon it.

On June 6, 1961, Arnold employed appellee, Marshall Craig, to pull the pipe and remove the “trade fixtures” from the premises. Craig moved the heavy equipment necessary for the job to the location of the well, but was prevented from carrying out his contract to remove the trade fixtures from the land by the action of appellant who obtained a temporary injunction prohibiting the removal of such property. .

On the 24th day of May, 1961, H. A. McWilliams, the landowner, executed to appellant, Mardrey S. Delk, an oil and gas lease on the property. When the “casing pulling contractor”, Craig, attempted to remove the trade fixtures from the property on June 6, 1961, appellant, Delk, filed this action and obtained a restraining order. Craig answered, denying that he was wrongfully removing the personal property and alleging that he had been damaged in the sum of $2,500.00 by the issuance of the restraining order.

After a trial on the merits, the Chancellor held in favor of Craig on the complaint, and awarded him $300.00 damages on the cross-complaint. Delk has appealed.

We cannot say the Chancellor’s decree is contrary to a preponderance of the evidence. In 3 Summers Oil and Gas 453, it is said: “It is a well-settled rule that casing in wells, derricks, engines, and other machinery and appliances placed upon the land by the lessee for testing, developing and operating the land for oil and gas purposes are trade fixtures. They may, therefore, be removed at any time during the existence of the lease, or within a reasonable time after its termination. If they are not so removed, they become the property of the landowner.”

The lease, executed in 1938, was for a term of ten years and as long thereafter as oil or gas was produced. According to the undisputed evidence, the well was operated as a producer until March or June, 1960. At that time, a vital piece of machinery, necessary to. the eperation of the well, broke. It was then that the well was shut down, bnt Hunt’s paid employee looked after the property every day.

In February, 1961, for the consideration of $4,250.00, Hunt assigned the lease to Arthur Arnold. It does not appear that Arnold paid such a substantial sum for the lease for the purpose of abandoning the well. On the contrary, there is evidence that he bought it with the idea of producing oil, but reached the conclusion that profitable oil production was not feasible. It was only then that he decided to abandon the well and made the contract with Craig to remove the trade fixtures. In Ezzell v. Oil Associates, 180 Ark. 802, 22 S. W. 2d 1015, the Court said: “The question of abandonment or not is a mixed question of law and fact, and each case must depend upon its own particular facts and circumstances. The intention of the lessee cannot be gathered from any statement of his alone. It must be determined from his intention as shown by his acts and conduct.”

In McLeon v. Wells, 207 Ark. 303, 180 S. W. 2d 325, the Court pointed out that the lessee has a reasonable time to remove his equipment from the leased premises after abandonment, and what is, a reasonable time depends on the facts and circumstances of each particular case. One of the things to be considered is whether the landowner has been damaged by the failure to remove the trade fixtures. Here, it is argued that McWilliams was damaged by being unable to raise pine trees at the site of the well because a small area was occupied by the personal property involved. We do not think there is any substantial evidence that McWilliams was damaged to any extent by reason of the trade fixtures not being removed sooner. In fact, McWilliams is not a party to this litigation, and there is no evidence, that Delk was in any manner damaged.

The Chancellor awarded Craig $300.00 as damages, occasioned by the issuance of the temporary restraining order. The evidence fully sustains a finding that Craig was damaged to the extent indicated. Craig submitted an itemized statement showing damages of more than $1,000.00 caused by being prohibited from carrying out his job of pulling the casing and removing the trade fixtures from the land. The evidence would sustain an award of a good deal more than $300.00.

Affirmed.

McFaddin, J., not participating.


author: Jim Johnson, Associate Justice.

text:
    Burns v. Owen.
    5-2656
    357 S. W. 2d 520
    Opinion delivered May 28, 1962.

      Holt, Park & Holt, for appellant.

      Bruce T. Bullion, for appellee.
   Jim Johnson, Associate Justice.

This is a suit by appellants, B. M. Burns and his wife against appellees Wayne Owen and his wife seeking to quiet title in appellants to a strip of land here in controversy and further seeking to compel appellees to remove their fence from the property.

From a decree of the Chancery Court of Pulaski County dismissing appellants’ complaint for want of equity, comes this appeal.

Appellant and his first wife, Beatrice, purchased the North 20 feet of Lot 22 and the South 15 feet of Lot 23, Block 6, Ebendale Addition to the City of Little Rock on August 27, 1934, and immediately moved on to the property. Soon after moving on the property appellant planted, an irregular strip of hedge running approximately East and West some twenty odd feet North of his house. In the vicinity of the West end of this so called hedgerow, appellant put up a dog pen, the North fence of which ran approximately in line with the hedge. Appellant Burns testified that he obtained the wire for the fence from the City Dump for $3.00 and just put it up to hold his dogs. There was evidence to the effect that at the time appellant moved on to the property a portion of the lot on which his house is located was washing away because of a huge ditch which ran through the land here in question. There was some evidence indicating that the fence and hedge were placed as they were to obstruct the flow from this ditch, in order to prevent further erosion of the soil from appellants’ lot. This so called hedgerow and fence are admittedly located on Lot 24, Block 6, of the Ebendale Addition and the strip of land here in question is the space between the hedge and fence and a line approximately 3 or 4 feet North of appellants’ house. This land includes the North 10 feet of Lot 23 and a part of Lot 24. In January of 1961, appellee purchased the said North 10 feet of lot 23 and all of Lot 24, Block 6, Ebendale Addition. On February 17, 1961, appellee advised appellants by mail of his purchase of this property and of his claim of ownership to the strip in dispute. It is undenied that thereupon appellant Mattie Burns offered to purchase the property from appellee. On March 28, 1961, appellee caused to be erected a chain link fence along the South boundary of the property he had bought.

On April 3, 1961, appellant filed suit to quiet title to the disputed property.

One. of the witnesses upon whom appellant relied to sustain his contentions was Hannah Lewis.

After testifying extensively about the conditions surrounding the disputed property, based on 20 years of living in this community, and visiting appellant Mattie Burns, Hannah on cross-examination testified as follows:

“Q. Now you said you were very familiar with the property?
“A. Yes, I know the property, I know Mattie, I am familiar with that part where Mattie lives.
“Q. That makes you familiar with the general neighborhood?
“A. Yes, I guess it does.
“Q. Is there any other vacant lot in that neighborhood?
“A. I don’t know.
“Q. How many houses are on the West side of Gaines between 31st and 32nd? (Same block as the land here in question.)
“A. I don’t know.
“Q. Is there any hedge in front of the house on the south of the Burns House?
“A. I don’t know.
“Q. In the block immediately north of Mattie’s house, how many houses are there?
“A. I don’t know.
“Q. Are there any vacant lots in there?
“A. I don’t know.
‘Q. And you don’t know of any other vacant property in that area?
“A. I don’t know nothing but that lot on the side' of Mattie, that is the only place I know of.”

Since there is no dispute to the fact that the chain of title to the property in dispute is complete in the appellee, the appellants have never at any time held even color of title to the disputed property. Therefore, if the appellants have any claim to this property it must be by adverse possession.

In the case of Clem v. Mo. Pac. R. R. Co., 223 Ark. 887 (1954) this Court said:

“What is necessary to constitute adverse possession was announced by this Court in Watson v. Hardin, 97 Ark. 33, 132 S. W. 1002, as'follows: ‘It is well settled by the authorities that this possession must be actual, open, continuous, hostile, exclusive and be accompanied by an intent to hold adversely and in derogation of and not in conformity with the right of the true owner.’ McCulloch v. McCulloch, 213 Ark. 1004, 214 S. W. 2d 209.”

The burden was on the appellants to prove their claim of adverse possession by a preponderance of the evidence. McConnell v. Day, 61 Ark. 464, 33 S. W. 731, (1896); Love v. Cowger, 130 Ark. 445, 197 S.W. 853; Gaither v. W. A. Gage and Co., 82 Ark. 51, 100 S. W. 80.

A large portion of the pertinent facts in this case are in hopeless conflict, suffice it to say. Appellants proved that they used certain portions of the land here in dispute from time to time but they have not proven to our satisfaction that such use was adverse. On the contrary, the weight of the evidence seems to support the fact that the land was held permissibly with knowledge on the part of the appellants, that the land was owned by another and that there was no intent to claim the disputed land as their own.

It follows, therefore, that the familiar rule, that the holding of the Chancellor will not be reversed unless it is against the preponderance of the evidence, applies here. Harp v. Christian, 215 Ark. 833, 223 S. W. 2d 778; Howell v. Simpson, 216 Ark. 873, 228 S. W. 2d 41; Clem v. Mo. Pac. R. R. Co., supra. Accordingly the decree is affirmed.


text:
    Superior Iron Works v. McMillan.
    5-2674
    357 S. W. 2d 524
    Opinion delivered May 28, 1962.

      Keith, Clegg & Eckert, for appellant.

      William C. Gilliam, for appellee.
   Jim Johnson, Associate Justice.

This appeal involves a replevin action brought by appellant, Superior Iron Works and Supply Company, Inc., against appellee, F. H. McMillan, d/b/a McMillan Pipe and Supply Company, seeking to recover a quantity of drill pipe and damages.

The appellant is in the business of manufacturing and selling oil field equipment with offices located in several states, including a district office at Magnolia, Arkansas. Superior owned approximately 2,820 feet of used 3% inch drill pipe which it had temporarily stored on a vacant lease, known as the “Hall Lease” near Stephens, Arkansas. In February of 1960, Superior sent two of its trucks from Shreveport to pick up the pipe and it was discovered- that the pipe had disappeared. Superior immediately reported the theft of the pipe to the Sheriff of Columbia County, who obtained the assistance of the Arkansas State Police and the Federal Bureau of Investigation.

The Sheriff obtained information that a man named A. L. Cook had pretended that he was the owner of the pipe and had sold it to Hugh Bay White; a warrant was issued for the arrest of Cook, but he has not been apprehended. A bill of sale was executed by Cook to White describing 2,820 feet of drill pipe and containing the following recital:

“This property being sold is located on the Hall Lease in the Stephens, Arkansas, field, and is located on racks, which are also hereby sold to H. B. White.”

At the time of this transaction, White gave a personal check to Cook with the intention of selling the pipe and depositing the proceeds to cover the check. White attempted to sell the pipe to a number of people and E. H. McMillan, the appellee, being advised about the pipe called White indicating his interest in buying it.

McMillan negotiated with both Cook and White and bought the pipe by making payment of one check to Cook in the amount of $1,424.00 and a separate check to White for $409.00. In this trade, White agreed to deliver the pipe to McMillan’s yard at Malvern and for this purpose, White hired B. A. Flower Trucking Company, a common carrier, which picked up the pipe at the Hall lease near Stephens, Arkansas, and delivered it to the yard of the appellee, F. H. McMillan, at Malvern.

The total consideration paid for the pipe by McMillan was $1,833.00. The pipe, according to the testimony of Superior Iron Works officials, is valued at $1.50 a foot, or $4,230.00.

• Immediately after learning that the stolen pipe was in the hands of McMillan, Superior Iron Works sent a telegram to McMillan advising him of these facts as follows:

‘ ‘ This is to inform you that the 2,820 ft. of 3% inch drill pipe which was delivered to you by Mr. Hugh Ray White was stolen from Superior Iron Works in Stephens, Arkansas.”

Demands were made upon Mr. McMillan for return of the pipe, but he refused to release it to Superior Iron Works. Thereupon this replevin action was commenced against McMillan who in turn posted a cross-bond for the purpose of retaining the property.

The pipe racks referred to in the bill of sale were not purchased from White by McMillan and these racks were recovered by Superior Iron Works from White at his residence at Magnolia, Arkansas.

At the close of the case by both parties, appellant moved for a directed verdict, which was denied, and the case was submitted to the jury upon interrogatories, only the first of which was answered. This interrogatory is as follows:

“Do you find from a preponderance of the evidence that the pipe now in possession of the defendant, McMillan Supply Company, was stolen from the plaintiff, Superior Iron Works?”

The jury responded, “No”.

Judgment was entered on the verdict. Appellant moved for judgment notwithstanding the verdict, and for a new trial. The trial court denied the motion, and this appeal followed.

For reversal appellant contends that “the evidence is not sufficient in law to sustain the verdict. The trial court erred in refusing to grant a directed verdict at the close of testimony and in refusing to grant a judgment to the plaintiff non obstante veredicto.”

Ark. Stats. § 43-2901 provides:

“All property obtained by larceny, robbery or burglary, shall be restored to the owner, and no sale, whether in good faith on the part of the purchaser or not, shall divest the owner of his right to such property. ’ ’

Ark. Stats. % 42-2902 provides:

‘ ‘ Any person losing property or any valuable thing by larceny, robbery or burglary may maintain his action not only against such felon, but against any persons whatsoever, in whose hands or possession the same may be found.”

From these statutes it is clear that in this jurisdiction title to stolen property remains in its rightful owner. Eureka Springs Sales Company v. Ward, 226 Ark. 424, 290 S. W. 2d 434.

The definition of larceny is stated succinctly in 52 C. J. S., page 779 as follows:

“Larceny was a crime at common law; and at common law it may be defined to be the taking and carrying away from any place, at any time, of the personal property of another, without his consent, by a person not entitled to the possession thereof, feloniously, with intent to deprive the owner of his property permanently, and to convert it to the use of the taker or of some person other than the owner.”

The undisputed evidence in the case at bar showed that the pipe in question was owned by the appellant, was carried away by another without the consent of the appellant and with the intent (by the purported sale to the appellee) to deprive the owner of his property permanently.

The only witness for the appellee was the appellee himself, and he did not purport to testify in any respect as to how the pipe was lawfully acquired by anyone from the appellant.

On the other hand, all of the uncontradicted testimony showed beyond question that the pipe was stolen. This uncontradicted evidence was:

(a) The ownership of Superior was established conclusively by the testimony of appellant’s vice president and the introduction of its title papers. There is no evidence whatever in the record to the contrary.

(b) Tbe location of the pipe on the “Hall Lease” was established by the nncontradicted testimony of appellant’s store manager at Magnolia, the testimony of "White, who sold the pipe to appellee, and by the statement in the Bill of Sale, introduced by appellee, and under which he claims title, recites that the pipe described therein was “located on the Hall Lease”. Appellee did not contradict this evidence in his testimony or otherwise.

(c) The fact that the pipe was taken from the Hall Lease without the knowledge and consent of Superior and sold by Cook to White and by "White to appellee without right was also established by all the evidence. Neither did appellee in any way contradict any of this evidence.

Under this state of the record we have no choice but to conclude that there is no substantial evidence to sustain the jury’s verdict. Aetna Life Ins. Co. v. Lemay, 218 Ark. 328, 236 S. W. 2d 85; Mutual Life Ins. Co. of New York v. Springer, 193 Ark. 990, 104 S. W. 2d 195.

It follows, therefore, that only the question of the value of the pipe and damages, if any, should have been submitted to the jury. Kesterson v. Hays, 137 Ark. 592, 209 S. W. 721. Accordingly, the judgment is reversed and the cause is remanded for a new trial on those issues only. Union Central Life Ins. Co. v. Mendenhall, 183 Ark. 25, 34 S. W. 2d 1078.


text:
    Rodger v. Crain.
    5-2690
    357 S. W. 2d 527
    Opinion delivered May 28, 1962.

      Jeff Duty, for appellant.

      Little & Enfield, for appellee.
   Jim Johnson, Associate Justice.

This is an appeal from a decree of the Benton County Chancery Court ordering reformation and specific performance of a contract for the sale of land and abatement of the purchase price.

For reversal appellant contends that the trial court erred in decreeing abatement.

Appellant John E. Bodger, is the owner of a rectangular tract of land located on Highway No. 68 near the city limits of Siloam Springs. Each corner of the tract is plainly marked by an 8” x 8” crosstie. The entire tract is fenced.

Sometime prior to March 6, 1961, appellee, George Crain, and appellant entered into a discussion concerning the purchase of this tract of land by appellee. The appellant went over the land with appellee and pointed out the corner post and the fence line. When questioned about this by the court appellee testified as follows: “Q. Did I understand you correctly to say that somewhere down toward the south there is a fence running east and west? A. Right, and we went to that, it went down to that fence, supposed to he 400 feet and I knew there was plenty of room for what I wanted, in fact more so I didn’t go down there to that fence.” The fence line on the east was substantially on the 20 acre line. The appellant told appellee that he would sell him the entire tract for the flat sum of $4,000. The parties had a contract drawn setting out their agreement. When the contract was written, appellee testified that neither he nor Mr. Rodger knew the exact size of this tract of land. Mrs. Doris Elrod, the scrivener who prepared the instrument, with reference to the dictation of the land description testified that “Mr. Crain (appellee) as I recall, did all the talking. ’ ’ The description which appears in the contract is as follows:

A tract of land beginning at the NE corner of Lot 1 of Rodger’s Sub-division No. 1 of the NW 1/4 of the SW 1/4 of Sec. 4, Twp. 17 N., Rge. 33 W., running thence east approximately 330 feet to the 20-acre line, thence south 400 feet, thence west approximately 330 feet to the southeast corner of said Lot 1, thence north 400 feet to place of beginning (said tract to be more accurately described in the deed conveying said lands to the Buyer). (Emphasis ours.)

Concerning this description Mrs. Elrod further testified “Q. I notice you say in the contract ‘said tract will be more accurately described in the deed’ ... A. Well we put that in there because they didn’t know the exact footage.” After the contract was written it was suggested by the appellee that Mr. Rodger have the land surveyed to ascertain the exact size of the tract. This was done by Mr. Rodger and on the survey it was revealed that the dimensions were 270.9 and 274.4 by 400 feet deep running to the 20 acre line. Appellee said he thought there were 330 by 400 feet in the tract. Mr. Rodger thereupon offered to tear up the earnest money check and the contract. Mr. Crain refused, stating to Mr. Rodger that he wanted the land. It is undisputed that appellee was acquainted with this property even before talking to Mr. Rodger about purchasing it and it is clear from the testimony that he was buying all the land under fence.

From these and other facts contained in the record we are called upon, on trial de novo, to determine whether, as previously stated, the trial court erred in decreeing an abatement of the purchase price. One of the best settled rules in the law of real property is that “where the descriptions of the boundaries of a tract are uncertain and conflicting, distances yield to courses and courses to monuments.” Paschal v. Swepston, 120 Ark. 230, 179 S. W. 339. These monuments may be natural or artificial, Hughes v. Yates, 228 Ark. 860, 311 S. W. 2d 179. This being true, it is our view that the four 8” x8” crosstie corner posts here involved constitute such artificial monuments as to fall within this rule. Another rule applicable to the case at bar is set forth in the case of Taliaferro v. Boyd, 115 Ark. 297, 171 S. W. 105, wherein it is said that it is essential that the party addressed should trust the representations and be so thoroughly induced by it that judging from the ordinary experience of mankind in the absence of it he would not in all reasonable probability have entered into the contract or other transaction. Then in 37 C. J. S., p. 271, § 29, it is stated as the test: “ ... he must show that he would not have acted but for such representation.” From the record before us we have been unable to find at any point where appellee has shown that he would not have acted had he known the exact footage of the land here in question. "We did find that he testified: “If I had known it was 270 feet there might have been a different story.” This testimony does not meet the test. It follows, therefore, that the portion of the Chancellor’s decree which ordered the abatement of the purchase price is reversed and the cause is remanded for the entry of a decree awarding the full purchase price.

Reversed.


text:
    Coley v. English.
    5-2702
    357 S. W. 2d 529
    Opinion delivered May 28, 1962.

      George K. Cracraft, Jr., for appellant.

      David Solomon, for appellee.
   Jim Johnson, Associate Justice.

This litigation arose out of a contract entered into on January 2, 1957, by Ann H. T. Coley to convey certain lands in Phillips County, Arkansas, to Leroy and Bessie King. The pertinent portion of the contract follows:

“It is further mutually agreed between the Parties, Seller and Purchasers, in the event the said Seller A. H. T. Coley, shall depart this life before the entire purchase price shall have been paid, as herein agreed, the contract shall continue in force provided all its conditions have been promptly met by the said Purchasers, and all subsequent payments, which would and should have been paid to A. H. T. Coley, Seller, had she lived, will be paid to her husband’s nephew, Walter Lee Coley, who at the time of the making of this contract lives in Dayton, Ohio.”

Some months later, on February 24, 1958, the contract was amended to extend the date and time of payments. This contract was in full force and- effect on June 14, 1960, when Ann H. T. Coley, the seller, died testate. Her last will and testament, dated July 21, 1956, was admitted to probate and was not contested; Walter L. Coley, the same person named in the contract between Ann H. T. Coley and the Kings, was appointed Executor.

The Kings, as purchasers, asked for and were granted specific performance of the contract. On March 27, 1961, the Probate Court directed Walter L. Coley, as Executor of the Estate of Ann H. T. Coley, to convey said lands to the Kings pursuant to the contract. A balance owing in the amount of $7,000 was paid into the registry of the Court for final disposition. On October 28, 1961, the court ordered this $7,000 balance paid to Walter L. Coley in his capacity as executor of the estate of Ann H. T. Coley, to be distributed to the residual legatees named under the Coley Will. From this order the same Walter L. Coley appeals in his capacity as an individual contending he is a third party beneficiary and claiming the $7,000 as a gift under the contract.

Attorneys for both sides present learned and well reasoned arguments on a complex question that is not made easier by the diversity of case law on the subject. Arkansas Law Review, Yol. 5, No. 1, p. 66.

For reversal, appellant contends that he is a third party beneficiary under the contract and argues forcefully that the benefit under the contract is not made testamentary by the fact that such benefit was postponed until the death of a party.

In Restatement, Contracts, § 133 (1932) we find third party beneficiary contracts divided into three classes: (1) He is a donee beneficiary if it appears from the terms of the promise in view of the accompanying circumstances that the purpose of the promisee in obtaining the promise of all or part of the performance is to make a gift to, or confer a right of action upon, the beneficiary; (2) He is a creditor beneficiary if no purpose to make the beneficiary a donee appears from the terms of the promise in view of all the accompanying circumstances and performance of the promise will satisfy an actual or supposed or asserted duty of the promisee to the beneficiary; (3) He is an incidental beneficiary if the facts of neither (1) nor (2) exist.

In support of his contentions for reversal, appellant relies heavily upon the finding by this Court in Freer v. J. G. Putnam Funeral Home, Inc., 195 Ark. 307, 111 S. W. 2d 463. We see a clear distinction between the Freer case and the case before us. In the case at bar, appellant is an incidental beneficiary to the contract. That is, the promisee, Ann H. T. Coley, owed no duty or legal obligation to appellant at the time the contract was made and no duty or legal obligation arose out of the contract upon the promisee’s death; Dickinson v. McCoppin, 121 Ark. 414, 181 S. W. 151; nor does appellant show he has changed his position to his detriment in reliance upon the contract. In the Freer case, as Judge Baker pointed out, there was an absolute duty upon the promisor to pay a debt of the promisee. This legal obligation supplied the necessary privity between the contracting parties and a stranger to the contract. See West v. Norcross, 190 Ark. 667 80 S. W. 2d 67.

In the case before us now, the promisee retained full control over the contract and, had she lived, she would have been the sole beneficiary or recipient of the full consideration due on the contract. At no point does appellant show an actual or constructive intent on the part of the promisee to relinquish such control of the contract as would cause a presumption that appellant was entitled to anything until the promisee’s death. The terms of the contract clearly state that appellant was to receive nothing until the death of Ann H. T. Coley, and then only such amount (if any) as might be remaining due upon the contract. This provision of the contract clearly shows an intent on the part of Ann H. T. Coley to make a testamentary disposition of property contrary to the solemn requirements of a will. From the clear language of the contract there is no inference of an intent on the part of Ann H. T. Coley to convey a present interest in the contract to appellant as would constitute a valid gift inter vivos. See Baugh v. Howze, 211 Ark. 222, 199 S. W. 2d 940.

Affirmed.