author: (xeorge Rose Smith, J. Ed. F. McFaddin, Associate Justice

text:
    Holiman v. Dovers.
    5-2883
    366 S. W. 2d 197
    Opinion delivered March 4,1963.

      M. G. Lewis, Jr., for appellant.

      Hall, Purcell & Boswell, for appellee.
   (xeorge Rose Smith, J.

This is a dispute between two' factions in the Landmark Missionary Baptist Church of Traskwood, Arkansas. The appellants, the minority group, brought suit to enjoin the pastor, Elder A. Z. Dovers, and the majority group from using the church property for the preaching and teaching of doctrines fundamentally contrary to the Landmark Missionary Baptist faith. The chancellor refused to grant the relief sought, finding that the deviations which had occurred were not of sufficient consequence to call for the intervention of eauitv.

This church was organized in 1902 and had existed for almost sixty years when the present controversy, centering upon the pastor’s theological views, reached a crisis in 1961. At a church meeting in August of that year the majority, by a vote of 54 to 47, defeated a motion to dismiss the pastor. An ensuing attempt to censure the minority failed, but a week later the majority directed the church clerk to notify the minority members that they would have no voting privileges in the church until they had apologized for their conduct. The minority reacted to that letter by filing this suit a few days later.

Before turning to the proof we may note that the controlling principles of law are not open to serious dispute. The civil courts are not concerned with mere schisms stemming from disputations over matters of religious doctrine, not only because such questions are essentially ecclesiastical rather than judicial but also because of the separation between the church and the state. And even when property rights are involved the rival factions may be remitted to their remedy within the denomination if its form of government is such as to permit an appeal to higher ecclesiastical authority.

The situation is different, however, in the case of self-governing congregational churches, such as the Landmark Missionary Baptists. Here the courts do not hesitate to assume jurisdiction when a schism affects property rights, for in this form of church government each local congregation is independent and autonomous. There is no recourse within the denomination. See Elston v. Wilborn, 208 Ark. 377, 186 S. W. 2d 662, 158 A. L. R. 179.

Although congregational churches are governed by a majority vote of the membership, the church property must be devoted to church purposes. We mentioned this matter in Hatchett v. Mt. Pleasant Baptist Church, 46 Ark. 291, saying: “In a congregational church, the majority, if they adhere to the organization and to the doctrines, represent the church.” In a later case we added that the majority controls unless there has been “such an abrupt departure from congregational principles ” as to discredit the ruling group. Ables v. Garner, 220 Ark. 211, 246 S. W. 2d 732.

It is firmly settled that the controlling faction will not he permitted to divert the church property to another denomination or to the support of doctrines, usages, and practices basically opposed to those characteristic of the particular church. Davis v. Scher, 356 Mich. 291, 97 N. W. 2d 137, reviewing many cases; Reid v. Johnston, 241 N. C. 201, 85 S. E. 2d 114. As the court said in Dix v. Pruitt, 194 N. C. 64, 138 S. E. 412: “In other words, a majority in a Baptist Church is supreme, or a ‘law unto itself’ so long as it remains a Baptist church or true to the fundamental usages, customs, doctrine, practice, and organization of Baptists. For instance, if a majority of a Baptist Church should attempt to combine with a Methodist or Presbyterian Church, or in any manner depart from the fundamental faiths, usages, and customs which are distinctively Baptist and which mark out that denomination as a separate entity from all others, then, in such case, the majority could not take the church property with them, for the reason that they would not be acting in accordance with distinctively Baptist principles. Or suppose a majority of a Baptist Church should determine to abandon immersion and receive members without either an individual profession of faith or baptism, such majority could not take possession of the church property and exclude the minority who remained true to the fundamental faith and practice. ’ ’ In harmony with these views equitable relief was granted in Franke v. Mann, 106 Wis. 118, 81 N. W. 1014, 48 L. R. A. 856, where, as in the case at bar, the controlling group engaged a minister whose beliefs were contrary to those of the sect in question.

The extensive record before us consists mainly of testimony explaining the Landmark Missionary Baptist articles of faith. Among the plaintiffs’ many witnesses were nine leading clergymen of this particular sect, whose total ministerial experience exceeded 230 years. These men were in complete agreement about a number of basic doctrines of the church, such as the view that a person who has been saved cannot later become lost, the belief that the unpardonable sin (the rejection of Christ) can be committed only by the unsaved, and several other religious tenets that we need not enumerate.

Elder Dovers was the only witness for the defendants. He was thirty-five years old at the time of the trial. His background of experience included an eighth-grade education, seven years work in a filling station, a half year of study in a Missionary Baptist seminary, and seven years in the ministry. Elder Dovers testified at great length and was entirely candid in conceding that he believed and preached doctrines contrary to the Landmark faith as understood by the plaintiffs’ witnesses. This pastor derived many of his beliefs from his own study of the Bible. He taught his flock that a person who has been saved can later be lost, that the saved can be guilty of the unpardonable sin, and that he interpreted a number of other articles of faith in a way that differed from the orthodox Landmark Missionary Baptist thinking.

It being substantially undisputed that Elder Dovers’ beliefs Avere contrary to the accepted doctrines and usages of the church, the only remaining question is whether the differences are so important as to justify the intervention of a court of equity. As we have indicated, the variance must be fundamental; relief Avill not be granted where the division is based upon doctrinal distinctions that are not vital or substantial. Guin v. Johnson, 230 Ala. 427, 161 So. 810; Beard v. Francis, Tenn. App. 309 S. W. 2d 788.

Whether particular articles of belief are so fundamental as to be of the very essence of a given creed is evidently a question to be decided by the church itself; the civil courts cannot assume independent authority to arbitrate the niceties of ecclesiastical disputations. Hence avo must be guided solely by the evidence in the case, as it sheds light upon the position traditionally taken by the Landmark Missionary Baptist Church.

We find the decided Aveight of the testimony to be against the chancellor’s conclusion that the doctrinal differences disclosed by the eAÚdence are unimportant. Witness after Avitness testified that these are cardinal beliefs in this church, that anyone Avho rejects them is not a Landmark Baptist, and that the teachings of Elder Dovers are heresy. Several of the minority group felt so strongly about the matter that they had withdrawn from the Traskwood church before the trial. The situation is rather like that described in Parker v. Harper, 295 Ky. 686, 175 S. W. 2d 361: ‘ ‘ The evidence in the ease at bar is that both local groups do regard the grounds upon which they have divided as very vital and substantial. Other than their declarations, the sorry fact is that they have proven to be important and potent enough to break up the struggling little church . . . We are of the opinion there was such departure from the faith of the founders of the church at Martin as calls for the protection of their property rights by the courts.”

In reaching our conclusion we stress the fact that we have no concern whatever with the merits of the theological differences between these parties. The majority members of this church or of any church are of course at liberty to adopt any religious belief they choose, whether it be a liberal Baptist theology, Presbyterianism, Greek Catholicism, or Mohammedanism. Morever, the majority members have a similar right to engage a pastor who will preach the doctrines of their choice. But the vital point is that the majority are not entitled to devote the property of the Landmark Missionary Baptist Church at Traskwood to a faith contrary to that for which it was dedicated. We are aware of no case holding that the majority members of a church have the absolute power to use its property for any purpose they select; certainly no such case has been cited. If the courts are not to afford any protection for property rights in such a situation then there is literally no limit to the purposes to which the majority might divert the church property.

The decree must be reversed, but it seems unnecessary for the appellants to be granted the sweeping relief sought by their complaint, by which all the majority members would be enjoined from taking part in the control of the church property. We think it to be sufficient for Elder Dovers, whose ministry has been the central point of controversy, to be restrained from acting as pastor of the church. This limitation upon the court’s decree may aid the congregation in regaining its original unity.

[Supplemental opinion on rehearing delivered April 15, 1963, p. 460.]

Reversed.

MoF addin, J., dissents.

Ed. F. McFaddin, Associate Justice

(dissenting). The Majority of the Court is deciding questions relating to the religious doctrines of the Landmark Missionary Baptist Church of Traslcwood, Arkansas; and I desire to most vigorously disassociate myself from determining-such religious questions. I maintain that it is no part of the prerogatives or duties of a Justice of the Arkansas Supreme Court to pass on religious questions.

,To buttress its conclusions as to the preponderance of the evidence on the question of what are the fundamental doctrines of the church in question, the Majority says that the preacher, Reverend Dovers, had ‘ ‘ an eighth grade education, seven years work in a filling station, a half year of study in a Missionary Baptist Seminary, and seven years in the ministry”; whereas the witnesses for the minority faction in this church dispute on doctrine were “nine leading clergymen of this particular sect, whose total ministerial experience exceeded 230 years.” Surely the Majority is not totally unfamiliar with the statement, ‘ ‘ A little child shall lead them ’ ’ !

This Court should not decide what are the fundamental doctrines of the Landmark Missionary Baptist Church of Traslcwood. Courts are not supposed to decide questions of religious doctrine. In Elston v. Wilborn, 208 Ark. 377, 186 S. W. 2d 662, this Court said:

“Many questions are mentioned by appellants, such as the calculation and disposition of the tithe, the form of church government, the right of the pastor to ‘disfellowship’ a member, and other issues of doctrine. Judicial tribunals must leave such matters to ecclesiastical writers. In the United States of America, where Church and State are separate, the courts have steadily asserted their refusal to determine any controversy relating purely to ecclesiastical or spiritual features of a church or religious society. The courts intervene only to protect the temporalities of such bodies, and to determine property rights.”

I maintain that we would do well now to leave matters of doctrine to ecclesiastical writers. Furthermore, in Elston v. Wilborn, we classified churches as regards the form of church government into four groups, one of which was the congregational group, just as is the Landmark Missionary Baptist Church in the case at bar; and we quoted from 45 Am. Jur. 764:

“Thus, when a church, strictly congregational or independent in its organization, is governed solely within itself, either by majority of its membership or by such other local organism as it may have instituted for the purpose of ecclesiastical government, and holds property either by way of purchase or donation, with no other specific trust attached to it than that it is for the use of the church, the numerical majority of the membership of the church may ordinarily control the right to the use and title of such property.”

It is conceded by all parties that the Landmark Missionary Baptist Church of Traskwood is a congregational church and, as such, I contend should be governed by the will of the majority. The church property here in issue was deeded in one instance to the ‘ ‘ Landmark Missionary Baptist Church of Traskwood, Arkansas”; in another instance to the “Deacons of the Landmark Missionary Baptist Church of Traskwood, Arkansas”; and in another instance to the “Trustees of the Missionary Baptist Church of Traskwood, Arkansas.” There was no prohibition in the deeds forever precluding the majority of the church from selecting a preacher who preached as the majority decided, and that is the only real question in this case: is the majority free to select the preacher that it desires?

In Booker v. Smith, 214 Ark. 102, 214 S. W. 2d 513, there was a dispute between two factions in the Antioch Baptist Church. The opinion recites:

“From the evidence in the record, the following facts appear: In 1902, there arose a dispute among some of the Baptist churches in Arkansas as to the handling of money for mission purposes. One group to the dispute was called ‘Convention Baptists,’ and the other group was called ‘Landmark Baptists.’.. . The dispute between the Landmark Baptists and the Convention Baptists finally came to the surface in the Antioch Church in 1924. In September of that year, at a regular meeting of the church, there was a vote taken to determine whether the Antioch Church would adhere to the Convention Baptists or to the Landmark Baptists; and the vote was 31 for the Convention Baptists and 14 for the Landmark Baptists....”

The dispute in that church as to how the money should be handled for mission purposes was probably as severe as is the dispute in the case at bar, relating to the preaching of Pastor Dover, but in that case we said: “Thus, in September, 1924, the Antioch Church, by a majority vote, adhered to the Convention Baptists.” We upheld the right of the majority; and that is what I vote to do in the case at bar.

The Majority Opinion cites cases from other jurisdictions to support the conclusion that the majority in a congregational church cannot rule if it is not adhering to the fundamental faith and practice. I admit there are such cases from other jurisdictions; there are Annotations in 8 A.L.R. 105 and in 70 A.L.R. 75, on facets of this question; but I maintain that Arkansas should not align itself with those other states. We should continue to adhere to what our own cases have held, through the years, as regards congregational churches; we have supported the vote of the majority. I dislike any other conclusion.

In Ables v. Garner, 220 Ark. 211, 246 S. W. 2d 732, there was an attempt to have this Court decide a doctrinal dispute in a Landmark Missionary Baptist Church; and in refusing to overturn the majority vote of the congregation regarding the disputed issue, we said: “The same majority now says it has not abandoned, or substantially deviated from the faith ...” In short, the majority of the particular church was allowed to determine its faith; but in the case at bar, this Court is allowing some preachers who are not members of the Landmark Missionary Baptist Church of Traskwood to determine what should be the faith of the majority of that church. These two sentences, used by Judge Battle in Hackett v. Mt. Pleasant Baptist Church, appear to me to correctly state the rule:

“The Mt. Pleasant (colored) Baptist Church, it appears, is a congregational church. The majority had the right to control in the church government and to select its pastor and control its house of worship.”

To start settling doctrinal questions in congregational church disputes is to embark on a sea of religious turmoil that may ultimately result in shipAvreck. Certainly the settling of doctrinal disputes is no part of the duties or prerogatives of Justices of the Arkansas Supreme Court. Heretofore we have folloAved the principle of “majority rule.” That is the ’way I would dispose of all congregational church questions; so I dissent from the holding of the Majority in the case at bar.

       Isaiah 11:6.

       The Court was at that time composed of Chief Justice Griffin Smith, and Justices Frank G. Smith, Edgar L. McHaney, J. Seaborn Holt, R. W. Robins, Ed. F. McFaddin, and Minor W. Millwee.

       Here are some cases from the Arkansas Supreme Court involving congregational churches; and in each instance — despite any dicta therein contained — we have always upheld the majority faction: Hatchett v. Mt. Pleasant Baptist Church, 46 Ark. 291; Monk v. Little, 122 Ark. 7, 182 S. W. 511; Elston v. Wilborn, 208 Ark. 377, 186 S. W. 2d 662; Booker v. Smith, 214 Ark. 102, 214 S. W. 2d 513; Ables v. Garner, 220 Ark. 211, 246 S. W. 2d 732; Chambers v. Jones, 222 Ark. 596, 262 S W. 2d 285; Rush v. Yancey, 233 Ark. 883, 349 S. W. 2d 337.

      In Monk v. Little (supra), Justice Hart said of the opinion in Hatchett v. Mt. Pleasant Baptist Church: “The opinion in the case was delivered by Judge Battle, who was specially fitted to speak on the subject, not only because of his learning and eminence in the law, but also because of his long and close connection with the Baptist faith.”


source: Caselaw Access Project

author: Paul Ward, Associate Justice.

license: Public Domain

text:
    Criner v. State.
    5058
    365 S. W. 2d 252
    Opinion delivered March 4, 1963.

      Claude Cooper, W. B. Hoiuard, for appellant.

      Jack Holt, Jr., Attorney General, by, Thorp Thomas and Russell J. Wools, Asst. Attorneys General, for appellee.
   Paul Ward, Associate Justice.

Appellant, M. L. Criner, was charged in a two count indictment with having forged the name of ‘‘ Sam Simmons ” on a check drawn on The Farmers ’ Soybean Corporation of Blythe-ville and with uttering the same, all with the intent to defraud said corporation out of its money and property. After a lengthy trial the jury found appellant guilty on both counts. The court fixed the punishment at six years on each count and pronounced judgment accordingly with tlie terms to run concurrently. From said judgment appellant now prosecutes this appeal, asking a reversal on four separate grounds hereafter discussed.

Since appellant does not question the sufficiency of the evidence to sustain the verdicts, we deem it sufficient for this opinion to make only such a summary abstract of the testimony as is necessary to an understanding of the issues. Appellant was an employee and also the assistant manager of said corporation which buys and stores soybeans, wheat and other grains raised in that vicinity. He had authority to weigh grain purchased for the company and to issue checks to the sellers. Apparently the theory of the prosecution was that appellant would “buy” grain from a fictitious seller, sign a check to the “seller”, forge the name of the fictitious payee on the back of the check, and then cash the check and keep the money. Treating the testimony in the light most favorable to sustain the convictions, we find substantial evidence to support the jury in finding: Appellant signed a company check in the amount of $529.90, dated October 19,1960, payable to ‘ ‘ Sam Simmons ’ ’; The name of the payee represented a fictitious person; Appellant wrote the name “Sam Simmons” on the back of the check; Appellant then presented the check to a teller in the First National Bank in Blytheville, received the amount of money above mentioned, and kept same.

One. The first point urged by appellant is: “The court erred in refusing to allow appellant to take the deposition of Bud Neal, a non-resident witness.” At the prior term of court appellant had been tried and acquitted of a charge similar to this one, and Bud Neal (a resident of Missouri) was present as a witness. The trial in the case on appeal was set for (Thursday) April 5, 1962. On the day before (April 4) appellant filed a motion for continuance until the next term of court in order to take the deposition of Neal as a material witness. In the motion it is stated that Neal would not come voluntarily to testify but was ready to give his deposition. The required affidavit was attached, and due diligence was alleged. The trial court denied the motion, and no error based on the denial is now urged.

Appellant’s motion for a continuance (above mentioned) was denied on Wednesday, April 4,1962. The trial began the following morning (Thursday) and continued until 4 p.m. on Friday (the next day) at which time the State rested its case, and court recessed until the following Monday morning, April 9. At 7:30 a.m. Saturday (April 7) appellant filed an affidavit in compliance with Ark. Stats. § 43-2011 and requested the presiding judge to give him permission to take the deposition of Neal. The judge refused to grant the request at that time, but did give appellant a hearing on the following Monday after the trial had been resumed. At that time the trial judge denied the request on the ground that the application “. . . was not made at the proper time and with due diligence.”

We think the trial court was correct in denying appellant’s application to take the deposition of Neal, a non-resident, considering the applicable law and the facts of this case. In the case of Jones v. State, 205 Ark. 806, 171 S. W. 2d 298, we had occasion to interpret §§ 3946-49 of Pope’s Digest which is the same as § 43-2011 relied on by appellant, and we held due diligence was a prerequisite on the part of the applicant. Some of the language there used is particularly applicable here.

“The defendant in the case at bar, in filing a motion to take depositions was seeking a continuance by indirection, because the granting of the motion would have gained for him the continuance that had been denied.”

Appellant has no quarrel with the Jones decision, but •does say: “We simply contend that we did exercise diligence on our motion for the taking of the deposition.” We are wholly unable to agree with appellant in the above statement. Not only does the timetable of events preceding the application (as above set out) strongly indicate lack of diligence on the part of appellant, but the record is replete with testimony to the effect that appellant knew or should have known months before the trial that Neal would not be present at the trial to testify in person.

Two. We see no merit in appellant’s argument of former jeopardy and res judicata. It was shown that appellant was tried and acquitted on a similar charge in the same court about five months' previously. In that case appellant was charged with having forged the endorsement of Gr. D. Renfro to a check (drawn on the same corporation as in the present case) and having uttered the same. During that trial several checks drawn on the same company (including the Simmons check) were introduced by the State on the theory that they showed a common plan, scheme and method of operation on the part of appellant. There can be no contention that appellant is now being tried for the. same offense for which he was formerly tried. Obviously it is possible for him to be innocent of forging the Renfro check and still be guilty of forging the Simmons check. In the case of Binganan v. State, 181 Ark. 94, 24 S. W. 2d 969, we said: ‘ ‘ ‘ The test is ... whether he [the defendant] has been put in jeopardy for the same offense.’ ” See also: Johnson v. State, 199 Ark. 196, 133 S. W. 2d 15.

Three. It is here contended that the court erred in allowing a State’s witness, who was not an expert, to express an opinion on the similarity of handwriting. Briefly, the facts and circumstances upon which this contention is based are as follows: John Caudill, a witness for the State, and the secretary of the Soybean Company, was shown a number of questionable checks which had been written on his company by appellant. He stated that appellant had a very distinctive_ signature which made it easy to recognize his handwriting, and that to a layman or ordinary person it was apparent that the same person who had written the face of the checks had endorsed them. It was then objected that the witness was not an expert. The State’s attorney said: “That is correct.” After another objection was made the court looked at the checks and again overruled the objection. We do not think the court committed reversible error in permitting the witness to testify. That the witness was familiar with appellant’s handwriting is shown by his statement that it was distinctive and easily recognized. In 20 Am. Jur. Evideuce § 837, at page 701, in speaking of “Qualification of Witness ’ ’ we find:

“It is necessary, in order that a lay witness may be qualified to express an opinion upon an issue of the genuineness of a disputed signature or handwriting, that it appear that he have some familiarity with the handwriting of the person in question ... Of course, the opinion of a witness as to the genuineness of a signature, based upon limited opportunities for knowledge of the handwriting of the person whose signature is in question, may have but little probative value, but it is admissible nevertheless. ’ ’

In the case of Walsh v. Fairhead, Executrix, 215 Ark. 218, 219 S. W. 2d 941, we held, in substance, that a non-expert witness may testify as to his opinion after stating the facts upon which the opinion is based. See also Naylor v. Eagle, 227 Ark. 1012, 303 S. W. 2d 239.

Four. Finally, appellant says the court erred in giving Instruction No. 7-A because it was a comment on the evidence. The instruction reads as follows:

“You are to consider and try this case solely and wholly upon the evidence adduced herein and upon the instructions of law given herein, and you are not to consider any reference to any former trial as it is incompetent herein. ’ ’

Appellant objected to the instruction but was overruled by the court. The attorney for appellant, who incidentally did not participate in the trial of the case, makes a strong written and oral argument to show the instruction was prejudicial. However, we are not at liberty to rest our decision on the validity or invalidity of that argument since appellant did not save exceptions to the ruling of the court. In the early case of St. Louis Iron Mountain & Southern Ry. Co. v. Raines, 90 Ark. 482, 119 S. W. 266, this Court, in dealing with a similar situation, said:

“But the appellant is in no attitude to complain of the action of the court in refusing to do this; for it did not save any exception to the ruling of the court on that point. To render an assignment of error available on appeal, an exception must not only be saved at the trial to the ruling of the court, but the exception must be preserved in the motion for a new trial. ’ ’

This rule has been consistently followed or approved. Act 555 of 1953 changed the rule as it applies to civil cases but not as to criminal cases. See Cotton v. Ingram, 114 Ark. 300, 169 S. W. 967; Harvey et al v. Kirk, (Ark.) 168 S. W. 2d 827; Wiley v. State, 234 Ark. 1006, 356 S. W. 2d 240; and Carnal v. State, 234 Ark. 1050, 356 S. W. 2d 651.

Affirmed.

Bobinson and Johnson, JJ., dissent.

Holt. J., disqualifies.


author: Sam Bobinson, Associate Justice.

text:
    Phillips v. Phillips.
    5-2884
    365 S. W. 2d 261
    Opinion delivered March 4, 1963.

      G. W. Lookadoo and M. C. Lewis, Jr., for appellant.

      Sam L. Anderson, for appellee.
   Sam Bobinson, Associate Justice.

Appellant, Maggie Phillips, and appellee, Henry Phillips, married April 19, 1946. Henry filed this suit for divorce on October 7, 1958. Maggie filed an answer and cross complaint denying the allegations of the complaint and asking that she be granted a divorce. The trial court denied Henry a divorce on his complaint, but granted Maggie a divorce on the cross complaint. Neither side has appealed from that part of the decree granting the divorce, but property rights are involved and Maggie has appealed from that part of the decree dealing with the property, and the failure of the court to award alimony, and has asked for an additional attorney’s fee.

At the time of the marriage, Maggie owned a piece of property of almost a city block in area on Albert Pike Street in Hot Springs, hereinafter called the Albert Pike property. This property, obtained by Maggie in a settlement with a former husband, cost $6,500.00; $2,500.00 had been paid on the purchase price, leaving a balance of $4,000.00 owed at the time of the conveyance to Maggie.

About two months after the marriage to appellee, Phillips, Maggie conveyed the property to a third party, who in turn conveyed it to Maggie and appellee as an estate by the entirety. In explaining her reason for creating the estate by the entirety in the property, at one point Maggie testified: “Well, you see, it ivas like this: He said to me, ‘if something would happen to you,’ he wouldn’t get anything, so he wanted to have his name on the deed, and he promised me he’d be good to me, and I said, ‘Well, all right then, we’ll just put your name on, add your name on the deed, ’ and we just added his name on the deed. ’ ’

At another point she testified:

“Q. ... Will you state why that transaction took place, why the deeds were made which put title in Mr. Phillips’ name?
A. Yes, because, you see, he told me when we got married, you see, that I put his name on the paper because he told me if I didn’t, well, he didn’t feel like working, didn’t feel like helping, and he was always fussing, so I thought if it would take that to go ahead and get along, you know, as wife and husband should get along, I’d put his name on, and I thought that any time he didn’t do right, I could take it back off, see. Instead it wasn’t that way, and then after I put his name on there, he started getting smart and not doing right. ’ ’

Again she testified:

“Q. Would you have put his name on the property other than the fact that you all were married?
A. No, I put his name only in there because he said-that if I would put his name in there he would be good to me, and he was a fussin ’ all the time so I put his name on there.”

Maggie contends first, that an estate by the entirety was created in the property in consideration of, or by reason of the marriage, and that the property should be reconveyed to her in pursuance to Ark. Stats. 34-1214 which provides: “In every final judgment for divorce from the bonds of matrimony granted to the husband, an order shall be made that each party be restored to all property not disposed of at the commencement of the action, which either party obtained from or through the other during the marriage and in consideration or by reason thereof; and where the divorce is granted to the wife the court shall make an order that each party be restored to all property not disposed of at the commencement of the action, which either party obtained from or through the other during the marriage and in consideration or by reason thereof;... ”

The above part of Ark. Stats. 34-1214, adopted in 1898, was copied from Section 462 of the Kentucky Code of Practice, adopted by Kentucky in 1854. In Phillips v. Phillips, 9 Bush (Ky.) 183, and Flood v. Flood, 5 Bush (Ky.) 167, the Kentucky Court construed Section 462 to mean: "... the word 'consideration’ in this act, [means] 'the act of marriage, or some agreement or contract touching or relating to the act of marriage,’ and the expression 'by reason thereof’ 'to relate to such property as either party may have obtained from or through the other by operation of the laws regulating the property rights of husband and wife. ’ ’ ’

Subsequently, in 1876, Kentucky adopted Section 425 of the Code which amended the 1854 act by adding the words “and any property so obtained without valuable consideration shall be deemed to have been obtained by reason of the marriage. ’ ’

In McNutt v. McNutt, 78 Ark. 346, 95 S. W. 778, it was pointed out that our statute 34-1214, passed by the General Assembly in 1893, was adopted from Kentucky’s 1854 Code and not from the Kentucky Code as amended by the act of 1876; that at the time of our adoption of the Kentucky Code it had been construed as above mentioned in the Phillips and Flood cases, and that we adopted along with the act the construction which had been placed on it by the Kentucky Court. The McNutt case has been followed consistently. Dickson v. Dickson, 102 Ark. 635, 145 S. W. 529; Harbour v. Harbour, 103 Ark. 273, 146 S. W. 867; Turner v. Turner, 219 Ark. 259, 243 S. W. 2d 22; McClure v. McClure, 220 Ark. 312, 247 S. W. 2d 466.

It will be seen from the testimony of Mrs. Phillips in the case at bar, that the estate by the entirety was not created in consideration of the act of marriage. In fact, there is no substantial evidence that the property was ever mentioned or considered by the parties before the marriage, nor was Henry’s claimed interest in the property created by reason of the operation of law.

Next, Mrs. Phillips contends that if an interest in the property was not obtained by Phillips in consideration or by reason of the marriage within the meaning of the statute, it was conveyed to him as trustee and that he holds it in trust for her. The conveyance was made to Phillips 14 years before Mrs. Phillips made any claim that he was holding the property in trust. Even if it is assumed that by reason of the husband and wife relationship and no consideration being paid, Phillips was holding an interest in the property in trust for his wife, the direct testimony, including that of Mrs. Phillips, along with the circumstantial evidence, overcomes such presumption and proves by a preponderance of the evidence that the conveyance to Phillips was an outright gift. The effect of Mrs. Phillips’ testimony on that point is that Mr. Phillips did not want to do any work on the property unless he owned an interest, and for that reason in addition to his promise to be good to her, and to keep peace in the family, she made the conveyance.

In Spradling v. Spradling, 101 Ark. 451, 142 S. W. 848, the Court said: “A wife, however, may make a direct gift or transfer of her property to her husband, and it will be sustained if not made through improper or undue influence. If the evidence clearly shows that it was the intention of the wife by such transfer to make a gift to her husband, then such transaction will be upheld. In such cases inquiry will be directed to the circumstances under which the instrument of transfer was executed by the wife. If it clearly appears that the transaction between the husband and wife was fairly entered into, and it was her intention to make him a gift, it will be held as binding as a transaction made between other parties.”

The enhancement in value of the property is not, in itself, sufficient to show the intention of the parties, but it does shed some light on the intention of the parties when borrowing money to improve the property. Mrs. Phillips owned only a $2,500.00 equity in the property at the time of the conveyance of the interest to Phillips. Subsequently, considerable improvements were made and the property is now worth between $50,000 and $75,000. Money was borrowed on the property several times for the purpose of buying and improving other property and to improve the Albert Pike property. Phillips signed the notes and obligated himself personally for the repayment of such loans. There is no showing that Mrs. Phillips ever informed the banks at the time of obtaining loans that Phillips was not a bona fide owner of an interest in the property. We cannot say that the Chancellor’s finding that Phillips owns an estate by the entirety is contrary to a preponderance of the evidence.

In the year 1958, the parties borrowed money on the Albert Pike property for the purpose of constructing a store building oh leased property located on Highway 270 in G-arland County, west of Hot Springs, and to open a store in the building. Henry claims that he is the sole owner of the 270 store, and Maggie contends that she is a partner in that business. The Chancellor found in favor of Henry on this point. We have reached the conclusion that the preponderance of the evidence supports Maggie on this issue.

Ever since they were married, with the exception of one period of about a year, Henry and Maggie have operated a store at one place or another. Maggie is the one that had the “know how”. She had been operating a store or a market since she was a teen age girl. About 1953 they borrowed the necessary money and built a brick store building on the Albert Pike property. Later they sold the store to one Johnson. During the time Johnson was operating the store on the Albert Pike property, Henry and Maggie decided to open the store on Highway 270. It was then that they borrowed money, both being obligated for its repayment, and built and opened the 270 store.

The store was opened in December and Maggie worked there until about the following May. In the meantime Johnson had given up the store on the Albert Pike property and Maggie opened it again. In June she had to go to the hospital for an operation, and while there, Henry moved all the groceries and most of the fixtures to the 270 store.

Maggie was certainly a partner in establishing the 270 store and the evidence does not show that the parties dissolved the partnership, nor has it been dissolved by operation of law. Therefore, the parties are still partners in the 270 store, and Maggie is entitled to an accounting1 from Henry on the operation of the store. Likewise, since Henry is an owner of an estate by the entirety along with Maggie in the Albert Pike property, he is entitled to an accounting from her on that property! Appellee makes no contention that Maggie is not the owner of the store on the Albert Pike property.

Maggie was granted the use of the house in which she lives, rent free, but was awarded no alimony. We believe that since she was awarded no alimony, she should also have rent free, that part of the store building in which she operates a store.

Appellant was allowed an attorney’s fee of $650.00 in the trial court. She is allowed an additional sum of $500.00 as attorney’s fee in this' court.

The cause is reversed with directions to enter a decree not inconsistent herewith.


author: Jim Johnson, Associate Justice.

text:
    Hyder v. Newcomb.
    5-2919
    365 S. W. 2d 271
    Opinion delivered March 4, 1963.

      Milham & Cummins, for appellant.

      Fred E. Briner, for appellee.
   Jim Johnson, Associate Justice.

This case involves a suit for specific performance of an oral contract to convey real property. According to the testimony, on January 23, 1960, appellant Evelyn Glenn Hyder showed appellee, Inez Newcomb, some property she owned in Saline County and agreed to accept $2,000.00 for 35 acres. Appellee gave appellant her check for $500.00, on which was written, “Part payment on 35 acres of land (Bal. $1,500.00).” Some time thereafter, timber was cut on the property, by mistake. Appellant and appellee each told the timber cutters that each individually owned the property, but appellant was the one who obtained the court order to stop the cutting, and the one whom the timbermen paid for the timber removed. Thereafter, on May 23, 1960, appellee filed this suit in Saline Chancery Court for specific performance of the oral contract, alleging purchase of the property on January 23, 1960, part payment of $500.00, evidenced by the check, that the balance of the purchase price was to be paid upon delivery of the deed and abstract, that appellee took possession of the property, that appellant had failed and refused to execute the deed, although appellee was ready and willing to pay the balance; further that appellant converted funds to her own use from sale of timber belonging to appellee; and prayed that the contract be specifically enforced and appellant be required to pay into the court the proceeds from sale of the timber. Appellee deposited $1,211.12 in the registry of the court.

Appellant answered, denying the allegations and pleaded the statute of frauds in bar of any oral contract.

Trial Avas held August 25, 1962, before the Chancellor, who ordered appellant to execute a quit-claim deed conveying any interest she may have in the 35 acres to appellee, gave appellee credit for the $68.00 paid to appellant for the timber, directed appellee to pay $220.88 more into the registry of the court, and assessed appellant for all costs. From the decree comes this appeal.

On trial ele novo, we must determine from the record before ns whether the check, the description and the part payment, individually or collectively, are sufficient to take this contract out of the statute of frauds.

The statute of frauds is contained in the Revised Statutes of 1838 and has been a part of the Arkansas law since that time. We are therefore blessed with a formidable, and unusually consistent, array of cases interpreting its provisions. The section of the statute of frauds involved here is as follows:

“Ark. Stats. 38-101. No action shall be brought; . . . fourth, to charge any person upon any contract for the sale of lands, tenements, or hereditaments, or any interest in or concerning them; . . . unless the agreement, promise or contract, upon which such action shall be brought, or some memorandum or note thereof, shall be made in writing, and signed by the party to be charged therewith, or signed by some other person by him thereunto properly authorized.”

There are several cases remarkably similar to the case at bar. One in point is Hotopp v. Adair, 144 Ark. 629, 223 S. W. 393. We quote from that opinion.

‘ ‘ The complaint sets forth an oral agreement except so far as the exhibited checks and memoranda on the back of the envelope containing them constitutes a written contract. The statute provides that a contract for the sale of lands ‘shall be in writing and signed by the party to be charged therewith, or signed by some other person for him thereunto properly authorized’ Kirby’s Digest § 3654. The only writings set forth as constituting the contract fall short of compliance with the statute, in that the property is not described and no means of identification are furnished. Defects in this respect can not be cured by oral testimony. The check signed by Claud Adair, one of the appellees, recites that it was given ‘for bonus on house and lot. ’ This is not sufficient identification, nor does it furnish any means of identification.

“It is alleged in the complaint that the property described therein was the only real estate owned by appellees, bnt, accepting that as true, it does not follow that the recitals of the check are sufficient to identify it. Even though appellees owned but one piece of property, it does not follow from the language as a matter of law or as a matter of fact that the contract necessarily was intended to describe that particular property. Moreover, the check is not sufficient as a contract for the reason that it does not set forth the terms in any other respect. Before a court of equity will compel the performance of a contract for the sale and purchase of real estate, it must be definite and certain.” [Emphasis ours.]

In Stanford v. Sager, 141 Ark. 458, 217 S. W. 458, involving not only a check but also letters relative to sale of the property, this court held :

“In negotiations between Ross, as the agent of Sager, and Stanford, the proposed purchaser, it nowhere appears that there was any memorandum containing a description of the lands to warrant specific performance. Treating all the letters in evidence as constituting the contract between the parties, yet in none of these letters is the land to be conveyed specifically described nor is there any description of the land in the check which Stanford sent Ross and which was cashed by Ross as earnest money.
“The appellants contend that this check and the correspondence between Ross and Stanford constitutes the written contract. Conceding this, yet, since the land to be conveyed is nowhere accurately described, the court was clearly correct in holding that the contract could not be specifically performed.
“. . . ‘ The contract must disclose a description which is in itself definite and certain or one which is capable of being made certain by other proof, the contract itself furnishing the key by which the property may be identified.’ ”

Since the check in the case at bar was insufficient as a memorandum, inter alia, for lack of the terms of the contract as well as an accurate description of the property, we must now determine whether there is sufficient part performance to take this case out of the statute of frauds.

Appellee’s partial payment is undisputed, but part payment alone is not sufficient part performance to take the contract out of the statute of frauds. Starrett v. Dickson, 136 Ark. 326, 206 S. W. 441; Fryer v. Mabin, 158 Ark. 579, 250 S. W. 877. However, partial or full payment together with takjng possession pursuant to the contract is generally considered sufficient part performance. Arkadelphia Lbr. Co. v. Thornton, 83 Ark. 403, 104 S. W. 169; Branstetter v. Branstetter, 115 Ark. 154, 170 S. W. 989. Appellee alleged that she took possession of the property as of January 23, 1960. However, the testimony relating to the cutting and sale of the timber, as well as appellee’s testimony that

“. . . Well, I called her the first week after we bought it and I asked when was she going to make us a deed. She said as soon as she had time to dig out the papers. I said don’t go to any unnecessary trouble but we would like to have it as quick as possible. We had a bunch of cows we had to get shut of or either have some place to put them and Pat had bought the wire to build a fence. So as time drifted on it was put off and put off. ’ ’

clearly shows that appellee had not taken possession of the property and that appellant had yielded no dominion or possession to appellee. There is no other evidence on the question of possession. This being true, it follows that there was no such part performance of the contract as would take the case out of the statute of frauds.

It is true, as appellee intimates in her argument, that the statute of frauds should not grant a person a license to welch on a deal, nevertheless, in the sale of land there have been certain requirements ordained by law which are mandatory. Accordingly, on the whole case, appellee having failed to meet the test “that before a court of equity may grant specific performance of a parol contract to convey land, the evidence of such agreement must be clear, satisfactory and convincing,” Rolfe v. Johnson, 217 Ark. 14, 228 S. W. 2d 482; Meigs v. Morris, 63 Ark. 100, 37 S. W. 302; Walk v. Barrett, 177 Ark. 265, 6 S. W. 2d 310; the decree must be reversed and the cause Avill be remanded with directions to dismiss the complaint for want of equity; all costs will be taxed against appellee.

This case having been fully developed and the matter of the payment of the $500.00 being undisputed, in order to minimize further proceedings, we find appellee is entitled to recover the payment made to appellant together Avith interest from the date of the receipt thereof. Gilton v. Chapman, 217 Ark. 390, 230 S. W. 2d 37.

Reversed and remanded with directions.


author: Frank Holt, Associate Justice.

text:
    Clay v. Brand.
    5-2911
    365 S. W. 2d 256
    Opinion delivered March 4, 1963.

      Ralph Robinson, Hardin, Barton S Hardin, for appellant.

      Theron Agee, for appellee.
   Frank Holt, Associate Justice.

This is ail action to rescind a written contract of sale. By said contract, the appellees, Mr. and Mrs. Brand, purchased from the appellant, Mrs. Clay, a tourist court (Wedgewood) which is located south of Mountainburg, Arkansas. As the basis for rescission, the appellees allege that appellant fraudulently misrepresented to them the adequacy of the water supply and sewage system at the Court. The appellees claim that they reasonably relied upon appellant’s assurances of adequacy. Appellant denies making any such representations and asserts the water supply and sewage system are adequate if properly operated. The written contract is silent with reference to the water supply or the sewage system. The trial court granted rescission of the contract and this appeal follows.

The appellant and her former husband, Mr. Houck, now deceased, had owned and operated the Wedgewood Court for about 18 years before the sale to appellees. Originally the court consisted of six units and the appellant later added two units. She also operated a beauty shop at the Court. The water need was supplied from a ' ‘bored well” and a 300-gallon storage tank operated by an automatic pump system. The storage tank was added to the supply system by the appellant several years ago.

The appellees, at the time of the purchase, resided in Texas where he was employed as a store manager and she operated a beauty shop. While visiting relatives in Fort Smith in June, 1961, the appellees contacted Mr. Don Roderick, a local realtor, about purchasing a motel or tourist court. Mr. Roderick showed them the Wedge-wood Court and appellees (buyers) claim that on June 7, 1961, the day they made the inspection tour of the Court, the appellant (seller) made the alleged misrepresentations.

On July 14, 1961, the contract of sale was signed by the parties and the appellees took possession of the Court the next day. They occupied and operated the Court until early January, 1962. By the terms of the contract the purchase price was $35,000.00. The appellees paid the required $2,500.00 initial payment, the balance to be paid in installments of $310.00 per month. These payments were made on August 15, September 15, and October 15, 1961. Following the last payment appellees claim they became convinced the water supply and sewage facilities were inadequate and they made no further payments. On December 22, 1961, the appellant, through her attorney, wrote the appellees demanding that they vacate the Court and return possession to appellant pursuant to the terms of their sale agreement.

On December 28, 1961, the appellees filed their complaint in equity seeking rescission of the contract. They also asked for the recovery of the down payment of $2,-500.00, the three monthly payments totaling $930.00, the value of the improvements to the property to the extent of $613.75, and cost of repairs to the water and sewage system totaling $250.00.

’ In granting rescission the court found that the appellant: “ * * * made representations, amounting to fraudulent representations, that there was an adequate supply of water in the well on said premises and connected with the water lines and system in the cabins and buildings thereto belonging for the operation of a motel and beauty shop when in truth and in fact there was no such adequate supply of water, which fact was known to the defendant at the time of such representations; that the plaintiffs have met the burden of proof as to fraud by a preponderance of the evidence which is clear and convincing and that they are entitled to a rescission of the contract * * * . ” In granting rescission the chancellor awarded recovery only for the $2,500.00 down payment and gave to appellant the choice of paying the $613.75 or allowing the improvements to be removed. There is no cross-appeal.

For reversal appellant urges that the chancellor’s findings that the appellant, seller, made fraudulent misrepresentations to the appellees and that the water supply is inadequate are against the clear preponderance of the evidence.

The appellee, Mrs. Brand, testified that the appellant, Mrs. Clay, told her when she inspected the tourist court there was ‘ ‘ plenty of water here ’ ’ and that Mrs. Clay brought the matter up several times; that Mrs. Clay assured her there was an adequate water supply for the needs of the house, the court and the beauty shop. Mr. and Mrs. Brand testified that the problem of a water shortage began about two weeks after they took possession of the Court and that they made their complaint to the real estate agent, Mr. Roderick, who testified he relayed this complaint to Mrs. Clay. Mrs. Brand testified that: “ * * * after we had protested to Mr. Roderick and he acted more or less as embassy for us, that she and Mr. Clay came up there one Sunday afternoon and brought some linens back to the motel, and she told me — she walked out in the back with us, and she walked over there, and she said, ‘Now, I will tell you what. We used to buy water from Henry. We got water from him and paid him so much, but you may be smarter. I don’t know who owns that property over there that is standing-vacant. Just drill you a well right here and try to tap their vein, because it is an everlasting well.’ ” The appellee, Mr. Brand, testified that during- their inspection tour Mrs. Clay represented to him, his wife, and her father, Sam Turner, that there was “enough water to run a beauty shop, do the motel linens, and an adequate water supply. ’ ’ Mr. Turner testified that he was present during the inspection of the Court and heard Mrs. Clay on two occasions represent that there was an adequate supply of water.

The Brands testified that because of the water shortage it was necessary to buy water and have it hauled to the Court on many occasions. Mrs. Brand estimated they had bought approximately twenty loads of water from' Everett Tucker. Mr. Tucker testified that he had hauled and sold water to the Brands “quite a few times.” According- to him, the capacity of the tanks in which he hauled water was 720 gallons.

The Brands testified that they had employed Frank Parker, a plumber, in an effort to correct the shortage. Mr. Parker testified: “Well, I know the last time I was up there I got a call on the well pump, to check the water pump, and I told them that evidently they just didn’t have «enough water to furnish the whole court. ’ ’ The Brands fixed this date as the latter part of October and thereafter made no further payments. There were other witnesses whose testimony tends to corroborate that of the appellees.

The appellant emphatically denies that the subject of a water supply was ever discussed during the negotiations ; that the appellees made any inquiry with reference to this subject, and that she, or anyone in her behalf, ever made any representations with reference to the water supply. She asserts that during the 18 years that she operated the Court and since taking possession again on January 4, 1962, she has never experienced any shortage of the water supply. Appellant claims that the water supply problem was due to the appellees’ inability to understand and properly operate the water supply system rather than an actual shortage in the water supply. Several witnesses appearing in behalf of Mrs. Clay corroborated her version of this dispute.

Of course fraud is never presumed and appellant contends that the quantum or degree of proof required to prove fraud is not found in this case. She relies on the case of Biddle v. Biddle, 206 Ark. 623, 177 S. W. 2d 32, from which we quote:

“ * * * There is no rule more firmly established than the one that fraud will not be presumed, and the burden is on the party alleging it to prove it by a preponderance of the evidence which is clear and convincing. Irons v. Reyburn, 11 Ark. 378; Home Mutual Benefit Ass’n. v. Rowland, 155 Ark. 450, 244 S. W. 719, 28 A. L. R. 86; U. S. Ozone Co. v. Morrilton Ice Co., 186 Ark. 485, 54 S. W. 2d 282; Russell v. Brooks, 92 Ark. 509, 122 S. W. 649; Crider v. Simmons, 192 Ark. 1075, 96 S. W. 2d 471.” (Emphasis added)

The cases cited by the Biddle case in support of the quoted rule are not authority for the rule in its entirety. The Irons case and Home Mutual Benefit case are authority only for the proposition that fraud will not be presumed. The U. S. Ozone case states the same rule and goes on to say that the findings of fact by the chancellor will not be set aside unless against the preponderance of the evidence. The Russell case states:

“ * * * While fraud will not be presumed, and while the burden is on him who alleges it to prove same by clear and satisfactory evidence, still it need not be shown by direct or positive evidence, but may be proved by circumstances.”

The Crider case relates that “fraud must be clearly proved” but the court was not there called on to apply that language to the facts since the case concerned an administrator who, acting in that capacity, had sold property in his charge to himself indirectly and the court found that this was legal fraud although the proof may not have been sufficient to find fraud in the ordinary case. We think these cases do not support the quoted rule as to “preponderance of the evidence which is clear and convincing.”

We are aware that later cases have quoted with approval the rule as stated in the Biddle case. See Bryan v. Thomas, 226 Ark. 646, 292 S. W. 2d 552; Robinson v. Williams, 231 Ark. 166, 328 S. W. 2d 494. But the “clear and convincing” language seems to have evolved from that line of cases which require that in order to cancel or reform a solemn writing because of fraud, accident or mutual mistake the proof must be clear and convincing. Eureka Stone Co. v. Roach, 120 Ark. 326, 179 S. W. 499; Martin v. Hempstead Co. Levee List. No. 1, 98 Ark. 23, 135 S. W. 453; Michell Mfg. Co. v. Ike Kempner & Bro., 84 Ark. 349, 105 S. W. 880; Welch v. Welch, 132 Ark. 227, 200 S. W. 139; Green v. Bush, 203 Ark. 883, 159 S. W. 2d 458.

Thus, it appears that two rules of law with respect to proof of fraud have been developed with reference to written instruments. One, the ordinary rule which requires proof of fraud by a preponderance of the evidence and, two, the stricter rule which requires proof of fraud by a preponderance of the evidence which is clear and convincing.

The distinction between the two rules was recognized in Manhattan Credit Company v. Burns, 230 Ark. 418, 323 S. W. 2d 206 where this court said:

“ * * * ~We think the proof sufficient to establish the fact that the contract was obtained by misrepresentation, and this is so whether the case falls within the ordinary rule that fraud is to be proved by a preponderance of the evidence, Hildebrand v. Graves, 169 Ark. 210, 275 S. W. 524; Gregory v. Consolidated Utilities, 186 Ark. 406, 53 S. W. 2d 854; Rose v. Moore, 196 Ark. 527, 118 S. W. 2d 870, or within the rule that a stricter degree of proof is required when a solemn written instrument is to be upset. Welch v. Welch, 132 Ark. 227, 200 S. W. 139; Green v. Bush, 203 Ark. 883, 159 S. W. 2d 458.”

In the present case the written contract is silent with reference to an adequate water supply which is the subject of the alleged fraudulent misrepresentation. Thus, the proof on this subject does not alter or contradict any of the written terms of this contract. Therefore, we believe that the ordinary rule as to proof of fraud by a preponderance of the evidence is applicable in this case.

However, even if the stricter degree of proof were required in this case, we cannot say that the findings of the chancellor are against the preponderance of the evidence which is clear and convincing.

Appellant also contends that the appellees had actual knowledge of the exact nature and limitations of the water system prior to the purchase and cannot now assert that they were misled by any statement of the appellant. It is argued that a casual inspection of the Court would have called to the attention of the appellees a sign in each cabin which stated: “We use water from a bored well, please conserve water, do no washing. If you leave a commode stuck it will pump the well dry. ’ ’ These signs were visible in each cabin on the date the appellees made ■ their inspection. The very existence of these signs could have prompted a discussion of the adequacy of the water supply which resulted in the alleged fraudulent misrepresentations.

In Castleman & Son v. Schuhardt, 128 Ark. 445, 194 S. W. 1028, we quoted from Hunt v. Davis, 98 Ark. 44, 135 S. W. 458, as follows:

“Although a purchaser must act with prudence and diligence in seeking the available means o.f ascertaining the truth, yet if the seller having peculiar knowledge of the matter, by any misrepresentation or artifice, induces the buyer to rely on his false statement, then the seller will not be heard to say that the buyer could have ascertained the truth. The very representations relied upon may have caused the purchaser to forbear from making further inquiry. If the false representations are made with the intent to induce the other party to act thereon, ordinary prudence does not require the party to test the truth of such .representations where they are within the knowledge of ‘the party making them or where they are made to induce the other party to refrain from seeldng further information.”

Appellant further contends that the appellees, by their continued occupancy and other affirmative acts, ratified the contract of sale after discovery of the alleged inadequate water supply and have, therefore, waived any right to rescind the sale which they might have had. Neither do we agree with this contention. The appellees made no further payments after they became convinced that there was an inadequate water supply. Under the facts in this case the appellees brought their action for rescission in apt time. Allen v. Overturf, 234 Ark. 612, 353 S. W. 2d 343; Ft. Smith Lumber Co. v. Baker, 123 Ark. 275, 185 S. W. 277. Also see Massey v. Tyra, 217 Ark. 970, 234 S. W. 2d 759; Kotz v. Rush, 218 Ark. 692, 238 S. W. 2d 634, quoting Danielson v. Skidmore, 125 Ark. 572, 189 S. W. 57.

Certainly an adequate water supply is a very material factor in the successful operation of a modern motel or tourist court. Mr. Roderick, the real estate agent, testified that the location is the most important factor ‘ ‘ and water would possibly be second’ ’, and ‘ that it takes a great deal of water.” He, himself, owns and operates a motel. The misrepresentation of a material fact is actionable fraud. Fausett & Company, Inc. v. Bullard, 217 Ark. 176, 229 S. W. 2d 490; Massey v. Tyra, supra.

In the instant case the testimony in behalf of the appellees and the appellant is diametrically opposed and in hopeless conflict. The chancellor was in a position to observe the witnesses and evaluate their testimony and, therefore, we cannot say in this case that his findings were against the preponderance of the evidence.

The decree is affirmed.

Johnson, J., dissents.

       Henry Hevron, a former neighbor of Mrs. Clay, was a non-resident of the state at the time of the trial.


author: Carleton Harris, Chief Justice.

text:
    Webb v. Miller.
    5-2903
    365 S. W. 2d 450
    Opinion delivered March 11, 1963.

      Paul Jameson and O. E. Williams, for appellant.
    No brief filed for appellee.
   Carleton Harris, Chief Justice.

Appellants, Virgil Webb and wife, Wilma, instituted their complaint against Albert J. Miller and wife, G-race wherein it was alleged that appellees had wrongfully entered upon appellants’ property (the west 17.8 feet thereof) and had dug holes, destroyed surveyor’s markers, piled fencing materials on the premises, and deprived appellants of the use and enjoyment of their land. It was further asserted that said unlawful acts would be continued; that the appellants would sustain irreparable damage unless appellees were enjoined, and a mandatory injunction was sought to prohibit interference with appellants’ possession, and to require appellees to remove a fence which the Webbs contended was located on their premises. Appellees answered with a general denial, and further asserted,

“that a fence existed between plaintiffs and defendants for more than seven years and that these defendants have occupied and claim said lands for more than seven years; that the line fence between the parties was existing at the time plaintiffs purchased their property and that the plaintiffs are now estopped to claim any lands belonging to these defendants or to claim that the fence is not the line; that uncertainty as to the property lines existed between defendants and plaintiffs ’ predecessor in title and said latter parties agreed upon the boundaries.”

On trial, the court dismissed the complaint for want of equity, and from the decree so entered, appellants bring this appeal.

The record reflects that Miller and wife purchased lands, which included the property here in question, in April, 1956. Thereafter, in October, 1959, Miller and wife conveyed a portion of the property to A. D. Morris, using a metes and bounds description. The deed called for 200 feet running east and west, and 65 feet running north and south.

In June, 1961, Morris and wife conveyed the land to the Webbs, using the description under which they had acquired such lands from Miller. The dispute in this litigation involves 17.8 feet on the west side of the property. At the time the Millers made their purchase in 1956, a fence was located at the north end of the property which divided the Miller lands from property owned by Jack Elam, to the immediate north. To the south, a fence was erected to separate the land purchased by Morris from other Miller property immediately south of the Morris property line. The fence which is really pertinent to this litigation is to the west, dividing the present Webb property (formerly Morris) from the Miller property on the west, said fence being erected by Miller in 1957, prior to the time of the conveyance to Morris. The Webb and Miller property is bounded on the' east by the highway. Appellants contend that they are due to have 200 feet running east and west, as called for by their deed, but the fence erected on the west by Miller, running north and south, cuts their east and west footage to slightly over 182 feet.

Don Kemp, engineer and surveyor, testified on behalf of appellants. He used the description in the deed from Morris to Webb in making the survey, and introduced a plat, based on the results of such survey. This plat sustains the position taken by Webb, since it shows that Webb’s east and west line extends 17.8 feet west of the fence erected by Miller. No surveyor testified on behalf of appellees. Miller testified that he had previously had a survey made relative to the north and south property lines, but the west line was accepted as a proper line by Morris: “That was accepted as a line because that line was there before Mr. Morris and I made any deal. Had been established by me, and Mr. Morris accepted that as a line.” The witness testified that he owned the area west of the fence: ‘ ‘ There is 410 feet by 210 feet back there.” He stated that before he erected the west line fence, he “measured from the edge of the highway back to where we put the fence and established a 200 foot line back there and put it.” In explaining the difference between the fence location and the property line presently claimed by the Webbs, the witness said, “There’s a part of this Webb property in the highway, as there is with mine, part of it is in the highway. ’ ’ He testified that in measuring the 200 feet west, “We had a surveyor’s marking to go by, as far as east and west is concerned.” However, he did not admit that Webb was entitled to 200 feet. Miller stated that he had gotten a Mr. Shreve to make a survey, “and he started to survey and he come out with the wrong answer and he quit.” He further said that after the sale to Morris, he and the latter measured 65 feet, north and south, but Morris had nothing to do with measuring the 200 feet east and west.

A. D. Morris, who had purchased from the Millers, and subsequently conveyed the same land to the Webbs, testified that Miller told him that the west fence was the west line of the property; he verified Miller’s statement that they measured 65 feet from north to south, but that no measurement was taken of the supposed 200 feet running east and west. The witness testified that he never did question the footage from east to west, and that no difficulty arose between him and Miller. He stated that under the deed he was supposed to get “200 x 65. I was well satisfied with it myself. I never did question it or try to find out. ’ ’ Further, from the evidence:

‘ ‘ Q. What was the statement, if any, between yourself and Miller as to the boundaries of your property, particularly the west line of your property?
A. Just the west fence was the boundary line, the property line, and I—
Q. How do you know?
A. I say the west fence, I took it as the line, and I told him I would put the upper chain-link fence on the north if he wanted to put one on the south and we would have it all fenced in, and he said he would. So, I told the gentleman from Springdale and that’s what happened. And I took the fences as the line, now, but have it surveyed and established, I never did do it and had nothing to do with that whatever. That’s the way I bought the place and the way I sold it.

We are of the opinion that, under our cases, this testimony does not establish an agreed boundary line. In Clements v. Cox, 230 Ark. 818, 327 S. W. 2d 83, this court said:

¡ í íí * * appellees ’ witnesses testified that they had never heard of any agreed boundary line; admittedly the deed itself does not contain any provision that the land purchased was other than that contained in the description, nor does the record reflect that appellees had any notice of appellants’ claim of an agreed boundary line at the time they purchased the property. ’ ’

In Brown Paper Mill Co., Inc. v. Warnix, 222 Ark. 417, 259 S. W. 2d 495, we stated,

“We agree with the chancellor’s conclusion that the mere existence of the fence did not affect the title to the area in controversy. The record does not show that there was ever an agreement upon the fence as the boundary line. A few witnesses testified that they understood the location of the fence to represent the line, but their belief was based merely on the fact that the fence was there and hence added nothing to the physical facts. ’ ’

In Barham v. Gattuso, 216 Ark. 690, 227 S. W. 2d 151, likewise

“Second, it is contended that the parties have by their conduct established the partition as the boundary. Neither the deeds nor the lease referred in any way to the partition; the land was described simply as the north half of the lot. In this respect the case differs from McCall v. Owen, 212 Ark. 984, 208 S. W. 2d 463, where the deeds referred to a fence that was not actually on the true line. We held that the grantees were bound by this reference; but the rule is different when the conveyance uses only a legal description, and it is later found that the fence or other monument is not accurately placed. (Citing cases.) In the latter situation the case is like any other in which adjoining landowners, through ignorance rather than by agreement, recognize an erroneous common boundary. Possession must then be adverse and must continue for the statutory period of seven years in order to ripen into title.”

Finally, as applicable in this case, in Carney v. Dunn, 221 Ark. 223, 252 S. W. 2d 827, we said:

“We conclude that when all the evidence is considered, the finding of the trial court that appellants had failed to establish the hedge as the agreed boundary line was not against the preponderance thereof. While Mr. LePlant, Sr., owned both lots, he clearly had the right to establish the true line between them to be the center line as platted and to so convey them under the recorded plat description without exceptions. This we hold the preponderance of the testimony shows he and his heirs did. The parties were bound by the descriptions in their deeds.”

Let us apply these holdings to the facts before us. There is no evidence that Mr. and Mrs. Webb had ever heard of any agreed boundary line, nor that they had any notice of Miller’s claim of such an agreement, and, of course, the deed does not contain any provision that the land purchased was other than contained in the description. As pointed out in Brown Paper Mill, the mere existence of the fence did not affect the title to the area in controversy. The Webbs testified that they saw the fence, but thought nothing about it, considering that they were getting 200 feet. As stated by Mr. Webb, “I was more or less going by what Mr. A. D.'Morris told me. Mr. Morris never showed us the property.” Morris, admittedly, never did show the land to the appellants. “I just told them I had a deed that was 65 x 200 and I sold them what I had, see. In other words, I give them a deed to the — the same kind of deed that I had.”' Nor did Morris ever testify that there was any dispute between him and Miller as to the proper line.

Actually, it appears, to use the language in Barham v. Gattuso, supra, that Morris, “through ignorance rather than by agreement” recognized an erroneous boundary. As hereinbefore set out, he simply, upon Miller’s stating that the fence constituted the boundary, “took it as the line.” In other words, Morris merely “acquiesced.” Of course, acquiescence, for the statutory period, will ordinarily confirm a boundary line. In Seidenstricker v. Holtzendorff, 214 Ark. 644, 217 S. W. 2d 836, we said,

“Acquiescence, by owners of adjoining lands, in a boundary line, as shown by a division fence, for more than seven years will ordinarily confirm the boundary line as thus located, even though the fence may not be placed on the true line between the tracts.”

Here, however, Morris did not purchase the property until 1957; in fact the- fence was not even constructed by Miller until 1956, so there could have been no acquiescence for seven years. Let it also be remembered that the Millers, prior to the conveyance to Morris and wife (and the subsequent conveyance to the Webbs) owned the entire tract, and could, after a proper survey, have conveyed, the intended amount of land to Morris, or, at least, have mentioned the fence in the conveyance. This is all the more reason appellees should be bound by the description in the deed.

Looking at the other allegations in the answer, we find the claim of adverse possession. This claim must fail for the reason pointed ont in the preceeding paragraph.

The answer also alleges that appellants are estopped to claim the footage in question because the fence was in existence at the time they made the purchase. Likewise, there is no merit in this contention, as we have previously pointed out that no one advised the Webbs that the fence supposedly marked an agreed boundary line, or that they were not entitled to actually receive all the land called for by their deed. The record does not reflect that they had notice of any kind or nature that such a contention would be made. For the reasons herein set out, the decree is reversed, and the cause is remanded to the Washington Chancery Court with directions to enter a decree not inconsistent with this opinon.

       This fence was subsequently replaced by Morris after he purchased the land.

       This statement had reference to a survey made about 3 years previously at a time when Miller was endeavoring to establish his north property line. He measured from a stake which the surveyor had set out in establishing the north line.

       Appellees have not filed any brief with this court.


author: Ed. F. McFaddin, Associate Justice.

text:
    Ark. State Highway Comm. v. Cook.
    5-2912
    365 S. W. 2d 463
    Opinion delivered March 11, 1963.
    [Rehearing denied April 1, 1963.]

      Doivel Anders and H. Clay Robinson, for appellant.

      T. E. Webber and John O. Moore, for appellee.
   Ed. F. McFaddin, Associate Justice.

The primary question in this case is the width of the right of way of Highway No. 71 through Arabella Heights Addition to Texarkana in Miller County. The appellant contends that the right of way is 100 feet wide, and the appellees claim that the right of way is only 80 feet wide. The Trial Court agreed with the appellees, and the Highway Commission brings this appeal on that issue. Also, there is a second issue which relates to the refusal of the Chancery Court to reopen the case for further testimony.

I. The Width Of The Right of Way. In 1925 there was filed the original plat of Arabella Heights, which showed a 60-foot right of way for the Lynn Ferry Road running diagonally through the addition. On November 25, 1927, the County Court of Miller County, on petition of the State Highway Commission, made an order for changes in Highway No. 71; and, according to that order, a right of way 100 feet wide was designated for the highway through Arabella Heights; and the change in location placed the new highway approximately two blocks south and west of the old Lynn Ferry road. In 1929 there was filed a revised plat of Arabella Heights Addition; and this 1929 plat showed the highway right of way as taking a course and direction practically, if not identically, the same as the 1927 County Court order; but the 1929 plat showed the hightoay right of way to be only 80 feet wide instead of 100 feet wide, as in the County Court order.

It is this difference of 20 feet (being 10 feet on each side of the present highway) that is the subject of this litigation. Various persons purchased property and constructed buildings on the faith of the 1929 plat, some of the buildings even being on the 10-foot strip in question on each side of the highway. It is definitely shown that in all of the time from 1929 to 1962 the State Highway Commission has made no use of any part of the presently claimed 10-foot strip on each side of the 80-foot right of way shown on the 1929 revised plat.

In 1962 the Highway Commission undertook to take possession of the additional 10-foot strip on each side of the 80-foot right of way, claiming that the 1927 County Court order made the right of way 100 feet and that the landowners were bound by that court order. Thereupon, the appellee Cook, as owner of property which included the 10-foot strip, filed this suit to enjoin the Highway Commission from entering on the 10-foot strip. Other landowners similarly situated intervened and made common cause with appellee Cook, and all of these landowners are appellees herein. The Highway Commission, in addition to claiming the full 100-foot right of way under the 1927 County Court order, also asked for a declaratory judgment to the effect that the right of way was in fact 100 feet, as fixed by the County Court order.

With the issues thus joined, the burden was on the Highway Commission to show notice to the landowners of the making of the 1927 order by the County Court; and the Highway Commission proceeded with its case. There was no evidence that any landowner in Arabella Heights had ever filed any claim for compensation under the 1927 order; so, to show notice to the landowners of the 1927 order, the Highway Commission undertook to establish that there was an actual entry on the lands under the County Court order which was dated November 25, 1927. A witness called by the Highway Commission was Mr. M. A. Lynn, an assistant resident engineer of the Highway Department. He testified that he was working for the Highway Department when Highway No. 71 was constructed, and that the work started on Highway No. 71 in Arabella Heights either in the later part of 1926 or the early part of 1927. Mr. Lynn testified that the route was surveyed and laid out in 1925 or early 1926, and that the construction in Arabella Heights “where somebody could go out and see they were building a road” ivas in late 1926 or early 1927.

After the witness Lynn had testified, the appellees insisted, and the Court found, that the Highway No. 71 was constructed before the County Court order of November 25, 1927, and therefore the County Court order was no notice to the landowners since the highway had already been constructed when the order was made. The appellees made applicable to the situation here such cases as Arkansas State Highway Comm. v. Dobbs, 232 Ark. 541, 340 S. W. 2d 283; and Arkansas State Highway Comm. v. Anderson, 234 Ark. 774, 354 S. W. 2d 554. In the case of Arkansas Highway Commission v. Dobbs, we had before us a situation in which a highway was already in existence when a County Court order was placed of record showing an enlarged right of way; property owners received no notice of said order by summons or by entry on the alleged widened portion; and this Court held that the County Court order was, in itself, no notice to the abutting landowners, citing and relying on Bollinger v. Highway Comm., 229 Ark. 53, 315 S. W. 2d 889; and Highway Comm. v. Holden, 217 Ark. 466, 321 S. W. 2d 113.

In the latter case of Highway Comm. v. Anderson, we followed the same rule as in Highway Comm. v. Dobbs, and differentiated the case from that of Highway Comm. v. Cook, 233 Ark. 534, 345 S. W. 2d 632, where there had been payment of claims under the County Court order and such payments did, of course, constitute notice.

Thus, on the evidence offered, the Chancery Court held that the Highway Commission had failed to sustain its position: it had failed to show that there ivas ever any entry under the 1927 County Court order and had also failed to show any other notice to the landowners of the 1927 County Court order. The decree of the Chancery Court was in favor of the landowners ; and we find no error in that decree.

II. Refusal To Reopen The Case. We are thus brought to the second issue in the case in which the appellant complains of the refusal of the Chancery Court to reopen the case for further and contradictory evidence. The case was tried in the Chancery Court on April 26, 1962; and at the conclusion of the hearing on that date the Court announced its decision, as heretofore stated. On May 2,1962, the Highway Commission filed a motion asking that the Chancery Court reopen the case so that the Highway Commission might present other evidence as to when Highway No. 71 was actually constructed through Arabella Heights. Mr. Lynn, the witness offered by the Highway Commission in the original hearing, desired to state that he had made a mistake in his testimony, and that the highway through Arabella Heights was not actually constructed until after the County Court order. The effect of such change of testimony would have been material. It really amounted to a recantation by the witness Lynn of his former testimony. The Highway Commission offered to support Mr. Lynn’s recantation by copies of letters and other matters in the files of the Highway Commission. The Chancery Court conducted a hearing on the motion of the Highway Commission to reopen the case; and on May 15, 1962, refused to allow the case to be reopened.

To discuss the various problems relating to surprise, diligence and recantation, would serve no useful- purpose. After carefully examining the record, we have concluded that the Trial Court did not abuse its discretion in refusing to allow the case to be reopened; and so we affirm the action of the Chancery Court in that matter.

Finding no error, both the decree and the order of the Chancery Court are in all things affirmed.

       This order was under § 76-917 Ark. Stats. In addition to the cases hereinafter cited, the following are some that also concern rights of the landowners under this section: Sloan v. Lawrence Co., 134 Ark. 121, 203 S. W. 260; Greene Co. v. Hayden, 175 Ark. 1067, 1 S. W. 2d 803; and Miller Co. v. Beasley, 203 Ark. 370, 156 S. W. 2d 791.

       This is in keeping with our holding in Arkansas Highway Comm. v. Anderson,................Ark................., 354 S. W. 2d 554.

       So the case of Arkansas Highway Comm. v. Cook, 233 Ark. 534, 345 S. W. 2d 632, has no factual application to the case at bar.

       The Highway Commission had asked for a declaratory judgment. The decree recited that the Commission “may post proper security with the Clerk of this Court in this cause for the just compensation of the plaintiffs and interveners for the proposed taking- of their property aforesaid, . . . and upon the due posting of such security the defendant Commission may show the same to this Court and apply for a supersedeas of the injunction . . .” The Highway Commission did post the bond and did apply for and receive a supersedeas.


author: George Rose Smith, J.

text:
    Chandler v. Board of Trustees of the Teacher Retirement System of the State of Ark.
    5-2922
    365 S. W. 2d 447
    Opinion delivered March 11, 1963.

      Roy Finch, Jr., for appellant.

      Warren é Bullion, Bruce Beimett, Atty. General, By, Jack L. Lessenberry, Asst. Atty. General, for appellee.
   George Rose Smith, J.

This is a taxpayer’s suit by which the appellant attacks the constitutionality of those statutes that permit the employees of the Arkansas Education Association (the AEA) and the Arkansas Teacher Association (the ATA) to participate in the State Teacher Retirement System. The defendants were the trustees of the Retirement System, the State Auditor, and the State Treasurer. The AEA and the ATA were permitted to intervene and become the real defendants. The chancellor found the statutes to be valid and-accordingly dismissed the complaint. The principal issue is whether this use of state funds is for a public purpose.

The teacher retirement system was created by Act 266 of 1937. Under that act retirement benefits were available to public school teachers only. The plan was financed by deductions from the teachers’ salaries and by equal matching contributions on the part of the State. Bv Act 80 of 1949 the employees of the AEA and of the ATA were permitted to participate in the plan, their contributions also being matched by the State. This arrangement was continued in force when the statutes were re-codified by Act 93 of 1957. Ark. Stats. 1947, <§<§ 80-1437 et seq. The funds of the retirement system are kept in various accounts in the State treasury, the State’s annual contribution being transferred from the Public School Fund to the Employers Accumulation Account. Ark. Stats., § 80-1442.

The institution of this suit on February 14, 1961, seems to have been the immediate cause for an amendment to the statute. By Act 210 of 1961, approved one month after this proceeding was filed, the State discontinued its practice of using public funds to match the AEA and ATA contributions and required instead that the matching funds be provided by those organizations as a condition to their continued participation in the retirement system. Ark. Stats., § 80-1442 (6.3). In view of this amendment to the statute the appellant now makes two contentions: First, the State’s former practice of using tax moneys to match the contributions of the AEA and ATA employees should be declared unconstitutional, and the State Treasurer should be directed to set the matter right by making the necessary book entries to transfer those matching funds (about $18,750) from the Employers Accumulation Account back to the Public School Fund. Secondly, the AEA and ATA employees should be declared to be ineligible to participate in the State Teacher Retirement System.

After studying the matter with much care we have concluded that the appellant is right in both his contentions.

The parties have argued the constitutional questions largely with reference to only two provisions in the State Constitution — the privileges and immunities clause (Art. 2, § 18) and the illegal exactions clause (Art. 16, § 13). We have no hesitancy in considering the due process clause as well (Art. 2, § 8), for in a taxpayer’s suit the plaintiff represents the citizens as a whole and cannot be permitted to waive contentions that should be asserted. See McCarroll v. Farrar, 199 Ark. 320, 134 S. W. 2d 561, and Pafford v. Hall, 217 Ark. 734, 233 S. W. 2d 72.

No principle of constitutional law is more fundamental or more firmly established than the rule that the State cannot, within the limits of due process, appropriate public funds to a private purpose. A century ago the basic doctrine was simply stated in the leading case of Brodhead v. City of Milwaukee, 19 Wis. 624: “The legislature cannot create a public debt, or levy a tax, or authorize a municipal corporation to do so, in order to raise funds for a mere private purpose. It cannot in the form of a tax take the money of the citizens and give it to an individual, the public interest or welfare being in no way connected with the transaction. The objects for which money is raised by taxation must be public, and such as subserve the common interest and well being of the community required to contribute.”

Our own decisions' are to the saíne effect. Since it is tacitly conceded in the case at bar that the controlling-issue is that of public purpose, we think it necessary to quote from only one of our cases, Texarkana-Forest Park Paving etc., Dist. v. State, 189 Ark. 617, 74 S. W. 2d 784: ‘ ‘ The power to pay gratuities to individuals is denied to the Legislature generally by constitutional mandate, and usually a gift of money to an individual would be an appropriation of public funds to private use, which cannot be justified in law.”

The question before us centers upon the essential nature of the ABA and the ATA: Are these organizations public or private in character? The testimony relates almost wholly to the AEA, the ATA being its counterpart among the Negro teachers and actually having no employees at present who participate in the teacher retirement system.

The AEA is a voluntary association, organized as a nonprofit corporation and having as its members active and retired public school teachers, administrative and clerical employees of public school institutions, and a few others such as textbook publishing company representatives. The AEA is supported solely by the dues paid by its members. It receives no funds from the State and is unquestionably a private organization rather than an agency of the State.

It was shown by the testimony of the AEA’s assistant executive secretary that some of the association’s activities, such as its continuing effort to raise the standards and status of teaching as a profession, have furthered the cause of public education within the state. On the other hand, the bylaws of the association provide for a standing Legislative Committee, and the witness in effect conceded that the association, with the assistance of its members, engages in lobbying activity in support of its legislative program. Except for the fact that the members of the association are for the most part public employees, the testimony does not indicate that the AEA is in any sense more dedicated to public service than a bar association, a medical society, or any other voluntary professional organization.

We can reach no conclusion except that the use of tax moneys to provide a retirement income for AEA and ATA staff employees cannot be classified as an expenditure for a public purpose. A retirement allowance represents compensation paid to the recipient. Daggett v. St. Francis Levee Dist., 226 Ark. 545, 291 S. W. 2d 254. The workers in question, however, are not employees of the State. There is no sound reason why their salaries should be supplemented by the taxpaying public. Although the cause of public education is undoubtedly furthered by the activities of the AEA members, there is no indication that the AEA employees devote their time to the public service. Even if such a showing had been made, the public services would still have been rendered by these people in the course of their work for a private employer, unsolicited by the State and affording no basis for a claim against the State.

Counsel for the intervenors seek to distinguish the AEA from a bar association or medical society on the ground that most of the AEA members are public employees. So they are, but there is no reason why public employees cannot form an association to advance their private interests. For example, the case of Potts v. Hay, 229 Ark. 830, 318 S. W. 2d 826, was concerned with a labor union composed of members of the Little Rock police force. All the members of the union were public employees and, as such, could be provided with retirement pay at public expense. Adamson v. City of Little Rock, 199 Ark. 435, 134 S. W. 2d 558. Yet it is obvious that the business agent of the union would not be a public employee and could not be given a retirement allowance from the pockets of the municipal taxpayers. The staff members of the AEA are in no better position.

The intervenors’ case is no stronger if their employees are considered simply as individuals, without reference to the identity of their employers. There is no constitutional justification for the State’s conferring upon these workers, in private employment, benefits that are denied to others in similar circumstances. Of course these retirement allowances are not comparable to welfare grants, unemployment compensation, and other payments that are available to everyone falling within a broad classification and are justified by the State’s power to relieve poverty and prevent the destitute from becoming public charges. The teacher retirement plan is not designed to take into account the financial condition of its beneficiaries.

Act 210 of 1961, requiring the AEA and the ATA to match their employees ’ contributions, does not remedy the situation. Tax moneys are still being devoted to a private purpose, because (a) the administrative expense of the system is in part borne by the State, and (b) the retirement allowances are life annuities, Ark. Stats., § 80-1445; so if an annuitant should live long enough to receive more in benefits than had been contributed to his account, the remaining annuity installments would have to be paid with public funds.

There is also proof in the record, and some discussion in the briefs, of a third organization, the Arkansas Athletic Association, which the statutes treat in the same manner as the AEA and the ATA. The complaint, however, sought no relief with respect to the AAA, nor is this organization a party to the case. Hence we express no opinion upon this phase of the case, for a declaratory judgment would not be binding upon an association which is not a party to the case. Laman v. Martin, 235 Ark. 938, 362 S. W. 2d 711.

The decree must be reversed and the cause remanded for the entry of a judgment declaring to be unconstitutional the statutes which seek to permit the AEA and ATA employees to participate in the State Teacher Retirement System. In harmony with our holding in Young v. Clayton, 223 Ark. 1, 264 S. W. 2d 41, the court will also direct the State Treasurer, to the extent that the funds have not been disbursed, to make the necessary entries to restore to the Public School Fund the unauthorized transfers to the Employers Accumulation Account.

Reversed.

Frank Holt, J., disqualified.


author: Paul Ward, Associate Justice. Ed. F. McF addin, Associate Justice

text:
    Reeves v. Miles.
    5-2906
    365 S. W. 2d 460
    Opinion delivered March 11, 1963.

      Joe Holmes, for appellant.

      John Harris Jones, for appellee.
   Paul Ward, Associate Justice.

On June 4, 1957 appellant, Irene Reeves, executed a regular warranty deed conveying to appellees, Johnnie Miles and Susie Miles (husband and wife), a parcel of land (2.6 acres) described by metes and bounds. The deed recited a consideration of $270 paid by appellees and received by appellant.

After appelles had erected a house on the above described parcel of land, appellant filed a complaint in chancery court against appellees asking to have the said deed cancelled on the ground of fraud, in that appellees promised and failed to “look after and support” her during the remainder of her natural life. During the hearing on the above complaint the court permitted appellant to treat the same as amended to ask for a reformation of the deed. Under this amendment appellant attempted to show she intended to convey to appellees only one acre of land whereas she actually conveyed 2. 6 acres. At the close of appellant’s testimony the trial court sustained appellees’ written demurrer to the evidence. Appellant now prosecutes this appeal, asking for a reversal on three separate designated points.

We find it unnecessary to examine any of the points relied on since we have concluded the decree of the trial court must be affirmed because of appellant’s failure to comply with Rule 9 (d) of this Court. This rule, in substance, requires appellant to abstract such material parts” ... of the pleadings, proceeding, facts, documents, and other matters in the record as are necessary to an understanding of all questions presented to this Court for decisions.”

Although the record contains more than fifty pages of pleadings, exhibits, and testimony, appellant has presented us with no abstract of the same. The casual references in the argument to this testimony are not sufficient for us to formulate an informed opinion on the merits of the case. In such a situation this Court has heretofore uniformly affirmed the trial court’s decree or judgment. See: Ellington v. Remmel, 226 Ark. 569, 293 S. W. 2d 452; Porter v. Time Stores, Inc., 227 Ark. 286, 298 S. W. 2d 51; Farmers Mutual Ins. Company v. Watt, Et Ux, 229 Ark. 622, 317 S. W. 2d 285; and, Anderson v. Stallings, 234 Ark. 680, 354 S. W. 2d 21.

The fact that the appellant, in her reply brief, has abstracted the record does not, in our opinion, justify us in waiving the total failure to comply with Rule 9 (d) in the first instance. To do so would be manifestly unfair to the appellees. They were not required to supply the deficiency and were at liberty, if they thought the abstract to be insufficient, to proceed upon the assumption that the decree would be affirmed. To allow the appellant to supply the abstract in the reply brief would have the effect of trapping the appellees. We stress the fact that here the appellant’s omission was total; we do not intimate that an appellant would be penalized for a mere deficiency such as may result from inadvertence or from a failure to anticipate the appellee’s arguments.

Affirmed.

Harris, C. J., and McF addin, J., concur.

Ed. F. McF addin, Associate Justice

(concurring). I concur in affirming the decree of the Chancery Court on the merits of the case.

The original abstract filed by appellant was fatally defective when measured by Rule 9 of this Court; but prior to submission appellant filed, in a reply brief, a sufficient abstract of the record. Such filing prior to submission was said to be proper in St. L. RR. v. Newman, 105 Ark. 63, 150 S. W. 560; and also in Thompson v. Dierks Lumber Co., 208 Ark. 407, 186 S. W. 2d 425.

So I considered the cause on the merits, and reached the conclusion that the Chancery decree was correct. The Chief Justice joins in this Concurrence.