text:
    Universal Life Ins. Co. v. Howlett
    5-3820
    400 S. W. 2d 294
    Opinion delivered March 14, 1966
    ' E. V. Trimble, for appellant.

      Reinberger, Eilbott, Smith & Staten, By: Edward I. Staten, for appellee.
   George Rose Smith, Justice.

This is a suit brought by the appellee as the beneficiary of a $1,000 life insurance policy issued by the appellant upon the life of Lloyd Pierce, who died on August 25, 1964. The defendant filed a general denial, but it failed to file proper responses to the plaintiff ’s .requests for admissions of fact. Upon this state of the record the trial court granted the plaintiff’s motion for a summary judgment.

The court was right. In an action upon an insurance policy a general denial merely puts the plaintiff to his proof; an affirmative defense, such as an exception in the policy, must he specially pleaded. Stucker v. Hartford Acc. & Ind. Co., 220 Ark. 475, 248 S. W. 2d 383 (1952). Hence in the case at bar the defendant’s general denial merely put in issue the allegations of the complaint.

The plaintiff’s requests for admissions covered all the material facts alleged in the complaint. The defendant’s only response consisted of unverified denials signed only by its attorney. Such a failure to comply with the statute admits the facts asserted in the request for admissions. Ark. Stat. Ann., § 28-358 (Repl. 1962); Young v. Dodson, 239 Ark. 143, 388 S. W. 2d 94 (1965); Brown v. Lewis, 231 Ark. 976, 334 S. W. 2d 225 (1960). The complaint stated a cause of action. Inasmuch as there was no material fact left in dispute the court had no alternative to granting the motion for a summary judgment. Ark. Stat. Ann. § 29-211 (c); Jones v. Comer, 237 Ark. 500, 374 S. W. 2d 465 (1964).

Affirmed.


source: Caselaw Access Project

author: Paul Waud, Justice.

license: Public Domain

text:
    Mitchell v. Mitchell
    5-3809
    400 S. W. 2d 292
    Opinion delivered March 14, 1966

      Phillip H. Loh, for appellant.

      Audrey Strait, for appellee.
   Paul Waud, Justice.

This litigation is over a boundary line between two parcels of land in which two brothers have a life estate. They, together with two other brothers (not involved here), received a life interest in a large acreage through the will of their father who died in 1942.

To help understand the issue involved we set out a summary of the factual background.

By terms of the will the real estate was first placed in trust for ten years, then it vested in the four sons for life with remainder in the bodily heirs of the sons. The sons were also left certain personal property. In Mitchell v. Mitchell, 208 Ark. 478, 187 S. W. 2d 163 this Court upheld the validity of the will. On May 26, 1952 the four sons entered into and signed a “Partition and Trust Agreement” which sets out, by description, the portion of land to be held and controlled by each son. The instrument is long and involved, and contains numerous land descriptions. Among other things it provides that appellant gets “The North % of the N.E.ti” of section 24, Twp 6 N. R. 18 W., and that appelle gets “The Sl/2 of the N. E. 34 ” of said section 24. These same two parties were before this Court in 1963 in a dispute over personal property left to them by the will. Mitchell v. Mitchell, 236 Ark. 812, 368 S. W. 2d 284.

The present litigation began on June 12, 1964 when appellant filed a complaint in chancery court contending, among other things, that appellee was in possession of a portion of the land which belongs to him.

After a full hearing the trial court found, from the pleadings and testimony, that the main purpose of the litigation was ‘ ‘ an action for the establishment of a boundary line in dispute ’ ’ between lands claimed by the parties in the northeast quarter of section 24, T. 6 N. R. 18 W.

• , The court found, among other things, that appellant was entitled to the possession (as a life tenant) of the north half of said northeast quarter and that appellee was. likewise entitled to the south half.

: ..For reasons hereafter discussed, we agree with the trial, court.

■ • One. The essence of appellants contention is- that, prior to the signing of the written agreement mentioned previously, he had an oral agreement with appellee as to where the dividing line (between their properties) would run. According to this alleged oral agreement the dividing line was to be (in part) the south line of said northeast quarter. This, of course, would leave no land to appellee in said quarter section, and was contrary to the plain wording of the written agreement. The trial court was correct in holding that the written agreement could not, in the absence of fraud, be changed by the alleged oral agreement. See: Quartermous v. Kennedy, 29 Ark. 544 and Kelley v. DeWees, 200 Ark. 770, 140 S. W. 2d 1011. Appellant does not allege or prove fraud in this case.

Two. It is next insisted by appellant that the trial court erred in refusing to fix a boundary line between all the lands claimed by the two sons. We do not agree. As before pointed out these parties have been before this Court on two previous occasions, and the parties have lived under the agreement more than ten years, yet this is the first time appellast has indicated in court his dissatisfaction with the present boundary situation. In fact the testimony is to the effect that there has not been any such dissatisfaction. If appellee is, in fact, in possession of any land assigned to appellant ejectment in a'court of. law is his remedy: Gibb v. Bates, 150 Ark. 344, 234 S. W. 175. Also, we point out, there is no sufficient evidence in the record by. which the trial court could definitely define the dividing lines between the numerous parcels of land held by the parties.

Other matters were presented to the trial court for determination, but we find no error in the court’s refusal to pass on them. There were approximately ten pleadings of various kinds filed in the case, raising various issues which were not fully developed or were not germane to the principal issue before us. These were disposed of, properly we think, in the following manner: The court “decreed that all other matters and issues involved is this case ... be and the same are dismissed without prejudice.”

Affirmed.


author: Paul Ward, Justice.

text:
    Hyde, Ex’rs v. Hyde
    5-3827
    400 S. W. 2d 288
    Opinion delivered March 14, 1966

      John Harris Jones, for appellant.

      Edward M. Owens, for appellee.
   Paul Ward, Justice.

This is an appeal from an order of the Probate Court construing two paragraphs in the will of Oscar H. Hyde who died May 3, 1964. There is little if any dispute about the material facts involved.

Mr. Hyde and his wife Mildred weré living in their home on Claud Road near Pine Bluff when he died, leaving children by a former wife. Two of these children, Edgar Lee Hyde and Elsie H. Hunt, were named Executors in his will. They were also made trustees of a trust fund created by the testator.

The will contains two paragraphs which are the subject of this litigation. They are copied below.

1. “I give to my wife, Mildred Hyde, the right to occupy and enjoy as her home the residence -in which we ,are living at the time of death, for so long as she shall live and care to do so.”
4. “Until her remarriage or death my wife, Mildred Hyde, shall be paid from the said trust the sum of $100.00 per month and such additional sums as shall be required for her care and treatment in event of her sickness or injury. ...”

On March 5, 1965 the Executors (appellants herein) filed a petition in the Jefferson County Probate Court for instructions, requesting the court to construe the two portions of the will above copied. In essence it was alleged: At the time of the testator’s death he and Mrs. Hyde occupied the residence above mentioned. Since September or October 1964 she has not, according to their information, occupied said property as her residence; a hearing should be held to determine whether she has in fact abandoned the property, and, if so, whether the property should be rented or sold.

At the hearing held on May 20, 1965, testimony was introduced tending strongly to show that Mrs. Hyde had not been living in her own home for several weeks but that she had been living in the home of a certain (unmarried) man. In fact the court found the evidence indicated she had been having a rather close association with the man in question. However, no witness testified positively to any other improper relationship between the two. Mrs. Hyde denied there was any improper relationship, but stated she cooked, washed, ironed and cleaned house for the man; that she received $10 per week, which she was using to pay for a refrigerator used in her own home on Claud Road, and that she always stayed in her home at night. The man for whom she worked corroborated her testimony.

One. The trial court found that Mrs. Hyde had not abandoned her home, and we agree. In the case of Woodson v. Lee, 221 Ark. 517, 254 S. W. 2d 326 we approved the definition of the word “abandonment” to mean:

“To relinquish or give up with the intent of never again resuming or claiming one’s rights or interests in; to give up absolutely; to forsake entirely; to renounce utterly; to relinquish all connection with or concern in; . . .”

The above language was used in connection with the abandonment of a child, but we think it also applies to the situation here. However unconventional Mrs. Hyde’s conduct may appear to have been, we cannot say it shows an intent on her part to abandon her home. We point out also that the record shows Mrs. Hyde was officially adjudged mentally incompetent January 6, 1961 and admitted to the hospital, and that her competency has not been restored.

Two. It is our opinion the trial court was also correct in holding that appellants shall continue to pay Mrs. Hyde the sum of $100 each month. It suffices, in this connection, to point out that she has not remarried and is still alive. Mr. Hyde was aware of Mrs. Hyde’s incompetency and it is reasonable to assume he meant to make provisions for her welfare.

Affirmed.


author: Jim Johnson, Justice. Carleton Harris, Chief Justice,

text:
    Seale v. State
    5157
    400 S. W. 2d 269
    Opinion delivered March 14, 1966

      Kirsch, Cathey & Brown, for appellant.

      Bruce Bennett, Attorney General, Farrell Faubus, Asst. Atty. General, for appellee.
   Jim Johnson, Justice.

This appeal-is from a conviction for the felony of “overdrafting.”

Appellant William J. Seale was charged by information on May 8, 1964, in the municipal court of Paragould with overdrafting. The information alleges that appellant on April 6, 1964, issued a check to Bise Auto Sales drawn on the Bank of Benton, Benton, Kentucky, for the sum of $1,250.00 and did not have sufficient sums in the bank to cover payment of the check upon presentment. Appellant was arraigned on December 11, 1964, and was bound over to Greene Circuit Court. At trial on May 18, 1965, the jury found appellant guilty, fixed his punishment at three years, “with the recommendation that the sentence be suspended providing the defendant pay in full the $1,250.00 to Lloyd Boyce [sic! without interest within two years from this date.” The record contains a judgment filed May 28, 1965, which contained a sentence of three years with two years suspended to make restitution. On June 16,1965, a “correction judgment” was entered, “in correction of a clerical error” made in the earlier judgment, and sentenced appellant to three years in the penitentiary.

Appellant, ably represented by court-appointed counsel, has appealed to this court urging four points for reversal. Three of the points, as presented here, do not merit reversal; however, the decisive point urged by appellant is that the trial court erred in refusing to declare a mistrial when the trial judge inadvertently commented upon the testimony of appellant’s Avife.

Appellant’s Avife testified that her husband would buy Avrecked cars, clean them up and repair them and resell them. She helped with his book Avork and Avith his cars Avhen' they needed cleaning up and vacuuming. She made some or most bank deposits. (She testified on direct examination that Avhen appellant brought the car from Bise’s Auto Sales, appellant spent four or five days fixing and cleaning it up. Then a Mr. Jeffries, Avhom appellant had seen working at Bise’s, representing himself to be an agent of Bise’s, got first the car title from appellant and a few days later the car itself, but did not give appellant the check on which this prosecution arose.) On cross-examination she again testified:

“A. What I did Avas actually help him clean the cars as they came in and work needed to be done on the cars that way, and I Avould go to the bank and deposit checks in the bank for him
Q. In other Avords, you kept up with the bank account then?
A. Partly, yes, sir,.”

Appellant’s wife also testified that no one but her husband wrote checks on the account. Further along she was asked if she knew anything about “three hot checks,” which she denied. This ensued:

“Court: She testified she was in charge of the books. If not—
Mr. Cathey: Note my exceptions to the remarks of the court.
A. I didn’t say I had charge of the books. I helped him with the books.
Court: The jury can tell what you testified to. They heard it. Don’t be trying to contradict the court.
A. No, I am not.
Court: The record speaks for itself.”

Appellant urges that any remarks'by the trial judge in the jury’s presence during a colloquy either with lawyers or witnesses are prejudicial when the judge’s words relate, directly or indirectly, to the - credibility of witnesses and the Aveight to be given their testimony. A quotation in Fuller v. State, 217 Ark. 679, 232 S. W. 2d 988, is directly-in point:

“ ‘... a judge presiding at a trial should manifest the most impartial fairness in the conduct of the case. Because of his great influence with the jury, he should refrain from impatient remarks or unnecessary comments which may tend to result prejudicially to a litigant or Avhich might tend to influence the minds of the jury. By his words or conduct he may, on the one hand, support the character and weight of the testimony or he may destroy it in the estimation of the jury. Because of his personal and official influence, uncalled for or impatient remarks, although not so intended by him, may give one of the parties an unfair advantage over the other.’ Western Coal & Mining Co. v. Krane, 193 Ark. 426, 100 S. W. 2d 676. Also, see, McAlister v. State, 206 Ark. 998, 178 S. W. 2d 67.
“The requirement of Art. 7, § 23 of our Constitution, that ‘judges shall not charge juries with regard to matters of fact,’ applies as well to the credibility of witnesses and the weight to be given their testimony as to the outright truth or falsity of what they say. St. L. S. W. Ry. Co. v. Britton, 107 Ark. 158, 154 S. W. 215. And it applies not only to what judges tell juries in the course of formal instruction hut also to what they say in colloquys with lawyers in the jury’s hearing.” [Emphasis ours.]

See also McMillan v. State, 229 Ark. 249, 314 S. W. 2d 483; Hearn v. State, 211 Ark. 233, 200 S. W. 2d 513.

The case is reversed and the cause remanded for new trial.

Harris, O. J., dissents.

Carleton Harris, Chief Justice,

dissenting. Although agreeing with the majority that the trial court should not have made the remark upon which this reversal is based, I do not think that prejudicial error was committed.

This is not a case wherein the court, over and over, showed impatience, or clearly conveyed the impression that it did not consider particular evidence offered by the defendant as relevant or important. The majority cite three cases, Fuller v. State, 217 Ark. 679, 232 S. W. 2d 988, McMillan v. State, 229 Ark. 249, 314 S. W. 2d 483, and Hearn v. State, 211 Ark. 233, 200 S. W. 2d 513.

In Fuller the trial court was critical of evidence offered by the defense, and engaged in a colloquy with defense counsel. At three different times, the defendant objected and excepted to the court’s remarks, and finally the judge and counsel left the courtroom, and went to chambers. Upon returning (the opinion recites), there were further interruptions by the judge of the same tenor. This court, in a five to two decision, held that the Circuit Judge “went too far.”

In McMillan, the court again demonstrated impatience, and three times made remarks to the effect that the court did not consider the evidence competent or relevant (though he permitted it to be given), remarking, “We are not trying a personal injury suit* * * You are going in too much detail.” Objections and exceptions were overruled. Here again, there was a long-discourse between the court and counsel in front of the jury.

• I do not consider Hearn v. State to apply to the case at bar, since it involved the remark of the trial judge upon being told that the jury stood “10 and 2.”

In the case before us, it appears that the trial court was incorrect in stating that - Mrs. Seale had testified that she was in charge of the books. The record reflects that she said that she helped her husband with his book work. When Mrs. Seale remonstrated that she had not said she was in charge of the books, the court made the remark which resulted in the reversal of this case. However, it will be noted that the court also said, “ The jury can tell what you testified to. * * * The record speaks for itself.”

I have found that juries listen very attentively to the evidence, and I am confident that they knew that Mrs. Seale had not made the statement that she was in charge of the books, and it is actually my opinion that the court’s remarks, “Don’t be trying to contradict the eourt, ” if it had any effect at all, aroused the sympathy of the jury for the witness. It is natural for people to sympathize with an underdog, and I believe the jury recognized that Mrs. Seale, though correct in her statement, was at a gross disadvantage in disputing the statement of the court.

I do not think appellant was prejudiced by the court’s remark, and I therefore respectfully dissent.


author: Frank Holt, Justice.

text:
    Slaughter & Scott v. State
    5174
    400 S. W. 2d 267
    Opinion delivered March 14, 1966

      Larey & Larey, M. Gabriel Nahas, Jr., Houston, Texas, for appellant.

      Bruce Bennett, Attorney General, Fletcher Jackson, Asst. Atty. General, for appellee.
   Frank Holt, Justice.

The appellants were charged by inforihation with the crime of false pretense. The jury found them guilty and assessed a three-year penitentiary sentence upon each of them. A third defendant, Jack Cavanaugh, Jr., was also found guilty and the court imposed a three-year suspended sentence upon him in accordance with the jury’s recommendation. He does not appeal.

The appellants first contend for reversal of the judgment that the court erred in denying them “counsel in violation of the Constitutions and laws of the State of Arkansas and the United States of America.” The record is not silent on this issue. Upon arraignment the appellants pleaded not guilty and responded to the court’s inquiries that they knew they were charged with false pretense; that they did not have an attorney and desired to employ their own attorney; that they were free on bail and gainfully employed. The court advised them of the trial date and instructed them to be present with their lawyer. When they appeared three weeks later on the day of the trial they advised the court that they did not have a lawyer and were not ready for trial, however, they would proceed without a lawyer. A jury was then selected with the appellants’ approval after they had excused the prospective women jurors. When the. jury was empaneled, a member of the local bar volunteered his assistance in defending the appellants. The court and appellants accepted his services. Throughout the balance of the trial appellants were represented by this lawyer who does not represent them on this appeal.

An accused enjoys the constitutional right to have the assistance of counsel for his defense. Amendment Six, United States Constitution. This amendment is made obligatory upon the states by the due process clause of the Fourteenth Amendment of our Federal Constitution. Gideon v. Wainwright, 372 U. S. 335, 83 S. Ct. 792, 9 L. Ed. 2d 799. See, also, Article 2, § 10, Arkansas Constitution and Swagger v. State, 227 Ark. 45, 296 S. W. 2d 204. However, this is a personal right and the accused may knowingly and intelligently waive counsel either at a pre-trial stage or at the trial. Johnson v. Zerbst, 304 U. S. 458, 58 S. Ct. 1019, 82 L. Ed. 1461; State v. Graves, 165 So. 2d 285 (La. 1964); 23 C. J. S., Criminal Law, § 979(3); Spevak v. United States, 158 F. 2d 594 (4th Cir. 1946) and United States v. Arlen, 252 F. 2d 491 (2nd Cir. 1958). In the ease at bar the appellants knew the nature of the charge against them and have remained free upon a professional bail bond pending trial and this appeal. They represented to the court that they were employed and would secure their own counsel for the trial. The appellants consulted with several attorneys preceding the trial. They were represented at the trial, following empanelment of the jury, by admittedly able and experienced counsel whose volunteer services were acceptable to them. Both appellants are in their thirties in age and are no strangers to court procedure since each admits a previous conviction for burglary. In the circumstances there was no denial of counsel to the appellants nor did the court abuse its discretion when it interpreted their conduct as dilatory. Any right to counsel Avas knowingly and intelligently waived by appellants. No unconstitutional conviction exists in this case.

Appellants next contend that the court erred in admitting illegally obtained confessions. This point involves two statements made by the co-defendant, Cavanaugh, who does not appeal from his suspended sentence. The first alleged confession was given orally by him to a deputy sheriff and the second relates to a transcript of an oral interrogation conducted by the prosecuting attorney. The appellants did not raise the admissibility of Cavanaugh’s typed statement in their motion for a new trial. We cannot consider an alleged error predicated upon a ruling of the trial court when it is not assigned as erroneous in a motion for a new trial. Decker v. State, 234 Ark. 518, 353 S. W. 2d 168; Blaylack v. State, 236 Ark. 924, 370 S. W. 2d 615.

When Cavanaugh was apprehended by the deputy sheriff he voluntarily pointed out the victim’s house as being the place where he and the appellants were working. This oral statement was not an admission of wrongdoing. We do not construe this voluntary statement as being prejudicial to appellants. It was admissible. Turney v. State, 239 Ark. 851, 395 S. W. 2d 1 and Brown v. State, 239 Ark. 909, 395 S. W. 2d 344. Further, the court is not required to submit on its own motion an instruction on the issue of voluntariness of a defendant’s statement. Sheppard v. State, 239 Ark. 785, 394 S. W. 2d 624.

Appellants’ final contention is that the verdict is contrary to the evidence. Upon appeal we must view all of the evidence in the light most favorable to a jury verdict and it is our duty to sustain it if there is any substantial evidence to support the verdict. Graves & Parham v. State, 236 Ark. 936, 370 S. W. 2d 806; Stockton v. State, 239 Ark. 228, 388 S. W. 2d 382. The prosecuting witness is a 75-year-old widow who identified the appellants and Cavanaugh as the trio who came to her house representing to her that they were employees of Bruce-Terminix Company. Since she had a policy with this firm, she permitted them to make a two-hour inspection of her house. She was advised by them that she had beetles in the attic which needed attention. They asked for $300.00 and accepted $250.00 cash insisting they needed the money then to buy chemicals. When they did not return as indicated, she became suspicious and learned that the appellants were not employees of Bruce-Terminix Company. There was evidence by representatives of this firm and the Arkansas State Plant Board that from their inspection of her premises there was no need for any pest control treatment. According to appellants, who admitted experience in pest control activities, they (including Cavanaugh) did not know the prosecuting witness nor had they ever been on her premises. This conflict in the testimony was resolved by the jury’s verdict and it must be said there is substantial evidence to uphold it.

Affirmed.


author: Osro Cobb, Justice.

text:
    Fuller v. Fuller
    5-3778
    400 S. W. 2d 283
    Opinion delivered March 14, 1966

      Brockman & Brockman, for appellant.

      Coleman, Gant, Ramsay & Cox, for appellee.
   Osro Cobb, Justice.

This case involves a dispute as to title to certain lands in Lincoln County.

The Pertinent Facts

On April 11, 1959, appellee, as owner of the 240 acres of land involved in this case, executed and delivered to Lee Owen a lease on same for the calendar years 1960 through 1964, at annual rental of $3,000, said rentals thereafter being assigned by appellee to Dr. E. E. Glasscock to secure a debt.

Appellee’s lands were further encumbered by a mortgage executed in 1957 to Mutual Life Insurance Company of New York to secure a loan of $14,000, payable in annual installments of $700 each December.

Appellee and his wife listed said lands for sale with a real estate agency doing business as Ferguson and Company. On June 28, 1960, the agency produced a conditional purchaser and appellee and his wife, as sellers, and Euth T. Teal, the purchaser so obtained, executed an Offer and Acceptance agreement as to the conveyance of said lands for a consideration of $35,000. The purchaser agreed to purchase only in the event that she could procure a loan of some $45,000 on some l.,500 acres of land (not detailed) in fifteen days from said date. The sale was never consummated. However, the stated consideration of $35,000 has some weight as to the value of the land at that time and as to the substantial equity appellee could have reasonably expected to realize had the sale been completed.

In 1960 the insurance company advised claimant that unless his $700 payment due on December 1, 1959, was paid by July 1, 1960, a foreclosure action would be instituted.

Appellant agreed to advance appellee the funds necessary to pay his 1959 and 1960 installments due the insurance company. On July 1, 1960, appellant advanced appellee $1,500, which was paid over to the insurance company for credit against its mortgage. However, appellant required appellee and his wife to execute to him a note in the sum of $2,100, due March 1, 1961, with interest of 10%, and as security for the note appellant required that appellee and his wife execute to him their quitclaim deed as to subject lands.

On December 1, 1960, appellee was again unable to make the annual payment due the insurance company. On February 1, 1961, appellant made a check in the sum of $1,456.27 directly payable to the trustee for the insurance company for credit on its mortgage, and on the same day required appellee and his wife to sign an additional note to him in the principal sum of $1,650 with interest at 10% from date, the note reciting “secured by land 240 acres.”

The parties were in complete agreement at the time the quitclaim deed and notes were executed and delivered that appellee was then undertaking to sell his lands for a sum of money substantially in excess of his outstanding obligations against the land. Both parties were also aware that the 240 acres of land was under lease to a .third party.

In 1961, appellant made demand upon appellee to pay all of. his debt to him by December 31, 1961, which appellee was unable to do. Thereafter, appellant insisted that appellee had forfeited all rights of redemption as to said lands. Appellant thereafter insisted that appellee pay a rental of $15 per month for use of a house on the land and payments were made by appellee for rent on the house at irregular intervals as late as March, 1963. Appellant never instituted any suit against appellee upon the notes and the quitclaim deed given as security.

Appellee on December 30,1964, instituted this action to recover his lands.

Appellee and his wife testified that it was specifically understood and agreed between the parties that appellee would have until the expiration of his lease agreement with Owens, December 31, 1964, in which to redeem his lands from appellant. Appellant testified: “I told him to set his own time.” Appellant further testified that he knew appellee was renting the land at the time of appellant’s advances for the benefit of appellee, but did not know that it was under a specific lease for any particular period of time, and specifically denied having made any agreement as to redemption after March 1, 1961.

Appellant, for impeachment of appellee’s testimony and other purposes, was permitted to introduce in evidence the entire record of the testimony of appellee in the Circuit Court case of B. R. Henry, d/b/a B. R. Henry & Company, and J. C. Ferguson, d/b/a J. C. Ferguson & Company, Plaintiffs, v. J. B. Fuller and Vesta Fuller, his wife, Defendants. In that case, the sole issue was as to commissions due and earned in connection with the finding of a buyer (Ruth T. Teal) ready, willing and able to purchase appellee’s 240-acre tract for the sum of $35,000. The case was settled by a consent judgment which was entered on September 11,1961, in the sum of $1,000 against appellee. Title to the land was not at issue.

After hearing the instant case the Chancellor, on June 17, 1965, entered a lengthy decree from which we extract pertinent findings and conclusions:

(a) That the quitclaim deed was executed as security for the debt evidenced by the two notes.

(b) That under the circumstances the quitclaim deed was a mortgage and not a transfer of title.

(c) That the notes executed by appellee and his wife were usurious in that the stated obligation of the two notes was for some $793.73 more, than the moneys actually advanced by appellant for appellee, in addition to stated interest of 10%.

(d) That appellant had a matured right to a foreclosure action against appellee but never exercised same.

(e) That appellee seasonably brought his action to recover his lands, e. g. within less than three years from the due date of said notes.

(f) That notwithstanding the usurious character of the notes and their invalidity, appellant was subrogated to the lien of the mortgage to the insurance company to the extent of the actual moneys advanced and credited upon the mortgage account with interest at 6 %. Appellant had in fact paid off the entire mortgage executed to the insurance company.

(g) That rents paid by appellee to appellant in the sum of $551 were improper and appellee should receive credit for same on his debt.

(h) A detailed accounting between the parties was stated which resulted in a finding that appellee owed appellant a total of $20,242.25.

(i) In a separate order of July 27, 1965, the court noticed that appellee had paid into the registry of the court the full sum due appellant, thus cancelling and foreclosing any claims of appellant to said lands.

APPELLANT URGES FOUR

POINTS FOR REVERSAL

(1) That appellee had forfeited his right to redeem.

(2) That appellant’s plea of res judicata should have been sustained.

(3) That the court erred in permitting; appellee to file additional pleading alleging usury as to the notes executed by appellee.

(4) That incompetent evidence was admitted.

Point 1.

It was undisputed between the parties that the quitclaim deed was given to secure the continuing debt of appellee as evidenced by his two notes. We have consistently held that a deed absolute on its face is in fact a mortgage under such circumstances. Ehrlich v. Castleberry, 227 Ark. 426, 299 S. W. 2d 38; Hill v. Day, 231 Ark. 550, 331 S. W. 2d 38; Gunnels v. Machen, 213 Ark. 800, 212 S. W. 2d 702; Wimberly v. Scoggin, Receiver, 128 Ark. 67, 193 S. W. 264; Johnson v. Clark, 5 Ark. 321.

Appellee’s action to divest appellant of any title and claim to the land was seasonably instituted. Appellant asserted no claim of title adverse to appellee until after December 31, 1961. Appellee’s suit was thus brought within less than three years thereafter, which is our statute of limitation on actions in contract not reduced to writing. Ark. Stat. Ann. § 37-206 (Repl. 1962). If in writing, it is five years. Ark. Stat. Ann. § 37-209 (Repl. 1962). Furthermore, Ark. Stat. Ann. § 37-101 (Repl. 1962) provides a seven-year limitation in bringing a suit in chancery to recover lands. See Ringo v. Woodruff, 43 Ark. 469. Appellee’s action was thus not barred by any statute of limitation.

The testimony of the parties is in irreconcilable conflict as to their intentions as to the agreed time in which appellee could redeem his lands. There is no question about the existence of such an intention when the quitclaim deed was executed. Appellee and his wife testified the final date was December 31, 1964, when the Owen lease expired. Appellant testified it was March 1, 1961, and extended voluntarily by him to December 31, 1965. Appellee’s testimony in the Circuit Court case, not involving title and wherein appellant was not a party, was offered for purposes of impeaching appellee’s testimony. This testimony was indeed contradictory in many respects to that given at this trial. There was no writing executed between the parties fixing or terminating the time of redemption and this was a fact question which the court resolved adversely to appellant. We cannot say that this holding was against the preponderance of the evidence in the case. Brandenburg v. Brandenburg, 234 Ark. 1117, 356 S. W. 2d 625; Zachery v. Warmack, 213 Ark. 808, 212 S. W. 2d 706. See also Stebbins v. Clendenin, 136 Ark. 391, 206 S. W. 681.

Matthews v. Stevens, 163 Ark. 157, 259 S. W. 736, relied upon by appellant, is inapplicable because the redemption was fixed in a written instrument and the equity interest of Matthews was nil, the amount paid by Stevens representing the full value of the land.

We find no merit in appellant’s Point 1.

Point 2.

Appellant relies upon the Circuit Court case involving a controversy as to commissions on the procuring of a purchaser ready, willing and able to purchase, etc., as being res judicata as to the issue of appellant’s title to subject lands. Title to the lands Avas not at issue and appellant was not a party. Any action to reduce appellant’s equitable mortgage to a judgment and as a step toAvard acquiring actual title to the lands Avas exclusively in equity. Since the controversy in the Circuit Court did not remotely touch the dispositive issue of this case in equity, we conclude that appellant’s contentions as to Point 2 are Avithout merit. Bass v. Minich, 194 Ark. 589, 109 S. W. 2d 139. See also Restatement, Judgments § 68, from Avhich Ave quote:

“On the other hand, where the subsequent action is based upon a different cause of action from that upon which the prior action Avas based, the effect of the judgment is more limited. The judgment is conclusive between tbe parties in such a case as to questions actually litigated and determined by the judgment. It is not conclusive as to questions which might have been but were not litigated in the original action. This is the doctrine of collateral estoppel.”

Since the Circuit Court case resulted in a Judgment by Confession, we also quote Restatement, Judgments § 68 (i) :

“i. Judgments by Confession. Where no issues are litigated between the parties, but the defendant confesses judgment, the judgment is not binding on the parties in subsequent actions based on a different cause of action. This is true whether the defendant confessed judgment after the action was brought or gave a power of attorney to confess judgment before the action was brought.”
We find no merit in appellant’s Point 2.

Point 3.

When the court permitted appellee to amend his complaint to allege usury as to the two notes, he merely permitted appellee- to allege what was already in evidence. Under the circumstances, the amendment was within the discretion of the court. Ark. Stat. Ann. § 27-1160 (Repl. 1962). See Callahan v. Farm Equipment, Inc., 225 Ark. 547, 283 S. W. 2d 692; Antrim v. McKelroy, 229 Ark. 870, 319 S. W. 2d 209; Jewel v. Shiloh Cemetery Ass’n, 224 Ark. 324, 273 S. W. 2d 19; St. Louis I. M. & S. Ry Co. v. Holmes, 88 Ark. 181, 114 S. W. 221.

We conclude that appellant’s Point 3 is without merit.

Point 4.

Witness I. T. Alston testified for appellee. His direct examination appears on pp. 153-157 of the transcript. At no place in the record is there an objection interposed by appellant to any of his testimony. Thus appellant waived any objection thereto. Sandusky v. Warren, 177 Ark. 271, 6 S. W. 2d 15.

Having concluded that all of appellants contentions on the appeal are without merit, the decree of the Chancery Court is affirmed.

Affirmed.


author: Carleton Harris, Chief Justice.

text:
    El Dorado Real Estate Co. Inc. v. Garrett
    5-3758
    400 S. W. 2d 497
    Opinion delivered March 21, 1966

      Spencer & Spencer, By: Don Gillaspie, for appellant.

      Brown, Compton & Preioett, By: William I. Prewett, for appellee.
   Carleton Harris, Chief Justice.

This litigation involves a broker’s commission. Appellant, El Dorado Real Estate Company, Inc., a licensed real estate broker, instituted suit against A. B. Garrett for the recovery of a commission in the amount of $2,625.00 as the balance due on a total commission of $3,300.00, appellant contending that this commission had been earned pursuant to a contract entered into between the parties. On March 7, 1963, Mr. Garrett directed a letter to Mrs. Annie Laurie Dickinson, who operates the El Dorado Real Estate Company, Inc., in which he said:

“This is to serve as permission for you to handle the sale of my farm and timber land located in Calhoun County Arkansas. Binding for six months from date.

“Asking price one hundred dollars per acre plus $10.00 per acre as your commission or a total selling price of one hundred and ten dollars per acre.

‘ ‘ Terms: All cash in the event the purchaser should desire to pay this way. In the event purchaser should prefer terms. Twenty-five percent as down payment, balance carried by me over a period satisfactory to purchaser from five to ten years with equal annual payments at six percent interest.”

The lands referred to consisted of 332 acres. Mrs. Dickinson obtained permission to sell 92 acres of the total amount to Curtis "Wood for $13,500.00. She was thereupon paid $675.00, and the parties agreed that the balance of $675.00 for this sale would be paid when the remaining 240 acres of land were sold. Mrs. Dickinson contacted Truman Wood, brother of Curtis Wood, and a resident of Texas, relative to the purchase of the 240 acres. Mr. Wood made an offer for the 240 acres of $23,-000.00, payable $5,000.00 in cash, the balance to be paid in six annual payments of $3,000.00 each, plus interest at the rate of 6% per annum, and signed an “offer and acceptance” to that effect. This paper was forwarded on to Mr. Garrett. Appellee, however, did not sign, but informed Mrs. Dickinson by letter that he could not give possession of a particular 80 acres to Wood until January, 1965, for the reason that this 80 acres had been rented to a Mr. Reynolds for the entire year of 1964. Garrett then mentioned to Mrs. Dickinson that, upon instructing an attorney to prepare the contract, “Be sure and have him make mention that no timber is to be cut or removed from the land until full purchase price has been paid.” Mrs. Dickinson replied to this letter by pointing out that to prevent Mr. Wood from cutting timber on the place would deny him the use of the land for the six-year period, and further mentioned that appellee would be protected anyway, as he would hold a first mortgage on the timber, and would be entitled to the money on any cut and sold. Garrett replied to this letter on February 19, stating, “Will go along with you on the timber arrangement as mentioned in your letter of February 17. Providing this arrangement is mentioned in the sales agreement.” With this letter he returned the “offer and acceptance,” which had been signed by appellee and his wife. Garrett testified that prior to signing the “offer and acceptance,” he discussed the timber with Mrs. Dickinson by telephone, telling her that he wanted a clause in the contract of sale to the effect that if Wood sold any of the timber, “he would turn all of the monies he received from the sale of it over to me and I would give him credit on his note in reverse order, on the back end 0f it * * * .” Mrs. Dickinson confirmed that Garrett gave her oral directions, but stated that she did not pass them on to Wood, or obtain the latter’s approval, because “I didn’t think he would object,” since Wood had also tendered a cash offer on the property. She stated that she did not include the timber provision in the “offer and acceptance,” because she did not feel that it was necessary, since it would be included specifically in the mortgage. Mrs. Dickinson had J. S. Brooks, an attorney of El Dorado, prepare the contract of sale, which included the requests made by Garrett. A meeting was arranged between Wood and Garrett at Hampton, and, according to the evidence, Mr. Wood strenuously objected to the timber provision, stating that he wanted a contract like the one that was given his brother. Garrett testified that the reason for the difference in the contracts to the brothers was that the land sold to Curtis Wood did not contain any timber or gravel. Truman Wood refused to accept the contract as written, but some mention was made of a cash purchase of the property. Mrs. Dickinson testified that Wood asked Garrett if he would take cash, though she never did mention the amount that was offered. Garrett testified that Wood did not make any explicit offer of $23,000.00 cash, but appellee did state that he said he would go back to Union City, and determine whether he would sell the property for that amount in cash. Mrs. Dickinson wrote Garrett several letters, making inquiry whether he had decided to sell the property for cash, but appellee did not answer these letters, testifying that his attorney was in the hospital, and he did not have an opportunity to consult him. On April 2, 1964, Garrett advised Mrs. Dickinson that he was taking the 240 acres ‘ ‘ off the market,” and Mrs. Dickinson returned to Wood the $500.00 earnest money deposit that he had made. Thereafter, appellant instituted suit, as mentioned in the opening paragraph. The case was tried before a jury, which returned a verdict for appellee, and from the judgment entered, appellant brings this appeal.

It is first urged that the court erred in not directing a verdict for El Dorado Real Estate Company, Inc. Appellant bases its position on the argument that it was only required, under its agreement with Garrett, to produce a purchaser ready, willing and able to purchase the lands, and that this was done. This court has rendered several holdings on this subject, commencing at least as far back as 1908. See Pinkerton v. Hudson, 87 Ark. 506, 113 S. W. 35. Cursory research reveals some fourteen eases relating to brokers’ commissions between 1908 and 1963. Though the circumstances differ in the various cases, one fact seems clear, vis, it is not necessary that an enforceable contract be executed before the broker is entitled to his commission, unless the agreement between seller and broker, in effect, calls for an actual sale of the property. Among other cases, see Dillinger v. Lee, 158 Ark. 374, 250 S. W. 332, Broyles v. Knox, 211 Ark. 426, 200 S. W. 2d 966, and Fike v. Newland. 225 Ark. 369, 282 S. W. 2d 604.

Aside from any possible ambiguity in the authorization contained in the letter from appellee to Mrs. Dickinson that appellant could “handle the sale of my farm and timber land,” it is, at once apparent from the evidence that appellant’s obligation, or responsibility, before earning its commission, is far from clear. In the first place—did appellant furnish a buyer ready, willing, and able to purchase the property on the terms set out by Garrett? Let it be remembered that, under the testimony, appellee had advised Mrs. Dickinson before he signed the “offer and acceptance” that the timber clause, heretofore referred to, must be placed in the contract of sale, and she had not passed this information on to Mr. Wood, thinking it would make no difference to Wood—nor had this requirement been placed in the “offer and acceptance,” since she did not feel it necessary (as it would be included in the mortgage). It will be noted that Mrs. Dickinson obtained an attorney, and furnished all information necessary to prepare the contract of purchase; this certainly was going further than merely obtaining a buyer, ready, willing, and able, to purchase. However, Mrs. Dickinson testified that her part in the transaction was already finished, and she was just “helping them out” with the legal work.

On the other hand, was there a cash offer of $23,-000.00, and did Garrett, by his inaction, violate the authorization contained in his letter, which did permit the property to be sold for cash? In fact, whatever contract was entered into between the parties is somewhat vague and difficult to determine, because of the fact that the original agreement was supplemented and varied by subsequent agreements. In accordance with what has been said, we think the broker’s contract was ambiguous, and a question of fact was created to be passed upon by the jury. It follows that appellant was not entitled to a directed verdict.

Appellee contends that he was entitled to a directed verdict. This contention is based upon the provisions of Ark. Stat. Ann. § 71-1302 (Repl. 1957), which provides that a broker cannot recover in any court in this state on a suit to collect a commission unless he is licensed, and unless this fact is stated in his complaint. Here, the allegation is not contained in the complaint. After the ca,se had been submitted to the jury, appellee moved for a directed verdict. The court permitted Mrs. Dickinson to be recalled, and to testify that she was a licensed real estate broker, and overruled the motion. Appellee asserts that this was error, but we consider the argument without validity. Appellee does not question Mrs. Dickinson’s status as a licensed broker, but only asserts that, as a matter of law, appellant could not recover. In Dacus v. Burns, 206 Ark. 810, 177 S. W. 2d 748, a like situation arose in that the broker did not allege that he was a licensed real estate dealer. He did testify that he was a licensed dealer, and the court treated the pleadings as amended. Of course, here this evidence was not originally offered, but it was within the discretion of the trial court to permit the recall of the witness. This evidence was not essential to the jury’s determination of the case, and the court’s refusal to grant the directed verdict was in line with the reason given in Dacús. This court, in approving the action of the trial court in allowing the pleadings to be amended, said:

“The amendment did not change substantially the claim of appellee, and the trial court properly treated the complaint as amended to conform to the proof.”

It is asserted that Court’s Instruction No. 2 was erroneous. That instruction reads as follows:

“Now gentlemen, you know, of course, that the plaintiff in this case, the El Dorado Real Estate Company, seeks to recover from the defendant, A. B. Garrett, what is generally referred.to as a ‘real estate’ or ‘broker’s’ commission.

“Of course it’s undisputed in this case that no sale was actually made of the property here involved, that is, that the owner of the property did not actually transfer title of the property to the prospective purchaser.

“And you are instructed that your verdict should be for the defendant if you find, from a preponderance of the evidence, that the defendant employed the plaintiff to make. an actual sale of the property here involved and that under the terms of that employment the plaintiff was to receive a commission only if a sale was actually made and title to the property actually transferred.”

This instruction was in error. Though it presents appellee’s view of the case, we have held that, even though the agreement calls for an actual sale, a transfer of title is not essential to the broker’s earning a fee (unless there is an express agreement to that effect). Moore v. Irwin, 89 Ark. 289, 116 S. W. 662. In addition, the court committed error in failing to tell the jury that they should also consider (if no sale were made) whether the failure to make a sale was due to the fault of Garrett.

Court’s Instruction No. 4 was also properly objected to. That instruction reads as follows:

“But you are instructed that, unless the agreement between the real estate agent and the owner of property calls for an actual sale, that is, an actual transfer of title, then a real estate agent who is employed to sell property earns a commission when:

“One: The real estate agent procures a purchaser ready, willing and able to buy upon the terms named by the owner of the property, and

* ‘ Two: A binding contract is made between the purchaser and the owner of the property.

“And you are instructed, that this is true regardless of whether the sale is actually made, unless the sale was not completed on account of some default or failure on the part of the real estate agent.”

“Point One” presents appellant’s version, but “Point Two” is an erroneous statement of the law. We have already pointed out that our cases hold that it is not necessary that an enforceable contract be executed before the broker is entitled to his commission, unless the agreement requires an actual sale. Therefore, if the jury found that the commission agreement did not call for an actual sale of the property, then it was not necessary that a binding contract be entered into between the owner and purchaser of the property before a commission could be earned. It follows that this instruction was error.

Court’s Instruction No. 7 was also objected to. That instruction was as follows:

“Now an exhibit has been introduced into evidence in this case which is referred to as an ‘ offer and acceptance.’

“In this connection, you are told that it is the contention of the defendant that this ‘offer and acceptance’ was not intended as a final contract and, therefore, was not a ‘binding contract’ as that term has been used by the Court.

“Now you are instructed that whether this ‘offer and acceptance’ was a binding contract under which the seller would have to sell and the buyer would have to buy, depends upon the intention of the parties to said ‘offer and acceptance’ and in determining that intention you may consider all the facts and circumstances shown by the evidence which relates to that intention.”

This was erroneous. The jury’s right to pass upon the “offer and acceptance” was entirely dependent upon whether that instrument was ambiguous; if ambiguous, it was the function of the jury to determine what was meant; otherwise, it was the function of the court. But it certainly was not the function of the jury to pass upon the intention of the parties as expressed in the instrument, considering all facts and circumstances, unless that intention was not apparent upon the face of the instrument.

Because of the court’s errors, herein mentioned, the judgment is reversed, and the cause remanded.

George Rose Smith, J., disqualified and not participating.

      Wood deposited $500.00 as earnest money to apply on the purchase price if Garrett accepted the offer within ten days; otherwise the money was to be returned to Wood.

      It is not entirely clear whether Mrs. Dickinson included reference to Garrett’s demand about the “reverse order” when she said that appellee had given her certain directions, which had not been passed on to Wood.

      According to Mrs. Dickinson’s testimony, Wood had offered to purchase the lands for $20,000.00 cash.

      Proceeds from mineral and gravel sales were also included in the provision, and were to be handled in the same manner as the sale of the timber.

      Garrett wanted to ascertain from his attorney the amount of tax he would have to pay if he sold the property for cash.


author: Oarleton Harris, Chief Justice.

text:
    McMillion v. McMillion
    5-3821
    400 S. W. 2d 489
    Opinion delivered March 21, 1966

      Spitzberg, Bonner, Mitchell & Mays, for appellant.

      Loftin, Kerrod & Cole, for appellee.
   Oarleton Harris, Chief Justice.

This case deals with reformation of a contract. Appellant, Mary McMillion, was granted a divorce from appellee, Stephen D. McMillion, on January 6, 1958. Prior thereto, on October 1, 1957, the parties, in contemplation of becoming divorced, had entered into an agreement settling their property rights.

On January 18, 1965, appellant filed a motion in the Chancery Court, seeking three types of relief. First, she alleged that her ex-husband was required by the decree to maintain the residence, which she and the children occupied, and that it was badly in need of re-painting, both inside and outside. It was asserted that appellee had refused to do this. Second, appellant alleged that she had been induced to execute the property agreement by appellee’s statement that he would provide a new automobile each year for the use of appellant and the three children; that this provision was not placed in the agreement, because the attorney, representing both parties, advised that such a provision would be invalid and unenforceable, and that he would not make the same a part of the contract. Mrs. McMillion asserted that she accepted this statement as a fact. She further alleged that she had since learned that the provision was enforceable, and she asked that the court’s decree be amended, and reformed to provide that appellee should supply her with a new car annually, beginning forthwith. An increase in maintenance for the children was also sought. After the filing of a response, the court heard the matter, and ordered that appellee should cause the exterior and interior of the home (occupied by appellant and the children) to be repainted, according to colors acceptable to Mrs. McMillion, but the court declined to reform the contract, and also declined to increase the children’s support. From that portion of the order denying reformation, appellant brings this appeal.

Mrs. McMillion testified that the discussion about the property settlement took place two or three months before the contract itself was signed. She said that appellee, a doctor, offered to buy her a new automobile every year, but that the attorney made the statement that this provision would not be valid, and that, since he was a lawyer, she relied upon that statement; that if she had known otherwise, she would not have signed the contract without the provision being included. According to her testimony, appellee then stated, "Well then I will do it on my own. I will keep her in the finest car.” Of course, Dr. McMillion’s purely voluntary statement that he would buy her a new car every year anyway, is not enforceable as a contract, and does not appear, from the testimony, to have been relied upon as a consideration for her signing. The matter of including this provision in the agreement was dropped, and admittedly, several weeks passed before the contract was executed. Of course, we do not know what other negotiations took place during that time, or whether any new terms were inserted into the contract. At any rate, the evidence makes clear that, whatever the reason, no condition relating to the purchase of a new automobile was included as a part of the final agreement reached between the parties. Before a written instrument can be reformed, agreement must have been entered into to perform a certain act, and the act to be performed is omitted from the instrument, or is erroneously stated. In such event, reformation is proper. Here, though discussed, no agreement was reached (that appellee should annually buy a new car), though it may be that the failure to do so was based upon a mistaken concept of the law. Be that as it may, it is apparent that the contract provided exactly what the parties intended for it to provide, i.e., they did not intend to say one thing, and by mistake express another. In 3 CORBIN ON CONTRACTS, p. 728 (1960), we find:

“If two parties are caused to enter into a contract by reason of their common ignorance or common mistake as to some fact, but for which they would not have agreed, this may be ground for rescission, but it is not ground for reformation.”

It might be added that there is no evidence that Dr. McMillion knew, or even thought, that such a provision would be valid, nor any evidence that he misled appellant in any manner.

Dr. McMillion did purchase a new automobile for his wife in 1959, Mrs. McMillion testifying that he had told her that the Lincoln automobile she received in the settlement was three years old, and was “dangerous for the children, ’ ’ and that he had called her and asked what kind of car she wanted. However, this was the only automobile furnished, and it is apparent that Mrs. McMillion did not consider his voluntary statement (that he would purchase a new car yearly) to be binding, since she made no effort to compel performance for some five years.

Mrs. McMillion testified that the urgent need for a new automobile was based upon the fact that the children have to be taken to school, and that it is necessary that she join in a car pool with other neighbors to effect the children’s transportation; she stated that the six-year-old automobile is not adequate to fulfill this need. Of course, the court has authority, if it deems it adviseable under all the circumstances, to enter an order providing increased amounts for maintenance for the children to an extent that would enable adequate transportation to be acquired.

Affirmed.

      Mrs. McMillion subsequently testified that the attorney was really her husband’s attorney, though the record reflects that he represented her in obtaining the divorce decree.

      The record is somewhat confusing' in that the October agreement executed by the parties calls for payment to appellant and the children of $100.00 per week, but the divorce decree of January, 1958, only provides that Mrs. McMillion shall receive $40.00 per week as alimony, and the sum of $50.00 per week is ordered for the support of the children. According to appellee’s response to the motion, the court, on April 1, 1964, raised the amount of support from $100.00 per week to $140.39.

      While not entirely clear, it appears that this automobile was also a Lincoln, and appellant insists that she is entitled to a car of equal value at the present time.


author: Ed. F. McFaddin, Justice.

text:
    Oklahoma Tire and Supply v. Bass
    5-3818
    401 S. W. 2d 35
    Opinion delivered March 21, 1966

      Smith, Williams, Friday & Boioen, By: William A. Eldredge and George Pike, Jr., for appellant.

      Terral, Rawlings, Mattheios & Purtle and Wright, Lindsey & Jennings, for appellee.
   Ed. F. McFaddin, Justice.

The appellants (defendants) prosecute this appeal from an order of the Circuit Court granting the appellees (plaintiffs) a new-trial (Ark. Stat. Ann. § 27-2101 [Repl. 1962] as amended by Act No. 547 of 1963).

Appellee Bass and appellee Taylor filed separate actions against the appellants, Oklahoma Tire & Supply Company and Doyle Watts, its employee. Each plaintiff claimed damages resulting from a traffic mishap alleged to have been occasioned by the negligence of Watts. Testimony offered by the plaintiffs was to the following-effect : Bass, in his Cadillac, and Taylor, in his Ford, were both proceeding north on Interstate 30, Bass being-in the west lane and Taylor in the center lane. Appellant Watts, driving a truck of Oklahoma Tire & Supply Company, entered the Interstate Highway from the Roosevelt Road entrance lane on the east and proceeded north; and, in attempting to pass a vehicle in front of him, Watts cut to the west into the lane being traveled by Taylor, who, to avoid a collision with Watts, cut to the west into the lane being traveled by Bass. Bass’ car struck Taylor’s car; and Watts’ truck, untouched, went on to the north; but Taylor got the license number of Watts’ truck.

The plaintiffs alleged personal injuries and property damage and claimed that Watts and Oklahoma Tire & Supply Company were guilty of negligence in that Watts swerved to the left and caused the collision. The defendants denied everything. At the trial, and on motion of the defendants, the Court gave this Instruction No. 4, as amended, on unavoidable casualty, which instruction read:

“The burden rests upon the one who seeks to recover to establish by a preponderance of the evidence that the accident complained of was not the result of an unavoidable accident. An unavoidable accident is one not avoidable by precaution which reasonable men would be expected to take. Such an accident furnishes no basis for recovery.”

The jury’s verdict was for Watts and Oklahoma Tire & Supply Company; but, on motion of the plaintiffs, the Trial Court set aside the verdict and granted a new trial, and recited in the order:

“(1) That the Court erred in giving the defendant’s instruction on unavoidable accident and that the new trial should be granted to the plaintiffs, A. J. Bass and Horace Taylor because of said error.”

From the order of the Circuit Court granting a new trial, appellants, Watts and Oklahoma Tire & Supply Company, prosecute this appeal, and urge two points:

“I. The Trial Court properly gave the unavoidable accident instruction.
“II. Plaintiffs were not prejudiced by the giving of the unavoidable accident instruction.”

We hold that the Trial Court ivas correct in granting the new trial. Our recent cases on unavoidable casualty instructions are: Houston v. Adams, 239 Ark. 346, 389 S. W. 2d 872; Burton v. Bingham, 239 Ark. 436, 389 S. W. 2d 876; and Rhoden v. Lovelady, 239 Ark. 1015, 395 S. W. 2d 756. In these Opinions we have tried to carefully delineate the rare situation when an instruction on unavoidable casualty should be given. In the case at bar, the Bass car would never have struck the Taylor car unless someone was negligent. That person was either Bass, for driving too fast; Taylor, for swerving into Bass’ lane; or Watts, for forcing Taylor to swerve to the west into Bass’ lane of traffic. So some party to this case was negligent. In Rhoden v. Lovelady, supra, we said:

“In the case at bar, the pleadings and the evidence adduced indicated this accident was caused by the negligence of one or both of the parties and that this accident was not inevitable. It could not have happened without someone being negligent. In the .very recent case of Houston v. Adams, 239 Ark. 346, 389 S. W. 2d 872, we re-examined the suitability of an instruction on unavoidable accident in negligence cases and disapproved it. There we said: * * * when, as here, the question is merely whether one or more of the parties were guilty of negligence we hold that the instruction in question should not be given.’ Also, we stated that only in exceptional circumstances is such an instruction permissible. Such a situation would be where the alleged injury resulted from some cause other than the negligence of either party. See, also, Burton v. Bingham, 239 Ark. 436, 389 S. W. 2d 876. In our view the evidence in the case at bar did not make a submissible issue for the jury on the theory of an unavoidable accident and we reaffirm the cited eases.”

We conclude that the appellants should not have asked, and the Trial Court should not have given, the instruction on unavoidable casualty. Appellants say that the giving of the instruction was harmless because Watts’ testimony was to the effect that he was not even on the Interstate Highway at the time of the traffic mishap, and the appellants say that the jury believed Watts. But how can anyone be positive that the jury reached its conclusion based on such evidence? The verdict was a general one reached by nine jurors. They might well have seized on the “unavoidable accident” instruction as a short way to get nine to agree.

The giving of the instruction was error; and the burden is on the appellants to demonstrate that the error was harmless. Equitable Discount Corp. v. Trotter, 233 Ark. 270, 344 S. W. 2d 334; and Arkansas Highway Comm. v. Ptak, 236 Ark. 105, 364 S. W. 2d 794. Appellants have failed to show that the error in giving the instruction was harmless.

The order granting a new trial is affirmed.

      The plaintiffs objected generally and specifically to the said instruction; and the special objections, inter alia, are as follows:
      “First: This Instruction is an incomplete and inaccurate statement of the law in that it does not inform the Jury as to what constitutes an unavoidable accident, in that an unavoidable accident must, by definition, be one which occurs without negligence on the part of any party.
      “Second: The Instruction is an incorrect, declaration of the law in that it states that the burden of proof rests upon a party seeking to recover to prove that the accident complained of was not the result of an unavoidable accident.
      “Third: An unavoidable accident instruction cannot be given under the evidence introduced in this case.
      “Fourth: The instruction is binding. . '. . .”

      It is entirely proper for us to point out that the case was tried and the verdict returned on April 29, 1965, and that our Opinion in Houston v. Adams, 239 Ark. 346, 389 S. W. 2d 872, while delivered on April 26, 1965, was not printed and distributed for a few days thereafter and that the Trial Court granted the new trial as soon as it became cognizant of our Opinion in Houston v. Adams.


author: George Rose Smith, Justice.

text:
    Burbridge v. Rosen, Trustee
    5-3825
    400 S. W. 2d 502
    Opinion delivered March 21, 1966

      Jeff Davis, for appellant.

      Richard G. Crockett, Robert M. Bass, Jr., Williamson, Williamson & Ball, McKay, Anderson & Grumpier, for appellee.
   George Rose Smith, Justice.

This case involves the ownership of the oil, gas, and other minerals within a 72.79-acre tract of land in Bradley county. Two suits to quiet title to the minerals in dispute, one filed by the appellants and the other by the appellees, were consolidated for trial in the court below. This appeal is from a decree finding that the appellees own the mineral interest in question.

There is no dispute about the facts. The case was tried upon stipulations and written exhibits, without oral testimony. Neither side is able to trace a perfect record title back to the United States. The 72.79-acre tract was unimproved and unenclosed until a producing oil well was completed in 1962 by a lessee who has oil and gas leases from all the rival claimants. In the absence of a perfect record title the controlling question is whether it is the appellants or the appellees who have acquired title to the minerals by the payment of taxes under color of title for seven years.

We begin with the premise that the appellants, the heirs of L. J. Burbridge, established a prima facie title by proof that Burbridge paid the taxes upon the 72.79-acre tract, under color of title (but without actual title), for sixteen successive years extending from 1939 through 1954. Ark. Stat. Ann. § 37-102 (Repl. 1962). The minerals, however, have never been separately assessed for taxation. For that reason Burbridge did not acquire title to the minerals if, as the appellees contend, the mineral interest had been validly severed from the surface interest some years before Burbridge began paying taxes on the tract under its legal description. Claybrooke v. Barnes, 180 Ark. 678, 22 S. W. 2d 390, 67 A.L.R. 1436 (1929).

The three sets of appellees contend that their respective predecessors in title, Bell, Sproat, and Stout Lumber Company, acquired title to the 72.79-acre tract as a result of Stout Lumber Company’s payment of taxes, under color of title, for seven years extending from 1921 through 1927. Thereafter, in 1928, Stout Lumber 'Company conveyed the land to Nickey Brothers, Inc., but reserved all the minerals. The appellees contend that this reservation of the minerals by Stout was a valid severance which, under Claybrooke v. Barnes, supra, prevented Burbridge from acquiring anything except the surface interest by his subsequent payment of taxes.

The appellees’ contention presents three questions of law, upon all of which the appellees must prevail to establish their title. All three questions are aspects of a broader issue: Did Stout Lumber Company obtain a valid title to the 72.79-acre tract? If, as the appellants insist, Stout did not acquire title to the property, its attempt to reserve the minerals in its deed to Niekey Brothers was not an effective severance.

First: Did Stout Lumber Company have color of title? "We need trace its chain of title only back to Effie Temple, who received a deed (which conveyed color of title only) to the 72.79-acre tract in 1912. Later in 1912 Effie Temple conveyed to George A. Bell. In 1920 Bell conveyed to J. C. Sproat, reserving one fourth of the minerals. The claim to that one-fourth mineral interest has passed by inheritance to one of the appellees. Later in 1920 Sproat conveyed to S. T. Tyson, reserving an additional one-fourth of the minerals, the claim to which has passed to another set of appellees. Still later in 1920 Tyson conveyed the tract to Stout Lumber Company, reserving the one-half mineral interest that had been retained by Bell and Tyson. The claim to the half interest received by Stout has passed to the third set of appellees.

Counsel for the appellants insists that Tyson’s deed to Stout did not constitute color of title, for the reason that the deed contained a reservation of half the minerals. It is argued that to constitute color of title “an instrument must purport to vest in the grantee fee simple title to the land described in the instrument.”

No authority directly in point is cited to support this argument. The contrary view was taken in Pierson v. Case, 272 Ala. 527, 133 So. 2d 239 (1961), under a tax-payment statute similar to ours. There Wright and his successors in title executed various deeds, some purporting to convey fractional mineral interests and others purporting to convey the surface with a reservation of mineral interests. The court recognized that the various conveyances, all stemming from a common source, constituted color of title to the several interests separately conveyed.

We think the court’s conclusion to be sound. In the case at bar, if Tyson had executed a deed purporting to convey the fee simple to Stout and if Stout had then conveyed a one-half mineral interest back to Tyson, it cannot be doubted that Stout and Tyson would have had color of title to their respective interests. Inasmuch as Tyson’s predecessors already had color of title to half the minerals, an identical result was accomplished by Tyson’s reservation of that interest in his deed to Stout.

As a practical matter the position we are taking is a desirable one. From the record owner’s point of view, the payment of taxes upon his unimproved land puts him on notice that a hostile claim may be outstanding. When he makes an inquiry into the matter, as he is bound to do, he is not prejudiced in any way by the fact that his investigation leads to a deed with a mineral reservation rather than to a deed purporting to convey the fee. On the other hand, the tax-paying claimant ought not to be denied the benefit of the statute merely because a fractional mineral interest was retained by his grantor. We find no sound basis, theoretical or practical, for sustaining the appellant’s argument upon the first question.

Secondly: During the seven years that Stout paid the taxes upon the tract color of title to half of the minerals was vested in Bell and Sproat and color of title to the surface and to the other half of the minerals was vested in Stout. In the circumstances, did Stout’s tax payments operate to invest title to the entire mineral interest in Bell, Sproat, and Stout?

This question, according to what appears to be the unanimous current of authority, must be answered in the affirmative. In this particular situation, Bell, Sproat, and Stout were not in a position of hostility toward one another. By their joint claim of ownership they made common cause against the holder of the record title. Hence each claimant can reap the benefit of tax payments made by any one of the three.

Upon this point, only the case of Pierson v. Case, supra, seems to involve the situation now be/ore us, which has to do with tax payments rather than actual adverse possession. In the Pierson case the court held that tax payments by some of the claimants inured to the benefit of all.

The case at bar is, however, comparable to one involving actual adverse possession. In Arkansas, the payment of taxes upon wild land is in effect an instance of adverse possession; for we have held that the payment of taxes confers a constructive possession which, by operation of the general statute of limitations, ripens into title. Hubble v. Grimes, 211 Ark. 49, 199 S. W. 2d 313 (1947). Hence we are really dealing with a case of adverse possession; so authorities in that branch of the law are pertinent. It is well settled that when a trespasser in actual adverse possession of property either conveys the land with a reservation of a mineral interest or conveys a mineral interest by itself, the continued possession by the surface claimant inures to the benefit of the mineral interest as well. The leading cases are McLendon v. Comer, 200 S. W. 2d 427 (Tex. Civ. App. 1947), noted in 26 Tex. L. Rev. 108 (1947), and Clements v. Texas Co., 273 S. W. 993 (Tex. Civ. App. 1925); see also American Petrofina v. Warren, 247 Miss. 552, 156 So. 2d 729 (1963), and Masterson, Adverse Possession and the Severed Mineral Estate, 25 Tex. L. Rev. 139 (1946). Hence Stout’s tax payments inured to the benefit of Bell and Sproat, ripening into title at the end of seven years.

Thirdly: Stout Lumber Company paid the taxes for six years, from 1921 through 1926, but in 1927 the taxes were paid by Nickey Brothers, to whom Stout conveyed the surface in 1928. Are the appellees entitled to tack the Nickey payment to the six Stout payments to establish their claim of title?

This question, too, must be answered in favor of the appellees. On October 7, 1926, Stout executed a contract of sale by which it agreed to sell the 72.79-acre tract, less the minerals, to Nickey Brothers. That contract continued in force until its complete performance in 1928, when Stout deeded the surface of the land to Nickey Brothers. In a situation such as this one, where two claimants are in privity, the payment of taxes by one should redound to the benefit of both. The reason for the rule was well expressed in Kuhn v. Glos, 257 Ill. 289, 100 N. E. 1003 (1913), where a trustee was held to be entitled to take advantage of tax payments made by the beneficiary of the trust. After citing cases the court/ said:

“These cases hold that the true question is, Under what title were the taxes paid? and deduce the rule that, if payment of taxes is made by the cestui que trust, the effect is the same as if made by the trustee, as the two interests stand together, and not in hostility to each other, and united make the estate or legal and equitable title to the land. They further hold that the same result follows whether payment is made by the trustee or cestui que trust, or by the landlord or the tenant; the question being whether possession was held and the taxes were paid in subserviency to the claim and color of title relied on as a bar.”

Other cases reaching a similar result include Brown v. Clark, 89 Cal. 196, 26 Pac. 801 (1891), involving mortgagor and mortgagee; Cooper v. Carter Oil Co., 7 Utah. 2d 9, 316 P. 2d 320 (1957), involving joint operators of property; and Kraemer v. Kraemer, 334 P. 2d 675 (Cal. App. 1959), involving lessor and lessee. Contracts for the sale of real estate upon deferred payments frequently require the purchaser to pay the taxes. There is every reason to treat such payments as having been made for the benefit of both parties to the agreement.

For the reasons stated we hold that the appellees are the owners of the minerals in question by reason of the payment of taxes by Stout and Nickey for seven successive years under color of title.

Affirmed.

McFaddin, J., concurs.


author: Paul Ward, Justice. Carretón Harris, Chief Justice,

text:
    Ark. State Highway Comm. v. Potts
    5-3816
    401 S. W. 2d 3
    Opinion delivered March 21, 1966
    [Rehearing denied April 25, 1966.]

      Mark E. Woolsey and Bon Langston, for appellant.

      Clark, Clark & Clark, for appellee.
   Paul Ward, Justice.

This is a highway condemnation case. On July 2, 1963 the Arkansas State Highway Commission (appellant herein) filed a complaint to condemn 12.85 acres of an eighteen-acre tract of land owned hy Raymond Potts and his wife (appellees herein), as a part of the right-of-way for Interstate Highway No. 40.

A trial on May 3, 1965 resulted in a jury verdict in favor of appellees in the amount of $32,250. Judgment was entered accordingly.

The principal contention on behalf of appellees, in attempting to establish the value of the land taken, was that the land was located close to the town of Mayflower and was suitable for residential development. The record contains a plat of appellees’ land, showing its location with reference to the highway right-of-way.

Appellant urges four principal reasons why the judgment should he reversed.

One. Two witnesses on behalf of appellees testified, in effect, that they considered the value of each of the fifty one lots in arriving at the total value of the eighteen acres previous to the tailing of the right-of-way. This was objected to hy appellant. Since the purported addition had not been developed relative to streets, guttering, water mains, gas, electricity, etc., the above testimony was inadmissible. See: Arkansas State Highway Comm. v. Watkins, 229 Ark. 27 (p. 31), 313 S. W. 2d 86. However the trial court withdrew consideration of this testimony, saying:

‘ Two of the witnesses did testify that they did take lots into consideration in arriving at their appraisal. You will disregard any testimony as to value of this lot or that lot or any of the rest of the lots in the plat, but take the entire 18 acres into consideration as the highway runs across it.”

Two. Some testimony was introduced on behalf of appellees, over appellant’s objection, to show the property was damaged because, as a result of the taking, it would be necessary to travel nearly a mile further to reach the town. Conceding, for the purpose of this opinion, such testimony was inadmissible, yet the alleged error was cured by the court’s instruction to the jury, saying: “You are not to consider any damages due to any restriction of access from the remaining lands to the new highway, or any damages due to a circuity of travel. ’ ’

Three. It is here insisted the court erred in refusing to strike the testimony of two witnesses because they gave no fair or reasonable basis for their testimony. We do not agree.

Charley Steed did state that he gave consideration to the lots, but he also gave other reasons for his conclusions. In the first place he stated he had been in the real estate business for fifteen years and that he had known appellees’ land for thirty or forty years. Following that he stated: “In my opinion the value of Mr. Potts’ land before the taking was $45,000. In my opinion the value after the taking is $5,000.” We think the testimony as to value was admissible under our holding1 in Ark. State Highway Comm. v. Johns, 236 Ark. 585, 367 S. W. 2d 436. There we said:

“An expert witness, after having established his qualifications and his familiarity with the subject of the inquiry, is ordinarily in a position to state his opinion.”

Again, the trial court properly instructed the jury in this connection, saying: “If any of the opinion evidence which you have heard does not have a basis in factual matter or is speculative or conjectural, then you are to disregard it.” The record shows the witness did give several reasons for his conclusions.

What we have said above applies to the testimony of the other witness.

Four. Finally, it is contended there is no substantial evidence to support the jury’s verdict. What we have already said suggests the answer to this contention. There was testimony that the value of the land taken was $40,000. The jury found the value to be $32,-250 and we are unable to say that amount is not supported by substantial evidence.

We have examined other assignments of error but find no merit in them.

Affirmed.

Harris, C. J., dissents.

Carretón Harris, Chief Justice,

dissenting. I am of the opinion that the court erred in admitting improper testimony, and I think this testimony constituted reversible error. I refer to the evidence given by Mr. Cleve Steed, a resident of Mayflower.

Mr. Steed himself stated that he was “no expert,” but the court held that he was qualified as an expert. Mr. Steed, according to his testimony, did not, at least in part, use a correct basis in reaching his conclusions. When asked if he knew of any lands that had sold in Mayflower recently, he responded, “Well, I could dig up some around there.” He didn’t, however, offer any evidence as to sales. In fact, he stated that whatever property is actually selling for on the market doesn’t make a great deal of difference in determining value. “Whatever you think it’s worth, that’s it. Not what someone actually paid for it.” Of course, this is an incorrect standard to apply, and admittedly the witness did not investigate or make any special effort to determine what lands were selling for in Mayflower. Mr. Steed valued the property in litigation before the taking at $45,000.00, and the after value at $4,500.00 to $5,-500.00, leaving a total damage of approximately $40,-000.00, but in my view, he gave no sound factual basis for reaching this figure.

I also think reversible error was committed by permitting other evidence from this same witness. On cross-examination, counsel, interrogating the witness, asked:

“Q. So bring it all up to this $3,500 an acre you say it’s worth, some of that on the highway would have to be worth 6 or $7,000 an acre wouldn’t it?

A. Well, that’s a better grade of property. That’s on the highway there. Speaking of property down there, they had a filling station down there and an acre of property there, and I offered $5,000 for that one acre.”

Appellant moved to strike this testimony, but the court held that counsel had asked the witness the question, stating, “It is almost responsive to your question, Mr. Gillespie,” and refused to grant the motioh. We have held such evidence inadmissible. Arkansas State Highway Commission v. Elliott, 234 Ark. 619, 353 S. W. 2d 526, and authorities cited therein. The italicized portion of the witness’ statement was not responsive to the question, and strikes me as being merely an attempt to bolster Steed’s evidence. I do not know how much this witness’ testimony influenced the jury verdict, but, under our holdings, when incompetent evidence is introduced, prejudice is presumed. Ark. State Highway Comm. v. Ptak, 236 Ark. 105, 364 S. W. 2d 794.

For the reasons herein enumerated, I would reverse the judgment and remand the case.

       Emphasis supplied.


author: Jim Johnson, Justice.

text:
    Ark. La. Gas Co. v. Howard
    5-3796
    400 S. W. 2d 488
    Opinion delivered March 21, 1966

      Cole & Scott, for appellant.

      Wootton, Land & Matthews, for appellee.
   Jim Johnson, Justice.

This is a condemnation suit for a gas pipeline right of way.

Appellant Arkansas Louisiana Gas Company filed a condemnation complaint on August 23, 1963, in Garland Circuit Court against appellees Harry B. Howard and his wife. Appellees own a 72-acre tract along or close to two highways, out of which appellant condemned 2.08 acres in a strip 50 feet wide by 1810 feet long, and 1.32 acres in a strip 40 feet wide by 1437 feet long, and deposited $700 into the registry of the court. Appellants by answer alleged the property taken was of the value of $3,500. The case was heard by the court sitting as a jury on April 8, 1965, and resulted in judgment for appellees, from which comes this appeal and cross-appeal.

The crux of the judgment reads as follows:

“The Court also finds that by reason of a contract arrangement previously entered into whereby a former pipeline crossed a portion of the lands, it was agreed that the additional sum of Five Hundred ($500.00) Dollars would be paid in the event a second pipeline is laid. The Court finds that a second pipeline was laid over a portion of the right-of-way previously used, designated as “Parcel No. 2” in the complaint and that as a result thereof, the defendants are entitled to a contract payment of Five Hundred ($500.00) Dollars, and that defendants are entitled to the additional sum of three Thousand ($3,000.00) Dollars for their damages.
“The Court makes no award to the defendants in reference to their claim for One Thousand Two Hundred ($1,200.00) Dollars claimed to be the ex.pense of cleaning debris from land adjacent to the right-of-way. ’ ’

For reversal appellant first urges that the court erred in awarding any damages due by contract. With this we agree. The suit does not sound in contract; although a contract was introduced into evidence, it was never mentioned in the pleadings. Thus there was here no foundation for such an award.

Appellant’s principal point urged for reversal is that appellees failed to present any competent evidence to permit a proper determination of “just compensation” and the judgment awarded is excessive in that there is no substantial evidence to support it.

The testimony of appellees’ value witnesses was based on a proposed subdivision of the affected property. This testimony was on before-and-after value of the “lots” in the proposed subdivision, which was only a part of appellees’ property that appellant has traversed. The property had been mapped and surveyed as a subdivision some years ago and several lots had been sold subsequent to the surveying. The lots sold, however, were conveyed by metes and bounds description without reference to the plat, which was never recorded. In the light of our opinion in Arkansas Louisiana Gas Co. v. Lawrence, 239 Ark. 365, 389 S. W. 2d 431 decided a few weeks after trial of the case at bar, we are forced to the conclusion that appellees’ subdivision was not in esse at the time of the taking, thereby rendering appellees ’ value testimony incompetent. While appellees have every right to establish the highest and best use of their property, the settled rule is that the true measure of damages for property taken by eminent domain is the difference between the fair market value of the whole tract before the taking and the fair market value of what remains after the taking. Ark. State Highway Comm. v. Massengale, 238 Ark. 1072, 386 S. W. 2d 710; St. Louis, A. & T. R. v. Anderson, 39 Ark. 167.

Appellees have cross-appealed, urging that the court erred in failing to render judgment in favor of appellees in the amount of $1,200 representing the cost of removing debris pushed upon adjoining land.

We have been cited no authority on this question. While it would seem that the cost of removing debris from the easement itself Avoiild be an element to be considered in arriving’ at the after-value, testimony on cost of removal of debris left on appellees’ adjoining land might be subject to a similar objection as that raised in the first point argued by appellant, our research indicating this damage appears to arise from a tort, trespass to land. Owing to a reversal of this case on direct appeal, we leave the question urged on cross-appeal open for proper development on retrial.

Eeversed and remanded for new trial.


text:
    Kieffer v. Williams
    5-3800
    400 S. W. 2d 485
    Opinion delivered March 21, 1966

      Marvin L. Kieffer, for appellant.

      Hout, Thaxton & Hout, By: Marvin D. Thaxton; Hodges & Hodges, for appellee.
   Frank Holt, Justice.

This action results from a boundary line dispute between adjoining landowners. The appellee, Mrs. Williams, brought an action against the appellant, Kieffer, to establish her title by adverse possession and, also, for injunctive relief. The appellant defended as the record owner of the disputed strip of land lying between them. He filed a counterclaim against her for the recovery of a portion of his costs in the construction of a drainage ditch upon the disputed strip contending the ditch was beneficial to her lands. The appellant also filed a cross complaint against the appellees, the Gardners, who were his grantors of the land in question. By the cross complaint he sought to require the Gardners to defend the action against him in accordance with their covenant of warranty and, also, asked a judgment against them for his costs and any land shortage that might result from the claim of adverse possession.

The chancellor quieted title to the disputed strip of land in appellee Williams based upon her claim of adverse possession; ordered the appellant to restore certain fences he had destroyed on their common boundary line; enjoined him from further trespass; denied appellant’s claim for part of the construction costs of the drainage ditch; dismissed his cross complaint against-his grantors, the Gardners, for the recovery of his costs and damages for any land shortage.

Fon reversal appellant first contends that the decree is against the preponderance of the competent evidence. Appellee Williams purchased her lands in September 1955. Mrs. Williams presented evidence that at the time she purchased her 80-acre tract she personally inspected it and observed an existing fence between her tract of land and the adjoining 80-acre tract later purchased, in 1960, by appellant. It appears this fence had existed for many years having been constructed by the former owner of both tracts. She understood the fence represented the true boundary line. This one-mile north-south fence, separating the two tracts of land, consisted of web wire on its northern portion for approximately one-half mile. The balance, or southern portion, of the fence was partly barbed wire which extended through some woods.

Appellee Williams’ evidence was to the effect that when she purchased her 80-acre tract she intended to buy and claim the lands up to the established fences, including the fence in question, that enclosed her lands. No survey was made. Since her purchase, and no later than December 1955, she or her tenants have physically occupied the land. Appellee Williams or her tenants have continually farmed the cleared land up to the northern half of the fence line. The southern half of the disputed fence line, which runs through the woods, appears to have been repaired to contain and pasture cattle. Part of the time cattle were pastured in this wooded portion. In 1962 appellee Williams cleared her woodlands, including that part on the disputed strip, up to this existing fence. She then farmed this newly cleared land up to the fence line in 1962 and 1963 without objection from anyone.

In December 1960 appellant bought the adjoining 80-acre tract from the Gardners, appellees, who had owned it for four years. The Gardners and appellee Williams acquired their respective lands from the Powble family. Appellant made some inspection but did not have a survey made when he purchased the land. In 1962, after appellee Williams cleared the south part of her land and the south part of the disputed strip, the appellant had his adjoining timberland cleared by the same contractor. In doing so the fence was largely destroyed. According to appellant, he then had the true boundary line established by a survey in July 1962 and immediately informed Mrs. Williams to that effect. He testified that she then refused to agree to the location of a proposed drainage ditch upon the disputed strip contending she owned the land up to the fence. He removed the remaining part of the north-south fence line about September 1963.

Mrs. Williams claims it was the spring of 1964 when she discovered that he had destroyed the northern half of that portion of the fence which separated their lands. According to Mrs. Williams, it was 1963 when appellant asked her about moving the fence and constructing the proposed joint drainage ditch. This was her first knowledge that he did not recognize the fence line as being the true boundary. About a week later she learned that appellant had a drag-line on the disputed strip of land digging’ a drainage ditch. This was done on a weekend when no legal action could be taken to stop appellant. A few days later she instituted this action.

Notice of adverse possession may be actual or implied by facts and circumstances such as pasturing stock, the existence of fences, the cultivation of land, or the improvement of land. Black v. Clary, 235 Ark. 1001, 363 S. W. 2d 528; McComb v. Saxe, 92 Ark. 321, 122 S. W. 987; Lollar v. Appleby, 213 Ark. 424, 210 S. W. 2d 900.

Where a landowner is under a belief that he owns certain lands enclosed with his own lands and he exercises dominion over a portion of the enclosed lands adversely to the record owner for the required statutory period of time (seven years) such constitutes an investiture of title to the entire tract. Laney v. Arkansas Real Estate Co., 234 Ark. 187, 350 S. W. 2d 911. See, also, Doniphan Lumber Co. v. Case, 87 Ark. 168, 112 S. W. 208; Couch v. Adams, 111 Ark. 604, 164 S. W. 728, and Carter v. Stewart, 149 Ark. 189, 231 S. W. 887.

Appellee Williams bought her land in 1955 when it was already enclosed by a fence which included the disputed strip. She was told and believed the fence constituted the true boundary line. From December 1955 until this action in 1964 she or her tenants have occupied and exerted acts of dominion over the land up to this fence line. During this time she contends that the cleared portion of the land was cultivated up to the northern half of the fence. The southern half of the fence was repaired to contain cattle and some were pastured there part of the time. In 1961 it appears that this fence was recognized by appellant as being the boundary line since Mrs. Williams’ permission was secured before appellant and another adjacent landowner jointly constructed a drainage ditch across the south end of her tract including the disputed strip. As previously stated, in 1962 and 1963 she farmed or cultivated up to the southern half of the fence line following her clearance of the timberland.

In Laney v. Arkansas Real Estate Co., supra, we said: ‘ ‘ * * * When this enclosure of the land is considered along with the acts of dominion exerted by the Laneys and their tenants all the elements of adverse possession are established.” We are of the view that this expression is applicable and the case is controlling here.

It is well settled that the location of a boundary line is determined by a preponderance of the evidence and on appeal we must affirm unless the holding of the chancellor is clearly against the preponderance of the evidence. Mason v. Peck, 239 Ark. 208, 388 S. W. 2d 84. From a careful review, ele novo, of the evidence in the case at bar, we cannot say that the chancellor’s findings, favorable to appellee Williams, are against the preponderance of the evidence.

Appellant also contends for reversal that the trial court erred in dismissing his cross complaint against the appellees, the Gardners, for damages resulting from the shortage of land sold to him. We are of the view that the chancellor’s holding on this point was also correct. The area in dispute, which was awarded to appellee Williams, amounted to only 2.36 acres or approximately 4% of the acreage conveyed by the Gardners. Their deed to appellant mentioned no acreage. There was no material deficiency in this conveyance and, therefore, there existed no gross mistake or fraud which is necessary to constitute the alleged breach of warranty. Leonard v. Wood, 233 Ark. 769, 348 S. W. 2d 696 and Hays v. Hays, 190 Ark. 751, 81 S. W. 2d 926. Further, no proof of damages as to the value of the land shortage was offered.

The decree of the chancellor is affirmed.