author: Steele Hays, Judge. George Howard, Jr., Judge, David Newbern, Judge,

text:
    Bonnie Faye FORD v. Taid FORD, Jr.
    CA 80-143
    605 S.W. 2d 756
    Court of Appeals of Arkansas
    Opinion delivered September 24, 1980
    Rehearing denied October 29, 1980

      Cathey, Goodtvin, Hamilton & Moore, by: Donis B. Hamilton, for appellant.

      Burris & Berry, for appellee.
   Steele Hays, Judge.

The parties, husband and wife, were divorced by decree dated January 23, 1979. The wife brings this appeal from certain portions of the decree. Three issues are raised, the primary issue being whether the chancellor erred in the division of personal property by not applying the criteria contained in Act 705 of 1979. Because it is clear that Act 705 was not applied, the case is reversed and remanded.

Bonnie Faye Ford and Taid Ford Jr., were married in March, I960. She was 17 years of age at the time and had not completed high school. The couple began their marriage with no property of consequence and Mr. Ford began farming cotton on rented land. The couple had their first child, a son, in 1961 and their second, a daughter, in 1974. Mrs. Ford worked in the home and seems to have helped considerably in the fields in the first years of the marriage, admittedly the first seven or eight, disputedly after 1968 or 1969. In 1969 or 1970, Mrs. Ford began working as a secretary in a framing business, which continued for three or four years. Her wages were used for family needs or applied to savings jointly held. By all accounts, she was frugal in money matters. There is some dispute as to whether she prepared meals as regularly as Mr. Ford had a right to expect and whether he was not entitled to have his work clothing washed more frequently, although Mr. Ford describes her as having been a good housekeeper. He testified that she did not always prepare meals for him; she contended that he preferred to eat frequently at O’Kean’s store, notwithstanding her pleas to eat at home.

Mrs. Ford testified that she began experiencing depression before becoming pregnant with her daughter. The depression became acute a few months prior to birth. She did not leave the hospital after the delivery, but was transferred directly from maternity to the wing for psychological treatment. Since 1974, she has had intermittent, lengthy institutional care for recurrent, severe depression and apparently has been regularly under the care of psychiatrists since that time. She has undergone electro-shock therapy on more than one occasion, and has attempted suicide at least once. The evidence clearly supports the conclusion that Mrs. Ford has a genuine, long standing depression of immobilizing effect.

The parties have not resided together for the past five and one-half years, although they have had sexual relations on several occasions, most recently after suit was filed.

Mr. Ford has clearly been an industrious, capable farmer, and the evidence shows that over the years the labor and prudent management of the Fords has enabled them to acquire and improve farm lands of approximately 190 acres, to build a home, and to accumulate substantial farm equipment and savings, the personal property aggregating around $300,000.00 by some estimates, $360,000.00 by others, all debt free. In addition to the farmlands owned jointly, Mr. Ford farms some 800 additional acres which he rents from his father.

At the close of trial, the chancellor made lengthy comments concerning his findings so as to give clarity to the decree, which have been beneficial to counsel and to this court. The decree granted the divorce, on uncontested evidence, to Mr. Ford, along with custody of their daughter, Brandy, which Mrs. Ford conceded to be in their daughter’s best interest. Possession of the home and one acre was given to Mr. Ford until Brandy reaches her majority. The remaining acreage was converted to tenancy in common and ordered sold. Alimony was denied at the present time, although the court reversed jurisdiction as to possible future needs. In dividing personal property, the court concluded on the basis of the case of Poskey v. Poskey, 228 Ark. 1, 305 S.W. 2d 326 (1957), that Act 705 of 1979 could not be applied retroactively to property which had vested prior to the effective date of the Act. On that assumption, the court awarded Mrs. Ford 10% of the personal property which the chancellor calculated to be approximately $300,000.00. The formula for this division was arrived at on the basis of Mr. Ford’s testimony that of the total acreage which he farmed, 20% belonged to the Fords jointly and since Mrs. Ford’s interest therein was one-half, she was entitled to one-half of 20%, or 10%. The chancellor allowed Mrs. Ford’s solicitors a fee of $1,000.00 to be paid by Mr. Ford.

Appellant appeals only from the chancellor’s division of personal property, the denial of alimony, and the amount of fee allowed.

In substance, Act 705 provides that at the time a divorce decree is entered “all marital property shall be distributed one-half to each party, unless the court finds such a division inequitable.” If the court finds an equal division inequitable, it shall consider the following criteria:

(1) Length of the marriage
(2) Age, health and station in life of the parties
(3) Occupation of the parties
(4) Amount and sources of income
(5) Vocational skills
(6) Employability
(7) Estate, liabilities and needs of each
(8) Opportunity for further acquisition of assets and income
(9) Contribution of each party in the acquisition, preservation or appreciation of “marital property,” including services as a homemaker.

Marital property is defined as all property acquired by either spouse subsequent to the marriage, except for gifts, inheritance, exchange, etc.

One proviso clearly present in Act 705 is the requirement that when property is not divided one-half to each, the court must state in writing the basis and reasons for not doing so in accordance with the above criteria. Appellee argues that the court’s comments dictated into the record was done in compliance with this requiremen, but that cannot be confirmed; none of the criteria are mentioned.

We believe the chancellor erred in interpreting Poskey v. Poskey as requiring that Act 705 of 1979 can be applied only to personal property acquired after the effective date of the act. The decision in Poskey simply followed the earlier case of Jenkins v. Jenkins, 219 Ark. 219, 242 S.W. 2d 124 (1951), in holding that an estate by the entirety in land acquired prior to the effective date of Act 340 of 1947 cannot be dissolved by the chancellor in divorce cases and treated as a tenancy in common. In Jenkins, the court acknowledged that a majority of states hold that an estate by the entirety can be dissolved by divorce decree, but that in Arkansas the contrary view had become a rule of property and, hence, Act 340 could only be applied prospectively. Whatever may be said of Jenkins v. Jenkins, there is nothing in that opinion or in Poskey v. Poskey to require us to apply such a restrictive concept to Act 705 in a case affecting personal property in divorce. In fact, chancery courts have had the inherent power to divide personal property in divorce suits in accordance with the equities of the case, both by statute and at common-law, for decades. Williams v. Williams, 186 Ark. 160, 62 S.W. 971 (1932). Nelson v. Nelson, 267 Ark. 353, 590 S.W. 2d 293 (1979.)

Appellant argues that an equal division of property should have been ordered by the trial court, irrespective of whether Act 705 criteria are applied and a number of decisions support that view: Williams v. Williams, supra; Stephens v. Stephens, 226 Ark. 219, 288 S.W. 2d 957 (1956); Nelson v. Nelson, supra. In Nelson, the court stated:

We have long held' that a court has a right to divide property acquired through the joint efforts of the parties on an equitable basis. Stephens v. Stephens, 226 Ark. 219, 288 S.W. 2d 957 (1956). When the parties were married they did not own this property. It was acquired, during the marriage, through the joint efforts of the parties. We are not required to make a determination as to whether more money or effort was expended on the part of one party or the other in reaching this conclusion. For about 18 years all of the efforts of both parties were directed to the acquisition and operation of the farm. Both of them assisted in raising the children as well as doing all other duties necessary to the operation of the farm. After appellant became employed, outside the home, her money was used to pay household expenses, purchase groceries, and repair and refinish the house in Waldron. In discussing the matter of disposition of property in a divorce proceeding, when the property was held only in the husband’s name, we stated in the case of Williams v. Williams, 186 Ark. 160, 52 S.W. 2d 971 (1932):
... If appellee and appellant by their joint work, labor, and management, acquired the property, a court of equity would even before the recent statutes, protect the wife’s interest in the property.
And . . .
We think the law relating to ownership of personal property is the same as that cited in the previous point relating to ownership of real property.

We view the difference between the decisions regarding a wife’s right to property before the enactment of Act 705 and afterward as being largely a matter of emphasis. In the earlier class of cases, the emphasis was on the degree to which the wife contributed to the joint earnings of parties and, thus, the wife whose primary activities were those of a homemaker was subject to being penalized in a divorce by her inability to point to actual monetary contributions during the marriage. Act 705 seeks to correct the inequity inherent in that approach by expressly including homemaking as one element for the court to consider if it departs from an equal division. But the basic premise of Act 705, we believe, is that “marital property” belongs to the parties jointly. We conclude that it was error to divide marital property on a ratio of 90% to Mr. Ford and 10% to Mrs. Ford and to fail to give reasons therefor pursuant to the criteria of Act 705.

We must next decide whether it is better for this case to be remanded with instructions to the trial court to apply Act 705 in the first instance but without binding that court by our view, or for us to reach first the decision of whether the property in question should be divided equally under Act 705.

We are especially conscious of the admonition expressed in Ferguson v. Green, 266 Ark. 556, 587 S.W. 2d 18 (1979). Referring to the trial de novo of chancery cases on appeal, Mr. Justice Fogleman wrote:

Where the case has been once heard upon the evidence or there has been a fair opportunity to present it, this court will not usually remand a case solely to give either party an opportunity to produce other evidence; the rule, however, is not imperative and this court has the power, in furtherance of justice, to remand any case in equity for further proceedings, including hearing additional evidence. Fish v. Bush, 253 Ark. 27, 484 S.W. 2d 525; Wilson v. Rodgers (on rehearing), 250 Ark. 356, 68 S.W. 2d 750; Nakdimen v. Atkinson Improvement Co., supra; Brizzolara v. Rowell, 214 Ark. 870, 218 S.W. 2d 728. It has been the invariable practice of this court not to remand a case to a chancery court for further proceedings and proof where we can plainly see what the equities of the parties are, but rather to render such decree here as should have been rendered below. Pickett v. Ferguson, 45 Ark. 177, 55 Am. Rep. 545; Narisi v. Narisi, 233 Ark. 525, 345 S.W. 2d 620. See also, Baxter County Bank v. Copeland, 114 Ark. 216, 169 S.W. 1180. The usual practice is to end the controversy by final judgment here or by directions to the trial court to enter a final decree. Wilborn v. Elston, 209 Ark. 670, 191 S.W. 2d 961. With the evidence fully developed, this court should decide the case without remanding it to the chancery court. Lewis v. Lewis, supra.

We recognize that some implementation of this decision by the trial court cannot be avoided, and should not be, as most divorce cases with property and minor children require some continuing oversight by the chancellor. However, we think considerable time can be spared the court and the litigants if we determine, at least in broad terms, what division we deem equitable on these facts, as opposed to simply remanding the case to the chancellor to make that determination in the first instance. We are satisfied that the length of this marriage, the contribution of each spouse, the children born and raised, indeed all the many considerations that experience and training validate, the property acquired by the Ford couple was “marital property” in the sense and spirit the term is used in Act 705. We find no circumstances present in this record to render an equal division of the property inequitable, unless the emotional illness which disabled Mrs. Ford is regarded as a detraction. Without applying a standard broader than this one case, we believe that it would be inequitable under all the circumstances of this record to hold that Mrs. Ford’s share of marital property should be reduced in any significant degree because of an illness as clearly disabling as hers appears to be.

In treating the appeal in this fashion we are following the pattern of Nelson v. Nelson, supra, wherein the Supreme Court reversed the chancellor’s award of one-third of the property, real and personal, to the wife and awarded her one-half instead, remanding the case with this comment:

We have not attempted to deal with every item of personal property because the trial court is in a much better position to make this determination. It may become necessary to hear additional evidence for a proper decision by the trial court.

We recognize that the trial court is in a better position to oversee the actual division of the personal property and to order, where necessary, the adjustment of assets in kind. Obviously, the farm equipment is more useful and productive in the hands of Mr. Ford; furthermore, the chancellor’s concern with Mrs. Ford’s ability to give prudent management to her own property may well dictate some means of protecting her, even by trust or guardianship, if necessary. We think, too, that the financial burden on Mr. Ford relative to their daughter and their son’s college expenses are worthy of consideration.

Turning to the matter of alimony, we believe the chancellor’s refusal to allow alimony at this time was not unreasonable and clearly not an abuse of his discretion in such matters. It is of significance that the court did not close the door to alimony at a later time, depending upon future needs. The allowance and the amount of alimony is governed by many considerations and is a matter for the discretion of the trial court. Johnson v. Johnson, 165 Ark. 195, 263 S.W. 379 (1924); Lewis v. Lewis, 255 Ark. 583, 502 S.W. 2d 505 (1973).

Some of the circumstances which the trial court no doubt considered in deferring alimony are the fact that Mr. Ford has the responsibility and expense of the children; the fact that Mrs. Ford’s needs appear to be conservative in the extreme; and the fact that she is receiving a sizeable proportion of joint assets as a consequence of the divorce. Under all the circumstances we cannot say that the chancellor’s discretion was abused by the deferment of alimony; on the contrary, we think at the present that appears to be a just decision.

Appellant argues vehemently that the allowance of a temporary fee of $500.00 and a fee of $1,000.00 at completion to be paid by Mr. Ford is grossly insufficient. But it has been repeatedly held that the allowance of fees is within the sound discretion of the trial court and will not be disturbed on appeal in the absence of a clear abuse. Equitable Life Assurance Society v. Rummell, 257 Ark. 90, 514 S.W. 2d 224 (1974). Federal Life Insurance Co. v. Hase, 193 Ark. 816, 102 S.W. 2d 841 (1937). That principle is especially apt, we believe, when applied to domestic suits where, as here, substantial assets are involved. The fee being allowed in the latter class of cases is not, after all, the entire fee — but merely that part which in fairness the chancellor feels should be borne by the husband. Where the wife’s share of joint properties is sizeable, relative to the rank and file of divorce cases, it is even more appropriate for the trial judge’s discretion to govern, as he is in the position of balancing and weighing many factors against each other. There is no doubt but that appellant’s lawyers have labored effectively and tirelessly in her behalf as the trial court noted. They are entitled to a reasonable fee and presumably will realize that end. However, it is not for us to speculate as to the precise amount when many of the factors that go into fee determination are not present in the record. Mr. Ford was found to be without fault. Mrs. Ford is recovering ample resources. Many cases affirm the wisdom of giving the trial court broad discretion to determine what portion of a wife’s fee should be paid by the husband. Lytle v. Lytle, 266 Ark. 124, 583 S.W. 2d 1 (1979). McGuire v. McGuire, 231 Ark. 613, 331 S.W. 2d 257 (1960); Yohe v. Yohe, 238 Ark. 642, 383 S.W. 2d 665 (1964); Cook v. Cook, 233 Ark. 961, 349 S.W. 2d 809 (1961). For their services in connection with this appeal appellant’s solicitors are allowed a fee of $1,500.00 and costs.

We mention one other point parenthetically. In this record and noted in both the majority and the dissenting opinions is the fact that it is undisputed that these parties engaged in marital relations while this suit for divorce was pending. Clearly, had that point been raised before the trial court and on appeal, we would be beholden to dismiss the litigation. However, marital relations between litigants in divorce does not create a jurisdictional deficit, but merely creates an affirmative defense in the hands of either party which must be raised. Except for the lack of corroboration in contested divorces which is statutor and may not be waived, the rule of appeal and error holds firmly that we may consider only those points and assignments of error raised on appeal and the decree of the chancellor will not be reviewed upon a ground not argued by the appellant. Ark. Stat. 1947 Ann. 27-2143. Cummings v. Broyles, 242 Ark. 923, 415 S.W. 2d 571 (196]); Johnson v. Gammill, 231 Ark. 1, 328 S.W. 2d 127 (1959). Although chancery cases are tried de novo, they are not reversed on grounds not argued by appellant. Bowling v. Stough, 101 Ark. 398, 142 S.W. 512 (1911). McIlhaney v. Cox, 257 Ark. 934, 521 S.W. 2d 66 (1975). Country Gentleman, Inc. v. Harkey, 263 Ark. 580, 569 S.W. 2d 649 (1978).

Reversed in part and remanded with instructions to proceed in accordance with this opinion.

Howard and Newbern, JJ., dissent.

George Howard, Jr., Judge,

dissenting. The evidence in this record dictates an order of this Court reversing the action of the trial court in granting an absolute divorce and dismissing the action for want of equity. I, therefore, cannot join in the action of the majority and accordingly, I dissent.

The appellee, Tait Ford, Jr., alleged the following as grounds for an absolute divorce, from his wife, the appellant, who were married on March 18, I960 and lived together as husband and wife until sometime in August, 1974:

“4. Plaintiff alleges that for the past several years the Defendant has treated him with studied neglect, contempt and ridicule, all of which were systematically pursued and continued over a long period of time so as to render the condition of the plaintiff with defendant intolerable.”

The appellee-husband in seeking to establish his grounds for an absolute divorce testified on direct examination:

“Q. During the time that you lived together, did your wife keep house?
A. She was a good housekeeper.
Q. Did she cook meals for you?
A. A few.
Q. Did she wash your clothes?
A. Yes, she would keep them real clean, but I didn’t get to change very regular.
Q. Why not?
A. She always wanted me to wear them just one more day.
Q. Did she prepare the evening meal for you and your son when you were working?
A. Sometime
Q. Well, how frequently?
A. Maybe half the time.
Q. And where did you normally take your meal?
A. I would eat at the store at O’Kean.
Q. What would you eat at the store?
A. A sandwich.
Q. Did it finally get to the point that your wife simply refused to live in the house?
A. Yes.
Q. And that continued for a long period of time?
A. Yes.
BY THE COURT:
“. . . [T]he Court understands opening statements from counsel, the grounds of divorce and custody of the children is not in dispute. The defendant intends that grounds only be treated as an uncontested case and that at this time the defendant is not asking custody of the children. That according to the pleadings and the statement of counsel . . . the defendant has been under the care of psychiatrists and psychologists from 1974 to date and no point is seen in going more deeply than is necessary into grounds or child custody. If the court understands that correctly, I am going to ask you to terminate the testimony on those parts. . . .”

However, on cross-examination, Mr. Ford gave the following testimony:

“Q. Sonny, your wife has been in the mental institution on and off since 1974, isn;t that correct?
A. Yes.
Q. And prior to the time that she first went into the mental institution in 1974 she was pregnant with Brandy, your youngest daughter.
A. Yes.
Q. And at that time she exhibited symptoms of lack of energy and lying on the couch and crying and not wanting to do things and become involved, is that correct?
A. Yes.
Q. And that has existed for a period of a year or so prior to 1974.
A. Yes.
Q. And she was actually hospitalized in George Jackson Mental Health Center in 1974 prior to the birth of Brandy.
A. Yes.
Q. And she was in and out of these mental institutions for periods of time from 1974 until 1977. Is that correct?
A. Yes.
Q. And under constant psychiatric care and treatment.
A. Yes.
Q. In 1977 she came back to the O’Kean, Delaplaine and Corning area, didn’t she?
A. No, she came to the Corning area.
Q. All right. She came to the Corning area. Where did she come to?
A. Her father and mother’s house.
Q. Did you visit her there?
A. Yes.
Q. I see. And isn’t it true that during the course of your visits there in 1977 that you and she resumed your marital relationship?
A. Yes.
Q. Isn’t it also true that as late as the night before the summons was served in this case, that you and she engaged in sexual relations?
A. Yes.
Q. So the entire period of time of which you complain of her inability to see to your needs and assist you were periods of time during which she was under going psychiatric care and treatment or was being hospitalized intermittently for psychiatric treatment.
A. Yes.
Q. And that treatment was for depression, wasn’t it?
A. Yes.” (Emphasis added)
On direct examination, the appellant stated:
“Q. All right. Why have you instructed me not to contest the issues relative to the divorce?
A. Because for a year I have begged and pleaded with Sonny for us to get back together and I could not give up hope. Sometimes he would make me think, maybe we would and then other times he would say he wanted no part of it, and you know I did everything in my power that I could to get our family back together. I wanted that more than anything. But I know that he is unhappy you know and he has been through a lot of hell I know and he’s young and he deserves a decent life and I am sure he doesn’t want any part of me and if he don’t want me, I don’t need him.
A. All right.”
On cross-examination, the appellant testified:
“Q. Now Mrs. Ford, when your husband works late at night, would you prepare him a hot supper?
A. Yes, when he came in, but I never knew what time it was going to be. Six, seven, eight, nine, ten, eleven.
Q. Now isn’t the true of the matter that he and Barry would work in the fields until too dark to see and they would come home and supper would either be a bologna sandwich or a bowl of chili, sometimes both, but —
A. Maybe after I got sick but not before then. And I would beg him to eat breakfast. I loved, I used to beg him. He would say, no, I want to go to Omer’s Store, and he would not eat and he would not come home for dinner, and he would say, I don’t know where I am going to be. Fm not coming home. And every babysitter has told me the same thing that he’s never home but for one meal and sometimes he doesn’t come for that meal. And I have offered to cook it and he said, no, he wants to go to Omer’s.”

While counsel for the parties and the court were laboring under the view that the husband was pursuing an uncontested divorce, the fact of the matter clearly evidences:

1. That evidence offered by counsel and received into evidence clearly shows that the husband is not entitled to a divorce; and,
2. By the husband’s own admission, his conduct of resuming voluntarily marital relations with the appellant amounts to a condonation, thus, wiping out any purported grounds for an absolute divorce.
3. The trial court was duty bound, given the circumstances in this case, to articulate the State’s interest in preserving the stability of family life and opposing the granting of a divorce unless a litigant establishes his grounds according to the statutory requirements, by dismissing the appellee’s divorce action for want of equity on its motion.

In 24 Am. Jur. 2d, Divorce and Separation, § 49, page 491, it is provided:

“The court, as the representative of the state and in the protection of the state’s interest in opposing the granting of divorces unless the case made is one which comes within the rules prescribed by statute, frequently will of its own motion dismiss a divorce proceeding when it becomes apparent that a case for divorce is not made out within the meaning of the statutes. It may dismiss the suit of its own motion . . . should come to the attention of the court, either before or during the hearing on the merits, that the parties hae become reconciled. ... The court may notice affirmative defenses which have not been special ly pleaded, and where the evidence reveals the existence of a defense it may dismiss the action, or where it appears that there is collusion between the parties, or that neither is entitled to a divorce . . . .” (Emphasis added)

In 27A C.J.S., § 135, Divorce, page 438, it is provided:

“In order to authroize a decree of divorce there must be clear and satisfactory proof of the cause of action even where defendantfails to offer evidence in the divorce proceeding, or in proceedings in which the case is submitted on ex parte depositions . . .” (Emphasis supplied)

The Arkansas Supreme Court, in articulating the same view, made the following observation in Napier v. Napier, 237 Ark. 159, 371 S.W. 2d 841:

“As we have said so many times, the State is also a party to the marriage . . . and this is a contract that should no be dissolved capriciously.”

In Kientz v. Kientz, 104 Ark. 381, 149 S.W. 86, the Arkansas Supreme Court stated:

“. . . The marriage state can not be considered as one of convenience, but it is one which has been entered into ‘for better or for worse’ and must continue for life unless sundered for the grounds named in the statute justifying its dissolution, which must be proved by clear evidence.” (Emphasis added).

In Sutherland v. Sutherland, 188 Ark. 955, 68 S.W. 2d 1022, the Court observed:

“It should be distinctly kept in mind that marriage vows are solemnly assumed and should be sacredly kept. The interest of society demands that the bonds of wedlock should not be severed, except upon grounds prescribed by statute and established by testimony.” (Emphasis added)

Even though this case is here on the issue involving the division of property rights, this Court is not precluded from recognizing the fact that the action should have been dismissed below for want of equity. It is settled law that an appeal from a chancery court decree is tried de novo\ and where it is shown that the relief prayed for should have not been granted, the appellate court will reverse and dismiss the action. McQueen v. McQueen, 140 S.W. 2d 1012.

The record made by the husband to establish his grounds for divorce is before us as well as relevant testimony of the wife. Even if the record were incomplete, we could not indulge the presumption that the omitted portion of the record would sustain what appears to be an error, Reed v. Reed, 238 Ark. 840, 385 S.W. 2d 33 (1964); Southern Farmers Assn., Inc. v. Wyatt, 234 Ark. 649, 353 S.W. 2d 531 (1962). Moreover, it is plain that the trial court relied upon the testimony in this record in granting appellee a divorce.

The majority concedes that the parties engaged in marital relations while the action was pending and, consequently, the action should have been dismissed, but avoids coming to grips with this issue by asserting that neither party raised the issue on appeal; and that while chancery cases are tried de novo on appellate review, such cases are not reversed on grounds not argued by the appellant. Scrutiny of applicable cases does not support the majority’s posture.

When a chancery case is appealed to this Court, the review conducted by this Court opens the whole case as if the action had never been tried as to all issues made in the court below. Woodruff v. Core, 23 Ark. 341 (1861). The whole case is before the appellate tribunal and the appellate court passes upon the record as to the facts as well as to the law and this Court renders its decree based upon such record as if there had been no decision at the trial level. Arkansas Bankers’ Association v. Ligon, 174 Ark. 234, 295 S.W. 4 (1927); Grayson v. Bowie, 197 Ark. 128, 122 S.W. 2d 536 (1938); McCrite v. Hendrix College, 198 Ark. 1149, 133 S.W. 2d 31 (1939).

In reaffirming this standard of review of chancery cases, the Arkansas Supreme Court, in Ferguson et al v. Green et al, 266 Ark. 556, 587 S.W. 2d 18 (1979), made the following observation:

When the case reached this court on appeal, it was reviewed as all equity cases are and should be reviewed. Equity cases are tried de novo on appeal upon the record made in the chancery cour, and the rule that this court disposes of them and resolves the issues on that record is well established; the fact that the chancellor based his decision upon an erroneous conclusion does not preclude this court’s reviewing the entire case de novo. . . . An appeal in a chancery case opens the whole case for review. All of the issues raised in the court below are before the appellate court for decision and trial de novo on appeal in equity cases involves determination of fact questions as well as legal issues. . . . The appellate court reviews both law and fact and, acting as judges of both law and fact as if no decision had been made in the trial court, sifts the evidence to determine what the finding of the chancellor should have been and renders a decree upon the record made in the trial court. . . . The appellate court may always enter such judgment as the chancery court should have entered upon the undisputed facts in the record. . . .

This Court, as an appellate tribunal concerned with the uniform application and administration of the laws in the lower courts, cannot sanction the granting of the divorce under the circumstances which are not only disturbing, but raise a serious due process of law question. This is particularly true since the trial court found that appellant did not have sufficient capacity to manage and preserve her property rights, on the one hand, but obviously, on the other hand, concluded she possessed the requisite capacity to participate in a legal proceeding that terminated a marriage relationship which the State of Arkansas has a direct interest in fostering when the complaining party has not demonstrated sufficient grounds.

Accordingly, I respectfully dissent.

David Newbern, Judge,

dissenting. I agree with that part of Judge Howard’s dissenting opinion which says there was not sufficient evidence showing the appellee had any ground for divorce. Even the most liberal construction of the indignity ground as provided in Ark. Stat. Ann. § 34-1202 (Supp. 1979), would not permit the granting of a divorce upon testimony such as that given in this case. Even in jurisdictions which have “no fault” divorce, divorce by consent is not permitted. There must be, in those jurisdictions, testimony of the irretrievable breakdown of the marriage. Presumably, even in those more liberal legal circumstances, the state maintains an interest in preserving marriages. I see nothing in the majority opinion which deals with the well known fact that the State of Arkansas has such an interest which was not protected in this case. Therefore, I would reverse.

      While the appellant filed her answer denying allegations, appellant, prior to the commencement of the trial, advised her attorney not to contest her husband’s divorce action. Consequently, the oaly issue, purportedly, left for the trial court’s determination was the division of the property acquired by the parties. Appellant seeks a review of the division of the property only.

      As counsel admitted, during oral argument, Arkansas is not a no fault divorce state, consequently, a party desiring a divorce has the burden of proof, even in uncontested cases, to establish his grounds as required under the statutes.


source: Caselaw Access Project

author: Steele Hays, Judge.

license: Public Domain

text:
    Louie HIGGINS v. Loicy BLANKENSHIP
    CA 80-149
    605 S.W. 2d 493
    Court of Appeals of Arkansas
    Opinion delivered September 24, 1980

      Scott Manatt, for appellant.

      Seay & Bristow, by: Bill W. Bristow, for appellee.
   Steele Hays, Judge.

This dispute concerns a roadway across the property of the appellee, Loicy Blankenship. Appellant, Louie Higgins, claims an easement over the roadway for purposes of ingress and egress in order to reach the western extremity of his land.

The evidence is undisputed that in 1957 or 1958, appellant’s predecessor in title, Walter Arnold, and appellee’s predecessor in title, Lawrence March, agreed to build the roadway, March furnishing the right of way and Arnold furnishing the gravel. The roadway was of mutual benefit since it increased the value of the March property and provided access to the back forty acres of the Arnold property.

Shortly after completion of the roadway, March erected a gate across the road at some point, but removed it when Arnold asked that he do so.

In 1963, Arnold sold his interest to the appellant and at approximately the same time, Charles March acquired the interest of his father in the March property, which was later conveyed to the appellee in 1977.

How frequently the roadway was used over the years is disputed and it is difficult to draw any firm conclusion; appellant contends that except during an illness of three months, he has used the road regularly throughout the four seasons of the year, notwithstanding the fact that he lived and worked in St. Louis and was able to come to the property only during vacation periods and weekends. Appellee contends that the use was, at best, sporadic and at times brush and grass grew on the roadway to a height of three to four feet. However, suffice it to say there is no evidence that would support a determination that the road was ever abandoned.

After appellee acquired the March property in 1977, efforts were begun to interrupt usage of the roadway in various ways. Appellee admitted placing trees and barriers in the roadway and in August of 1978 appellant filed this suit, alleging that he had acquired a prescriptive easement over the roadway and seeking a restraining order against the interference of such use. Appellee denied that appellant had made such continuous use of the roadway as to entitle him to a prescriptive easement.

The Chancellor found that appellant’s use of the roadway was permissive only, lacking in the element of hostility necessary to a prescriptive easement. The Chancellor also found that there was no evidence of continued, uninterrupted use for seven years, denying that an easement existed. Appellant asserts on appeal that the Chancellor erred in finding that the road had not been used continuously under a claim of right.

With reference to the latter point, it is true that the testimony is somewhat vague; however, that is of no moment, as the evidence is overwhelming that the predecessors in title of these parties agreed upon and entered into an oral agreement for an easement, which agreement was implemented by the actual construction of the roadway, followed by its recognition and usage over a span of nearly 20 years. The fact of the original agreement was testified to by the son of Walter Arnold and acknowledged by the widow and son of Lawrence March. In short, there is no question from the record but that an easement by agreement, rather than by prescription, was clearly enterd into, supported by consideration and acted upon by the parties. An easement thus created could only be lost by an abandonment nor would such a finding have been warranted by the evidence. Corpus Juris Secundum, Volume 28, EASEMENTS, Section 24:

. . . and as a general rule (an easement) must be in writing; but an oral grant will be upheld when it is accompanied by consideration, action in reliance on the grant, and by the grantee’s being permitted the granted use.

The case of Warren v. Cudd, 261 Ark. 690, 550 S.W. 2d 773 (1977) is, in many respects, similar to the case at bar. In Warren, the action involved a county road running across appellant’s farmland. Testimony established that the road had existed on appellant’s land for many years, but that public use had been abandoned for more than the statutory period. Appellees had continued their use of the road under a claim of right. In 1970, appellant’s predecessor in title, Charles Duff, put a locked gate across the roadway claiming that misuse of the road had caused damage to his pastures. Duff reached an agreement with appellees to move the roadway to an old roadbed on appellant’s property. The old roadway had to be bulldozed, and a new gate was completed. Expenses for the work were shared between Duff and the appellees, each of whom was given a key to the gate. Later in the same year, Duff sold his property to appellants. Appellant Chester Warren testified that he was unaware of any easement across the property. In 1976 appellants removed the gate and fenced off the road. Appellees brought suit, claiming that they had established their right to use the road by adverse claim to that of the owner. The trial court found that appellees had acquired an easement by prescription to use the roadway. Appellants brought this appeal, contending that use of the road was permissive and therefore did not ripen into an easement by prescription.

The Arkansas Supreme Court stated that whether the appellees had used the right of way for seven years was not important, as their right was based on an oral grant of an easement:

We do not deem it necessary to decide whether the proof in this case justified the finding that appellee had acquied by prescription an easement along the old route used by him in crossing appellant’s land. Regardless of whether appellee had acquired such right, it is shown by the evidence that appellant recognized this right to the extent that he provided for appellee a new right-of-way across his land, . . .***
This exchange of routes, accompanied by surrender of the old route and acceptance and continued use of the new route by appellee, as was shown by the evidence in this case, was effective, even in the absence of any writing to evidence the agreement. “An oral grant (of an easement) will be upheld where it is accompanied by consideration, action and reliance on the grant, and by the grantees being permitted the granted use.” 28 C.J.S., p. 678. Wynn v. Garland, 19 Ark. 23, 68 Am. Dec. 190; Kellums v. Richardson, 21 Ark. 137; Neil v. Neil, 172 Ark. 381, 288 S.W. 890.

An oral grant of an easement will be upheld where the grantee has made valuable improvements in the right of way without objection from his grantor. See Wynn v. Garland, 19 Ark. 23 (1857).

“An oral grant (of an easement) will be upheld where it is accompanied by consideration, action and reliance on the grant, and by the grantees being permitted the granted use.” Chaney v. Martin, 205 Ark. 962, 171 S.W. 2d 961 (1943). [See also 28 C.J.S. Easements, § 24, Neil v. Neil, 172 Ark. 381, 288 S.W. 890 (1926).]

In this case, we hold that all of the factors of an oral grant of an easement have been shown and, therefore, it was error for the trial court to enter a judgment in favor of appellee.

Apellee argues on appeal that appellant maintained in his pleadings that his easement had been acquired by prescription, rather than by oral agreement. It is true the complaint uses the term easement by prescription; however, there was extensive testimony that the roadway was created by agreement between Lawrence March and Walter Arnold, the then-owners, and appellee voiced no objection to the proof as it was offered and claimed no surprise thereby. The Arkansas Supreme Court has held that when an issue has been discussed in trial proceedings which was not responsive to the pleadings, the appellate court may treat the pleadings as being amended to conform to the proof, and the scope or sufficiency of the pleadings cannot be challenged on appeal. Van Harton v. Better Health Insurance Association of America, 238 Ark. 815, 384 S.W. 2d 465 (1964). [See also Deposit Guaranty National Bank v. River Valley Company, 247 Ark. 226, 444 S.W. 2d 880 (1969).]

Under the Arkansas Rules of Civil Procedure, Rule 15 (b) states:

When issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised by the pleadings.

As was stated in Ferguson v. Green, 266 Ar. 556, 587 S.W. 2d 18 (1978), an appeal from chancery court opens the whole case for review and all of the issues raised in the court below are before the appellate court for decision. Also, the fact that the chancellor based his decision upon an erroneous conclusion does not preclude the appellate court’s review of the entire case de novo. Ferguson, supra.

Reversed and remanded for the entry of an order consistent with this opinion.


text:
    Forest LOOPER v. STATE of Arkansas
    CA CR 80-29
    605 S.W. 2d 490
    Court of Appeals of Arkansas
    Opinion delivered September 24, 1980

      E. Alvin Schay, State Appellate Defender, by: Jack Kearney, Deputy Defender, for appellant.

      Steve Clark, Atty. Gen., by: Victra L. Eewell, Asst. Atty. Gen., for appellee.
   Steele Hays, Judge.

Appellant was charged by felony information with Second Degree Battery. The information stated that appellant did unlawfully cause serious physical injury to Iona Cranfill by striking and kicking her. Appellant pleaded not guilty to the charge. The case proceeded to trial where appellant was found guilty of battery in the third degree. He was senteced to one year in the Pulaski County Jail and fined $500.00. From this verdict appellant brings this appeal.

Appellant’s first point for reversal is that the trial court erred in admitting into evidence the transcript of testimony of the complaining witness, Mrs. Iona Cranfill. Mrs. Cranfill’s testimony was taken at a preliminary hearing in which defendant was represented by another attorney. Before trial, the State issued a subpoena for the witness, but apparently no other attempts were made to secure the witness for trial. On the morning of the trial, the State discovered the witness was not present. Consequently, the prosecutor made a motion to admit into evidence the transcript of Mrs. Cranfill taken at the preliminary hearing. Counsel for appellant objected to introduction of the evidence on two principal grounds: (1) that the defense was surprised at the suddenness of the motion and was unprepared to' challenge it, and (2) the introduction of the testimony denied appellant his right of confrontation of witnesses against him which is guaranteed in the Sixth Amendment.

Upon consideration of this question, we start by recognizing that the United States Supreme Court has held that the right of an accused to confront the witnesses against him which is guaranteed in the Sixth Amendment is “. . . a fundamental right . . . made obligatory on the States by the Fourteenth Amendment.” Dutton v. Evans, 400 U.S. 74 (1970); Pointer v. Texas, 380 U.S. 400 (1965). The question presented in this case is very similar to the question posed in Barber v. Page, 390 U.S. 719 (1968). In Barber, the petitioner was charged with armed robbery. At trial, the State sought to introduce the transcript of the testimony of a witness who had been jointly charged with the petitioner. The testimony was taken at a preliminary hearing at which time petitioner was represented by counsel who also represented the witness. Attorney for petitioner withdrew as counsel for the witness when he waived his privilege against self-incrimination and testified at the preliminary hearing. Counsel for petitioner, nevertheless, did not cross-examine the witness.

At the time of the trial, the witness was incarcerated in a federal prison in Texas. The State made no attempt to obtain his presence at the trial. The trial judge allowed the transcript of the testimony, and petitioner was convicted. His conviction was upheld by the Oklahoma Court of Criminal Appeals. The petition then sought habeas corpus relief in federal district court, alleging that his constitutional right of confrontation had been denied. This contention was rejected by the United States District Court, and affirmed by the Court of Appeals for the Tenth Circuit.

On appeal to the United States Supreme Court, Justice Marshall, speaking for the Court, stated that use of the transcript of testimony taken at a preliminary hearing denied petitioner his Sixth and Fourteenth Amendment rights to be confronted with the witness against him at trial. The Court reached this conclusion by taking note of the fact that the State had made virtually no effort to obtain the witness’s presence at trial other than obtaining the information that the witness was in federal prison in another jurisdiction. The Court, in recognizing the exception to the confrontation requirement where a witness is unavailable and has given testimony in previous judicial proceedings against the same defendant, stated that a witness is not “unavailable” for purposes of the exception “unless the prosecutorial authorities have made a good faith effort to obtain his presence at trial.” (Emphasis added.) The Court went on to say:

[6, 7] Moreover, we would reach the same result on the facts of this case had petitioner’s counsel actually cross-examined Woods at the preliminary hearing . . . The right to confrontation is basically a trial right. It includes both the opportunity to cross-examine and the occasion for the jury to weigh the demeanor of the witness. A preliminary hearing is ordinarily a much less searching exploration into the merits of a case than a trial, simply because its function is the more limited one of determining whether probable cause exists to hold the accused for trial. While there may be some justification for holding that the opportunity for cross-examination of a witness at a preliminary hearing satisfies the demands of the confrontation clause . . . where the witness is shown to be actually unavailable, this is not, as we have pointed out, such a case.

In the case of Satterfield v. State, 248 Ark. 395, 451 S.W. 2d 730 (1970), the Arkansas Supreme Court recognized the rule stated in Barber that the prosecution must make a “good faith effort” to obtain a witness at trial before it can claim the “unavailability” exception to the confrontation requirement. In Satterfield, supra, the Arkansas Supreme Court had two years earlier reversed a conviction of arson against appellant. On retrial, appellant obtained another conviction with the same sentence. He appealed to the Arkansas Supreme Court, contending, among other things, that it was error to permit the reading of prior testimony of two State witnesses transcribed at the first trial when the State had failed to make a good faith effort to obtain their presence.

The Arkansas Supreme Court agreed with appellant to the extent that the State’s efforts of obtaining the presence of one State witness, Larry Dunn, were feeble. Appellant was apparently convicted on the testimony of three companions, one of which was Larry Dunn. The State had issued a subpoena to Mr. Dunn to appear in court for a pre-trial conference for setting a specific trial date. The sheriff was unable to serve the subpoena because he could not find Mr. Dunn. Another subpoena was issued for Dunn for the trial date. Again, the sheriff was unable to locate Dunn, but upon inquiry learned that he was in a trade school in Kentucky. The sheriff then abandoned any further effort of locating Dunn.

The Arkansas Supreme Court held that the State had failed to meet its burden of showing that the witness was “unavailable” for trial. Consequently, the trial judge had abused his discretion in permitting the introduction of Dunn’s testimony. The court alluded to the fact that it would have been a simple matter to obtain the address of the witness because Dunn’s sister had also been a witness for the State. Hence, the case was reversed.

In the instant case, the only evidence of a “good faith effort” to obtain the presence of the witness on the part of the Sate was the issuance of a subpoena. As was pointed out in Satterfield, the burden is on the State to show that the witness is “unavailable” for trial when offering a transcript of testimony as evidence. We do not think that the State has met its burden in this instance. All that is shown is that the State issued a subpoena. The State argues that appellant was not denied his right to confrontation because he was allowed to cross-examine the witness at the preliminary hearing. However, as it was pointed out in Barber, the right to confrontation “. . . is basically a trial right.” The strategy used in cross-examination at a preliminary hearing may be a completely different one from that used at the trial level, and as counsel for appellant correctly recognized, it may have denied appellant’s right to competent assistance of counsel. Nevertheless, we hold the State failed to meet its burden of proof and reverse the conviction.

Reversed and remanded.


author: James H. Pilkinton, Judge. Marian F. Penix, Judge,

text:
    Lillian McINTIRE v. Donald O. McINTIRE
    CA 80-153
    605 S.W. 2d 474
    Court of Appeals of Arkansas
    Opinion delivered September 24, 1980

      Highsmith, Gregg, Hart & Farris, for appellant.

      Harkey, Walmsley & Beleiv, by: Bill H. Walmsley for appellee.
   James H. Pilkinton, Judge.

This is an annulment case. A decree was entered declaring the purported marriage of these parties void ab initio pursuant to Ark. Stat. Ann. §55-108 (Repl. 1971) because appellee had a prior living wife from whom he had not been divorced at the time he undertook to enter into marriage with appellant. There is no appeal from that part of the decree annulling the marriage. This appeal comes from the action of the trial court denying the wife’s petition seeking reformation of a deed to certain land in Independence County, Arkansas, and the court’s refusal to declare a constructive trust in her favor on the real property.

Lillian Bennett, a widow since 1964, met Donald McIntire in May of 1971 at Albuquerque, New Mexico, and the parties began living together in December of 1971. They were married on June 21, 1972, in Albuquerque, New Mexico. At the time of the purported marriage her property consisted of $30,000 in a savings account, together with $500 in a checking account and a home in Albuquerque, New Mexico, which was sold after the marriage for a net return of $18,619.12. Lillian Bennett also owned furnishings from a six-room house, a 1962 Lark automobile, and some tools which had formerly belonged to her first husband. At the time of the marriage of the parties Donald McIntire had six horses, a truck, and $750.00.

Just before their marriage, on June 8, 1972, the parties contracted to purchase what is described in the proof as 208 acres of real property in Independence County, Arkansas. The total purchase price was $20,000. On June 30, 1972, Lillian made the down paymet of $6,000 out of her Albuquerque Federal Savings account. The balance of $14,000 was financed with annual payments of $1,000. Title to the real property was taken in the name of both parties as husband and wife. After the marriage, Donald moved to Arkansas to live on the land they had purchased. The parties also bought a mobile home, a pickup truck, a furniture moving van, materials for a garage, an air conditioner, welder, tractor, cattle and goats, and some other personal property in connection with the farm. Lillian McIntire moved to the Independence County farm in December of 1972 after selling her home in Albuquerque, New Mexico. Donald testified that he stayed on the farm full time and built a 38 x 22 foot garage; and that during 1972 he also constructed a pond and a farm road. During the course of the marriage Donald McIntire claims he continued to make improvements on the farm. He testified that he seeded the woods and re-seeded the pulpwood areas. Mr. McIntire claims to have fenced forty acres, and repaired the fences on the remaining acreage. The evidence shows that thoroughbred horses were kept on the farm until the spring of 1979- The record seems to indicate that for all these improvements, Donald furnished the labor and Lillian paid the expenses until the end of 1972. Lillian was the bookkeeper for their operations through 1975, when their joint checking account was terminated. After this, Lillian kept a separate account.

The evidence shows further than for the years 1973 through 1975, Donald McIntire cut timber on the property and sold it for pulpwood. The money was also used to pay expenses on the farm. Land payments on the 208 acres of land from 1973 until 1975 were made by Mr. McIntire obtaining loans from a bank using personal property the parties had purchased as collateral. Monthly payments on these side loans were made out of the joint checking account of the parties through 1975. In 1976 the land payment was made by Lillian with her mother’s help. Lillian Mclntire’s parents lived with the parties in 1976 and, after Mrs. Mclntire’s father’s death, the mother continued to remain on the property. Through Social Security checks and the sale of a home, Mrs. Mclntire’s parents contributed a total of $13,479-59 toward the living expenses of the parties. Other living expenses were paid from the proceeds of the certain personal property which they had purchased at the time of the marriage.

The record further shows that on September 27, 1976, the parties made an additional loan in the amount of $10,000 which Mr. McIntire used to open a television repair shop in Batesville, Arkansas, and for other business expense purposes.

The record reveals that Donald McIntire had been married six times before he met Lillian. In the late fall of 1976, after his marriage to Lillian, Mr. McIntire was served with papers concerning the support of a child. This child was in the custody of his previous wife, Diane McIntire, in another state. Mr. McIntire testified that Diane had told him that their divorce was final. He later had the records searched and, being unable to locate a divorce decree, Mr. McIntire initiated proceedings and a divorce was granted to him by the Chancery Court of Independence County, Arkansas. This decree terminated the marriage then existing between Donald McIntire and Robbie Diane McIntire, his sixth wife. The decree was shown to Lillian McIntire in 1978 and it was at this point that she definitely knew Donald had not been divorced from his previous wife until February 11, 1977. The record also reveals that Lillian continued to live with Donald until July 11, 1979, when they separated. Lillian then brought this action for' annulment, constructive trust, and reformation of the deed; and sought a lien on the real property to recover funds she had invested in the property.

After the case was tried, the chancellor wrote a memorandum opinion; and, later entered a decree finding, among other things:

That at the time these parties entered into their purported marriage relationship they agreed to pool their assets and thereafter own their assets jointly and to share equally all profits derived from their future business ventures; that each party entered into such relationship freely and without any undue influence and without being subject to any fraud exercised by the other party.
That the plaintiffs petition for the reformation of the warranty deed recorded at Book B-10, Pages 179-180 of the Independence County Deed Records should be denied and the parties should hold title to the land described in said deed as joint tenants with right of survivorship; likewise, all other assets of the parties, including the TV business known as “Don’s TV” located in Batesville, Arkansas, and the horses, and all profits and issue therefrom, should be owned by the parties as joint tenants.
That the plaintiffs request that a constructive trust should be imposed on all assets owned by the defendant in his name alone should be granted to the end that he shall be deemed to hold title to all property held in his name alone as trustee for the benefit of the plaintiff and the defendant jointly.
That all assets owned by the parties are subject to partition at any time upon the request of either party.
That each party shall faithfully account to the other party for one-half of any profits derived from any of the jointly owned assets or assets held in trust by the defendant.
That each party shall be enjoined from converting any of the jointly owned assets or assets held in trust to his or her own personal use, or any profit from such property, or in any manner attempting to conceal any assets or income therefrom from the other party pending a partition of such assets or a mutually agreed disposition of such assets.

Appellant first argues that the decree of the chancery court is against the preponderance of the evidence. The true test on appeal, however, is whether the decree is clearly against the preponderance of the evidence. Rule 52, Arkansas Rules of Civil Procedure. The chancellor, in passing on the disputed facts and applying the law to his findings said in his memorandum opinion:

As to the property division, this seems very similar in my mind to a situation where two partners enter into a speculative business venture which turns out not to be very profitable and then one partner wants to, in essence, cancel the whole deal and be put back in the position that he was in before the venture began. Of course, such action is not proper if both partners wilfully entered into the business transaction and neither exercised any fraud to induce the other into the transaction.
In this case I find that the evidence preponderates in favor of a finding that these parties wilfully undertook to enter into a marriage that each thought was valid when entered into and that they both wilfully entered into the speculative venture of attempting to establish and run a horse breeding and racing operation. The idea was for the plaintiff to furnish the money and the defendant to furnish the labor and expertise to establish and run the venture. It is true that the plaintiff invested approximately $45,000.00 of her money in the venture while the defendant only invested some $4,600.00 in the venture which consisted of money he earned from cutting pulpwood and repairing televisions after he moved to Arkansas, however, he did invest a great deal of time and effort in the venture.
The central issue pertaining to title to the farm is whether at the time the farm was purchased the plaintiff undertook to make a gift of one-half interest in that farm to the defendant. I find that she did. I find that the essence of their agreement was that she would pay the down payment and that the subsequent payments would be paid from the profits of the farm operation (which, of course, did not materialize) and that the parties would share equally in the ownership and profits from the venture.
I do not find the plaintiff was misled or defrauded concerning the nature of the business venture into which she and the defendant were entering and I presume that since both parties appear to be reasonable people they must have realized the inherent risks involving in breeding, raising, training, and racing thoroughbred horses and the potential for loss of money in such a venture. It appears that the parties did make an excellent investment in the land they purchased, however, the horse breeding operation has been very expensive to date and no income had been derived up to this time.
The. plaintiff argues that she would not have invested her money in the horse raising venture if she had known that she was not legally married to the defendant. This may be true, however, it seems equally true that even if she had been legally married to the defendant that she would not have been compelled to invest her separate funds in such a venture but could have instead refused to enter such a venture or she could have if she desired to purchase the farm in her own name thus maintaining the separate identity of her funds. It is easy in this case to feel sympathy for anyone who loses money in a business venture, however, what must be closely examined is whether that person wilfully entered the venture and whether there was any fraudulent conduct involved and in this case I find none. I doubt that the issue of fraud would be involved if this venture had been highly profitable and the plaintiff was reaping half the profits.
So I find that it is not proper in this case to alter or reform the deed to the farm and the parties should hold title as joint tenants with right to survivorship. Likewise, all other assets of the parties, including the TV business and the horses, should be half and half ownership. All of the assets of the parties, in other words, should be considered at the time as being jointly owned assets and subject to either being partitioned at any time upon the request of either party. Since this .is an ongoing partnership arrangement between the parties involving all assets owned by either of the parties, both parties are enjoined from attempting to convert any of the assets or income from the assets to his or her own personal use or in any manner attempting to conceal any income or assets from the other party.
Once the proposition is accepted that these parties initially pooled their assets (the legal effect of which would be that each gave the other one-half of his or her assets) in order to enter into their venture and that all activities since then have been on a “joint effort” basis and that all present assets are subject to equal distribution to the parties, then this becomes no different from any other divorce case as it pertains to division and distribution of assets between the parties.

The record clearly shows appellant gave appellee $2,500 even before the marriage so he could purchase a mare. This was only one of many transactions between them which followed, including the purchase of the land and the speculative venture of using the property in an attempt to establish and operate a horse breeding business. From a careful study of the record we are unable to say that the decree is clearly against the preponderance of the evidence; or that the chancellor’s application of the law to those facts was clearly erroneous.

Appellant next argues that the chancellor erred in not reforming the deed, and in denying the imposition of a constructive trust on the real estate supported by an equitable lien on the land. In Ramsey v. Ramsey, 259 Ark. 16, 531 S.W. 2d 28 (1975), it was pointed out that the fact the consideration paid for property, taken in the two names, belonged to the husband only is of little, if any, significance where he is responsible for the title being placed in both names. The presumption is that there was a gift of an interest by the husband to the wife. The reverse is also true. Here the presumption is a gift of an interest by the wife to the husband. This presumption is strong, and can be overcome only by clear, positive, unequivocal and convincing evidence. There being no evidence of fraud in this case, appellant is charged with the knowledge of the legal effect of the deed. Ramsey v. Ramsey, supra. We cannot agree with appellant that the testimony in this record is clear, cogent or convincing that the insertion of both names on this deed was the result of a mistake. Clear, convincing, unequivocal and decisive evidence is required for reformation. McIntyre v. McIntyre, 241 Ark. 623, 410 S.W. 2d 117 (1966). The chancellor found there was no ground for reformation as the parties intended to vest the title as the deed provided. He also found there was no mistake, fraud or a combination of the two, which demanded equitable reformation of a written instrument. We agree.

Appellant next claims that the court should have at least imposed a constructive trust on the real estate, and given her an equitable lien for the funds she had" invested in the land. The chancellor dealt with this claim in detail in his memorandum opinion, most of which has already been quoted above. We are unable to say that his opinion that the testimony fall shorts of that required to establish the constructive trust requested is clearly against the preponderance of the evidence or was clearly erroneous as a matter of law. Rule 52, Arkansas Rules of Civil Procedure.

Counsel for appellant argues that under Ark. Stat. Ann. § 34-1214 (Supp. 1979) Lillian. McIntire could have recovered all of the property invested into this marriage either by herself or her parents had she been validly married to Donald McIntire and received a divorce. She claims it would be inequitable for her to receive less than someone who had entered into a valid marriage and later was granted a divorce. Appellant, however, overlooks the fact that under Ark. Stat. Ann. § 34-1202 (Supp. 1979), she could have filed a petition for divorce. In that event, she could have attempted to take advantage of the statutory exceptions, and the equitable relief, available under § 34-1214. Instead, appellant brought this suit for annulment. She rested her property demands upon a prayer for reformation of the deed, and upon the constructive trust arid equitable lien theory. Having done so, and the proof in this case falling short of that required to grant such relief, she is in no position now to claim any benefits because of Ark. Stat. Ann. § 34-1214 either directly or indirectly.

The decree of the chancery court is affirmed. All costs on appeal are to be shared equally by the parties.'

Penix, J., dissents.

Marian F. Penix, Judge,

disseriting. I find it ludicrous that a woman who invests $45,000.00 as well as her services' as “wife” and homemaker (in contrast to her husband’s $4,-600.00 investment) in' property held' in a tenancy by the entireties suddenly finds she riot only is not a' wife, but also is only a one-half owner of the property purchased by the couple. Furthermore, she is characterized by the Chancellor as an adult of sound mind who merely invested' her life savings in a high risk operation, thereby becoming a partner of the man who, but for his failure to have a divorce from his sixth wife, would be her husband.

(2) as to the property division, this seems very .similar in my mind to a situation where two partners enter into a speculative business venture which turns out not to be very profitable and then one partner wants to, in essence, cancel the whole deal and be put back in the position that he was in before the venture began. Of course, such action is not proper if both partners wilfully entered into the business transaction and neither exercised any fraud to induce the other into the transaction. (3) In this case I find that the evidence preponderates in favor of a finding that each thought was valid when entered into and that they both wilfully entered into the speculative venture of attempting to establish and run a horse breeding and racing operation. The idea was for the plaintiff to furnish the money and the defendant to furnish the labor and expertise to establish and run the venture. It is true that the plaintiff invested some $45,-000.00 of her money in the venture while the defendant only invested some $4,600.00 in the venture which consisted of money he earned from cutting pulpwood and repairing televisions after he moved to Arkansas, however, he did invest a great deal of time and effort in the venture.

Marriage in the State of Arkansas is not a business relationship. Marriage is not only a civil contract, it is a social and domestic relationship. Marriage in Arkansas may not be dissolved at the parties’ will. Fault must be present in a divorce. The State has a vested interest in the marriage. The motive for entering a marriage is quite different from the motive for entering a partnership. Marriage is entered with the expectation of mutually nurturing, sustaining, and caring for the well being of the marriage partner. From the undispusted testimony of the plaintiff, I find she invested her assets in the real property in Independence County after she married the defendant. They married June 21, 1972. The down payment check for the property is dated June 30, 1972. Plaintiff testified she would never have spent her $45,000.00 had they not been legally married.

I would reverse and instruct the Chancery Court to impose a constructive trust on the property. Although the Chancellor made a specific finding as to the absence of fraud, he did not state the couple did not have a confidential relationship. In Arkansas a constructive trust will be imposed if it shown by clear and convincing evidence the action which produced the reliance was either done fraudulently or by one in a confidential relationship. Bottenfield v. Wood, 264 Ark. 505, 573 S.W. 2d 307 (1978); Robertson v. Robertson, 229 Ark. 649, 317 S.W. 2d 272 (1958); Walker v. Biddle, 225 Ark. 654, 284 S.W. 2d 840 (1955). Restatement, Trusts, Section 45. I can think of no more confidential relationship than that of husband and wife. This was the relationship which plaintiff thought she enjoyed.

Through no fault of her own, plaintiffs marriage was void. Ironically, had she decided to divorce the defendant, she would most likely have been entitled to more than fifty percent of the marital property. Act 705 requires an equal distribution of property unless this is inequitable. The eight factors listed in Act 705 when applied to this case would entitle the plaintiff to more than fifty percent of the property. More specifically, she has contributed to the acquisition of the property as well as contributing services of homemaker.

I would reverse this inequitable decision. Therefore, I respectfully dissent.

      I might also add I am not convinced there was no fraudulent conduct on the part of the defendant. The plaintiffs testimony, which was not disputed, was that the defendant told her he had been married only twice. When the parties to a lawsuit offer testimony as to matters within their knowledge, and material evidence of one party is not contradicted by the other, it must be presumed to be true. Lenderman v. Lenderman, 266 Ark. 1000, 588 S.W. 2d 707 (Ark. App. 1979); Matthews v. Lanier, 33 Ark. 91 (1878); Miller v. Jones, Adm’r, 32 Ark. 337 (1877). One might question whether the plaintiff would have married and spent her savings on an investment with a man who obviously has a difficult time staying with a woman "until death do us part.” Furthermore, who is charged with knowing one’s status - be it single or married? Who is in a better position to know whether one is divorced from the sixth spouse and free to marry the seventh?


author: James H. Pilkinton, Judge.

text:
    Jack A. STOREY and Mary Jon STOREY v. John L. JOHNSON and Tommy Gosnell d/b/a UNITED FARM AGENCY
    CA 80-165
    605 S.W. 2d 480
    Court of Appeals of Arkansas
    Opinion delivered September 24, 1980

      Irwin & Kennedy, for appellants.

      Young & Finley, for appellees.
   James H. Pilkinton, Judge.

This appeal is from a judgment in the lower court based on a jury verdict for $5,500 in favor of appellees against appellants for a real estate commission. The case originated as a suit by United Farm Agency, Inc. The complaint alleges that appellants, as defendants below, executed an exclusive listing contract with United Farm Agency, Inc., through John L. Johnson, a local representative, authorizing the sale of certain property in Ola, Yell County, Arkansas. There is no dispute concerning the property involved. The listing was for one year with the expiration date of June 16, 1977. The complaint further alleges that on February 22, 1977, plaintiff obtained a buyer who was willing to pay $95,000 and that the defendants accepted the offer. Appellants later refused to sell through the broker at the price which they had agreed to take and thereafter dealt directly with the buyer and consummated the sale. It is undisputed that the buyer, who lived in California, became interested in the property through the direct efforts of appellees. Appellants refused to pay the balance of the commission due under the listing contract, and this suit resulted.

Without raising any question about the plaintiffs status, defendants filed an answer admitting that Mr. and Mrs. Storey had signed the listing contract in question. They denied, however, that plaintiff had obtained a buyer for $95,-000. They also filed a counterclaim seeking to recover the partial payment of the commission previously made from certain escrow funds in the brokers’ hands.

Some five days before the trial, John L. Johnson and Tommy Gosnell, as individuals, filed a petition asking that they be substituted as parties plaintiff in this suit. This pleading set out that they were real estate brokers licensed to do business in the State of Arkansas, and were operating under the name of United Farm Agency. They claimed to be the real parties in interest, and to have had the listing agreement in question. This pleading admitted their business is not a corporation, but alleged it is a partnership; and further admitted that United Farm Agency, Inc., is not a licensed real estate broker in Arkansas. The petition further alleged that no proof would be altered by the substitution, that no delay would result, and that it should be allowed so all matters involved in the case could be fully and promptly adjudicated. This petition also asked that Johnson and Gosnell, as individuals, d/b/a United Farm Agency be designated as cross-defendants in the counterclaim. The defendants filed no response to this petition to substitute plaintiffs, but did make a verbal objection at the time the trial court acted on it. After the court granted the petition to substitute plaintiffs, the trial proceeded accordingly.

Appellants first argue that the court below erred in permitting the appellees to be substituted as plaintiffs. We find no merit in this argument. Even before the adoption of the new Arkansas Rules of Civil Procedure, our statutes required that an action be prosecuted in the name of the real party in interest. There is no doubt from this record that John L. Johnson and Tommy Gosnell were doing business at Russellville, Arkansas, under the name of United Farm Agency, or that Mr. Johnson took the listing in question. As the trial court pointed out, the listing was in writing and does not identify the business as a corporation. Our courts are firmly committed to a liberal construction of the statutes and rules pertaining to pleadings in an attempt to insure, and certainly to permit, the prosecution of an action by the real party or parties in interest. Childs v. Philpot, 253 Ark. 589, 487 S.W. 2d 637 (1972). We cannot agree that the new Arkansas Rules of Civil Procedure pertaining to pleadings should be given a more narrow construction than our previous statutes on the subject. See Rule 15, Arkansas Rules of Civil Procedure; Milne v. Milne, 266 Ark. 900 at 904, 587 S.W. 2d 229 (1979). The defendants failed to satisfy the trial court that the substitution of parties would prejudice them in maintaining their defenses upon the merits. We cannot say that the action of the court in permitting the substitution of plaintiffs was an abuse of discretion under the circumstances.

Appellants next contend that there was no direct evidence that either Mr. Johnson or Mr. Gosnell were licensed real estate brokers, and claim that the trial court should have directed a verdict for the defendants because of this failure of proof. The petition to have themselves substituted as parties plaintiff clearly sets out on its face, as required by Ark. Stat. Ann. § 71-1302 (Repl. 1979), that both Mr. Johnson and Mr. Gosnell were licensed real estate brokers under the Arkansas law. The testimony refers to them as brokers who were responsible for the operation of the salesmen who worked for them. Neither the pleading, nor the testimony referring to them as brokers, were challenged in any manner by the defendants. While the evidence on this particular point could have been more explicit, we agree with the trial court that the record, taken as a whole, is sufficient to show that Mr. Johnson and Mr. Gosnell were qualified brokers, but that United Farm Agency, the partnership under which they operated, was not so qualified.

Appellants also complain of a certain instruction given by the trial court, but the record discloses that appellants made no objections to the form or substance of any of the instructions at the trial level. They are in no position to question the instructions on appeal. St. Louis S.W. Ry. Co. v. Pennington, 261 Ark. 650, 553 S.W. 2d 436 (1977); Willis v. Elledge, 242 Ark. 305, 413 S.W. 2d 636 (1967).

Finally appellants seem to argue that the jury verdict is not supported by the evidence. We find no merit in this contention because there is ample evidence in the record, some of which is undisputed, that this property was placed in the agents’ hands, and the sale involved was brought about by their efforts. Arkansas adheres to the general rule that a broker is entitled to his commissioner if he is the procuring cause of an eventual sale concluded between owner and purchaser. This well known rule was adopted by the Arkansas Supreme Court as early as case of the Scott v. Patterson & Parker, 53 Ark. 49, 13 S.W. 419 (1890), where the court approved the following statement:

[i]f, after the property is placed in the agent’s hands, the sale is brought about or procured by his advertisements and exertions, he will be entitled to his commissions; or if the agent introduces the purchaser, or discloses his name, to the seller, and, through such introduction or disclosure, negotiations are begun, and the sale of the property is effected, the agent is entitled to his commissions, though the sale may be made by the owner.

All later cases seem to follow this rule. We hold that the evidence in this case is sufficient to sustain the .jury’s verdict.

Finding no error in the proceedings, we affirm the judgment of the circuit court.


author: Marian F. Penix, Judge. David Newbern, Judge,

text:
    MACK FINANCIAL CORPORATION v. Donald CHRESTMAN d/b/a WHEATLEY DIESEL SERVICE and Danny GOODMAN
    CA 80-157
    605 S.W. 2d 749
    Court of Appeals of Arkansas
    Opinion delivered September 24, 1980
    Rehearing denied October 29, 1980

      Wright, Lindsey & Jennings, for appellant.

      Fletcher Long, Jr., P.A., for appellee Chrestman.

      Daggett, Daggett & Van Dover, for appellee Goodman.
   Marian F. Penix, Judge.

This is an appeal from a directed verdict in favor of appellees on the ground the Circuit Court action was a collateral attack on the St. Francis Chancery Court order of April 12, 1979. The court denied the appellant’s motion for summary judgment and its motion for directed verdict. From these denials the appellant appeals.

In July 1977 one Fuentes purchased a 1973 International Harvester tractor model truck from Mack Trucks Inc. in Delran, New Jersey., Under terms of a security agreement Fuentes agreed to pay $19,012.32 in 36 monthly installments of $528.12 beginning August 8, 1977. The security agreement was assigned to MFC, appellant. The lien was noted on the New Jersey certificate of title. In August 1978 George Largo, son-in-law of Fuentes, the owner, left the truck with appellee Chrestman in Wheatley, Arkansas to be repaired. Fuentes has failed to make the monthly payments due on December 8, 1978 and every month thereafter. On December 12, 1978 Chrestman sent a certified letter to Largo notifying him that an action for the repair bill would be filed. This letter was returned. On February 22, 1979, a complaint to establish a lien and foreclose same was filed in St. Francis Chancery Court by Chrestman. A warning order was published February 27, 1979, March 6, 1979, March 13, 1979 and March 29, 1979. MFC alleges that on or before April 7, 1979 agents of MFC notified the repairman Chrestman of its interest in the truck. Robert Thornton was retained by the appellant to investigate the truck at Chrestman’s shop at Wheatley, Arkansas. Thornton testified he asked Chrestman for a copy of his repair bill on the truck on April 7, 1979. Chrestman refused. On March 29, 1979 Chrestman received a judgment in St. Francis Chancery Court, and on April 12, 199, the court ordered the sale of the truck to Goodman, appellee, who was issued an Arkansas Certificate of Title. The MFC lien was not noted on the Arkansas title. This was five days after Thornton made a request on Chrestman for a repair bill and informed Chrestman of appellant’s vendor’s lien. Chrestman denied being contacted about the vendor’s lien until after the order of sale. The appellant made a written demand on Chrestman for possession of the truck on April 19, 1979.

On August 1, 1979 MFC sued to replevy. MFC moved for a summary judgment for possession of the truck on the grounds (1) it was holder of a vendor’s lien which was entitled to priority over the lien of a repairman and (2) that its priority extended to purchaser Goodman under Ark. Stat. Ann. Sec. 75-l60(c). On December 10, 1979 the court ordered MFC was entitled' to a default judgment against Fuentes. The court denied MFC’s motion for a summary judgment. After MFC rested its case the trial court directed a verdict in favor of Chrestman and Goodman. This verdict was on the ground the circuit court action was collateral attack on the St. Francis Chancery Court Order of Sale. MFC appeals.

Ark. Stat. Ann. Sec. 51-412:

The [repairman’s] lien herein provided for shall take precedence over and be superior to any' mortgage or other obligation attaching against said property in all cases where the holder of such mortgage or other obligation shall permit such property to remain in the possession and be used by persons owing and bound for the amount thereof; provided, that the lien herein provided for shall be subject to the lien of a vendor of automobiles, trucks, tractors, and all other motor propelling conveyances retaining title therein, for any claim for balance of purchase money due thereon; . . .

This is the statute under which Chrestman claimed his interest in the truck and under which he foreclosed. MFC argues, they have priority due to the exception for a vendor’s lien.

Ark. Stat. Ann. Sec. 75-160 provides for MFC’s lien priority over the present possessor, Goodman.

(c) If a vehicle is subject to a security interest when brought into this State, the validity of the security interest is determined by the law of the jurisdiction where the vehicle was when the security interest attached, subject to the following:
... 2. If the security interest was perfected under the law of the jurisdiction where the vehicle was when the security interest attached, the following rules apply: (a) If the name of the lien holder is shown on an existing certificate of title issued by the jurisdiction, his security interest continues perfected in this State.

The truck was purchased by Fuentes in the State of New Jersey. A security .agreement was executed, value was given, and the debtor took possession of the collateral, the truck. The creation and attachment of the security interest is governed by New Jersey law. N- J- Stat. Ann. § 12A:9-204 states:

(1) A security interest cannot attach until there is agreement . . . that it attach and value is given and the debtor has rights in the collateral. It attaches as soon as all of the events in the preceding sentence have taken place unless explicit agreement postpones the time of attaching.

A security agreement was entered into evidence. The debtor, Fuentes, signed the agreement, value was given, and the debt- or had rights in the collateral. The attachment took place in New Jersey. Perfection is also governed by New Jersey law. Ark. Stat. Ann. § 85-9-103 states:

(4) Notwithstanding subsections (2) and (3), if personal property is covered by a certificate of title issued under a statute of this state or any other jurisdiction which requires indication on a certificate of title of any security interest in the property as a condition of perfection, then the perfection is governed by the law of the jurisdiction which issued the certificate.

In order to perfect this security agreement, New Jersey requires:

(3) The filing provisions of this Chapter do not apply to a security interest in property subject to a statute . . . (b) of this state which provides for a central filing of, or which requires indication on a certificate of title of, such security interests in such property. N.J. Stat. Ann. § 12A:9-302.

New Jersey law requires the notation of a security interest on the certificate of title.

If . . . in connection with such sale [of a used motor vehicle], a security interest is taken or retained by the seller to secure all or a part of the purchase price of the motor vehicle, or is taken by a person who by making an advance or incurring an obligation gives value to enable the purchaser to acquire rights in the motor vehicle, the name and the business or residents address of the secured party or his assignee shall be noted on the certificate of ownership. N.J. Stat. Ann. § 39:10-9

Therefore, under New jersey law, the security interest of MFC was perfected by the notation on the certificate of ownership. Pursuant to Ark. Stat. Ann. § 85-9-103, this perfection continues in Arkansas.

The next issue we must deal with is whether MFCs perfected security interest has priority over the statutory repairmen’s liens. Ark. Stat. Ann. § 85-9-310 provides:

Priority of certain liens arising by operation of law — When a person in the ordinary course of his business furnishes services or materials with respect to goods subject to a security interest, a lien upon goods in the possession of such person given by statute or rule of law for such materials or services takes priority over a perfected security interest unless the lien is statutory and the statute expressly provides otherwise.

There is no question Chrestman, in the ordinary course of his business provided services and materials to the truck which was subject to a security interest. When these sérvices and materials were not paid for, the truck, which was in the possession of Chrestman, became subject to a repairman’s lien pursuant to Ark) Stat. Ann. § 51-412. This lien is statutory. Bond v. Dudley and Moore, 244 Ark. 568, 426 S.W. 2d 780 (1978). Accordingly, § 85-9-310 provides this lien is superior to any other lien unless the statute creating the lien expressly provides otherwise. Ark. Stat. Ann. § 51-412, quoted above, allows priority for “the lien of a vendor of automobiles, trucks, tractors, and all other motor propelling conveyances retaining title therein, for any claim for balance of purchase money due thereon.”

We need not decide whether Section 51-412 requires an assignee, in this case MFC,' be given priority over a repairman’s lien. The repairman’s lien involved in this case was extinguished by the Chancery Court Order and Sale. Goodman, the present possessor and buyer at the judicial sale, acquired only the interest which Fuentes had. Fuentes’ interest was subject to the lien of MFC.

While there is no comparable case in Arkansas, two Georgia cases dealt with a similar problem. In Capital Automobile Company v. Continental Credit Corporation, 117 Ga. App. 451, 160 SE 2d 836 (1968) the Georgia Court of Appeals held that a Texas certificate of title on which the plaintiffs lien was noted received priority over the holder of a subsequently issued Georgia certificate of title on which no liens were noted. The court construed a statute which is identical to Ark. Stat. Ann. § 75-160(c)(2)(a) and held the lien holder could foreclose its mortgage on the automobile against the purchaser who claimed under the Georgia certificate of title.

Again, in Kinder v. General Motors Acceptance Corp. 117 Ga. App. 610, 161 SE 2d 372 (1968) the Georgia Court of Appeals affirmed the granting of summary judgment in favor of a plaintiff finance company. The court stated that the finance company had noted its lien on a Texas certificate of title and that the security interest had attached in Texas. Under Georgia law, therefore, the interest of plaintiff “continued perfected in Georgia and is valid against the subsequent transferee.” The fact that the lien holder’s name was not noted on the subsequently issued Georgia certificate of title was of no importance. The priority of the finance company was unqualifiably established by law; therefore, the plaintiff could foreclose its lien as a matter of law.

The appellant next contends it was error for the Circuit Court to dismiss its suit on the ground the action was collateral attack on the St. Francis Chancery Court Order of April 12, 1979.

The Chancellor’s Order of April 12, 1979 required the sale of the Fuentes vehicle in order to satisfy the lien held by the repairman, Chrestman. The record shows the only parties to that suit were Chrestman, as the repairman, and Fuentes. Warning orders were issued with Fuentes as the named defendant. An attorney ad litem was appointed for Fuentes. MFC was never made a party to this suit. They received no notice., MFC has never been afforded its day in court. Without being a party to this suit, there was no way MFC could have appealed the order of April 12, 1979 and asked that they be given possession of the truck. The proceeding in Lee County Circuit Court is not a collateral attack on the St. Francis Chancery Court Order. The judicial sale extinguished Chrestman’s materialman’s lien — but not MFC’s vendor’s lien. The question of the vendor’s lien was never resolved in the Chancery Court action. No action.involving the vendor’s lien was ever taken in the Chancery Court. It is no more than the appellant MFC’s attempt to assert its interest against the vehicle.. MFC’s interest has not yet been dealt with. See Quattlebaum v. Gray, 252 Ark. 610, 480 SW 2d 339 (1972); Carpenters Local Union No. 2746 v. Turney Wood Products, Inc., 289 F. Supp. 143 (W.D. Ark. 1968).

We find it was error for the Circuit Court to have granted a directed verdict for the defendants. We remand to the Circuit Court with directions to enter a Summary Judgment in favor of MFC.

Reversed and Remanded.

Newbern, J. concurs.

David Newbern, Judge,

concurring. I agree with the result reached by the majority, but I feel two points have not been addressed sufficiently. First, the appellee Chrestman argued that the chancery court’s action was “in rem.” The sense of this argument is that not only are the parties to the suit bound by its result, but so are all other persons who might have an interest in the property which was the subject matter of the suit. The logical extension of that argument is that any attack in a second forum upon title to the property determined in such a proceeding, no matter by whom the attack is mounted, becomes a “collateral attack.”

For the proposition that the chancery court’s action was “in rem,” the appellee cites only Ark. Stat. Ann. § 51-404, et seq. (Repl. 1971), with particular emphasis on § 51-411. Having examined those sections, I do not find that they specifically confer or contemplate “in rem” jurisdiction. Unlike an action to quiet title to property, the chancery court proceeding was simply one to establish and foreclose a lien. It did not purport to do away with other liens which might have been outstanding.

Secondly, I wish to point out we are advisedly saying an assignee of a vendor’s lien stands in the position of the vendor. Although our statute, Ark. Stat. Ann. § 51-412 (Repl. 1971), does not “expressly provide” that an assignee of the vendor shall have priority over the repairman, we are not dealing with the priority problem. Thus, without predicting its effect in priority cases, we are saying that the express provision in favor of the vendor is sufficient to include the vendor’s assignee. See, Nickles, Creditors’ Provisional Remedies and Debtors’ Due Process Rights: Statutory Liens in Arkansas, 32 Ark. L. Rev. 184, note 136 (178).