author: Sam Robinson, Associate Justice.

text:
    Carpenter v. Franklin.
    5-1422
    308 S. W. 2d 829
    Opinion delivered January 13, 1958.

      Talley & Owen and Howell, Price and Worsham, by Dale Price; for appellant.

      No brief filed for appellee.

   Sam Robinson, Associate Justice.

This suit was filed by appellee, George Franklin, July 7, 1955, contending that he entered into an oral contract to purchase a lot in North Little Rock owned as an estate by the entirety by Tom and Margaret Williams. A three-room house was situated on the property; the agreed purchase price was $175.00, to be paid in installments, bearing no interest. Franklin further contends that be entered into possession of the property immediately upon consummation of the agreement and bad lived there since that time; that be completed paying for the property in 1952, but that a deed was not made to him at the time by Margaret Williams because of her physical condition, she being 83 years of age. Prior to that time Tom Williams had died. Margaret Williams died November 3, 1954, and this suit was filed by Franklin against Charles L. Carpenter, administrator of Margaret Williams ’ estate, and against Henry Harris, Louis Harris, and Hattie Williams, alleged heirs of Margaret Williams. The complaint alleges the oral contract to purchase, coupled with delivery of possession and payment of the purchase price, and also asserts title by adverse possession. Charles L. Carpenter, the administrator of Margaret Williams ’ estate, Henry Harris and Louis Harris filed answers denying allegations of the complaint; Hattie Williams filed an answer in which she admits the allegations in the complaint and states:

“I state that I have personal knowledge of the transaction alleged in the complaint of the plaintiff between MARGARET WILLIAMS, now deceased, and GEORGE FRANKLIN, and that I was present when the property was sold to GEORGE FRANKLIN and saw the purchase price delivered to the said MARGARET WILLIAMS.”

It developed that Hattie Williams is not the daughter of Margaret Williams, but the daughter of Tom Williams by a previous marriage, and since Margaret Williams had, by survivorship, become absolute owner of the estate by the entirety, she is not an heir; therefore, she had no potential interest. But this fact was not known at the time Hattie filed her answer. There was a decree in favor of George Franklin; the administrator and Henry Harris and Louis Harris have appealed.

We do not think that Franklin acquired title to the property by adverse possession, because according to the undisputed testimony he did not claim title to the place until 1952, when he says he completed paying for it. He was not holding the property adversely up to that point; he was in possession either as a tenant or under an agreement of purchase. According to appellants’ contention, Franklin was there as a tenant. According to appellee, he had possession by reason of the purchase agreement. But in any event, he was not holding adversely.

Now comes the proposition of whether Franklin proved by sufficient evidence his ■ alleged oral contract to purchase. The alleged delivery of possession, payment of the purchase money, and the making of improvements, if true, would take the transaction out of the Statute of Frauds. McKenzie v. Rumph, 171 Ark. 791, 286 S. W. 1022; Nicholas v. Ward, 205 Ark. 318, 168 S. W. 2d 1095.

We believe that Franklin proved his case by the required weight of the evidence, notwithstanding his own testimony pertaining to the transaction must be disregarded because of the “dead man’s statute”. Franklin moved into the house on the property in 1940. Later he was joined by his brother, Booker. There is a conflict in the evidence as to just what the agreement was whereby George was given possession of the property. George contends there was an agreement whereby he bought the property for $175.00, to be paid in installments as he could pay it. Appellants contend that Margaret merely let George and his family live there in consideration of George’s doing chores for her. George’s father also came to live on the property, as did Booker’s wife. Appellants are supported in their contention by the testimony of several witnesses as to statements made by Margaret in the presence of George indicating George was merely a tenant at the sufferance of Margaret, and that she was dissatisfied with his failure to do the required chores, and that Margaret also complained that George had mortgaged the property and she had the burden of paying off the mortgage.

On the other hand, George produced witnesses who claimed that they were present when the agreement was made to purchase the property. He also introduced, as acknowledgment of money paid on the purchase price, receipts which another witness testified were given to Booker, who was helping George pay for the property. If George’s witnesses are to be believed, undoubtedly there was a sale. On the other hand, if appellants’ witnesses are correct in their version of the statements that were made by the parties along through the years, then in all probability there was no sale. But there are circumstances that weigh heavily in George’s favor. Margaret and Tom Williams bought the property in 1927 from Grover T. and Ruby J. Owens for the consideration of $175.00. It will be recalled that 1927 was prior to the great depression, which later depressed the price of real estate. The evidence is that George agreed to pay $175.00 for the property in 1940. At that time real estate had not completely recovered from the depression, and if $175.00 was a reasonable price when Margaret and Tom bought it in 1927, it was in all probability a reasonable price in 1940 when they sold it.

Next, receipts were produced showing money paid to Margaret by Booker, the brother of George; there is no evidence in the record to indicate that Booker would be paying Margaret money for anything unless it was something in connection with the property. Incidentally, none of the witnesses produced by either side stated there was ever any understanding between the parties that rent was to be paid. A receipt given on December 24, 1952, for $20.00, is marked “paid in full”.

Henry Harris, nephew of Margaret Williams, and one of the appellants, testified that Margaret Williams had stated that George claimed to have bought the property but was too lazy to pay for it. George has lived on the property since 1940 and there is not any evidence to the effect that he was supposed to pay rent. In 1945 the tax record was changed to show George as the owner. He redeemed the property from sale for the taxes of 1947 and 1948 and paid the taxes on the property in his name thereafter. According to the undisputed evidence, he mortgaged the property on one occasion for $300.00. Ordinarily, a person does not mortgage property that someone else owns. George built a room on the house, and covered the house twice.

Margaret never did record the Owens deed. Jewell Godfrey testified that she saw Margaret, who was then 83 years of age, turn the deed over to George in 1952. George recorded the deed in that year, had it in his possession, and introduced it at the trial. He says that due to her advanced age Margaret was unable to go to town and execute a deed. Margaret was an old colored woman, and George is an old colored man. George is practically illiterate, and it does not appear that he would have known what the Owens deed was unless it had been explained to him.

When all the evidence is taken into consideration, we believe that- George has met the heavy burden of proving his oral contract to purchase, that he was given possession, and that he paid for the property, the consideration being $175.00, which he paid over a period of twelve years.

Affirmed.


source: Caselaw Access Project

author: Carleton Harris, Chief Justice.

license: Public Domain

text:
    City of Little Rock v. Sawyer.
    5-1400
    309 S. W. 2d 30
    Opinion delivered January 20, 1958.

      Spitzberg, Bonner, Mitchell & Hays, for appellant.

      Talley & Owen and James B. Howard, for appellee.
   Carleton Harris, Chief Justice.

This action is a suit brought by and in behalf of the City of Little Bock to condemn lands required for the city’s new water supply reservoir on the Big Maumelle Biver, said lands being owned by appellees, Octavia and J. Gr. Sawyer. The tract involved contains approximately 322 acres, is. divided north and south by State Highway No. .10, and lies at the intersection of State Highways No. 10 and No. 13 at the point commonly known as Crossroads, located about 22 miles west of Little Bock. Big Maumelle Biver crosses part of the lands, which, according to the evidence, are partly timbered and partly open. The property, which was formerly used as a dairy farm by the owners, contained a dwelling house, fences, and various farm buildings. The jury returned a verdict of $55,000 for appellees, from which judgment the City and the Board of Commissioners of the Little Bock Municipal Water Works have appealed. For reversal, appellants urge four points, as follows:

I.

The Jury Verdict of $55,000 was Excessive and was not Supported by Substantial Evidence.

II.

The Lower Court Erred in the Exclusion and Admission of Evidence Belating to Values.

III.

The Lower Court Erred in Admitting Testimony Concerning an Offer in Compromise and Settlement Made by the City and in Befusing to Grant a Mistrial.

IV.

The Lower Court Erred in Dismissing the Board of Commissioners of the Little Bock Municipal Water Works as Parties Plaintiff.

We proceed to a discussion of each contention in the order listed.

I.

Here we are concerned only with whether there was substantial evidence to support the verdict of the jury. Appellees’ evidence consisted of the testimony of Mrs. Sawyer, Jim Bland, a neighbor, who testified he had lived within a half-mile of the Sawyer place for 21 years, Thomas Johnston, a neighbor, who testified he had been familiar with the Sawyer property since 1933, Don Win-dle, a salesman for the Pulaski Implement Company and former instructor with the Institute on Farm Training, Fred Selz, a real estate salesman for Block Eealty Company for nine years, specializing in rural property, A. L. Saunders, engaged in real estate development business and formerly chief appraiser for the Highway Department (1954), W. H. Pitcock, who testified that he had specialized in rural real estate in Pulaski County for 12 years, and O. B. Higginbotham, who estimated that the tract contained 50,000 board feet of merchantable timber.

Appellants point out that a witness, in giving an opinion of value, must also give a satisfactory explanation of how he arrived at his conclusion; that there is a difference between “any evidence” and “substantial evidence”; that when the evidence given by appellees’ witnesses is weighed under such a rule, there is no basis for their opinions, and the verdict is accordingly not supported by substantial evidence. Mrs. Sawyer described the house on the property as a large, English-type house, with ten rooms, one bath, a place for another bath, and a 30 x 20 glassed-in porch. Located on the property also were a feeding barn, large stock barn, several sheds, hog houses, chicken houses, implement sheds, four deep wells, a stock pond, and five miles of fencing.

Mrs. Sawyer testified that $7,500 had been spent in altering the house since the purchase in 1948, and she valued the entire property at $85,000. Jim Bland concurred in this opinion. Thomas Johnston, a neighbor, testified that the Sawyer property under fence is flat, level soil . . . bottom land, and that he had occasion (because of his milk route) to be at the Sawyer place every day until September, 1955. He testified that dairy barns are graded as to their construction and maintenance, and Sawyer’s was grade A; that Sawyer had a “milking parlor,” which, according to his testimony, is the most modern type of milking barn developed. He stated this was the only milking parlor on his route. Mr. Windle testified the cleared land was mostly in permanent pasture in 1955, and that Sawyer had sixty or seventy head of cattle; that the fences were very good and were constructed of webbed wire and barbed wire. Mr. Selz testified that he was a former salesman with the Rhineman Horse and Mule Company and ‘ ‘ that kept me in touch with all the farmers and all the farms in this town.’.’ He testified he had made some other sales of property in the general area, but not in the immediate vicinity, i. e., some five or six miles from it; that he appraises farm property for Block and has handled nine-tenths of the acreage transactions for the past five years; that he helped handle the sale by Mrs. Sawyer to Mr. Almon of acreage adjoining the property in question; that the two tracts were so dissimilar as to preclude a comparison between them. He valued the farm and improvements at $70,670. Mr. Saunders testified he had been engaged in buying rural property since leaving the Highway Department; his appraisal of the property amounted to $84,327.03. Horace Pitcock, who testified that he specializes in selling farms and suburban property, valued the farm at $70,670, and stated that he conferred with Selz on arriving at the appraisal. He explained that in arriving at the same figure “* * * one gave and one took. ’ ’ Mr. Higginbotham was not interrogated on cross examination as to his estimate that the tract contained 50,000 board feet of merchantable timber.

The following witnesses testified for appellants, in brief, as follows: Jeff Graham, who has been engaged in termite control work for 20 years, inspected the Sawyer dwelling property and testified there was a general infestation of termites. He could not state how long the termites Lad been in tbe structure . . . infestation bad gone above tbe ground floor, but be could not estimate tbe damage without tbe major operation of exposing tbe walls . . . did not know extent of damage on October 26, 1956. He made no termite inspection of tbe barns or outbuildings. C. Y. Barnes stated that be bad been experienced in dwelling construction since 1939; that be bad visited tbe Sawyer property on two occasions, and found it was not in good repair. He stated there were roughly 3,400 square feet in tbe bouse . . . casement windows showed evidence of decay and rot . . . there were two places where tbe foundation was not supporting tbe bouse properly . . . tbe bouse bad not been painted in a number of years . . . “ tbe roof is sound but it is about five years old.” Claude Woolsley, presently semi-retired, is a horticulturist and agriculturist, and has taught at tbe Universities of Arkansas, Tennessee, Virginia, and at Arkansas A & M. He testified that be managed a farm in Illinois for 30 years, and operated an orchard farm in Washington County. Mr. Woolsley took soil samples from tbe Sáw-yer farm, and stated tbe soil could be divided into two types . . . bill soil and deep silt loam. He testified that tbe bill soil was thin, having a top soil “of about two inches to four inches of blackland loam soil underlaid with a subsoil over a reddish yellow clay.” Tbe second type was a ‘ ‘ deep silt loam soil underlaid by an impervious subsoil of clay or clay loam.” He considered tbe land as partly good and partly bad, productive, but inclined to be wet, which would mean low productivity in some seasons. He stated the upland was subject to erosion, saw no evidence of corrective measures to prevent such erosion, and was of the opinion that “soil of this type containing a subsoil of high and low permeability, subject to heavy spring rains and tbe possibility of inundation from other sources, would develop a rather grave hazard as far as row crop production is concerned.” He stated that tbe land would be better for pasture; observed a part being grown in permanent pasture, but “it was a very poor stand of any clover crop. ’ ’ Frank Fulk, real estate dealer, valued the property at $30,820. James W. Larrison, engaged in the real estate business for 11 years, valued the farm at $32,040, and Elmer McCaskill, who testified he had been in the real estate business for 40 years, placed the value at $31,800.

The record reflects, that in the main, appellants’ witnesses went into more detail explaining how they arrived at their appraisal; still, several left pertinent facts unexplained. For instance, Mr. Larrison did not break down the value of the timber, though he stated it had a high value, which had been considered in reaching the overall valuation placed on the farm. He did not estimate the number of board feet represented by the standing timber on the property. It is difficult to see how the value of the timber was properly considered if it was not appraised. Mr. Larrison testified that he considered the fence in the evaluation, but did not know what it would cost to reproduce it . . . nor did he see all of the fence . . . that it would cost about 15c per lineal foot to build a good four strand barbed wire fence. Mr. McCaskill, in his appraisal, stated the fence was taken into consideration in placing the value on the farm, i. e., it was considered a farm “with fence around it”; however, he did not know how many miles of fence were located on the premises, nor what it would cost to build same. He stated there were four good wells, but he did not know their depth.

It was developed during the examination and cross examination of witnesses, that in determining the fair market value of property, certain facts should be considered, such as the nearness of the property to a business center, presence or absence of public utilities, voluntary sales of other properties of similar nature in the community, the type of land and soil, nature of improvements, etc. The jury observed each witness in his testimony . . . heard the evidence relative to the qualifications of the various witnesses . . . heard the testimony as to how these witnesses arrived at the valuations testified to. As was stated in State Highway Commission v. Carder, 228 Ark. 8, 305 S. W. 2d 330: “* * * Also in cases of this kind, the jurors are accorded great latitude in considering testimony as to damages, and their verdict will be set aside as excessive only when it is not supported by proof or when it is so excessive as to indicate passion, prejudice, or an incorrect appreciation of the law applicable to the case. * * The appraisers who testified for appellees would seem to be qualified from the basis of experience and knowledge, nor are their qualifications questioned by appellants. Likewise, the testimony of the neighbors are entitled to consideration. As said in Ft. Smith and Van Buren Bridge District v. Scott, 103 Ark. 405, 147 S. W. 440: “Intelligent men, who have resided a long time in the place and who are acquainted with the land in question, and say that they know its value, are competent although they are merchants or farmers and have never bought or sold land in the place.” We conclude there was substantial evidence to support the verdict.

II.

A. It is contended that it is not permissible to admit testimony concerning the reproduction costs of the improvements where the condemnor is not acquiring improvements alone, but acquiring land with improvements attached. It is conceded by respective counsel that this question has never been passed upon directly by this Court. The case of Newport Levy District v. Price, 148 Ark. 122, 229 S. W. 12, is cited by appellants as inferring that such evidence is not admissible in this state. However, a study of this case reveals differences which preclude a proper comparison with the case at Bar.

There is a conflict of authority on whether evidence of reproduction costs is proper in reaching a determination of the market value of property being condemned; the weight of authority holds such evidence to be admissible where the improvements are adaptable to the land. In the New York case of Re: Blackwell’s Island Bridge, 198 N. Y. 84, 91 N. E. 278, tlie Court of Appeals said:

“ * * *■ All proceedings prosecuted under the right of eminent domain are based on two fundamental facts. The first is that the owner’s land is taken from him theoretically against his will, and the second is that the owner is not permitted to fix his own price, but must be content with just compensation. The latter is a burden to which the owner must submit, but it is also a right which he may enforce. What is a just compensation? In some cases the value of expensive structures may not enhance the value of the land at all. An extremely. valuable piece of land may have upon it cheap structures which are a detriment rather than an improvement.' A man may build an expensive mansion upon a barren waste, and in such case, the costly building may add little or nothing to the total value. In the greater number of cases, however, when the character of the structures is well adapted to the kind of land upon which they are erected, the value of the buildings does enhance the value of the land. In such cases, it is true that the value of the land as enhanced by the value of the structures is. the total value which must be the measure of the owner’s just compensation when his property is condemned for public use. As to that general proposition, there can be no disagreement. But how is the enháncement of the land by the structure which it bears to be proven? * * It is common knowledge,'however, that buildings not only differ from each other in design, arrangement and structure, but that many which are externally similar and are situate upon adjoining lands are essentially different in the quality and finish of the materials used and in the character of the workmanship employed upon them. It must follow that such differences contribute in varying degrees to the enhancement and the value of the land, and we think of no way in which -they can be legally proved except by resort to testimony of - structural value, which is but another name for cost of reproduction. * * *”

A similar view was taken by the Iowa Supreme Court in Ranck v. Cedar Rapids, 134 Iowa 563, 111 N. W. 1027. There the Conrt said:

“It is true that market value and intrinsic value are not necessarily equivalents, but proof of the latter is often competent evidence for consideration in determining the former. * * *”

Let it be made clear that we entirely agree with appellants that such evidence is not admissible as a measure of damages, but we do conclude that it is admissible as an element or circumstance to be considered along with all other circumstances in arriving at a proper award. We accordingly hold this evidence competent.

B. Appellees’ witness, Fred Selz, testified that in arriving at the value of the Sawyer tract, he disregarded the sale from Mrs. Sawyer to Almon of adjoining acreage because there was no comparison between the two farms. He stated that practically all the Almon tract is hilly — “It goes up and down — it is what we call hilly land.” He testified that 503.31 acres were involved in the sale, and only about 30 acres were' similar to the Al-mon tract. When interrogated on cross examination about the consideration for the sale, counsel for appel-lees objected on the ground that it had not been shown the two tracts were comparable, and further, because there had been no showing the Almon land was improved. The court sustained the objection, holding that appellants would have to develop a similarity between the properties before the question would be proper. Appellants contend this was error. We do not agree. Before this evidence would have been admissible, similarity between the two tracts must have been shown. St. Louis Iron Mountain & Southern Railway Co. v. Theodore Masefield Company, 94 Ark. 135, 126 S. W. 81. Such evidence was not offered; nor does the record reflect what the answer of the witness to the question would have been. No offer of proof was made. While not likely, —as far as we know, the answer might have been favorable to appellees; if that had been the case, appellants could not have been prejudiced by the court’s refusal to permit the question. Appellants’ argument is not well taken.

III.

Appellees’ cross examination of appellants’ witness, James Larrison, related to whether Larrison had had the same fixed opinion of the value of the property from the beginning, and included the specific question of whether Larrison had at one time submitted a higher figure to his employer, the Little Bock Municipal Water Works. An affirmative answer was given. The witness was subsequently asked, “To whom did you turn your appraisal over to?” Larrison replied, “Mr. Mc-Caskill was the agreed custodian of the files and we signed a statement for a joint figure which we recommended for negotiations to avoid a law suit.” Appellants immediately moved for a mistrial, which motion was denied, the court holding the answer to be a voluntary statement from the witness, and admonishing the jury to disregard same. Clearly, the above answer was not responsive to the question; a proper answer would simply have been, “Mr. McCaskill.” We are of the opinion that the questions asked on cross examination, seeking to ascertain whether the witness had ever had other than the one opinion of the market value of the property, were entirely proper, and entirely legitimate for the purpose of testing credibility. We do not agree with appellants that this answer was invited by appel-lees’ counsel, and feel it would be manifestly unjust to penalize appellees because of this voluntary response. The court committed no error in continuing with the trial.

IV.

Finally, it is contended that the court erred in dismissing the Board of Commissioners of the Little Bock Municipal Water Works as party plaintiffs. In the first place, we are unable to see that any prejudice resulted from this action. It cannot he said that the commissioners had a personal interest in the litigation; they were more or less nominal parties by virtue of the office they held, which fact certainly would have been known to the members of the jury. Be that as it may, we do not consider the contention well taken. The Little Bock Municipal Water Works was organized and operates under Act 131 of 1933, as amended. Act 215 of 1937 empowered city councils to appoint hoards of commissioners to operate the water works system. Said Act (Sec. 19-4223, Ark. Stats. Anno. 1947) provides that the commissioners should have complete authority to “* * * manage, operate, extend and maintain the municipal water works and distribution system, and shall have full and complete charge of said plant, * * * provided, said commissioners shall not have authority or power to sell, mortgage, or encumber said waterworks or distribution system. * * *” The power of eminent domain is an attribute of sovereignty, and the procedure for exercising same is a matter for legislative regulation. Common v. Felsenthal, 180 Ark. 1075, 24 S. W. 2d 856. The authority for the taking of private property for public use should he clearly expressed and the statute strictly construed. As found in Crawford on Statutory Construction (1940) Sec. 340, page 696: “Statutes which relate to the power of eminent domain should be strictly construed in favor of the landowner largely because they are in derogation of the common right. This rule is particularly applicable where there is an alleged delegation of the power. As a result of strict construction, the power itself must be clearly expressed by the statute or necessarily implied . . . * * However, we consider the implication of the language in the act to be against appellants’ interpretation. We do not feel that the authority to “sell, mortgage, or encumber” is of greater magnitude than the power or authority of eminent domain. Since the act clearly limits the boards’ authority in the former respect, we are unable to conclude that the legislature intended to confer the power of eminent domain to the commissioners. That there was extreme doubt concerning such authority being vested in the board is shown by the fact that the 1957 legislature, through Act 269, gave to the Board of Commissioners such authority.

On the whole case, we find no reversible error. Affirmed.

       “His was laid out in a circle of stalls with stanchions and a pipeline milker. He didn’t milk in a milk bucket. The milk ran into the milking machine and directly into his cooler. It was a very nice setup. * * * in a milking parlor your cows are on a raised elevation and you walk between the several stalls there in a circle, and you work your stanchion doors from your level, the floor level down there, it is a time saving device, and it saves walking and carrying feed and milk buckets and in the handling of your milk. It is designed to save time, and for cleanliness, too.”

       This pasture was planted with fescue, ladino clover and Bermuda grass.

       Date property passed to City of Little Rock.

       Appellate courts in the following states, among several others, have held such evidence admissible: New York, Wisconsin, Massachusetts, Louisiana, Idaho, Connecticut, Iowa, Ohio, and Maryland.

      . A “An Act Providing for the Condemnation of Property by Municipal Water Works Systems and For Other Purposes.”

      “Section 2. A municipality operating a waterworks system under the provisions of this Act shall have the right to acquire any property useful for municipal waterworks purposes by following the eminent domain proceedings herein set forth. A municipality’s right of eminent domain shall be exercised by the operating authority of the municipal watenvorks system.” (Emphasis supplied.)


author: J. SeaborN Holt, Associate Justice.

text:
    Turner v. Rust.
    5-1416
    309 S. W. 2d 731
    Opinion delivered January 20, 1958.
    [Rehearing denied March 3, 1958]

      Carlton Currie; Tudor Hampton, Great Bend, Kans., and B. V. Hampton, Pratt, Kansas, for appellant.

      Henry W. Gregory, Jr., and John Harris Jones, for appellee.
   J. SeaborN Holt, Associate Justice.

Appellant, Mary A. Turner, is the sole heir of John Rust who died January 20, 1954, being his daughter by a previous marriage. Appellee, Thelma Rust, is his surviving widow. John Rust was divorced from Mary’s mother in 1927 and the mother was awarded Mary’s custody, and later married a man by the name of Deitwiller. Deitwiller adopted Mary and Mary took the name of Deitwiller. Rust left a will dated 1936 in which no mention was made of appellant, Mary Turner.

Around 1930 Mr. Rust invented and patented a cotton picking machine and from this invention and patent rights he derived and accumulated considerable wealth. On December 27, 1944, he organized the World Foundation Trust, and as its sole trustee he administered this trust until December 1951. The purposes of the World Foundation were set out as: scientific, educational, philanthropic eleemosynary, and were, enumerated in 20 separate paragraphs, some of which were clearly for business purposes and some charitable. On the same date that the World Foundation was organized Rust assigned to this trust a license agreement (made the previous April) between himself and Allis-Chalmers Manufacturing Company under which license Allis-Chalmers agreed to manufacture cotton picking machines under the patents held by Rust, and to pay royalties to Rust. In April 1949 World Foundation and Rust individually executed a license contract with Ben Pearson, Inc., of Pine Bluff to manufacture cotton picking machines under the Rust patents. All patents held by Rust were assigned to World Foundation in May 1950 and December 1951.

On December 22, 1951, World Foundation, through Rust individually and as its sole trustee, entered into a trust agreement with appellee, National Bank of Commerce, whereby it was agreed that the bank as trustee would “collect and receive all royalties from the two licensees” above and from all sources and disburse these funds to the former stockholders of “Rust Cotton Picking Company” (a company which was organized to assist Rust to complete and perfect the invention of the cotton picking machine), to any other holders of royalty contracts and to World Foundation or its assigns as directed by the trust agreement "which provided: “This trust shall continue and he effective until such time as the persons, firms and corporations described in Paragraph 2B, 2C and 2D hereof have been paid in full the amount set forth and described in said exhibits and this trust shall then terminate and all transfers, assignments, powers, authorities and directions herein contained shall revert to and be invested in Foundation.” The bank so disbursed the funds coming into its hands, paying all claimants, amounting to more than $250,000 (except to three small claimants — totaling $1,000 — who could not be found) and has returned any balance to the World Foundation.

Under the provisions contained in the World Foundation Trust, it was provided: “Acting by its Trustee, the trust reserves the right to make, alter, amend or repeal any provision of this trust, provided, however, that it shall not change its fundamental nature and purpose. It further reserves the right to liquidate its affairs and terminate its existence if the Trustee, in his sole discretion, shall determine such action to be necessary or desirable, provided, however, that in the event of such termination of its existence and such liquidation of its affairs, its net assets, after such liquidation, shall be conveyed to some other person, non-profit corporation, association or organization in trust for like objects and purposes, . . . John D. Rust is declared to be the sole Trustee of this trust, and the trust shall act solely, exclusively and only by and through its Trustee as to all acts, things, matters and powers herein contained . . . ”

It appears undisputed that Rust owned individually all of the assets, which consisted of patent rights and royalties derived from the cotton picking machine, which went into the World Foundation and that he named himself sole trustee of that trust and in which, as indicated, he reserved the right to alter, liquidate and terminate the World Foundation just so long as he did not change the fundamental nature and purpose of the World Foundation. On December 28,1951, World Foundation by Assignment and Bill of Sale transferred one-balf of its assets to Jobn Bust Company, an Arkansas business corporation, and in consideration for which tbe Jobn Bust Company transferred and delivered to tbe World Foundation Trust all of its authorized capital stock, consisting of 1,500 shares of preferred stock and 12,500 shares of its common stock. On December 29, 1951, World Foundation transferred, by Assignment and Bill of Sale, tbe remaining one-half of all of its assets to tbe Jobn Bust Foundation, Inc., an Arkansas nonprofit benevolent corporation. December 31, 1951, Jobn D. Bust, trustee, liquidated and terminated tbe World Foundation Trust, transferring all of its net assets to Tbe John Bust Foundation, Inc., by the following instrument :

“Termination of Trust- — Know all Men by these Presents: Whereas, Tbe World Foundation, a trust, John D. Bust, Trustee, has heretofore liquidated its affairs and transferred its net assets unto tbe Jobn Bust Foundation, Incorporated an Arkansas corporation, organized for non-profit, charitable, educational literary and scientific purposes; and
“Whereas, the liquidation of the affairs of Tbe World Foundation and tbe transfer of its net assets as above set forth were in accordance with tbe terms and provisions of tbe Declaration of Trust of the World Foundation, dated December 27, 1944, reference to wbicb is hereby made, and tbe transfer of tbe operations, activities and net assets of the said World Foundation to The Jobn Bust Foundation, Incorporated, tbe objects and purposes for wbicb tbe said Tbe World Foundation was organized and declared as a trust, was within tbe general intent and purpose of said Declaration of Trust; and
“Whereas, tbe original objects and purposes of tbe said The World Foundation can better be carried out and performed through tbe future operations, activities, objects and purposes of tbe said Tbe John Bust Foundation, Incorporated; now
“Therefore, .!, John D. Rust, Trustee and Executive Director, of the said The World Foundation, acting within and in accordance with the powers and authority set forth in said written Declaration of Trust of December 27, 1944, do hereby declare the formal termination of the existence of the trust organized, declared and known as The World Foundation and, as its affairs and operations have thus been liquidated and its net assets transferred as above set forth, do hereby further cancel and bring to an end any and all operations, activities, objects and purposes of the said The World Foundation.
“Executed at Pine Bluff, Arkansas, on this 31st day of December, 1951. /s/ John D.. Rust, Trustee of The World Foundation, a Trust.”

It thus appears that with the Termination of the World Foundation Trust above, all assets of The World Foundation were transferred to The John Rust Foundation, Inc., a benevolent.corporation.

In November 1954 the present suit was filed by Mary Turner, in which she alleged that she was the daughter of John D. Rust, that the World Foundation created no trust, was absolutely void, that the trust assignments to Rust Company and Rust Foundation carried only the bare legal title and that the beneficial interest remained in Rust until his death, at which time, she, as his daughter, was entitled to such beneficial interest and his entire estate, since Rust’s widow, Thelma Rust, had released all interest in his estate. Appellees answered, denied all material allegations, and specifically alleged that Rust would have been estopped to claim an interest since he had acted as trustee of The World Foundation and was bound by his assignments and sales to Rust Company and Rust Foundation, and by his ratification and confirmation of the transfers, and that appellant, his sole heir, was estopped also.

On a trial and after an extended and patient hearing, the trial court found that the original trust (World Foundation) was void, but that appellant (Mary Turner) “is estopped by the conveyances and writings of John Rnst, through whom she claims, to attack the transfers to the defendants, John Rnst Company and John Rnst Foundation,” and further “that though John Rnst, Trustee, executed the assignments to defendants as Trustee, while he was at that time the individual owner of the beneficial interest, (because of the resulting trust) still he conveyed such beneficial interest, and was thereafter estopped to claim the property, which he purported to convey as Trustee. This is known as ‘Estop-pel by Deed’ . ... ‘intent’means .a great deal in determining the validity or invalidity of various instruments. Numerous letters and a course of conduct for a long period of. years convince me that John Rust had no desire to individually own any of his properties, it seems that almost from the beginning, he held the idea of a trust to benefit mankind, and persistently and consistently furthered this idea. I find nothing to indicate, much less establish, that he had a selfish or ulterior personal motive or simply devised a scheme to promote gain for himself in establishing the trust,” and dismissed her complaint for , want of equity. This appeal followed.

For reversal appellant contends that the World Foundation Trust was void from its inception and as a result John Rust, settlor, remained the sole owner of the assets described in the various sales and assignments in trust to The World Foundation, that “a resulting trust arose in Rust,” and the beneficial interest remained in Rust, and at his death (January 20, 1954) reverted to appellant, his only heir, and all assets that Rust conveyed to the Rust Company and the Rust Foundation.

The conclusion we have reached makes it unnecessary to decide whether the World Foundation Trust was void in whole or in part, or valid in whole or in part. If The World Foundation were void, as appellant earnestly contends, then all the assets that went into it, which it is undisputed belonged to John Rust personally at the time, remained the property of John Rust and would revert to and remain in him to dispose of as he saw fit, as if no trust had been created. If the World Foundation were valid then under its specific terms, above, John Rust, as its sole trustee, had the power and right to terminate it and create out of its assets the twp new trusts, the John Rust Company and the John Rust Foundation. He first created (December 28,1951) the John Rust Company (a business corporation) from one-half of the assets of World Foundation, but as consideration this corporation transferred and delivered all of its capital stock to World Foundation. Thus, when one day later, December 29, John Rust as trustee of The World Foundation created The John Rust Foundation out of the remaining one-half of World Foundation assets, World Foundation actually owned all the assets of John Rust Company, and when later (December 31) John Rust, Trustee, terminated and liquidated the World Foundation Trust, he assigned, transferred and delivered all of its assets to The John Rust Foundation, to carry on the benevolent purposes for which World Foundation was formed.

We think that the above assignments, — which had the same force and effect as deeds, — effectively conveyed all of Rust’s interest in the assets involved, including any beneficial interest by resulting trust or otherwise, that he had, all clearly in accordance with his intentions, as the chancellor found. Obviously, we think the burden of proof was on appellant, plaintiff in the trial court. “The party holding the affirmative of an issue must produce the evidence to prove it,” Sec. 28-101 Ark. Stats. 1947.

We agree with the chancellor that appellant is es-topped to claim any interest, beneficial or otherwise, by the various assignments and sales above made by John Rust, as trustee of World Foundation. The general rule applicable here as to these assignments is stated by the author of 6 C. J. S. Sec. 83, p. 1138 and Sec. 84 p. 1139, in this language: “An assignment will, ordinarily, be interpreted or construed in accordance with the rules of construction governing contracts generally, the primary object being always to ascertain and carry out the intention of the parties . . . To be valid, the assignment must adequately describe or identify the property or thing intended to be assigned (see supra Sec. 44); but, when such a description is inserted, the assignment, ordinarily passes to the assignee all of the rights, title, or interest of the assignor in or to the property or property rights that are comprehended by the terms nsed, or are within the intention or understanding of the parties, as ascertained in accordance with the general rules of construction; . .

As indicated, the trial court held that appellant (claiming as the sole heir of John Rust); was estopped to attack John Rust’s transfers and assignments to appel-lees under the doctrine of estoppel by deed, and we think correctly so. In the circumstances she stands in the same position as John D. Rust, her father, would have been had he sought to overturn those assignments and transfers. In this connection appellant argues that the World Foundation, being an invalid trust, held only naked legal title to the patents and license agreements, the entire beneficial interest being in Rust individually because of a resulting trust. Even so, we hold that the doctrine of estoppel by deed applies here, as the chancellor held, and that appellant is effectively estopped to claim her father’s beneficial interest. A grantor is estopped to assert anything in derogation of his deed. “ ‘No man shall be allowed to dispute his own solemn deed. ’ Thus a specific recital in a deed, to the effect that the grantor has title to or that he is in possession of the land conveyed, will estop him from asserting the contrary as against the grantee.” Henry v. The Texas Company, 201 Ark. 996, 147 S. W. 2d 742. The rule of estoppel by deed is also applicable in the assignment of patent rights and interest. “Further, the assignor cannot derogate from his own grant and thus he is estopped to deny his title, or to claim title against his assignee, as is a legatee of the assignor where the assignments had been executed but not recorded.” 69 C. J. S., Sec. 236, p. 750. “The analogy between estoppel in conveyances of land and estoppel in assignments of a patent right is clear. If one lawfully conveys to another a patented right . . . , fair dealing should prevent him from derogating from the title he has assigned, just as it estops a grantor of a deed of land from impeaching the effect of his solemn act as against his grantee.” Westing house Co. v. Formica Co., 266 U. S. 342, 350, 45 S. Ct. 117, 69 L. Ed. 316.

No error appearing, the decree is affirmed.

Harris, C. J., disqualified and not participating.


author: J. SeaborN Holt,-

text:
    Hendriksen v. Cubage.
    5-1425
    309 S. W. 2d 306
    Opinion delivered January 20, 1958.
    [Rehearing denied February 24, 1958]
    , Earl E. Hurt, for appellant.

      Witt & Witt, and Wootton, Land & Matthews, for appellee.
   J. SeaborN Holt,-

Associate Justice. This is the second appearance of this case here. In our opinion (April 18, 1956) on the former appeal (Hendriksen v. Cubage, Trustee, 225 Ark. 1049, 288 S. W. 2d 608) we said: “The record conclusively shows that the Trustees considered Granville Jones as a mere conduit of the legal title. We agree, therefore, with the trial court that Granville Jones did not have a fee title in the land at the time of his death, and that consequently his will passed no beneficial or equitable title . . . (paragraph) ... it follows from the record that the bare legal title to said land was in Granville Jones at the time of bis death, as a result of deed No. 3, and that this title passed by his' will to appellant and to his widow, Jessie Lyon Jones. Since Jessie Lyon Jones is deceased her portion of the title would of course vest in her legal heirs in the absence of a will by her. It is also clear that the equitable or beneficial title to the land vests in the Trustees of the Clingman-Jones Family Organization for the benefit of the lineal heirs of Drs. A. B. Cling-man and Alfred Jones. These Trustees are the ones named as grantees in deed No. 1 since, as we have indicated, the equitable or beneficial title was never conveyed by them. Since Granville Cubage is the only surviving Trustee the equitable or beneficial title now vests in him as such Trustee. Before appellant and Jessie Lyon Jones can be divested of the bare legal title, they would have to be made parties to litigation for that purpose. ’ ’

The mandate contained this recital: “. . . it is the opinion of the court that there is no error in so much of the proceedings and decree of said chancery court in this cause as held that Granville Jones did not have a fee title in the land at the time of his death and that his will passed no beneficial or equitable title to his daughter.

“It is therefore ordered and decreed that so much of said decree be and the same is hereby affirmed.

“But it is further the opinion of the court that there is error in so much of the decree as quieted title to the land in the Clingman-Jones Family Corporation, inasmuch as deed No. 5, under which it claims, was void because violative of the rule against perpetuities. The effect of these holdings is that Granville Jones held only the bare legal title of the lands in question and that is what passed to the appellant and the heirs of the widow of Jones. The equitable and beneficial title rests in the trustees under deed No. 1, Granville Cubage being the only surviving trustee.

“It is therefore ordered and decreed that so much of said decree be and the same is hereby, for the error of aforesaid, reversed, annulled and set aside and that this cause be remanded to said chancery court for further proceedings to be therein had according to the principles of equity and not inconsistent with the opinion herein delivered.”

Following remand, appellee, Granville Cubage, as trustee, for himself and for all members of the Jones-Clingman family, filed a cross-complaint in which he prayed that, “. . . the bare legal title to the land in controversy be transferred to him, as trustee, for the benefit of the estate and for all parties interested therein.” Appellant’s answer to this cross-complaint was a general denial, and allegations of fraud and violation of the trust by Granville Cubage. Her prayer was: . . that Defendants cross-complaint be dismissed, and that the Court divest all rights, titles and interests, in the lands in controversy, out of the Defendants, and out of Granville Cubage, as an individual and as a Trustee; and, that this Plaintiff, Polly Anna Hen-driksen, do have and recover the fee simple title to said lands, free and clear from any and all obligations; . . . and, that she, in all things, be quieted in her title to said lands, . .

On further hearing of the case and after additional testimony was presented by appellant, the trial court on July 12, 1957, entered a decree in accordance with ap-pellees’ prayer and cross-complaint. This decree contained these recitals: the court “doth find that all parties necessary for a full determination of this 'cause and the matters and facts set forth in. the respective pleadings. are before the court, as either parties plaintiff or defendant, or as assignees of said parties, and that this court has full and complete jurisdiction to determine all matters at issue herein; that the bare, legal title in the plaintiff Polly Anna Hendriksen be merged with the equitable title in the defendant, Granville Cubage as trustees for the members of the Clingman-Jones Family and that the defendant, Granville Cubage, has full title to the lands in controversy as said trustee. The court finds that all other issues raised by the plaintiff and the defendant are without equity and should be dismissed.

“It is? therefore, by the court, considered, ordered, adjudged and decreed that the bare legal title held by the plaintiff is merged in the equitable title held by the defendant Granville Cubage, as trustee for the Cling-man-Jones Family Group and that Granville Cubage, as such trustee, has full legal title to the lands embraced in the complaint and thát all other matters embraced in the complaint of the plaintiff and the response of the defendant be dismissed for want of equity. ’ ’

We hold that the decree was in compliance with our mandate above and is correct on the record before us. We have reviewed the testimony and find no evidence of fraud or violation of trust by Mr. Cubage. The primary and decisive question presented is whether the trial court correctly merged the bare legal title held by appellant in the equitable or beneficial title held by Granville Cubage, trustee. As indicated, we hold that the holding of the court was correct and not against the preponderance of the testimony.

The record reflects that on July 12, 1930, Jessie Lyon Jones executed and delivered a quitclaim deed to the land in dispute to Claude Jones, member of trustee family. Later, April 20, 1956, Jessie Lyon Jones executed and delivered quitclaim deed to Polly Anna Hen-driksen, so on the date of the execution of the last above quitclaim deed to Polly Anna Hendriksen, Jessie had no interest to convey.

The rule appears to be well established that “an equitable title to land is a present right to the legal title,” Carmichael v. Delta Drilling Co., Tex. Civ. App., 243 S. W. 2d 458, 460. Pomeroy’s Equity Jurisprudence, 5th Ed. Vol. 1, Sec. 147, p. 199, defines an equitable estate as follows: “An equitable estate in its very conception, and as a fact, requires the simultaneous existence of two estates or ownerships in the same subject matter, whether that be real or personal, the one legal, vested in one person, and recognized only by courts of law; the second equitable, vested in another person and recognized only by courts of equity . . . (p. 200) . . . the ownership of the equitable estate is regarded by equity as tbe real ownership, and the legal estate is, ás has been said, no more than the shadow ; . . (p. 201, Sec. 148) . . . the remedies given to equitable owner are intended to preserve his estate, and to protect it both against the legal owner and against third persons.”

Guided by these rules we conclude that the chancellor correctly merged the bare legal title with the beneficial interests held by Cubage, trustee. Affirmed.


author: Ed. F. McFaddiN, Associate Justice.

text:
    Woods v. Bournes.
    5-1427
    309 S. W. 2d 309
    Opinion delivered January 20, 1958.
    [Rehearing denied February 24, 1958]

      E. L. Hollaway, for appellant.

      James A. Robb, for appellee.
   Ed. F. McFaddiN, Associate Justice.

This suit stems from a conditional sales contract. On April 19, 1954 Appellant Woods (doing business as Woods Equipment Company) sold a tractor, to Augustine Bournes for a total consideration of $1,250. Bournes- executed to Woods two notes: (a) one note — signed only by Augustine Bournes- — -for $1,250 and interest, which retained title on the tractor and which was due in two equal annual installments in November of 1954 and 1955; and (b) another note for $1,250 and interest, due in two equal annual installments in November of 1954 and 1955. This note was signed by Augustine Bournes and Hazel Bournes, his wife; and was secured by a mortgage on 100 acres of land in Randolph County. The mortgage was duly signed and acknowledged by both Mr. and Mrs. Bournes and was recorded in March 1955.

Even though there were two notes, each for the full amount, it was clearly shown that there was only one item of indebtedness of $1,250, and no usury was contemplated or intended; and the separate notes were executed, not only to retain title, but also to provide additional security by reason of the real estate mortgage. Evidently the parties thought that a title retaining note could not also be secured by a real estate mortgage.

Augustine Bournes died some time after executing the notes. Nothing Avas paid; and on August 27, 1956 Woods filed the present suit to foreclose his mortgage on the lands. He named the Avidow and heirs and administrator of the estate of Augustine Bournes as defendants, and also named James M. Bournes and Rex Dismang, Avhose interests Avill be later discussed in Topic II.

The common defense by all defendants was that Woods had repossessed the tractor and thereby cancelled the indebtedness, Avith the result that he could not sue to foreclose the mortgage on the land. Trial in the Chancery Court resulted in a decree holding that. Woods, by repossessing the tractor, had cancelled the debt and could not sue to foreclose the real estate mortgage, since it was security for the debt — i. e., the purchase price of the tractor. From such decree, Woods brings this appeal and presents the íavo points now to be discussed.

I. Repossession Of The Tractor As Cancelling The Indebtedness. The note for $1,250 signed by Angnstine Bonrnes recited: “This note is given for the purchase of property, to-wit: Massey Harris 22 Tractor Serial No. 22G-3106-2-14 B. Plow 5-ft. Disk Harrow and it is agreed that the title thereof shall remain in the said Woods Equipment Company, his successors or assigns, until the purchase price or judgment for same is paid in full.” In a long line of cases on conditional sales, this Court has recognized that on default of payment by the maker, the holder of such note has a choice of two remedies: (a) he may disaffirm the sale and repossess the property; or (b) he may affirm the sale and sue on the debt. Some of our cases so holding are: Nashville Lbr. Co. v. Robinson, 91 Ark. 319, 121 S. W. 350; Hollenberg Music Co. v. Barron, 100 Ark. 403, 140 S. W. 582, 36 L. R. N. S. 594, Ann. Cas. 1913C 659; Loden v. Paris Auto Co., 174 Ark. 720, 296 S. W. 78; and Gale & Company v. Wallace, 210 Ark. 161, 194 S. W. 2d 881. If the holder of the note disaffirms the sale and repossesses the property, he cannot thereafter sell the property and claim a deficiency judgment. Noble Gill Pontiac Co. v. Bassett, 227 Ark. 211, 297 S. W. 2d 658.

Appellant recognizes the holdings as stated above, but strenuously insists that he did not disaffirm the sale as such, but only took possession of the tractor to preserve it against loss; and that the disaffirmance rule does not apply in the case at bar. This brings us to the necessity of a recital of salient facts. It was shown that after the death of Augustine Bournes, his wife remarried and moved away; that she left the tractor under a shed on the premises; that she went to Woods and urged him to take possession of the tractor in satisfaction of the debt; that Woods refused such request, claiming that he had a real estate mortgage as security; that later Woods learned that various persons were using the tractor at will; that Woods then had the tractor brought to his place of business for safekeeping; that Woods then had the tractor appraised and advertised for sale. Here is his testimony on that point:

“Q. Did you offer it for sale ?
A. Yes.
Q. Who got it?
A. We advertised it in the papers, and no one appeared, and we had three appraisers to look at it.
Q. You did not get any bids for it?
A. No.”

Of course, Woods could have kept the tractor at his place of business for safekeeping without thereby, ipso facto, disaffirming the sale; but his intentions to dis-affirm were indicated by his conduct in advertising the tractor for sale; and the Chancery Court held that under the facts herein recited, Woods had disaffirmed the sale. The learned Chancellor said in his opinion from the bench at the conclusion of the trial:

“. . . the plaintiff himself made one statement that, in the Court’s mind, is conclusive; and that was, that while he had possession of the property sopie time ago he did offer the tractor for sale; and that cannot be reconciled in the Court’s mind with the idea that he took it merely for safekeeping.”

•Holding property for safekeeping is a species of bailment; but offering the property for sale, without other authority than possession, is the exercising of a species of ownership which justifies the conclusion that there was a disaffirmance of the conditional sale. We cannot say that the preponderance of the evidence is contrary to the inferences and conclusions which the Chancellor drew from Woods’ conduct.

II. Right Of Defendants To Plead That The Plaintiff’s Debt Was Cancelled. James M. Bournes also held a mortgage on the 100 acres of land here involved; he had foreclosed Ms mortgage without making Woods a party to Ms suit; and the land had been sold to Dismang. In the present suit, James M. Bournes and Dismang were defendants; and they, along with the guardian ad litem for the minor children of Augustine Bournes, pleaded that Woods, by repossessing the tractor, had cancelled the indebtedness secured by the mortgage and should not be permitted to sue on his real estate mortgage, which was security for the tractor indebtedness. The Trial Court sustained such defenses. On this appeal, Woods says that neither James M. Bournes, nor Dis-mang, nor the guardian ad litem, should have been permitted to make such a defense.

We find no merit in appellant’s contention on this point. When Woods sued on his mortgage he made James Bournes and Dismang parties defendant and asked that their rights in the lands be foreclosed. In 59 C. J. S. ‘ ‘ Mortgages, ” § 146, the applicable general rule is stated:

“The right to contest the validity of a mortgage by way of defense or affirmative attack belongs not only to the mortgagor and those claiming under him, but also to third persons whose rights or interests are injuriously affected by the mortgage, such as junior mortgagees, or other creditors whose rights or interests are injuriously affected by an invalid mortgage, . . .”

When the indebtedness secured by Woods’ mortgage had been satisfied, the mortgage could not be foreclosed. Ford v. Nesbitt, 72 Ark. 267, 79 S. W. 793; Ellis v. Jones, 223 Ark. 681, 267 S. W. 2d 955.

Affirmed.

       James Bouynes claimed that his mortgage was superior to that of Woods, but our disposition of the case makes it unnecessary to discuss that matter.

       The note described another implement in addition to the tractor. In the evidence and trial, the parties evidently used the word “tractor” as including the other implement.

       In suing on the debt the holder of the note may also, if he desires, have the property attached under § 34-2301 et seq. Ark. Stats. See Olson v. Moody, 156 Ark. 319, 246 S. AV. 3; and Jones v. Cox, 227 Ark. 750, 301 S. W. 2d 12.


author: MiNOR W. Millwee, Associate Justice.

text:
    Hunt v. Jones.
    5-1390
    309 S. W. 2d 22
    Opinion delivered January 20, 1958.

      Parker Parker and Gaviness & George, for appellant.

      John B. Thurman and Robert J. White, for appellee.
   MiNOR W. Millwee, Associate Justice.

This is a suit by eleven of the seventeen cousins and collateral heirs of Miss Jessie McCray, deceased, to set aside two deeds which she executed to appellees, G-arrett Jones and Evelyn Jones, his wife, on the grounds of mental ineompetency and lack of consideration. The first deed to 100 acres of Arkansas River bottom land was executed on May 5, 1953, and the second deed to a small store building in Dardanelle, Arkansas, was executed February 25, 1954. A rather belated amendment to the complaint also charged that Miss McCray was induced to execute the deeds through the fraud, trickery and undue influence of appellees and others who were not made parties to the suit. Appellees answered with a general denial and, in addition, pleaded estoppel and res judi-cata by reason of appellants’ election to maintain and settle a separate suit against persons other than appel-lees for misappropriation of the $15,000 purchase price of the 100-acre tract.

Appellee, Garrett Jones, died testate prior to the trial and the cause was revived in the name of his widow as executrix. After an extensive hearing covering 700 pages of testimony and exhibits the chancellor on exchange found the issues in favor of appellees; that Miss McCray possessed the requisite mental capacity to execute the two deeds in question; and that each of said instruments was supported by valuable and adequate consideration. The principal issue here is whether these findings are against a preponderance of the evidence.

Miss Jessie McCray was 86 years of age at the time of her death on August 17, 1954. She was reared at Dardanelle, Arkansas, where she spent most of a very active and useful life as a registered nurse but also traveled extensively in this and other countries with wealthy patients. She was a tall, stately and attractive woman with strong feelings and pronounced likes and dislikes. Her family consisted of her father, mother and two brothers who predeceased her. She was the sole surviving heir of her brother, A. S. McCray who died in June, 1952. Prior to his death Miss McCray owned her home and other real property besides the two parcels of land involved herein which she inherited from him. She had previously owned the 100-acre tract as a gift from her mother but had deeded it to A. S. McCray in 1947. Miss McCray and Attorney Herbert C. Scott were appointed co-administrators of the A. S. McCray estate. Upon conclusion of the administration the remainder of the estate was delivered to her in February, 1953. She had offered the 100 acres for sale to various persons receiving offers ranging from $7,500 to $11,000 prior to May 5, 1953, when she concluded the sale to appellees and executed the first deed for a consideration of $15,000 which was demanded and paid in cash. Then she sold and conveyed the store building to appellees for $500.

The testimony as to Miss McCray’s mental capacity to execute the deeds in question is in sharp dispute. "We first consider briefly the medical evidence. Drs. Brooks Teeter, "W. P. Scarlett and Elizabeth Fletcher testified on behalf of the appellants. Dr. Teeter first saw and treated Miss McCray on May 29,1954, when she was admitted to a hospital at Russellville at her own request. During the first three days of her hospitalization and at intervals thereafter until her death her mind was clear but at other times she was noisy, belligerent and mentally confused. She then had arthritis and arteriosclerosis and he noticed nothing to indicate that she was mentally incompetent when she entered the hospital and he could not say what her mental condition was when she executed the two deeds.

Dr. Scarlett was reared in Russellville and his wife grew up in Dardanelle and is a half sister to one of the heirs. They were friends of the McCray family and would visit Miss McCray and others in Dardanelle and Russellville two or three times a year. Dr. Scarlett noticed a marked mental change in Miss McCray beginning about 1946 when she would ramble in her conversation and make what he regarded as irrational statements about her foreign trips and some candlesticks she had brought hack from England. Particularly after 1952 he noticed that her clothes were dirty and that she had become a disorderly housekeeper. He thought she wanted to give everything she owned away and said she did give all her valuable antiques away but would not give any of them to Mrs. Scarlett. There was other evidence that she sold the antiques. He believed she was definitely off mentally when she told them she was giving some of her money to Mayo Clinic and Tulane University. He diagnosed her condition as senile dementia and stated she was mentally unfit to handle her brother’s estate in 1952, and told one of the heirs about a year later, “they were silly not to put her down in Little Rock where she belonged.”

Dr. Fletcher is a psychiatrist and saw Miss McCray only once in the hospital 10 days prior to her death. Miss McCray was then under narcotics, about to die and incapable of revealing any case history. After talking with Dr. Scatlett, Mrs. Bessie Hunt and others, and after listening to appellants’ witnesses testify, Dr. Fletcher concluded that Miss McCray’s personality changed and she became “paranoid” and “psychotic” about 1945. As to her mental competency on May 5, 1953 and February 25, 1954, Dr. Fletcher gave a “yes and no” answer stating that Miss McCray perhaps then knew the extent, nature and value of her property but the fact that she might then have been acting under the influence of some unidentified person still rendered her incompetent. While she felt that Miss McCray doubtless had arteriosclerosis at the time she executed the deeds she could not say that she was then suffering from it in such a degree as to render her incompetent. She also stated that Miss McCray’s mental condition could vary from week to week. If she had heard appellees’ witnesses testify that might have altered her opinion as to Miss McCray’s mental competency at the time she executed the deeds.

Dr. Frank Cavias, called by appellees, was Miss McCray’s personal physician and treated her on occasions from November 28, 1945 until she went to the hospital in Russellville in May, 1954. While Dr. Cavias was a general practitioner and reluctant to testify concerning Miss McCray’s mental competency, he never detected any signs of paranomia or any evidence of any other mental disability in Miss McCray prior to May, 1954, when she told him she was not in position to remain at her home and asked that she be taken to a hospital. The fact that she was rational enough to appreciate her condition and realize that she needed additional treatment was some indication to the doctor of her sound intellect. He was a witness to her will in August, 1952, and in all his associations with her he never observed any symptoms indicating mental incompetency.

It would serve no useful purpose and unduly extend this opinion to attempt to detail the testimony of the 40 lay witnesses. Some of the appellants and several neighbors of Miss McCray thought she was incompetent because in the last few years of her life her memory was bad, she was not as friendly, orderly and neat as formerly, used beer and gin whereas she had formerly been a prohibitionist, or seemed to prefer the association and confidence of a few friends who were unrelated to her to the exclusion of a few of the appellants and others with whom she had formerly been more closely associated. There was evidence that she was curious about those who visited her neighbors, would admit visitors only through the rear of her home and enforced a time limit on the visits of a minister. One of the appellants and another neighbor, who had formerly been close associates stated she ordered them ont of her home bnt the former conceded that her consin knew the value and extent of her property during 1953 and part of 1954.

Appellees produced several business and professional people including a merchant, a druggist, a lawyer, a real estate agent and bank officials who testified concerning their dealings with Miss McCráy and to other facts indicating that she had sufficient mental capacity to execute the deeds in question. In the numerous transactions she had with them before and after execution of the deeds they considered her to be thoroughly competent. The notary and others present at the time of the execution of the two deeds observed no indication of mental incompetence on her part.

Appellants failed to establish their contention either that the consideration for the two deeds was inadequate or that Miss McCray actually did not receive it. The evidence is overwhelming to the effect that $15,000 was more than a fair price for the 100-acre tract and those present when the deed was executed stated that it was paid to Miss McCray in cash just as she had demanded. While more than $500 might have been obtained for the store building, it was in a bad state of repair, renting for only $15.00 per month, and the price paid cannot be said to be shockingly inadequate.

Since the sanity and mental capacity of Miss McCray to make the deeds in question is presumed, the burden rested on the appellants to show her mental incapacity to execute them by a preponderance of the evidence. Gibson v. Gibson, 156 Ark. 528, 246 S. W. 845. As this court said in Pledger v. Birkhead, 156 Ark. 443, 246 S. W. 510: “The familiar principles of law applicable to cases of this kind have often been announced by this court. If the maker of a deed, will, or other instrument has sufficient mental capacity to retain in his memory, without prompting, the extent and condition of his property, and to comprehend how he is disposing of it, and to whom, and upon what consideration, then he possesses sufficient mental capacity to execute such instrument. Sufficient mental ability to exercise a reasonable judgment concerning these matters in protecting his own interest in dealing with another is all the law requires. If a person has such mental capacity, then, in the absence of fraud, duress, or undue influence, mental weakness, whether produced by old age or through physical infirmities, will not invalidate an instrument executed by him. McCulloch v. Campbell, 49 Ark. 367; Seawell v. Durst, 70 Ark. 166; Taylor v. McClintock, 87 Ark. 243-247; McIlroy v. Tucker, 115 Ark. 430.”

Justice Hast, speaking for the court, in Bilyeu v. Wood, 169 Ark. 1181, 278 S. W. 48, stated the rule this way: “To invalidate a deed on the ground of the grant- or’s mental incapacity, the proof must show that the grantor was incapacitated from intelligently comprehending and acting upon the affair out of which the transaction grew, and that he did not intelligently understand and comprehend the nature and consequences of his act. In other words, the mental capacity at the time of signing a deed sufficient to comprehend the nature of the transaction is the standard fixed by the law for determining the mental competency of the person signing the deed.” See also, Atwood v. Ballard, 172 Ark. 176, 287 S. W. 1001; Sharp v. Oates, 178 Ark. 983, 13 S. W. 2d 15; Culling v. Webb, 208 Ark. 631, 187 S. W. 2d 173; Petree v. Petree, 211 Ark. 654, 201 S. W. 2d 1009.

While we must view this highly conflicting and sharply disputed evidence from the printed page, the chancellor had the advantage of observing most of the witnesses as they testified. After carefully considering all the testimony of these witnesses and the probable bias or prejudice that might exist on account of the relationship or interest of some of them, along with all other matters brought into this record, we cannot say the chancellor decided the issues against the preponderance of the evidence. This conclusion renders it unnecessary to determine whether appellants were estopped to maintain the instant suit by reason of having previously elected to maintain and make a substantial settle-1 ment of a separate suit against others for the $15,000 purchase price of the 100-acre tract. We have also carefully considered appellants’ objections to the admission of certain evidence and find no error in that respect. The decree is accordingly affirmed.


author: George Bose Smith, J.

text:
    Evans v. Sawyer.
    5-1439
    309 S. W. 2d 25
    Opinion delivered January 20, 1958.

      Switzer & Switzer and DuVal L. Purkms, for appellant.

      A. James Linder, William S. Arnold, Y. W. Ethe-ridge and Herman L. Hamilton, Jr., for appellee.
   George Bose Smith, J.

In this proceeding the appellant, Charles E. Evans, Jr., contests the will of his mother, Winnie Evans Hill, on the grounds of testamentary incapacity and undue influence. In the trial court the will was upheld and admitted to probate,,

Mrs. Hill, a lifelong resident of Ashley county, died March 11, 1956, at the age of fifty-eight. She was survived by her son, who lives in Mississippi, and by two sisters, Mrs. Genie Porter of Glastonbury, Connecticut, and Mrs. Yelma Benjamin, of Houston, Texas. By her will, executed on October 19, 1955, Mrs. Hill left substantially one half of her estate to Mrs. Porter, one fourth to Mrs. Benjamin, and one fourth, to a practical nurse, Mrs. Nettie Arrington, on condition that Mrs. Arrington he in the employ of the testatrix at her death. The appellant’s two minor children were made contingent beneficiaries if any of the principal bequests should fail.

It is the appellant’s contention that his mother had been ill for some twenty years before her death and that the illness resulted in mental incompetency several years before the will was signed in 1955. It is also asserted that the beneficiaries of the will unduly influenced the testatrix, but there is very little proof to support this assertion. Both of Mrs. Hill’s sisters have been nonresidents for many years. Mrs. Porter, the chief beneficiary under the will, had not even seen Mrs. Hill for more than two years before the will was executed. Mrs. Benjamin came to Arkansas for a brief visit about three weeks before the will was executed, but there is nothing to indicate the exercise of a sinister influence upon the testatrix. Nor do we find any proof of wrongful conduct on the part of the remaining beneficiary, Mrs. Arrington. Without discussing this issue at length, it is enough to say that the trial court’s rejection of the charge of undue influence is not against the weight of the evidence.

On the principal issue of testamentary capacity the law is so well settled in this state that there is no need for us to restate the familiar rules that control this case. The basic question is whether the probate court’s finding of testamentary capacity is contrary to the preponderance of the proof. The record is much too large to warrant a detailed review of all the testimony. We are convinced that the weight of the evidence supports the trial court’s conclusion and shall state only some of the salient facts that confirm our view.

The testatrix married her first husband, Charles ft. Evans, in her teens and lived with him until his death in January of 1947. A few months after Evans died the testatrix married a man named Gibson and made her home in Louisiana for a short time. In the summer of 1947 the appellant filed a suit against his mother. The complaint charged her with fraud in connection with an undelivered deed and asserted that she was wrongfully dissipating the estate of Evans senior, who had died intestate. This case was settled in 1948 by the entry of a consent decree dividing the Evans estate between the mother and son. Most, if not all, of the property owned by Mrs. Hill at her death was derived from the estate of Evans. In July of 1955 the appellant again sued his mother with respect to the property involved in the earlier case. This suit was compromised by a consent decree entered two days before Mrs. Hill’s death.

The litigation we have mentioned tends to show that Mrs. Hill’s failure to provide for her son in her will was not the result of mental incapacity. We may fairly infer that the suits brought by the son against his mother led to some estrangement between the two; certainly their relation was not close after 1947. We may also fairly suppose that the testatrix, in making her will, adopted the view that her son had already received, through litigation, his just share of his father’s former holdings. Finally, it must be noted that each suit proceeded to a decree without the appointment of a guardian ad litem for the defendant. Thus it seems that the appellant, in his mother’s lifetime, was not sufficiently convinced of her incompetency to take the precaution of having a guardian appointed as a safeguard to his interest as well as hers in the land involved in that litigation.

It is shown that the testatrix suffered from arthritis and from arteriosclerosis for a number of years before her death at the age of fifty-eight. In the course of her painful illnesses Mrs. Hill consulted many physicians. These expert witnesses are not in agreement as to her testamentary capacity; their conflicting testimony is fairly evenly balanced.

Dr. Wright, whose clinic is in Louisiana, attended Mrs. Hill occasionally over a period of twelve years and thinks that she was incompetent to make a will on October 19,1955. Within a month after that date Dr. Wright observed Mrs. Hill and recorded a diagnosis of dementia praecox. Another physician, Dr. Wood, who treated Mrs. Hill on a few occasions in 1955, expresses the opinion that she was then unable to transact ordinary business.

On the other hand, the testimony of Dr. Regnier and Dr. Delaney is persuasive. Within the month preceding the execution of the will Mrs. Hill was an in-patient at the Orossett Health Center, from September 19 to October 5, under the care of Dr. Regnier. The detailed records of the hospital rather strongly negative the suggestion of mental incapacity. Dr. Regnier’s opinion that his patient was able to make a will is shared by Dr. Delaney, who attended Mrs. Hill on the day after the will was signed.

The testimony of the lay witnesses is also in conflict, but in our judgment it preponderates in favor of the will. W. S. Arnold, who drafted the instrument, was called as a witness by the contestant, although Arnold was one of the attorneys for the proponents of the will. This attorney had been employed by Mrs. Hill to defend the second suit brought against her by her son. Mrs. Hill’s third husband, Bradley Hill, died while she was in the hospital at Orossett. After her return to Hamburg she telephoned Arnold and asked him to come to her home to discuss the preparation of a will. Arnold visited her on October 11 and obtained the information needed for the drafting of the will. Mrs. Hill enumerated her relatives — without prompting, as Arnold did not know who her relatives were. She also furnished him with a correct description of her land and with the birth dates of her two grandchildren. The testatrix selected as attesting witnesses a banker, an abstracter, and a merchant. After having prepared the will Arnold returned to Mrs. Hill’s home on October 19, with the witnesses, and the instrument was duly executed.

The three attesting witnesses made the usual proof of the will and, as far as they were examined in the matter, confirmed the existence of testamentary capacity. An attorney, Y. W. Etheridge, testified in the case before he was employed to represent one of the proponents of the will. Etheridge had known Mrs. Hill for thirty years and had been her neighbor for three or four years before her death. It was his positive and unqualified opinion, based upon almost daily observation, that Mrs. Hill had the mental capacity that the law requires on the part of a testator.

Without further detailing the evidence we conclude from the record that the trial court’s findings are supported by the weight of the testimony.

Affirmed.


author: Paul Ward, Associate Justice.

text:
    McDaniel v. Tolbert.
    5-1421
    309 S. W. 2d 326
    Opinion delivered January 20, 1958.
    [Rehearing denied February 24, 1958]

      James E. McDaniel and William B. Howard, for appellant.

      Douglas Bradley, for appellee.
   Paul Ward, Associate Justice.

H. D. McDaniel and D. H. McDaniel, d/b/a McDaniel Construction Company, a partnership, are engaged in the general contracting business with their principal office located at Jonesboro. They may hereafter he referred to as the Company. On July 6, 1957, and for some weeks prior thereto, they were engaged in the construction of a building to he used and occupied by the Colson Corporation on lands at the municipal airport in Jonesboro. Prior thereto the Company had erected a building near by for the Frolic Footwear Company. On these jobs the Company had, at times, used both union and non-union labor.

On the date above mentioned the Company’s union employees — members of Carpenters and Jointers Union Local No. 1440 and International Hod Carriers Union Local No. 1328 — went on strike and established a picket line adjacent to the Company’s place of operation. Soon thereafter, on July 11th, the Company filed a complaint in the Chancery Court against the above named unions, asking that a temporary restraining order be issued against the picketing.

In the complaint it was alleged that the members of the unions were congregating on and obstructing a road leading to the construction job for the express purpose of hindering the plaintiff in proceeding with its work, and that the picket was for the purpose of impelling the plaintiff to hire only union labor in violation of Amendment No. 34 to the Constitution of Arkansas. In other words, the complaint alleges that the picketing was being conducted in an unlawful manner and for an unlawful purpose. It was further stated that the illegal acts of the defendants will produce irreparable injury for which there is no adequate remedy at law. The prayer was that “the court should issue this temporary restraining order and that upon the hearing granted, it should be made permanent.”

No temporary order was immediately issued by the court. A few days later, before appellees had filed an answer or other pleading except a motion relating to plaintiffs’ bond, the Chancellor heard testimony on behalf of the plaintiff. At the conclusion of this testimony appellees entered an oral demurrer. Thereupon the court found and ordered as follows:

1. Defendant, Carpenters and Jointers Local Union No. 1440 admit that they are picketing plaintiff’s construction job known as the Colson Plant in or near Jonesboro, Arkansas.

2. That defendant, Carpenters and Jointers Local Union No. 1440 have agreed (though not confessing guilt) in open court that their pickets should not block the ingress and egress of traffic on the public or private roadway by lingering or walking slowly across either said roadway.

3. That defendant’s demurrer to the evidence should be sustained with the exception of an injunction against blocking the ingress and egress of traffic on the public or private roadway.

IT IS THEREFORE ordered and decreed that the plaintiff’s prayer for temporary injunction against all picketing should be and is hereby denied, but defendants are enjoined temporarily to the extent that the pickets will not block the ingress and egress of traffic on the public and/or private roadway by lingering or walking slowly across either or in any other manner. The court retains jurisdiction for such other orders as to it may seem proper pending final■ hearing, (emphasis supplied) .

Appellants, appealing from that portion of the Chancellor’s order which denied a temporary injunction against all picketing, take the positions that the testimony “establishes a prima facie showing for a temporary restraining order,” and that “the Chancellor was under a mandatory duty to overrule the demurrer to the evidence.”

The burden of appellants’ argument is centered around the assumption that the rule in Werbe v. Holt, 217 Ark. 198, 229 S. W. 2d 225, applies here. The rule relied on (as it applies here) was stated by this court, in the cited case, in these words; “. . . it is the trial court’s duty, in passing upon ... a demurrer to the evidence . • . . to give the evidence its strongest probative force in favor of the plaintiff and to rule against the plaintiff only if 'his evidence when so considered fails to make out a prima facie case.” (Emphasis supplied).

It is our conclusion, however, that the rule above mentioned does not apply in this particular situation. As acknowledged by appellants, the holding in the Werbe case was based upon Act 470 of 1949 (Ark. Stats. § 27-1729). This statute, after providing that the defendant may file a motion challenging the sufficiency of the evidence (as appellees did here) contains this language: “Thereupon, the Chancellor shall consider and determine such motion: and if such motion be sustained, he shall thereupon dismiss the cause of action.” (emphasis supplied).

It is undisputed, in the case under consideration, that the Chancellor did not dismiss appellants’ cause of action. On the other hand it affirmatively appears, from the excerpt of the order copied above, that the “Court retains (retained) jurisdiction for such other orders as to it may seem proper pending a final order.” (emphasis supplied). Consequently we hold that neither Ark. Stats. § 27-1729 nor the said rule based thereon is applicable here where the court entered only a temporary order and where, consequently, appellants’ complaint was not dismissed.

In view of the above conclusion, the only remaining question is: Did the trial court abuse its discretion in refusing to grant the temporary injunction? See: Riggs v. Hill, 201 Ark. 206, 144 S. W. 2d 26, Jones v. Bartlett, 209 Ark. 681, 191 S. W. 2d 967, and; Harrison v. Terry Dairy Products, Inc., 225 Ark. 953, 287 S. W. 2d 473. The rule announced by these and other cases is well stated in 28 Am. Jur. page 500, § 328.

Since appellants make no effort to show that the Chancellor abused his discretion in refusing to grant the temporary relief asked for, we deem it unnecessary to recount in detail all the testimony introduced by the appellants. Suffice to say appellants were not in all instances paying union wages, and the picket signs were to the effect that the strike was because of sub-standard wages and working conditions. It is the contention of appellants, however, that the above reasons assigned by the unions were mere subterfuges, and that in fact they were picketing for a closed shop, and that this court should pierce the sham and examine the real reason.

A careful examination of the testimony offered by appellants to show that the unions were picketing for an unlawful purpose, i. e. for a closed union shop, does not convince us that the Chancellor abused his discretion in refusing to grant the temporary injunction. Their main reliance is upon the testimony of one of the appellants, H. D. McDaniel. This testimony was to the following effect: He made a deal with the same unions for a closed shop on the Frolic Footwear job, with the exception of three men, and they requested the same deal on the Col-son job. He told them he could not go along with those terms, and some days later the strike was called and the picket line was established. The inference which appellants draw from the above is, obviously, that the unions were picketing for a closed shop and not for higher wages or better working conditions. But since appellants had to rely on an inference and in the absence of more positive testimony to support the allegations of their complaint, we do not feel justified in holding that the Chancellor abused his discretion in refusing to issue the temporary injunction.

Affirmed.


author: Sam RobiNsoN, Associate Justice.

text:
    Beshea v. Vlazny.
    5-1402
    309 S. W. 2d 28
    Opinion delivered January 20, 1958.

      W. H. Kitchens, Jr., and A. B. Cheatham, for appellant.

      J. W. Patton, Jr., for appellee.
   Sam RobiNsoN, Associate Justice.

This action was filed in 1955 by appellants to clear the title to twenty acres of land. The property was sold for delinquent taxes for the year 1941. The tax deed was issued to Mrs. Vlazny, the appellee, in 1944, and she paid the taxes each year thereafter. At one time she offered to convey the property to appellants if they would reimburse her for what she had been out in taxes, but her offer was not accepted. The tax deed gave appellee color of title. Fuller v. Terrill, 226 Ark. 1040, 295 S. W. 2d 625; Cayce v. Nordin, Trustee, 221 Ark. 383, 253 S. W. 2d 338; Bradbury v. Dumond, 80 Ark. 82, 96 S. W. 390; McKewen v. Allen, 80 Ark. 181, 96 S. W. 392; Brandon v. Parker, 124 Ark. 379, 187 S. W. 312; Terry v. Drainage Dist. No. 6, Miller Co., 206 Ark. 940, 178 S. W. 2d 857; Shelly Oil Co. v. Johnson, 209 Ark. 1107, 194 S. W. 2d 425.

Ark. Stat., § 37-102, provides:

“Unimproved and uninclosed land shall be deemed and held to be in possession of the person who pays the taxes thereon if he have color of title thereto, but no person shall be entitled to invoke the benefit of this act (section) unless he and those under whom he claims shall have paid such taxes for at least seven (7) years in succession, and not less than three (3) of such payments must be made subsequent to the passage of this act.”

It is conclusive that Mrs. Vlazny has color of title and paid the taxes for more than seven years in succession. She therefore acquired good title by adverse possession if the lands were unenclosed and unimproved. This was a question of fact, and we cannot say the Chancellor’s finding that the lands were unenclosed and unimproved is ag’ainst the preponderance of the evidence. Perhaps at one time the property had been improved to some extent and may have been enclosed by some kind of fence, but the evidence is convincing that at the time of the forfeiture for nonpayment of taxes and at the time of the issuance of the tax deed the property was not enclosed nor was it improved. If it had ever been improved, it had reverted to a state of nature.

In Moore v. Morris, 118 Ark. 516, 177 S. W. 6, it is stated:

“The statute applies only to ‘unimproved and unin-closed land’; that is to say, land that is wild and in a state of nature. This does not mean, however, that the lands must never have had any other status, for improved lands may be permitted to return to a state of nature. The statute relates to the condition of the lands at the time the payment of taxes is made under color of title, regardless of the former state of the lands; and if at that time they are unimproved and uninclosed, that is to say in a wild state as before the improvements were first made, then they fall within the terms of the statute and such payments amount to occupancy which will in course of time ripen into title by limitation.”

See, also, Wimberly v. Norman, 221 Ark. 319, 253 S. W. 2d 222.

Appellant Cheatham makes the further contention that he has an interest in the property and that the Soldiers’ and Sailors’ Relief Act gives him the right to redeem at this late date. The record, however, does not show that Mr. Cheatham owns any interest in the property.

Affirmed.


author: Per Curiam.

text:
    Swank v. Edmonds. Brimson v. Brimson.
    5-1280
    Opinion delivered January 20, 1958.
   Per Curiam.

The motion for clarification of the judgment is denied. The opinion in this case was delivered June 24, 1957, and petition for rehearing was denied September 30, 1957. See Brimson v. Brimson, 227 Ark. 1045, 304 S. W. 2d 935.

We issued our mandate on October 2, 1957, and it was filed in the trial court. There, some question arose as to our opinion; and, the appellee then filed in the Supreme Court the present “motion to clarify judgment.” When the mandate was filed in the trial court the Supreme Court lost jurisdiction. American Co. v. Wheeler, 183 Ark. 550, 36 S. W. 2d 965.