author: George Bose Smith, J.

text:
    Monsanto Chemical Company v. Robinson.
    5-830
    290 S. W. 2d 6
    Opinion delivered February 20, 1956.
    [Rehearing denied June 4, 1956.]

      Qaughan, McClellan é Laney; Davis & Allen and Wallace Davis, for appellant.

      John R. Thompson, W. S. Mitchell and Edward L. Wright, for appellee.
   George Bose Smith, J.

This is a suit by the appellants to enjoin the members of the Public Service Commission from hearing an application for a rate increase that was filed by the Arkansas Louisiana Gas Company. The chancellor sustained a demurrer to the complaint and dismissed the suit. The only question is whether a cause of action is stated.

The complaint alleges that on March 14, 1955, the gas company filed with the Commission an application for an increase in its rates to industrial consumers. The new schedule proposed by the applicant may be described as consisting of two parts. First, there is the usual graduated scale of prices for gas, the rate decreasing as the purchaser’s consumption increases. The plaintiffs concede that this basic rate schedule is legal in form. Second, there are two escalator clauses which the plaintiffs challenge as being unauthorized by statute. The first clause provides that the basic rates will be increased by the amount of any additional taxes imposed upon the gas company after the new rates become effective. The second clause provides that the basic rates will be increased or decreased to reflect subsequent changes in the cost of gas purchased by the gas company.

The complaint states that on April 4, 1955, the gas company tendered a surety bond for the purpose of putting the new schedule into immediate effect. Ark. Stats. 1947, § 73-217. On April 11 these appellants, as industrial consumers, filed a motion asking the Commission to dismiss the application on the ground that the escalator clauses are illegal. That motion was overruled by the Commission, which issued an order permitting the new basic rates to be collected under bond but refusing to allow the escalator clauses to take effect until the further order of the Commission. Thereafter the appellants filed the present suit for injunctive relief.

The appellants ’ argument is to this effect: Our statutes do not contemplate the use of escalator provisions in connection with public utility rates. The incorporation of such provisions in the gas company’s proposed rate schedule renders the entire schedule void. The Commission is not authorized to put only a part of a proposed schedule into immediate effect under bond. The Commission has therefore acted beyond its jurisdiction and should be enjoined.

We do not find this argument persuasive. The escalator clauses, whether valid or not, are by their nature inherently separable from the scale of fixed basic rates. Those clauses are completely dormant until there is some change in the gas company’s tax liability or in its wholesale cost of gas. If such a change occurs the increase would be passed on, dollar for dollar, to the company’s customers. But if no such change should occur for, say, five years, the basic rates would remain in force for that length of time. It is evident that the basic rates must in themselves be fair and that their fairness is in no way dependent upon the contingent operation of the adjustment clauses.

The complaint concedes that the Commission did not allow the escalator clauses to be put into effect under bond; so the appellants have suffered no pecuniai-y injury from the provisions of which they complain. It is not denied that if the schedule of basic rates had been filed without the escalator clauses the Commission would have had the authority to put those rates in force under bond. It is not denied that if the appellants’ motion to dismiss had been granted by the Commission the gas company could have immediately refiled the same schedule of basic rates and put it into effect under bond. Thus the appellants’ only grievance lies in the fact that the escalator clauses are physically on file in the office of the Commission. Upon that fact alone rest the contentions that the Commission is without jurisdiction and that the appellants have suffered an irreparable injury calling for the extraordinary remedy of injunctive relief. It is a sufficient answer to point out that the appellants have a complete and adequate remedy at law. It is not suggested that the Commission’s hearing upon the merits of the gas company’s application does not afford the appellants ample opportunity to attack the legality of the escalator clauses. In our opinion that is the correct and appropriate forum for the determination of this controversy.

Affirmed.


source: Caselaw Access Project

author: Paul Ward, Associate Justice. Ed. F. McFaddin, Associate Justice

license: Public Domain

text:
    Burns v. Meadors.
    5-837
    287 S. W. 2d 893
    Opinion delivered February 20, 1956.
    [Behearing denied April 2, 1956.]

      Rex W. Perkins and Hardin, Barton, Hardin & Garner, for appellant.

      Jameson é Jameson, for appellee.
   Paul Ward, Associate Justice.

Appellees, O. D. Meadors and his wife, instituted this action against appellant, Lavada M. Burns, ashing a rescission of a contract under the terms of which appellees agreed to purchase certain lands belonging to appellant and ashing for damages, and, in lieu thereof, for damages to compensate for defects in the title. The issues were tried and judgment was rendered in favor of appellees, on the basis of a rescission and damages. From a decree in favor of appellees appellant prosecutes this appeal.

The complaint alleges that a written contract was entered into on December 1, 1951, whereby appellant agreed to sell and appellees agreed to buy approximately 415 acres of land for the total purchase price of $6,000 and that $4,000 had been paid to appellant under said contract; that the contract required appellant to deliver an abstract of title showing good title vested in her; that the description of the lands contained in the contract and in the deed proffered by appellant was indefinite and uncertain, and that a survey is necessary to obtain a definite metes and bounds description; that a deed to one-half of the mineral rights in and under said lands was outstanding; that when appellant delivered the abstract and the deed they showed appellant did not have a marketable title for the reason that the description was indefinite and uncertain and for the reason that an undivided one-half interest in the mineral rights was outstanding and that they immediately notified appellant of this situation; that they are entitled to be reimbursed for the $4,000 purchase price already paid and for the amount for which they had increased the value of the land while they were in possession thereof, or in the alternative, if a rescission should not be granted that they be awarded damages for the amount necessary to procure a definite description and the outstanding mineral lease.

Appellant entered a general denial and further stated: she admits that she did agree to sell appellees said lands for the price stated but subject to the reservation of the one-half interest in the mineral rights and that this fact was well understood by appellees at the time the agreement was entered into, and; it was an oversight of the draftsman of the contract and the deed that the reservation of the mineral rights was not included therein. Also, by way of cross complaint, appellant admits receipt of $4,000 and states that appellees delivered to her a check for the balance of the purchase price, and that this check could not be cashed because of insufficient funds, and prayed for judgment in the amount of said check.

After hearing the testimony the chancellor made the following findings: After appellees had delivered a check for the final payment to appellant they stopped payment thereon because they learned, after examination by an attorney, that the title to said lands was not good; appellees demanded of appellant that she make and convey to them a good title but that appellant refused, claiming that the proffered title was good; that the title offered by appellant to appellees was not a good title for the reasons that (a) the description of the land in the deed and abstract was indefinite and void and (b) appellant did not have title to an undivided one-half interest in the mineral rights; that appellant’s failure to proffer a good title constituted a breach of the contract although appellees had performed all obligations imposed upon them by the contract, and; that appellant should be required to pay to appellees the sum of $7,011.86, including the $4,000 which appellees had paid on the contract and $623.83 interest thereon, taxes paid on said lands by appellees, the cost of abstracting paid by appellees, and $2,500 for enhancement in value of the land due to permanent improvements placed thereon less $300 which appellees had received for a water tank.

After a careful consideration of the entire case we have reached the conclusion the chancellor was correct in holding that appellees were entitled to a rescission of the contract to purchase. We base this decision on the fact that the description contained in the deed proffered by appellant to appellees was indefinite.

Since we base our decision on the ground above stated it is not necessary for us to pass upon two other questions which have been raised, viz.: (a) Appellant-sought to reform the written contract to show that appellees agreed to take the land subject to an outstanding lease for one-half of the mineral rights, and; (b) appellees contend that the title was not marketable because of the outstanding mineral lease.

Although the deed itself does not state the exact number of acres to be conveyed the best obtainable estimate indicates approximately 415 acres. The description of the lands in the deed which appellant delivered to appellees contains 13 parcels of land some described by metes and bounds, and the entire description covers three pages as it is copied in the record. We will call attention to the descriptions in some of these parcels which we consider indefinite.

1. “the Northeast quarter of the Southeast quarter of Section 13, (save and except lots and parcels aggregating 2 acres, more or less, out of the South West corner of said tract; conveyed by deed of record prior to the 15th day of April 1918, containing 38 acres, more or less.”

2. “the Southeast quarter of the Southeast quarter of said Section 13 (save and except lots and parcels aggregating 16 acres, more or less, off of the West side of said forty acre tract and conveyed by deeds prior to the 15th day of April 1918, containing 24 acres herein, more or less.”

3. “also a part of the Southeast quarter of the Northwest quarter of said Section 13, Township 13 North, Range 30 West, described as follows: Beginning at the North Bast corner of said forty acre tract, and running, thence South 670 feet; thence in a northwesterly direction 420 feet to the South East corner of a lot deeded to A. N. Cole; thence in a Northeasterly direction 210 feet; thence in a Northwesterly direction to the East line of County Road known as the Fayetteville and Yan Burén Road; thence in a Northeasterly direction bordering on the East line of said road to the North line of said 40 acre tract; thence East to the beginning point, containing 8 acres, more or less. ’ ’

4. This description purports to convey a part of the Northeast quarter of the Northeast quarter, Section 24, Township 13 North, Range 30 West, save and except that part lying South and West of the old Fayetteville and Yan Burén public road. Then follows these three exceptions: (a) “The lots embraced in the First Division of Winslow Park”; (b) “Two lots and 13 feet of additional frontage adjoining said lots and having the same depth in the Second Division of Winslow Park heretofore conveyed to Mrs. Caldwell McFedden,” and; (c) “A parcel of land adjoining the First Division of Winslow Park bnt not a part thereof, heretofore sold to James A. Ward, Jr., comprising about one-third of an acre.”

An examination of the above copied descriptions reveals that it is necessary to refer in many instances to other conveyances. It will be noted that in no instance is the book and page indicated where the conveyance may be found, and in some instances neither the grantor nor the grantee is mentioned, nor is the exact date of the conveyance indicated.

We are cognizant of the well established rule that a description is good if it contains a key by which it may be made good, but in this case we are forced to conclude that the descriptions copied above contain no such key. We are forced to this conclusion for the reasons set out hereafter. First, it is certain that appellant has introduced no evidence to show that the description contained in the deed can be made definite and certain by referring to the records, and she made no request for time and opportunity to do so. Second, the chancellor being confronted with the lack of evidence to show a definite description appointed a Master to see if a definite description could be obtained. The Master’s report shows that he made an examination of the records in the recorder’s office and was still unable to obtain a description. Appellant had ample opportunity to cross-examine the Master but did not do so, and she entered no objections. Under these circumstances and under the facts as shown by the record we must conclude that the chancellor was justified in finding that appellant had not furnished appellees a marketable or merchantable title due to the defects in the description of the lands, and to that extent he must be affirmed.

In assessing damages in favor of appellees the trial court rendered judgment in favor of appellees in the sum of $7,011.86. A careful review of the entire record convinees us that this judgment for damages should be reduced by $1,600, leaving judgment in favor of appellees in the amount of $5,411.86.

The record in this case is lengthy and it is impossible to determine to a mathematical certainty what damages appellees have suffered, but we are thoroughly convinced that a reduction in the judgment to the extent above mentioned is justified. There are several grounds upon which we base this conclusion.

The total number of items of damages allowed by the chancellor totals $100 less than the judgment rendered. Appellees disposed of a large water tank on the premises and arbitrarily fixed the value at $300 which the court accepted. We note that appellees’ own witness stated that the tank was worth $750. The trial court correctly held that appellees’ damage for improvements placed on the property would be the amount they had increased its value. Pursuant to this ruling, appellees undertook to prove the value of the premises at the time of the trial. Appellee Meadors testified that the premises were worth $12,000, thus placing the enhanced value at $6,000. This was so unreasonable in the face of the testimony that the chancellor correctly refused to accept this figure. Appellees introduced George D. Kennick, a cattle raiser and real estate man, to prove the enhanced value of the land. This witness’ testimony, however, is inconclusive and must be discounted to some extent. The essence of Ken-nick’s testimony was that as a former appraiser of farm lands for the U. S. Government he would approve a loan on this farm for $5,000, and stated that the value in his judgment would be something less than twice that amount, or approximately $10,000. He made this estimate of the value of the farm from a somewhat casual examination just before the trial. He was not at first allowed to say what value he would have placed on the farm as of December 1, 1951, since the value as of that date was fixed by the court to be $6,000. Without this information there is no way of knowing to what extent the witness thought the farm had been enhanced in value by reason of tbe improvements placed thereon. On cross-examination he was asked: Q. “Taking the tract as a whole, the whole 400 acres, can you give us your opinion as to its value in December 1951?” A. “I don’t believe I can because I wasn’t over it all in ’51, we just went over it all, didn’t go over it all yesterday but went over most of it, we could drive, but I never got out of the car but about once because it was bad weather up there.” The above answer manifestly throws some doubt on the witness’ ability to accurately judge the value of the farm shortly before the trial. Although Kennick was called by appellees to testify to the enhancement in value because of improvements placed thereon, yet it is obvious that he could not do so without knowing what the improvements were. In this connection he was asked if he could give the court some idea as to the value of the improvements and he gave this answer: “I can’t answer that because I don’t know. Because you have got to measure that land to tell. I could give an estimation of it, if I knew how many acres he had cleared.” On the whole it appears to us that the witness did not make a careful examination of the farm, including the improvements supposed to have been placed thereon by appellees, and he gave no convincing reasons to justify his estimate that the farm was worth $10,000. Testimony given under these circumstances is subject to evaluation by this Court on a trial de novo. In the case of Texas Illinois Natural Gas Pipeline Co. v. Lawhon, 220 Ark. 932, 251 S. W. 2d 477, this Court was called upon to evaluate the testimony of certain witnesses as to damage done to land, and we said: “It is true that one or more witnesses for appellee placed the damage at a sum equaling the verdict returned by the jury, but the cross-examination of these witnesses failed to show any fair or reasonable basis for the opinion.” Likewise in the case of Arkansas State Highway Commission v. Byars, 221 Ark. 845, 256 S. W. 2d 738, where a similar question was involved, this Court said: “Where a witness gives his opinion as to damages, such testimony must be considered in connection with the related facts upon which the opinion is based.”

The trial court permitted appellees to introduce a large number of cancelled checks, not to show the extent of enhancement of value but to show that improvements were made. Even for this limited purpose, it seems to us the checks had little evidentiary value. Quite a few of the checks were dated before the contract was executed, and some show they were given for seed and fertilizer. Other checks were given for tools and implements which still were of value to appellees and did not enhance the value of the farm.

In the complaint appellees admit having received $500 for timber cut off the land in question. Appellant should have been given credit for this amount even though no testimony was introduced on that point. The case of Bonacci v. Cerra, 134 Neb. 476, 279 N. W. 173, announces the applicable rule this way:

“Statements, admissions and allegations in pleadings [upon which the case is tried] are always in evidence for all the purposes of the trial; they are before the court and jury, and may be used for any legitimate purpose.”

It is our opinion that, under the facts and circumstances of this case, appellees should not have been allowed to recover $623.83 as interest on the money they had paid on the purchase price. It is true that appellant had the use of this money since the date of payment, but it is also true that appellees had had the use of the farm since the date of the contract to the time of trial, and apparently have possession now. This being true, we think appellees would be entitled to interest only from date of the decree of the trial court. This conclusion appears to be in harmony with the better rule. Pertinent to this question we find this statement in 171 A. L. R. at page 851:

“Where it appears in an action to recover back payments made under a contract for the sale of land which was procured by fraud or duress that the purchaser had possession of the property for all or a part of the time elapsing after the execution of the contract, the courts seem to feel that it would be inequitable to permit the purchaser to receive interest on the sums paid by him during the period in which he had possession of the property with the corresponding right to enjoy the rents and profits thereof.”

In 55 Am. Jur. 939 under the title “Vendor and Purchaser” and the subtitle “Interest on Payments Recoverable ’’ this statement is made: “If the purchaser has been let into and remains in possession, he is not entitled, it has been held, to interest on the purchase money paid when he seeks to rescind the contract for the vendor’s fraud or default.” Sustaining the above rule the case of Robinson, et al. v. Bressler, et al., 122 Neb. 461, 240 N. W. 564, 90 A. L. R. 600, is cited in which this question was discussed extensively under facts similar to the ones here. The court there, after discussing an allowance of interest by the trial court, made this statement: ‘ ‘ There appears to be no occasion for the computation of interest at all up to the time of trial. By their voluntary acts the defendants had possession of the property and plaintiffs had possession of $125,000 of the purchase price which had been paid to them.” "VVe think this rule which disallows interest under the circumstances of this case is not only sound but equitable.

It follows from the above that the trial court is affirmed in holding that appellees were entitled to a rescission of the contract, but the judgment for damages rendered by the trial court in the amount of $7,011.86 should be reduced to the amount of $5,411.86, and it is so ordered.

Modified and affirmed.

Justice MoFaddin concurs.

Ed. F. McFaddin, Associate Justice

(Concurring). I completely concur with the result reached in this case; but on the matter of the title, I follow a different method of reasoning from that expressed in the majority opinion.

The first question decided by the majority is that the appellees were entitled to a rescission of the contract, because the description contained in the deed, proffered by the appellant to the appellees, was indefinite. To me, the description matter seems immaterial. The fact that the appellees went into possession of certain lands clearly showed that they knew what lands they were getting. It would have been very easy to have caused the lands to be surveyed while the appellees were in actual possession. In short, I think the possession taken by the appellees constituted a waiver of any question of insufficiency of description.

But, I think the appellees were entitled to a rescission of the contract of purchase because the uncontradicted evidence shows that there was an outstanding one-half interest in the mineral rights; that there was nothing in the written contract that exempted this one-half outstanding mineral interest; and that the appellants failed to prove by the quantum of proof required in such cases— that is, by evidence clear, cogent and convincing — that the original oral agreement was that half of the mineral rights would not go to the appellees. In Orlicek v. Dockins, 224 Ark. 593, 275 S. W. 2d 630, there was an outstanding mineral interest which the seller did not tender to the buyer, and we said: “We do not think that a merchantable title was tendered. ’ ’ So, in the case at bar, there was an outstanding mineral interest that was not tendered by the appellant, and thus the appellant failed to tender a merchantable title.

On the reduction of the damages, I thoroughly agree with the majority.


author: Sam Robinson, Associate Justice.

text:
    Morris v. Sparrow.
    5-854
    287 S. W. 2d 583
    Opinion delivered February 20, 1956.
    [Rehearing denied March 26, 1956.]

      Ben B. Williamson, for appellant.

      Caldtvell T. Bennett, for appellee.
   Sam Robinson, Associate Justice.

Appellee Archie Sparrow filed this suit for specific performance, seeking to compel appellant Morris to deliver possession of a certain horse, which Sparrow claims Morris agreed to give him as part consideration for work done by Sparrow. The appeal is from a decree requiring the delivery of the horse.

Morris owns a cattle ranch near Mountain Yiew, Arkansas, and he also participates in rodeos. Sparrow is a cowboy, and is experienced in training horses; occasionally he takes part in rodeos. He lives in Florida; while at a rodeo in that state, he and Morris made an agreement that they would go to Morris ’ ranch in Arkansas and, later, the two would go to Canada. After arriving at the Morris ranch, they changed their plans and decided that, while Morris went to Canada, Sparrow would stay at the ranch and do the necessary work. The parties are in accord that Sparrow was to work 16 weeks for a money consideration of $400.00. But, Sparrow says that as an additional consideration he was to receive a brown horse called Keno, owned by Morris. However, Morris states that Sparrow was to get the horse only on condition that his work at the ranch was satisfactory, and that Sparrow failed to do a good job. Morris paid Sparrow the amount of money they agreed was due, but did not deliver the horse.

At the time Sparrow went to Morris’ ranch, the horse in question was practically unbroken; but during his spare time, Sparrow trained the horse and, with a little additional training, he will be a first class roping horse.

First there is the issue of whether Sparrow can maintain, in equity, a suit to enforce, by specific performance, a contract for the delivery of personal property. Although it has been held that equity will not ordinarily enforce, by specific performance, a contract for the sale of chattels, it will do so where special and peculiar reasons exist which render it impossible for the injured party to obtain relief by way of damages in an action at law. McCallister v. Patton, 214 Ark. 293, 215 S. W. 2d 701. Moreover, specific performance is authorized by Ark. Stats., § 68-1468, which provides: “Where the seller has broken a contract to deliver specific or ascertained goods, a court having the powers of a court of equity may, if it thinks fit, on the application of the buyer, by its judgment or decree direct that the contract shall be performed specifically, without giving the seller the option of retaining the goods on payment of damages. . . .” Certainly when one has made a roping horse out of a green, unbroken pony, such a horse would have a peculiar and unique value; if Sparrow is entitled to prevail, he has a right to the horse instead of its market value in dollars and cents.

Morris claims that the part of the agreement whereby Sparrow was to receive the horse was conditional, depending on Sparrow doing a good job, and that he did not do such a job. Both parties were in Chancery Court and the Chancellor had a better opportunity than this Court to evaluate the testimony of the witnesses; we cannot say the Chancellor’s finding in favor of Sparrow is against the preponderance of the evidence.

Finally, it is appellant’s contention that there was an accord and satisfaction between the parties which now precludes appellee Sparrow from recovering the horse. After the 16-week period expired, according to the undisputed evidence, Morris owed Sparrow a balance in money of $167.00. The parties met at a bank at Mountain View where Morris gave Sparrow a check for that amount and made a notation on the check, ‘ ‘ labor paid in full. ’ ’ Sparrow cashed the check, but he says that he only accepted it in payment of the money due, and that Morris still owes him the horse. Morris says the check was payment in full for everything he owed Sparrow; that the agreement about the horse was contingent on Sparrow doing a “good job,” and that he had failed in that respect.

Does the notation on the check, ‘ ‘ labor paid in full, ’ ’ conclusively show a settlement in full, or an accord and satisfaction, which bars Sparrow from enforcing the agreement as to the horse? We do not think so. In the first place, there was no dispute between the parties as to the amount of money due. Further, it does not appear that, at the time the check was delivered to Sparrow at the bank, it was clear that Morris did not intend to deliver the horse as agreed. In fact, while still at the bank, Morris agreed to turn the horse over to Sparrow, but wanted to do so on condition that Sparrow would not sell or dispose of him; Sparrow refused to accept the horse on that condition. Moreover, the check was for the correct amount of money, and if Sparrow had refused the check at that time, eventually he would have had to accept a cheek for that same amount, regardless of the disposition of the question about the horse. It is clear that the check was accepted by Sparrow only as payment in full of the money due, without considering the question about the borse. Sparrow testified that he first learned that Morris did not intend to make an unconditional delivery of the horse when they were “down at the bank and he paid me in full. ’ ’ Obviously, Sparrow was referring to payment in full of the money due; at no time did he recede from the position that he was entitled to the horse. If there had been a disagreement between the parties as to the amount of money owed by Morris, and Sparrow had knowingly cashed a check marked “payment in full, ’ ’ perhaps he would have been bound by the notation on the check; but such is not the case here. The Court said, in Worcester Color Co. v. Henry Wood’s Sons Co., 209 Mass. 105, 95 N. E. 392: “It is not every use of the words ‘in full to date,’ or equivalent phrase, which constitutes an accord and satisfaction in connection with the payment of a controverted claim. Many cases have arisen where the conditions have been such as to make it a question of fact whether there has been an accord and satisfaction, even though these words have been used where a payment has been made. . . .” See also notes 31 A. L. R. 1055, 75 A. L. R. 923. Here, it appears that Sparrow, in accepting a check marked ‘ ‘ labor paid in full, ’ ’ accepted it only as payment in full of the money due, about which there was no controversy.

Affirmed.


author: Lee Seamster, Chief Justice.

text:
    Scott v. LeGrande.
    5-864
    287 S. W. 2d 456
    Opinion delivered February 27, 1956.

      Etheridge & Sawyer, for appellant.

      Ovid T. Switzer and W. P. Switzer, for appellee.
   Lee Seamster, Chief Justice.

This is an appeal from a judgment of the Ashley Circuit Court dismissing the appellant’s action to have a materialmen’s lien declared on the property of appellees.

The appellant contends that the notice mailed to the appellees is a substantial compliance with Sec. 51-608, Ark. Stats. 1947.

The notice was sent by registered mail and reads as follows:

“Mr. and Mrs. Willis LeGrande

500 F. Arkansas St.

Crossett, Arkansas

Dear Mr. and Mrs. LeGrande:

‘ ‘ This is to notify you that within ten days after you receive this notice, we will file lien on your property located at 500 F. Arkansas in Crossett, Ark., for materials bought and put in this property.

“Unless provisions are made within this time to satisfy the indebtedness.

‘ ‘ Signed: Victor Scott

Triangle Bldrs. Supply”

The notice is defective because it does not set forth in the notice the amount claimed and from whom the same is due. The notice was not served in person by anyone authorized to serve such notice as required by the above cited section of law.

This court has held that the materialmen’s lien statute is in derogation of the common law and that anyone seeking its benefits must show a substantial compliance with the statute. Doke, Admr. v. Benton County Lumber Co., 114 Ark. 1, 169 S. W. 327; Conway Lumber Company v. Hardin, 119 Ark. 43, 177 S. W. 408.

The mailing of the notice by registered mail to the appellees is an insufficient compliance with this statute. The Supreme Court of Illinois, under a statute similar to ours, in the case of Sykes Steel Roofing Company v. Bernstein, 156 Ill. App. 500, held as follows:

“The notice of the subcontractor’s claim required by the statute to be served upon the owner was sent to Bernstein & Wolf, such owners, through the United States mail by registered letter. Such method of service of such notice is not a compliance with the statute and was abortive as a foundation on which to rest the right given by the statute to a recovery against the owners. The statute requires the service of such notice to be personal, and in this regard the statute being in derogation of the common law, a substantial fulfillment of its conditions cannot be dispensed with nor a recovery sustained when it appears a material requirement of the statute has not been pursued. ”

We think the holding in the above case is the correct statement of the law applicable to the facts in this case under the above statute. Finding no error in the trial court’s judgment, the case is affirmed.


author: J. Seaborn Holt, Associate Justice.

text:
    Edwards v. Knowles.
    5-857
    287 S. W. 2d 449
    Opinion delivered February 27, 1956.

      Brockman & Brockman and Bam M. Levine, for appellant.

      Reinberger & Eilbott, for appellee.
   J. Seaborn Holt, Associate Justice.

This appeal questions the action of the Jefferson Probate Court in admitting to probate the will of John W. Knowles, dated August 8, 1949.

For reversal appellants rely on the following points: “1. That the evidence and record conclusively show that the will was not executed at the time, place, or in the manner, alleged by the proponent of the will, and no other proof was submitted bearing on the execution of the will. 2. The proponent of the will has failed to produce testimony as to the circumstances attending the signing of the will and that there is no showing that the essential requirements in the execution of the will, as prescribed under Section 19 of Act 140 of the G-eneral Assembly of 1949, [now § 60-403 Ark. Stats. 1947 Supplement] were met and complied with. ’ ’

It appears to be conceded that the signature of ‘ ‘ John W. Knowles ’ ’ to the will is authentic and that the testator executed it at a time when he possessed mental capacity to do so, and without undue influence. The will recited in part:

“. . . IN TESTIMONY WHEREOF, I have hereunto set my hand, published and declared this to be my last will and testament in the presence of witnesses named below this 8th day of August, 1949.

/s/ John W. Knowles

. John W. Knowles this day signed, published and declared the above as and for his last Will and Testament in our presence and at his request we have subscribed our names hereto as attesting witnesses in the presence of- the testator and in the presence of each other.

ALL DONE this 8th day of August, 1949.

/s/ S. L. MeCohn

/s/ Lillie M. Smith.”

As indicated the testator signed the will. The living witness to the will, “S. L. McCohn” [sister-in-law of the testator] testified that she was called to the office of Mr. Toney, an attorney, by the testator and witnessed the will there; that, Mr. Toney was reading the will to the testator when she walked into his office; that, she saw the testator sign it and then at his request she signed it; that, the other witness, Lillie M. Smith [now deceased] was present and also at the testator’s request signed the will in S. L. McCohn’s presence and in the presence of the testator. Five other witnesses identified the signature of ‘ ‘ Lillie M. Smith, ’ ’ the deceased witness to the will.

In their argument appellants say: “There is only one issue raised by the appeal in this cause. It can be resolved in the answer to the question as to whether or not the widow of John W. Knowles, as the petitioner for the probate of his will, has discharged the burden of proof devolving on her to show that the purported will was executed and witnessed in conformity with the Statutes.

“If the fantastic and incredible narrative of the widow and her sister attains the dignity of preponderant proof that the will was executed by Knowles and witnessed by the sister of the widow in Mr. Toney’s law office, then, concededly, there is no validity to the contention of appellants that this matter should be reviewed in this Court. . . .”

In support of this contention they offer the testimony of two witnesses, Mr. Toney’s secretary, Mrs. Armstrong, and that of Dr. Lawlah. Their testimony, however, which is negative in nature, can afford them little comfort. Mrs. Armstrong testified: “ Q. And now can you tell this court the will wasn’t executed in your office? A. No, I wouldn’t say it wasn’t, but I do not remember anything about the execution of it. . . . Q. If the court should ask this question ‘ Shirley Armstrong, you are under oath, tell us, was the will executed in Mr. Toney’s office, or was it not? ’ You cannot give the answer? A. No. . . . Q. Under that condition, you certainly will not tell the court it was not executed in your of fice ? A. No.” [Tr. pages 72 & 73.]

In an effort to show that Knowles was confined to his bed and could not have gone to Mr. Toney’s office to execute the will on August 8, 1949, they offered the testimony of Dr. Lawlah, who testified: “ Q. Are you willing to swear he would not walk out August 8th? A. I was away, so I couldn’t swear what happened on August 8th. Q. It has been sworn in this courtroom, that on August 8, 1949, he went to Mr. H. K. Toney’s office and signed a will, which will is marked McCohn Exhibit ‘A.’ Could you swear he wasn’t physically able to walk down town, or go in a car, to Mr. Kemp Toney’s office? A. I could not. . . . Q. You didn’t see this man from July 26th to September 1st? A. No.”

After a review of all the evidence we have concluded that the findings of the trial court were not only not against the preponderance of the testimony but are supported by the great preponderance thereof.

On the general rule applying to the execution of wills we said in Anthony v. College of the Ozarks, 207 Ark. 212, 180 S. W. 2d 321, “No presumption of the due execution of a will arises from the mere production of an instrument purporting to be a last will and testament. . . . Where, however, in proceedings for the probate of an instrument as a will it appears to have been duly executed as such, and the attestation is established by proof of the handwriting of the witnesses or otherwise, although their testimony is not available, or they do not remember the transaction, it will be presumed, in the absence of evidence to the contrary, that the will was executed in compliance with all the requirements of law, including those relating to publication, attestation in the presence of the testator, and the affixing of the testator’s signature prior to those of the witnesses.”

Affirmed.


text:
    Aclin v. Manhattan Credit Corporation.
    5-877
    287 S. W. 2d 451
    Opinion delivered February 27, 1956.

      J. E. Lightle, Jr., for appellant.

      Talley <& Owen and William L. Blair, for appellee.
   J. Seaborn Holt, Associate Justice.

Appellee, Manhattan Credit Corporation, brought this suit to -recover $1,200 aiid interest alleged to be due on a note which was secured by a mortgage on an automobile. Material facts appear not to be in dispute and were stipulated as follows : “On March 15, 1955, the defendant, Mrs. Earnest Hughes, purchased from the defendants, Searcy Truck and Tractor Company, at their place of business at Searcy, Arkansas, the vehicle involved herein. Said purchase was completed about 4:00 p. m. on said date and Mrs. Hughes gave defendants a check upon the First National Bank of Little Bock, Arkansas, in the amount of $3,058.50 in full payment of the purchase price of said vehicle and including the sales tax and cost of the 1955 license. The defendants gave to Mrs. Hughes on the same afternoon the customary dealer’s bill of sale,” . . . which contained this provision, “And we hereby covenant that we are lawful owners of the above described motor vehicle, that the same is free from all incumbrances except None. That we have good right to sell same, and that we will warrant and defend the same against all lawful claims and demands whatsoever except None.”

“Defendants, on the same afternoon, accompanied the said Mrs. Hughes to the license bureau at Searcy, Arkansas, and assisted her in making application for an Arkansas registration certificate and title certificate and giving their check for the sales tax and license tax; said application being attached hereto. . . . That said check was twice deposited for collection by the defendants, first, on March 19,1955, and next on March 25,1955, and was returned by the First National Bank of Little Rock, marked: ‘Unable to locate account.’ That the said Mrs. Earnest Hughes, Jr., had no account at said bank at said time. That on March 21,1955, the said Mrs. Earnest E. Hughes applied to the plaintiffs, Manhattan Credit Corporation, for a loan on said automobile' and on the 23rd day of March, 1955, the same was granted and she thereupon executed the note and mortgage described in plaintiff’s complaint, the original of which are hereto attached. . . . That at the time said loan was made the said Mrs. Hughes had in her possession, and delivered to plaintiffs an Arkansas Registration Certificate and an Arkansas Certificate of Title in her name as the owner of the vehicle, showing no liens or encumbrances. That plaintiff advanced to the said Mrs. Hughes the sum of $1,200.00 and took her said note in the amount of $1,694.40, which included interest in the sum of $159.13, insurance premiums as follows: Collision and Comprehensive, $224.00, Liability, $43.50, Life Insurance, $67.77. That no amount has been paid upon plaintiff’s note or mortgage and there is now due the plaintiffs the amount of $1,200.00, plus accrued interest of $38.00. That on or about April 1, 1955, the defendants, Searcy Truck and Tractor Company, repossessed the vehicle at the home of Mrs. Earnest E. Hughes, Jr., in Lonoke County. That the plaintiff, Manhattan Credit Corporation, after execution of said note and mortgage, obtained a certificate of title to said vehicle showing a lien in their favor; the same being attached hereto. . . .”

The trial court, sitting without a jury, found that Mrs. Hughes had obtained possession of the automobile by fraudulent means amounting to larceny but that ‘ ‘ The issuance of a certificate of title to said vehicle (by the Arkansas Revenue Department) pursuant to the bill of sale, and the application for title showing no liens thereon, gave to Mrs. Hughes, sufficient title to said vehicle to convey the same to innocent third parties. The plaintiff, the Manhattan Credit Corporation, was entitled to rely upon the certificate of title, issued by the State of Arkansas, in making said loan to the defendant, Mrs. Earnest Hughes, as against the defendant, the Searcy Truck and Tractor Company. By the mortgage upon said vehicle they obtained a superior title thereto as against the defendant, the Searcy. Truck and Tractor Company, ’ ’ . . . and rendered judgment for appellee in amount of $1,200 plus $38 interest. This appeal followed.

Appellant says: “. . . the issues presented by this appeal seem to narrow down to the question of whether the issuance of an Arkansas Certificate of Title is sufficient to give title to one who has secured possession of an automobile by larceny. ’ ’

Here the dealer, appellant, not only gave Mrs. Hughes possession of the car and a bill of sale, in which there was a covenant and warranty that the dealer, appellant, was the lawful owner of the automobile and same was free from all incumbrances, but in addition helped her to obtain a certificate of title under the provisions of our ‘ ‘ Motor Vehicles- — -Certificate of Title Act,” §§ 75-101 — 75-191, Ark. Stats. (Supp.) 1947. Section 75-133, Par. 4 (b) provides that every owner who applies for a certificate of title must, among other things, “when such application refers to a new vehicle [as here] purchased from a dealer the application shall be accompanied by a statement by the dealer or a bill of sale showing any lien retained by the dealer.” As indicated, the bill of sale, showing no incumbrances was presented to the State Revenue Department and a certificate of title was duly issued to Mrs. Hughes based upon the bill of sale. In the circumstances, we hold that appellee had a right to rely upon the certificate of title and in good faith made the loan to Mrs. Hughes and was in the position of an innocent third party. The applicable rule is announced in 18 A. L. R. 2d 813 where it is stated: “A situation frequently arises where the seller of an automobile, in taking a check in payment, delivers the motor vehicle and certificate of title to the purchaser, and the latter transfers it to an innocent purchaser for value before the dealer learns that the payment check is forged or otherwise bad. In such circumstances a preliminary issue is raised as to whether the original purchaser receives any title at all which he can convey to an innocent purchaser. If it is found that he received even a voidable title, it is generally held that the innocent purchaser, relying upon the possession of the vehicle and the certificate of title, will be protected against the claims of the original seller.” While Mrs. Hughes’ title was voidable, it does not change the situation here. Our holding in the ease of Pingleton v. Shepherd, 219 Ark. 473, 242 S. W. 2d 971, applies with equal force here: “Section 68-1424, Ark. Stats., provides: ‘Where the seller of goods has a voidable title thereto, but his title has not been avoided at the time of the sale, the buyer acquires a good title to the goods, provided he buys them in good faith, for value, and without notice of the seller’s defect of title.’

‘ ‘ This section of the statute is a part of the uniform sales act (§ 24), and is applicable to the situation presented here. The seller, Wortham, had a voidable title to the automobile by reason of having obtained it by falsely representing the check he gave for the purchase price to be good. But, his title had not been avoided at the time he sold the car to Shepherd, who bought the automobile in good faith, for value, having paid $1,455 for it, and without notice of the seller’s defect of title. Shepherd, therefore, according to the statute, acquired good title to the automobile.”

Finding no error, the judgment is affirmed.


author: Ed. F. McFaddin, Associate Justice.

text:
    Pate v. Griffin.
    855
    287 S. W. 2d 453
    Opinion delivered February 27, 1956.

      Gene P. Houston, for appellant.

      Neill Peed, for appellee.
   Ed. F. McFaddin, Associate Justice.

This litigation results because the mortgagee in a chattel mortgage failed to have the mortgage recorded and also failed to observe the Statute and endorse the mortgage before filing it (§ 16-201, Ark. Stats.). Appellants, O. M. Pate and wife, filed this suit in the Chancery Court against Troy Eaney and wife, (a) to obtain judgment for $4,500.00 and interest on a series of notes, (b) to foreclose a vendor’s lien on certain lands, and (c) to foreclose a chattel mortgage on certain described cattle. The Chancery Court awarded judgment in favor of the Pates for the money claim and also decreed a foreclosure of the vendor’s lien on the lands; so those issues pass out of this case entirely. Here, we are only concerned with the various issues arising in connection with the chattel mortgage.

The chattel mortgage from Raney to Pate was dated October 5, 1953, and was filed, but not recorded, in the office of the Circuit Clerk on October 7, 1953. It subsequently developed that the chattel mortgage had not been endorsed, as required by § 16-201, Ark. Stats.; and, as aforesaid, that omission caused this litigation. The Pate complaint, duly verified, was filed December 13,1954, and alleged: that Troy Raney had left the State; that the cattle would be lost unless impounded; and that an immediate order should be made for the care and possession of the cattle. There was a Us pendens filed on the land, but not on the personal property. On December 21,1954, the Court appointed the plaintiff, O. M. Pate, as receiver, under a bond of $750.00, to take charge of and care for the cattle and make report thereof. Pate made bond and took the oath as receiver. Report of the receiver was filed January 18, 1955, stating certain cattle to be in his possession.

On February 14, 1955, W. R. Griffin intervened in the foreclosure case of Pate v. Raney, alleging: that Griffin obtained judgment against Troy Raney and wife in the Cleburne Chancery Court in the case of Griffin v. Raney; that the judgment was unsatisfied in the amount of $2,269.17; that execution had been issued thereon on December 28,1954; and that Griffin’s execution lien was superior to Pate’s chattel mortgage. In answer to Griffin’s intervention, Pate alleged that he took possession of the personal property on October 10, 1954, as mortgagee, and that his rights were superior to the lien of Griffin’s execution.

With issues joined as to the superiority of the exe-' cution lien and of the chattel mortgage, the cause was tried on April 19, 1955; and resulted in a decree giving Pate and wife judgment for debt with the same as a lien on the lands; but holding that Pate had no lien on the cattle since the mortgage was not endorsed and there had been no possession taken by Pate. The decree further found that Griffin’s intervention should be dismissed for want of equity. Thus, as regards the cattle, neither Pate nor Griffin was allowed any lien by the decree of April 19, 1955, and both have duly appealed — Pate by direct appeal and Griffin by cross-appeal.

But further issues arose in the same case. Immediately after the said decree of April 19th, Griffin had an execution issued against Raney and wife for $2,269.87 and had the execution served on the cattle described in Pate’s chattel mortgage. Pate then remembered that on April 2, 1955, he had gone to the Clerk’s office and finally endorsed his chattel mortgage, as required by law, although the fact of such endorsement was never developed in the trial of April 19th. Based on these matters, Pate filed (1) a motion to quash Griffin’s execution of April 19th and (2) a motion to modify the said decree of April 19th. There was a trial on these two motions on May 6, 1955, at the same term of the Court as the April 19th decree; and resulted in (1) a quashing of Griffin’s execution and (2) a refusal to modify the decree of April 19th or to allow Pate to make proof of his actions of April 2nd in endorsing the chattel mortgage. Prom this trial of May 6, 1955, as also from the said decree of April 19th, both parties have duly and seasonably appealed — Pate by direct appeal and Griffin by cross-appeal. Pate lists five assignments on the direct appeal, and Griffin lists four assignments on the cross-appeal. We will consolidate the assignments under suitable topic headings.

I. The Refusal of the Court on May 6th to Modify the Decree as Requested by Pate. The purpose of Pate’s efforts to modify the April 19th decree was to show that on April 2nd Pate had endorsed his chattel mortgage, as required by Statute. In refusing to allow the case to be reopened, the Chancellor said that all the information was available to Pate oh April 19th at the trial, and that Pate was not entitled to have two trials in the case. We cannot say that the Chancellor abused his discretion in.refusing to reopen the case. Fromholz v. McGahey, 120 Ark. 216, 179 S. W. 360; Halk v. Soncini, 208 Ark. 736, 187 S. W. 2d 960; Troxler v. Spencer, 223 Ark. 919, 270 S. W. 2d 936.

II. The Action of the Court in Holding That Griffin Had No Lien on His Execution of December 28,1954. At the trial on April 19th Griffin introduced his execution which had issued in the case of Griffin v. Raney on December 28,1954. It was shown that his execution had not been served and had been returned by the Sheriff. The Court held this execution was no lien on the cattle involved in this litigation; and the Court was correct. An execution must be returned within sixty days (§ 30-431, Ark. Stats.). This one was returned earlier; and when the Sheriff returned the execution unserved — whether for lack of indemnity bond or other good reason — then the execution became “functus officio”; that is, its power had been exhausted.

III. The Action of the Court on May 6th in Quashing Griffin’s Second Execution. As previously recited, after the trial on April 19th (in which the Court held that neither side had a lien on the cattle), Griffin went immediately to the Clerk’s office and had a second execution issued against Raney. In the trial on May 6th, the Court quashed this second execution because it recited that it was issued in the case of Pate v. Raney instead of the case of Griffin v. Raney. We need not consider the correctness of that reason, because in Topic IY infra we are holding that Pate should have been awarded a lien, in the decree of April 19th, on the cattle described in his mortgage. With that lien declared, naturally Griffin’s second execution was inferior to such lien, and such holding disposes of the respective claims made.

IY. The Refusal of the Court in the Decree of April 19th to Aivard Pate a Lien on the Cattle Described in His Chattel Mortgage. In the decree of April 19th, the Court refused Pate a lien on the cattle described in his mortgage; and in this ruling the Court was in error. When it was shown that Griffin’s execution of December 28th was not a lien on the cattle, then there was no adverse claimant to Pate’s mortgage, and the issue was whether the mortgage was a lien as between Pate and Raney, even though the mortgage had never been properly endorsed. An unfiled, unendorsed chattel mortgage is good between the parties: the purpose of endorsing and filing is to make the mortgage valid as against third persons. Ringo v. Wing, 49 Ark. 457, 5 S. W. 787; Thornton v. Findley, 97 Ark. 432, 134 S. W. 627; Ebbing v. Hassler, 188 Ark. 766, 68 S. W. 2d 96. When Griffin’s first execution failed, then there was no third person claiming a valid lien, and Pate’s mortgage was good as against Raney. The Court should have so decreed.

V. The Cattle Described in the Chattel Mortgage. The chattel mortgage from Raney to Pate described the following property:

“1 Red Cow about 6 years old, with White Face Heifer Calf; 1 Brown Jersey about 5 years old, with two calves, 1 Bull and 1 Heifer; 1 Brown Jersey Cow about 8 years old, with White Face Heifer Calf; 1 White Face Heifer about two years old, no calf; 1 White Face Heifer about 18 months old; 1 Red Heifer about 16 months old. ’ ’ There is no language in the mortgage to cover any increase ; and our Statute allows the increase of cows to be included only when the mortgage so states (§ 51-1003, Ark. Stats.). Therefore, all that Pate was entitled to was a lien on the specific animals described in his mortgage. So, as to these, the decree is reversed and the cause is remanded, with directions to award Pate a lien on the specific animals. In all other respects the decrees are affirmed.

VI. Other Assignments. Pate claims that the Court committed error in refusing to allow him his expenses as receiver; but the Court evidently found that he had never actually taken possession of the property; so we leave that part of the decree undisturbed.

The costs of this appeal are to be paid equally by Pate and Griffin.

       While Mrs. Pate is a party, all matters herein were handled by Mr. Pate.

       Evidently this was on the theory that (1) Pate’s mortgage was not endorsed; and (2) Pate had never taken actual possession of the cattle at any time, either as mortgagee or receiver.

       As previously recited, the foreclosure of the lien on the lands is not questioned in this case.


author: Minor W. Millwee, Associate Justice.

text:
    United Loan & Investment Company v. Chilton.
    5-862
    287 S. W. 2d 458
    Opinion delivered February 27, 1956.

      John Marable, for appellant.

      Briner & Briner, for appellee.
   Minor W. Millwee, Associate Justice.

The issue here is the constitutionality of Act 160 of 1955 insofar as it purports to invest municipal courts with jurisdiction of the subject matter in matters of contract where the amount in controversy is in excess of $300, excluding interest.

Appellant filed suit against appellee in the Municipal Court of Benton, Arkansas, for $330.00 plus interest allegedly due on a promissory note executed by appellee. The motion of appellee to dismiss for lack of jurisdiction was overruled by the municipal court. Upon appellee’s failure to plead further, judgment was entered in favor of appellant for $415.00 and costs, as prayed in the complaint. On appeal to circuit court the motion of appellee to dismiss was sustained on the ground that municipal court had no jurisdiction in matters of contract where the amount in controversy exceeded the sum of $300.00, ex-elusive of interest, and that the circuit court acquired no jurisdiction on appeal.

The correctness of the circuit court’s action in sustaining the motion to dismiss depends upon whether the Legislature had the power and authority to enact that part of Act 160 of 1955 which reads:

“Section 1. That Section 22-709 of Arkansas Statutes (1947) be (the same is hereby) amended to read as follows:

‘ ‘ The Municipal Courts shall have original .jurisdiction co-extensive with the County wherein the said Court is situated over the following matters: . . .

“Exclusive of Justices of the Peace and concurrent with the Circuit Court in matters of contract where the amount in controversy does not exceed the sum of Five Hundred Dollars ($500.00), excluding interest, but exceeds Three Hundred Dollars excluding interest; . . .”

Ark. Stats., § 22-709, supra, provided that the jurisdiction of municipal courts should be concurrent with justices of the peace and with the circuit court in matters of contract where the amount in controversy does not exceed the sum of $300.00 exclusive of interest. This section was based upon and in harmony with the several provisions of the Constitution which deal with the jurisdiction of municipal and justice of the peace courts. Sections 1 and 43 of Art. 7 of the Constitution refer to municipal courts and read:

“ § 1. The judicial power of the State shall be vested in one Supreme Court, in circuit courts, in county and probate courts, and in justices of the peace. The General Assembly may also vest such jurisdiction as may be deemed necessary in municipal corporation courts, courts of common pleas, where established, and, when deemed expedient, may establish separate courts of chancery. ’ ’

“ § 43. Corporation courts for towns and cities may be invested with jurisdiction concurrent with justices of the peace in civil and criminal matters, and the General Assembly may invest such of them as it may deem expedient with jurisdiction of any criminal offenses not punishable by death or imprisonment in the penitentiary, with or without indictment, as may be provided by law, and, until the General Assembly shall otherwise provide, they shall have the jurisdiction now provided by law. ’ ’

By Sec. 40 of Art. 7, justices of the peace courts are vested with jurisdiction concurrent with circuit courts, “in matters of contract where the amount in controversy does not exceed the sum of three hundred dollars, exclusive of interest . . .”

A municipal court, like a justice of the peace court, is a court of limited and restricted jurisdiction. Bynum v. Patty, 207 Ark. 1084, 184 S. W. 2d 254. In construing the foregoing sections of the Constitution in State ex rel. Moose v. Woodruff, 120 Ark. 406, 179 S. W. 813, this court held that while the language of Art. 7, Sec. 43, was not meant to confine the jurisdiction of municipal courts to such jurisdiction as might always be exercised by justices of the peace, “it was meant as authority for the Legislature to confer such jurisdiction upon municipal courts as might under the Constitution be conferred upon justices of the peace.”

Since the jurisdiction of justices of the peace in matters of contract is expressly limited by Art. 7, Sec. 40, to cases where the amount in controversy does not exceed $300.00 exclusive of interest, the Legislature was powerless to confer jurisdiction upon municipal courts in excess of said jurisdictional limit. This was the effect of our holding in Lingo v. Myers, 211 Ark. 638, 201 S. W. 2d 745, where a legislative act purporting to vest jurisdiction in municipal and justice of the peace courts to determine actions of unlawful detainer was held void, and we said: “Under the plain language of the. Constitution a justice of the peace ‘ shall not have jurisdiction where a lien on land or title or possession thereto is involved’; and the Constitution authorized the creation of municipal courts with only ‘jurisdiction concurrent with justices of the peace in civil . . . matters . . .’ ” See also, Magnet Cove Barium Corporation v. Watt, 215 Ark. 170, 219 S. W. 2d 761, where we held a municipal court judgment for damages to personal property void where the amount sought was in excess of the limits prescribed by Art. 7, Sec. 40, even though the amount of recovery was within said limits.

It follows that Act 160 of 1955 is unconstitutional and void insofar as it purports to invest municipal courts with jurisdiction to hear and determine matters of contract where the amount in controversy exceeds the sum of $300.00 exclusive of interest. The judgment of the circuit court sustaining the motion to dismiss is accordingly affirmed.


author: G-eorgb Rose Smith, J.

text:
    Milum v. Clark.
    5-879
    287 S. W. 2d 460
    Opinion delivered February 27, 1956.

      N. J. Henley and J. Loyd Shouse, for appellant.

      Litton & Adams, for appellee.
   G-eorgb Rose Smith, J.

This is a suit by the appellees, Arlis and Lela Clark, for damages resulting from a head-on collision between their car and a truck being driven by A. B. Poynor. Mr. and Mrs. Clark were injured in the accident; their infant son was killed. The action was brought against Poynor and also against the appellant, R. W. Milum, it being alleged that the collision was partly caused by Milum’s negligence in allowing a cow to run at large on the highway. The jury returned a $4,500 verdict for Clark against Poynor, a $4,000 verdict for Mrs. Clark against Milum, and a $500 verdict for Clark as administrator against Milum. Milum alone has appealed.

The plaintiffs’ proof shows that on the evening of February 2, 1954, the Clark and Poynor vehicles were traveling toward each other on a stretch of highway that runs through a farm owned by Milum. When the vehicles were a short distance apart Poynor swerved to his left to avoid a cow in the road, but in doing so he entered the path of the Clark car and collided with it. The plaintiffs introduced evidence to show that cattle of unknown ownership had frequently been seen on the highway in this vicinity and that the cow which caused the accident was owned by Milum.

The weak point in the plaintiffs’ case lay in their proof that Milum had been negligent. There was very little evidence to show that Milum’s cattle had ever been permitted to range along the highway or that he had been careless in allowing the animal in question to escape from its fenced pasture. In attempting to prove negligence on Milum’s part the plaintiffs called Doyle Eoff as a witness. Eoff testified that he reached the scene soon after the collision, but the only cow he saw was a roan animal a quarter of a mile or more off the road. He said he did not know who owned the cow he saw. Asserting surprise, plaintiffs’ counsel asked Eoff if he had not previously told certain persons that he had seen a roan cow at the scene of the accident, that the cow belonged to Milum, and that it had been running the highway all summer and fall. Eoff denied having made those statements. The plaintiffs were then permitted to prove by the persons named that Eoff had made the statements mentioned. The court instructed the jury that the testimony could be considered only as affecting the credibility of Eoff and not as establishing any material fact in the case.

The admission of this testimony was error, and, since it was the principal proof having a tendency to indicate negligence on Milum’s part, the error was prejudicial. There is, of course, no doubt that in a proper situation a party may contradict his own witness by showing that he has made statements contrary to his present testimony. The Civil Code so provides, and the rule has been followed in many cases, both civil and criminal. Ark. Stats. 1947, § 28-706; Ward v. Young, 42 Ark. 542; Shands v. State, 118 Ark. 460, 177 S. W. 18; Graves v. Gardner, 137 Ark. 197, 208 S. W. 785.

For such evidence to be admissible, however, the witness to be impeached must have given substantive testimony damaging to the party who seeks to attack his credibility. It is settled that inconsistent prior statements cannot be used to impeach a witness who merely fails to give the positive testimony that the party expected from him. Doran v. State, 141 Ark. 442, 217 S. W. 485; Murray v. State, 151 Ark. 331, 236 S. W. 617; Williams v. State, 184 Ark. 622, 43 S. W. 2d 731. The reason is that the prior statements are not competent evidence of the basic fact, being hearsay, and are admissible only as bearing-on the issue of credibility. Comer v. State, 222 Ark. 156, 257 S. W. 2d 564. Bnt if the witness has testified to nothing his credibility is immaterial. Here, for example, the plaintiffs called Eoff to prove that Milnm’s cow had roamed the highway for several months. Eoff neither affirmed nor denied that fact. His earlier assertions were not competent to prove that the cow had actually been at large. And since Eoff’s credibility was unimportant the testimony could serve no legitimate end and yet would involve the danger that the jury might treat it as substantive evidence, despite the court’s cautionary instruction. Wigmore on Evidence, § 1043. It should therefore have been excluded.

It is argued by the appellee that Eoff’s credibility was really in issue, for the reason that certain statements made by him on cross-examination were detrimental to the plaintiffs. This argument is unsound. It is true that Eoff testified that Milum’s fences were good and that he had never seen Milum’s cows along the highway. As to the fences, however, every witness who described these fences said in effect that they were excellent. An attack upon Eoff’s veracity would not have justified the jury in disregarding the undisputed proof that the fencing was good. As to the other point, there is virtually a total want of proof that Milum’s cattle had been permitted to run at large. Again an attack upon Eoff’s veracity would not have supplied substantial evidence to support the verdict. It is evident that the exclusionary rule would be nullified if the prior statements could be introduced under the guise of testing the witness’s credibility upon a point having no significance in the case.

The appellant insists that the verdicts are so contradictory as to require judgment in Milum’s favor. We do not agree. The finding that Milum is liable for Mrs. Clark’s injuries and for the infant’s death is not necessarily inconsistent with the finding that Milum is not liable for Clark’s injuries. The jury may have believed that Clark was guilty of contributory negligence not imputable to Ms passengers. And if it be argued that Clark’s verdict against Poynor negatives the existence of negligence on Clark’s part, the answer is that the appellant is not entitled to complain of such an inconsistency. Leech v. Mo. Pac. R. Co., 189 Ark. 161, 71 S. W. 2d 467; Brown v. Parker, 217 Ark. 700, 233 S. W. 2d 64. It is also argued that the case should be dismissed for want of any substantial evidence of Milum’s negligence. We need not analyze the sufficiency of the testimony, for it is evident that the plaintiffs were surprised by Eoff’s failure to testify to facts that may be susceptible of proof by other witnesses. In these circumstances we are unwilling to say that the case has been fully developed. Longer v. Carter, 102 Ark. 72, 143 S. W. 575; Reynolds Metal Company v. Ball, 217 Ark. 579, 232 S. W. 2d 441.

In this court the appellees have filed a motion to require the appellant to reimburse them for the cost of a supplemental abstract of the record. See Supreme Court Rule 9 (e). This additional abstract consists of (a) testimony describing the injuries sustained by Mrs. Clark, and (b) a detailed account, including extensive quotations from the record, of the proceedings pertinent to Eoff’s testimony and its subsequent contradiction.

This motion misconceives the court’s purpose in revising Rule 9. Since the new rule has not previously been discussed in an opinion, an explanatory comment may be of assistance to the bar as a whole. In its old form Rule 9 required the appellant to submit a fair abstract of the record, under penalty of dismissal of the appeal if the abstract were found to be insufficient. The penalty was so severe that it caused lawyers to resolve all doubts in favor of making a complete abstract of everything in the record, whether relevant to the issues on appeal or not. The result was that nearly every abstract was unnecessarily long, to the detriment alike of the lawyer who labored to prepare it, of the client who paid for its printing, and of the judges who were required to study much irrelevant matter.

It was to remedy this situation that Rule 9 was revised in 1954. The present rule requires that the abstract consist “of an impartial condensation, without comment or emphasis, of only such material parts of the pleadings, proceedings, facts, documents, and other matters in the record as are necessary to an understanding of all questions presented to this court for decision.” The penalty of dismissal for insufficiency of the appellant’s abstract has been eliminated, the rule now permitting the appellee at his option to supplement an abstract thought deficient. Compensation for the cost of the supplement may be awarded by the court in its discretion.

It is the purpose of the revised rule to encourage the submission of abstracts that are confined to those matters pertinent to the points involved on appeal. By this test we find no deficiency in this appellant’s abstract. Since there is no contention that the verdicts are excessive, the testimony concerning Mrs. Clark’s injuries was properly omitted. The original abstract of the Eoff testimony is amply sufficient to present the issue of law involved. The appellees’ motion for reimbursement is denied.

Reversed and remanded.


author: George Rose Smith, J.

text:
    Rhinehardt v. Light, Judge.
    5-941
    287 S. W. 2d 463
    Opinion delivered February 27, 1956.

      Rieves & Smith and Henry S. Wilson, for petitioner.

      Kirsch, Cathey & Brown, for respondent.
   George Rose Smith, J.

This is a petition for a writ of prohibition to prevent the Greene circuit court from hearing a personal injury suit that is pending in that court. The only question is whether the Greene circuit court or the Crittenden circuit court first acquired jurisdiction of the controversy. See Healey & Roth v. Huie, Judge, 220 Ark. 16, 245 S. W. 2d 813.

On November 5, 1955, a car driven by Ralph Agee, a resident of Greene county, collided in Crittenden county with a car driven by the petitioner, Booker Rhinehardt, who lives in Crittenden county. On December 3 Agee and his wife brought suit in the Greene circuit court for their injuries. The dispute centers upon the validity of the summons issued in that case. The summons was erroneously directed to the sheriff of Greene county, but it was sent by the Agees’ attorneys to the sheriff of Crittenden county and was there served by a deputy sheriff of that county.

Thereafter Rhinehardt brought suit in Crittenden county for his personal injuries and obtained valid service of process upon the Agees. The Agees then filed a motion in the Greene county case asking that their summons be amended to show that it was directed to the sheriff of Crittenden county and that the amendment be held to relate back to the issuance of the writ. Rhinehardt appeared specially to resist this motion and to ask that the service upon him be quashed. The respondent denied the motion to quash and granted the Agees ’ request that the summons be amended with retroactive effect. This petition for prohibition was then filed by Rhinehardt.

Each party relies upon a prior decision of this court as controlling authority. The case urged by the petitioner is McIntosh v. Ponder, Judge, 222 Ark. 701, 262 S. W. 2d 277. That case, like this one, involved a competition for jurisdiction as between suits arising out of the same traffic accident. The first suit was filed in Jackson county, but the process was defective in that it failed to make any reference to the county in which the case was pending. The writ was directed to the sheriff of Greene county and required the defendant to answer “a complaint filed against him in the Circuit Court of said county. ’ ’ Before any effort was made to correct the defect the defendant brought an action of his own in Greene county and obtained valid service. Upon an application for prohibition it was argued that the error in the Jackson county writ rendered the process defective but not void. This contention was rejected, the court holding that the writ could not be retrospectively corrected so as to cut off the intervening rights that had arisen from the filing of the second suit.

The respondent’s principal authority is Chicago Mill & Lbr. Co. v. Lamb, 174 Ark. 258, 295 S. W. 27. That case did not involve a conflict of jurisdiction. There the suit was filed in Prairie county and the summons was directed to the sheriff of that county. But, as in the case at bar, the writ was sent to another county for service. In sustaining the trial court’s refusal to quash the service we held that the mistake was a mere clerical error which could be corrected despite the defendant’s objection.

There is manifestly no conflict between the two decisions that are cited. In the Lamb case the defect of directing the writ to the sheriff of the wrong county was regarded as a clerical error that could be retroactively amended, in spite of the intervening motion to quash. In the McIntosh case the total failure to identify the court which issued the writ was held to render the summons void, so that it could not be retrospectively corrected to defeat jurisdiction in the rival case filed by the defendant.

Here the petitioner, whose rights undoubtedly intervened between the issuance of the Greene county summons and its subsequent correction, relies strongly upon this sentence in the McIntosh opinion: “But in the case at bar the right of McIntosh to litigate the issues in Greene county had intervened, and the court erred in overruling the petitioner’s motions to quash. ’ ’ The petitioner contends that it is the existence of an intervening right which should control the decision in each instance. This argument does not reach the heart of the controversy. The mere presence of an intervening right can never in itself be decisive, for it is obvious that whether an amendment is to be permitted to relate back is completely immaterial unless a right of some kind has arisen in the meantime.

The real issue is whether the Greene county writ was void or merely defective. In our opinion it was not void. The defect in the McIntosh summons was far more serious than that now complained of. There the summons failed to inform the defendant in which of the seventy-five counties he had been sued. The writ was actually misleading, as it was addressed to the sheriff of Greene county and referred only to the circuit court “of said county.” That summons failed to accomplish its basic purpose, for it did not tell the defendant where he was expected to present his defense.

No similar objection can be made to the summons in this case. In spite of the irregularity in its address, it accomplished every purpose that the writ is meant to achieve. The defect, characterized in the Lamb case as a clerical error, cannot fairly be said to have adversely affected any substantive right of the petitioner. Since the adoption of the Civil Code our practice has been liberal in permitting amendments in furtherance of justice. “The court must, in every stage of an action, disregard any error or defect in the proceedings which does not affect the substantial rights of the adverse party.” Ark. Stats. 1947, § 27-1160. It would be a step backward to deny the privilege of amendment in this instance.

Writ denied.

McFaddin, Millwee and Ward, JJ., dissent.


text:
    Hendriksen v. Cubage, Trustee.
    5-863
    288 S. W. 2d 608
    Opinion delivered February 27, 1956.
    [Rehearing denied April 16, 1956.]

      Earl E, Hurt and Alfred Featherston, for appellant.

      Witt S Witt and Wootton, Land <§ Matthews, for appellee.
   Paul Ward, Associate Justice.

This litigation involves the construction and effect of numerous deeds with respect to two hundred acres of land in Montgomery County intended for a recreation and reunion site for the lineal descendants of Drs. A. B. Clingman and Alfred Jones, now deceased.

Appellant, a daughter of G-ranville Jones, (who in turn was the son of the said Alfred Jones) instituted this suit in the Chancery Court of Montgomery County against certain Trustees of the Clingman-Jones Family Corporation to recover an undivided one-half interest in the two hundred acres under the terms of her father’s will. The trial court dismissed her complaint, and also made certain finding's in favor of the defendants, as later noted, from which findings and decree the appellant prosecutes this appeal.

A historical background to this litigation is necessary to an understanding of the issues, and it can be briefly stated since there is no dispute about the essential facts.

Early in the year 1923 several of the descendants of Clingman and Jones decided to purchase some land for the purpose above mentioned, and pursuant to that purpose two hundred acres were purchased from J. R. Yaught and wife. The deed, dated September 3, 1923, was regular in form and the grantees were ‘ ‘ Granville J ones, Isaac Jones, and Granville Cubage, Trustees.” We will refer herein to this deed as “Deed No. 1.” The proof shows that the above grantees were to hold the land in trust for the descendants and for the purpose heretofore mentioned.

Following the execution of the above deed, two more conveyances-of the same land were made, but these two deeds need be mentioned only briefly since, with one exception noted later, they have little bearing on the questions here involved. On September 16, 1924, the above named Trustees conveyed the land to Isaac J. Jones in order to facilitate borrowing money to build a dam on the property, but this venture did not materialize at that time. We refer to this deed as “Deed No. 2.” Later, at one of the numerous annual reunions of the families, it was decided to give Granville Jones (father of the appellant), a retired lecturer, the right to live on and use the proceeds of the land so that he might engage in writing at his leisure. For the above purpose Isaac Jones conveyed the land to Granville Jones, as directed by the family representatives. This is referred to as “Deed No. 3.”

It appears that no one objected to Granville Jones having the use of the land for the purposes above mentioned, but one Trustee in particular thought such privilege should be differently conveyed. This result was sought by the execution of ‘ ‘ Deed No. 4. ’ ’ Consequently, on May 28, 1927, Granville Jones and his wife, Jessie Lyon Jones, executed a deed to “Granville Jones, Isaac Jones, Arthur Jones, Claude Jones, and Guilford Jones, as Trustees for themselves and other lineal descendants of Drs. A. B. Clingman and Alfred Jones, deceased, and to the successors of said Trustees,” conveying said land. Following the description, the deed reads:

“With full right to any one of said lineal descendants to establish on said lands a summer cottage and use the same with all privileges thereto appertaining under such rules and regulations as may he prescribed by the said trustees, but specially reserving to the grantors, Gran-ville J ones and J essie Lyon J ones, all profits arising from concessions, summer resort privileges and other commercial and industrial use of the said land and of a dam and lake thereon known as ‘Sylvan Lake’ and other improvements heretofore placed on the said land of Granville Jones together with any future improvements incident to such use as a summer resort, when such improvements shall have been approved by a majority of the grantees as such Trustees, conditioned that no sale, transfer or assignment of these reservations, privileges and sources of revenue shall be made by the said Granville Jones and J essie Lyon J ones, or either of them, without the approval of a majority of said Trustees expressed in writing.”

It was, and is now, the contention of appellant that: (a) Deed No. 4 is void, as violative of the rule against perpetuities; (b) Her father, Granville Jones, therefore received a fee title to the land by virtue of deed No. 3, and; (c) Her father left her a one-half interest [also his wife a one-half interest] in the land by his last will which appears in the record. We are not in agreement with contention (b) above. Reserving, for the present, consideration of contention (a) above, it is clear from the testimony and the record, that appellant’s father did not receive by deed No. 3 a fee title or a beneficial title. It is clear from the testimony that deed No. 3 was executed for the sole purpose of eventually achieving the results attempted in deed No. 4. Both deeds were executed on the same day, indicating again that Granville Jones was not to receive any beneficial title in the land by virtue of deed No. 3. 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. Our conclusion would be the same regardless of the validity or non-validity of deed No..4.

A short time before this suit was filed (and after appellant had filed and dismissed a similar suit) appellees organized a corporation called the “Clingman-Jones Family Corporation.” The articles of this corporation appear in the record, and its purpose is expressed in the third paragraph:

“SECOND: The nature of the business of the corporation and the objects or purposes to be transacted, promoted or carried on by it, are as follows, to-wit: To acquire, own, manage and control all properties held in common by the lineal descendants of Drs. A. B. Clingman and Alfred Jones. ’ ’

In the record appears a deed, conveying said land, to this corporation. We designate this deed as “Deed No. 5,” and will discuss it later.

At the close of the hearing, the court, after dismissing appellant’s complaint, made two principal findings in favor of the appellees. ' (a) Deed No. 4 was reformed, and (b) title to the land was quieted in the Clingman-Jones Family Corporation. We shall now consider these findings in the order named.

(a) We think it is not material to the final disposition of this case, but also think the court was justified in making the reformation. All the reformation amounted to was to more clearly define the purposes and manner in which the grantees in deed No. 4 were to hold the land, and to provide for the succession of trustees. All changes effected by the court were amply substantiated by the testimony.

(b) We have concluded that the court erred in quieting title in the new corporation, because we think deed No. 5 (from the Trustees in succession to the Cling-man-Jones Family Corporation) violates the rule against perpetuities.

Apparently appellees were concerned that deed No. 4 might violate the rule against perpetuities, and so sought to evade that probability by the substitution of deed No. 5. We think no such result was achieved, and also think both deed No. 4 and deed No. 5 violate the rule. Since both deeds contain practically the same essential phraseology we will confine our consideration to deed No. 5.

In deed No. 5 (to the Family Corporation) there is a regular granting clause, and then, after the description of the land, there is a “. ” and this paragraph:

“As a memorial, vacation, and reunion campsite for said lineal descendants, with full right of any one of said descendants to establish a summer cottage on said lands and use the same with all the privileges appertaining, under such rules as may be prescribed by the Directors of the Clingman-Jones Family Corporation.”

Before reaching a conclusion regarding the rule against perpetuities, we find it necessary to construe the effect of said deed No. 5 as a whole and in particular as to the language quoted above in an attempt to determine whether the deed vested a fee simple title in the Corporation,-or whether the deed was in effect a conveyance in trust.

If, under this deed, the Corporation received a vested title in fee with the right to dispose of the land, we would be compelled to conclude that the rule was not violated.

After a careful consideration of the testimony relative to the purpose of the family organization, the Articles of Incorporation, and the language used in the deed to the Corporation, we are impelled to the conclusions hereafter set out.

By the use of the words “lineal descendants” of Clingman and Jones in deeds No. 4 and No. 5 we do not think the Trustees or the family organization meant to refer only to persons then living but rather to those who might be later born. We get the impression from the undisputed evidence that the family had no intention of limiting the recreation and reunion project to those persons who were alive. In fact that is the very issue which prompts this litigation on the part of appellees. There has never been any contention that the living lineal descendants of Clingman and Jones did not have the right to establish and maintain a recreation and reunion project.

Likewise we can draw but one conclusion from the Articles of Incorporation, and that is that the sole purpose and power of the Corporation was to hold the land [in trust] for the “lineal descendants of Drs. A. B. Cling-man and Alfred Jones.” It is perfectly apparent that the Corporation would have violated its purpose and trust if it had disposed of the land or had used it for the benefit of anyone except the ones designated. This being true we cannot say the fee title vested in the Corporation at the time the deed was made or that it certainly would vest in the foreseeable future.

Our views concerning the Articles of Incorporation are confirmed by an examination of deed No. 5 by which the land was conveyed to the Corporation. This deed, in the portion above copied, shows that it was the intention of the grantors to limit the title conveyed. The right was reserved for “lineal descendants” [of Clingman and Jones] to use the land “as a memorial, vacation, and reunion campsite ’ ’ and for ‘ ‘ any one of said descendants to establish a summer cottage” on the land.

The fact that the granting clause in deed No. 5 is regular and, apparently, conveys a fee absolute and that the portion of the deed quoted above is a limitation thereon, avails appellees nothing under the established rule of this court that we look to the four corners of the deed in order to arrive at the intention of the grantors. Also, in applying this rule here, we can look to the testimony introduced by appellees, and from this we have confirmation that they expected the family organization to extend indefinitely.

Having concluded that the Corporation was in effect a trustee and that the use of the land was not limited to those descendants who were alive at the time the deed was made, it follows, as a matter of law, that deed No. 5 is void because it violates the rule against perpetuities. The authorities are numerous and uniform to that effect. The general rule is very well stated in 41 Am. Jur. at page 50 under the heading “Rule Against Perpetuities,” which, in part, reads:

“Although all the established forms have been complied with governing the alienation of property, the law, for reasons of public policy, still imposes some restrictions on the right to dispose of property. One of the most important of these restraints is the rule against perpetuities. The rule against perpetuities prohibits the creation of future interests or estates which by possibility may not become vested within the life or .lives in being at the time of the testator’s death or the effective date of the instrument creating the future interest, and twenty-one years thereafter,” etc.

For some of the decisions of this court sustaining the above rule see: Moody v. Walker, 3 Ark. 147; Union Trust Co. v. Rossi, 180 Ark. 552, 22 S. W. 2d 370, and; Fletcher v. Ferrill, 216 Ark. 583, 227 S. W. 2d 448, 16 A. L. R. 2d 1240. For other jurisdictions see: Shepperd v. Fisher, 206 Mo. 208, 103 S. W. 989; Beverlin v. First National Bank In Wichita, 151 Kan. 307, 98 P. 2d 200, 155 A. L. R. 688; Glock v. Glock et al., 110 N. J. 477, 160 A. 339; Jackson et ux. v. Powell et ux., 225 N. C. 599, 35 S. E. 2d 892; Lewis v. Cockrell et al., 80 Fed. Supp. 380, and; Foley v. Nalley et al., 351 Ill. 194, 184 N. E. 316.

Having reached the conclusion that deeds Nos. 4 and 5 are void because they violate the rule against perpetuities, it follows from the record that the bare legal title to said land was in Granville J ones at the time of his 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. Clingman 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.

Affirmed in part and reversed in part as above indicated.

Justice McFaddin concurs in part and dissents in part.

Ed. F. McFaddin, Associate Justice

(Dissenting in Part). Using the same designation of the deeds as contained in the majority opinion, I make the following observations :

Deed No. 1 was a regular warranty deed from J. R. Vaught and wife to “Granville Jones, Isaac J. Jones and Granville Cubage, Trustees,” dated September 3, 1923. There was nothing in this deed to show the.purpose for which the grantees were trustees, and so there was nothing to' show that the deed violated the rule against perpetuities, or any other rule. I maintain that these grantees became seized with the legal title in trust for whomsoever the evidence might establish to be the beneficiaries. Under our State (% 50-412 Ark. Stats.), any conveyance executed by these trustees to a third person innocent of the trust would pass a good title. But the evidence here shows that there was no conveyance to any such innocent third person.

Deed No. 2 was from the three trustees (grantees in Deed No. 1) to Isaac J. Jones, and was dated September 16, 1924. The grantee was one of the three trustees; and the evidence shows beyond question that the sole purpose of this deed was to empower Isaac J. Jones to borrow some money to improve the trust property, and that no such loan was ever consummated. I maintain that the evidence establishes that this deed was in equity no more than a power of attorney and could be cancelled in this suit and the title reinvested in the grantees in Deed No. 1.

Deed No. 3 and Deed No. 4 were both dated and executed the same day, May 28, 1927. In Deed No. 3 Isaac J. Jones and wife conveyed the land to Granville Jones. The grantor, Isaac J. Jones, and the grantee, Granville Jones, were two of the trustees who were grantees in Deed No. 1. Each of them knew that Deed No. 2 conveyed no title to Isaac J. Jones except to obtain a loan, and each of them knew that no loan was obtained and that the title still rested in the three trustees who were the grantees in Deed No. 1. So I insist that Deed No. 3, in truth and in fact, conveyed nothing.

Deed No. 4 •— executed contemporaneously with Deed No. 3 — was from Granville Jones and wife to ‘£ Granville Jones, Isaac J. Jones, Arthur Jones, Claude Jones and Gilford Jones, as trustees for themselves and other lineal descendants of Drs. A. B. Clingman and Alfred Jones.” In this Deed No. 4, Granville Jones attempted to reserve certain rights to himself and wife, said attempted reservation being as follows:

“But specially reserving to grantors, Granville J ones and J essie Lyon J ones, all profits arising from concessions, summer resort privileges, and other commercial and industral use of said land and of a dam and lake thereon known as ‘Sylvan Lake,’ and other improvements heretofore placed on said land of Granville J ones, together with any future improvements incident to such use as a summer resort, when such improvements shall have been approved by a majority of the grantees as such trustees, conditioned that no sale, transfer, or assignment of these reservations, privileges and sources of revenue shall be made by the said Granville Jones and Jessie Lyon Jones, or either of them, without the approval of a majority of said trustees expressed in writing. ’ ’

I maintain that since nothing passed by Deed No. 3, then Deed No. 4 is a nullity and that all attempted “reservations” by Granville Jones and wife were and are nullities. The net result is that the title still rests in the grantees in Deed No. 1. This result disposes of all claims under the will of Granville Jones and all claims under the deed from Jessie Lyon Jones to Claude Jones, and likewise nullifies Deed No. 5.

Deed No. 5 was dated May 15,1954: the grantors were Gilford Jones, J. Granville Cubage, Robert Highsmith, Herbert Chandler and Mrs. Lee J. Chandler, as trustees in succession to the trustees named in Deed No. 4. These grantor trustees claim to be the owners of the property by virtue of Deed No. 4; but with Deed No. 4 a nullity — as hereinbefore mentioned — the grantors in Deed No. 5 had nothing to convey. The grantee in Deed No. 5 was “the Clingman-Jones Family Corporation.” The majority opinion holds that this Deed No. 5 is void as violative of the rule against perpetuities. That may be true; but the better reason — as I see it — is that the grantors in Deed No. 5 had no title to convey because they had received nothing by Deed No. 4.

Now, with the foregoing observations made, it is evident that I regard the legal title to still be in the grantees in Deed No. 1, or the surviving one of such grantees. Therefore, this suit is simply a suit to have a trust declared and enforced against the surviving trustee in Deed No. 1. Thus, if my opinion prevailed, the work of the Chancery Court on remand would be considerably simplified because, as I see it, Jessie Lyon Jones never had any “bare legal title” or any other kind of title, and all the Chancery Court needs to do on remand is to determine the trust created by Deed No. 1 and enforce it; or proceed to partition the property, if the trust be violative of the rule of perpetuities.


text:
    Thompson v. State.
    4828
    287 S. W. 2d 465
    Opinion delivered February 27, 1956.

      Eugene Coffelt, for appellant.

      Tom Gentry, Attorney General, and Thorp Thomas, Asst. Atty. General, for appellee.
   Sam Robinson, Associate Justice.

Appellant Irene Thompson appeals from a conviction of possessing liquor for sale in a dry county.

First, appellant contends that the trial court should have declared a mistrial because, in his opening statement to the jury, the Prosecuting Attorney said: “We expect to prove that these people bear the reputation of dealing in illicit liquor and have borne that reputation for some considerable length of time and bear that reputation now in the community where they reside, that they have received numerous convictions for illicit dealing in liquor.” Ark. Stats. 48-940 provides: “In any prosecution or proceeding for any violation of this act [the act which the defendant was charged with violating], the general reputation of the defendant or defendants for moonshining, bootlegging, or being engaged in the illicit manufacture of, or trade in, intoxicating liquors, shall be admissible in evidence against said defendant or defendants.” Not only was defendant’s reputation for dealing in illicit liquor admissible in evidence under the above mentioned statute, but evidence of convictions for violations of the liquor laws was also admissible. Of course, the Prosecuting Attorney had the right to mention in Ms opening statement the competent, relevant testimony he relied on for conviction. The statute, as set out above, clearly states that the defendant’s reputation with regard to the liquor business is admissible, and this court has held in a large number of cases that evidence of violations and convictions for violating the liquor laws is admissible. Hughes v. State, 209 Ark. 125, 189 S. W. 2d 713; Casteel v. State, 151 Ark. 69, 235 S. W. 386; Larkin v. State, 131 Ark. 445, 199 S. W. 382; Lowery v. State, 135 Ark. 159, 203 S. W. 838; Burrell v. State, 203 Ark. 1124, 160 S. W. 2d 218.

Appellant also argues that the court erred in not excusing for cause the venireman John E. Brown, alleging: “The juryman clearly displayed that he was prejudiced against the defendant. . . .” We have carefully examined the record, and it does not show any prejudice on the part of Mr. Brown.

Next, appellant states that the evidence is not sufficient to sustain the conviction.' It is shown that appellant had the reputation of being engaged in the liquor business ; that she had been convicted on prior occasions; that many people were noticed going in and out of the defendant’s home, and that, later, these same people would be arrested for drunkenness. It is further shown that people who have the reputation of drinking go to appellant’s home frequently. At the time of her arrest, appellant had in her possession fourteen half pints of liquor of various brands. All of this evidence, when considered together, is sufficient to sustain a conviction of possessing liquor for sale in a dry county.

Finding no error, the judgment is affirmed.