author: J. SeaborN Holt, Associate Justice. Sam RobiNsoN, Associate Justice,

text:
    O’Dell v. Newton.
    5-1519
    312 S. W. 2d 339
    Opinion delivered April 21, 1958.

      Byron Bogará and Bobbie Jean Farabee, for appellant.

      Willis V. Le%ois, for appellee.
   J. SeaborN Holt, Associate Justice.

This appeal is from a decree of the Pulaski Probate Court voiding the will of J. F. Parmer, deceased, on the ground that the testator lacked mental capacity to make the will. The sole question presented is whether the finding of the trial court, that J. P. Parmer lacked mental capacity to make his will, was against the preponderance of the evidence. After a careful review of all the testimony, we have concluded that appellant’s contention that the findings and decree of the trial court were against the preponderance of the testimony must be sustained.

The record reflects that J. P. Parmer executed the will in question while living with his daughter, jSarah O’Dell, appellant, at her home in Texas, September 7, 1950. He was survived at Ms death by two daughters, appellant (Sarah) and appellee (Lillian Newton) of Little Rock. For a great many years Farmer had lived in North Little Rock, was an employee of the Cotton Belt Railroad until his eyesight began to fail in 1934, retired in 1941 and thereafter became almost totally blind. For a period of about ten years he and his wife lived in North Little Rock alone, or until July 1949, when their daughter, Sarah, took them to Texas and into her home where she cared for them until their deaths. Mrs. Farmer died in 1949 and Mr. Farmer January 23, 1953.

About fourteen months after his removal to Texas, Farmer executed the will in question which (among others) contained this provision: “I give to my beloved daughter, Sarah Lura O’Dell, all the property, real, personal or mixed, which I may own at the time of my death. The foregoing bequest to my daughter Sarah Lura O’Dell is made because of her love and loyalty to me and to my deceased wife, Rosa Lee Farmer, who was her mother. She gave to her mother during her last years and during her last illness, tender and constant care and she has given me the same kind of tender care and affection since I have lived in her home. In making this bequest it is not my will and desire to offend my other daughter, Lillie Newton, but such bequest is made by me in order to express my appreciation as well as to partly compensate my daughter Sarah, for what she has done for me.” It appears that all of Farmer’s property was of a value of approximately $4,000.

The law is well settled in this ■ state that the burden of proof, in cases such as the one presented here, is always on the contestant who asserts the mental incapacity of the testator. “While old age and physical fitness are proper matters to be considered in an effort to determine one’s testamentary capacity yet this court has said many times . . . that 'Old Age, physical incapacity and partial eclipse of the mind will not invalidate a will if the testator has sufficient capacity to remember the extent and condition of his property ■without prompting, to comprehend to whom he is giving it, and be capable of appreciating the deserts and relation to him of others whom he excluded from participating in his estate. He is not required to do all these things, but should have capacity to do them.’ It has also been consistently held by this court, . . . that the testator’s mental capacity must' be adjudged as of the time' when his will is executed. It is true of course that testimony of the testator’s mental capacity for a reasonable time before and after the execution of the will is ordinarily, . . . competent evidence to show what his mental capacity was at the time the will was executed.” Yarbrough v. Moses, Executor, 223 Ark. 489, 267 S. W. 2d 289.

It appears undisputed that Farmer was old and infirm and for sometime before moving-do Texas it appeared to -witnesses introduced by appellee that while he lived in North Little Rock, at times he acted “silly”, “talked like a kid”, that it was common knowledge that he had kinda’ lost his mind, did not know what he was doing half the time, and in their opinion was incapable of transacting business. Appellee produced only one witness who saw and visited with testator after he moved to Texas. This witness, William Newton (Farmer’s grandson) testified that he saw Farmer in February 1951 at Sarah O’Dell’s home at Tyler, Texas, and spent about an hour with him. That his grandfather did not recognize him.

Appellant, Sarah O’Dell, testified that her father died at her home on January 23, 1953,' and was buried in Tyler, Texas, with her mother. That her mother was living with her at the time of her death and that she took them to her home in 1949 and cared for them, and that her father made his will after being in her home over a year. He was under the doctor’s care and that his health had greatly improved, that her father brought up the subject of making his will and asked her to call Judge Powers, her attorney. Judge Powers came out, talked to her father, went back and later, at her father’s request returned. Judge Powers called Dr. Bundy who came out and visited with her father. Dr. Bundy made another visit several months later. Judge Powers drew the will and her father signed it in her home before two neighbors. She testified that her father was rational and knew what he was doing. He was 75 years old when he died, that he was able to dress himself and intended to vote in the coming November election. He expressed the feeling to her that — they were going to put something over on him in Little Rock and later told her that LeRoy, his grandson, tried to make him sign a will before he came to Texas. She further testified that William Newton came to her home in 1951 and talked to her father about an hour. At the time he came her father was listening to a football game over the radio, recognized Newton and called him Bill and shook hands with him. After Bill left her father expressed some anxiety as to the purpose of his visit • — • he felt that Bill came down to see him so he could testify that he was crazy. Her father grew better after coming to her home and got where he could talk as good as anyone. He died suddenly from a heart attack, and knew pretty well what he was doing up to a day or two before he died. He was very fond of her son who was at Baylor. It was quite awhile after her mother died before her father started talking about a will. After the will was executed it remained in Judge Power’s office until her father’s death.

Appellant’s husband, W. D. O’Dell, railroad clerk for the Cotton Belt in Tyler, Texas, 63 years old, testified that while Mr. Parmer had difficulty with his speech when he executed the will his mental thinking was good, remembered dates, days of week without a calendar and took care of himself; that Judge Powers drew the will and Parmer was “absolutely” rational at the time he executed it. “Q. . . . what would he (Parmer) do for diversion? A. He loved ball games and he loved singing and loved religious services. On Sunday morning he would turn his radio on and get his favorite preacher and listen to him and turn and get another; all day Sunday he would listen to religious services. Q. Would that be every Sunday? A. Yes, and on Sunday when they were playing ball be would listen to it and every once in a while he would yell out.”

Di. Bundy, physician, county health officer for 18 years, testified: “Q. State here your opinion as to his mental condition of September 7,1950, if you know. And in giving your answer to this question state whether you base the answer on your professional treatment of him or otherwise. The question, of course, refers to J. F. Farmer, now deceased. A. Based upon my examination and observation of him, it was good. This opinion is given, based upon the several visits I made to Mr. Farmer’s home for the purpose of observing him and treating him, if necessary. I found that no treatment was necessary. That for a man his age and with the physical impairment he had that his mind was good and in my opinion he had the mental capacity to handle his own affairs. Q. State whether or not the said J. F. Farmer, in your opinion, based on what you have already stated as your means of knowledge of his condition, was capable of thinking rationally and making his last will and testament on September 7, 1950? Explain your answer if you will. A. In my opinion J. F. Farmer, on September 7, 1950, was capable of thinking rationally and was capable of making his last will and testament. I examined Mr. Farmer on several occasions very carefully and remember on one occasion, during the late summer of 1950, spending more than an hour discussing with him many things, among others, some of his plans and he, in my opinion, was thoroughly capable of making a will and knowing and understanding what he was doing and what he wished to do. All of his expressions and discussions were logical and rational and he was an interesting man to converse with.”

As indicated, we are primarily concerned with Farmer’s mental capacity at the time he made the will. Ap-pellee has offered only one witness (William Newton, Farmer’s grandson) who even saw Farmer and talked to him after he left Arkansas and went to live with appellant in Texas, and then only for about one hour in February 1951, about six months after the will was executed. On the whole, as indicated, we think it clear that appellee failed to sustain the burden of proof imposed on her to establish the mental incapacity of the testator. See Shippen v. Shippen, 213 Ark. 517, 211 S. W. 2d 433.

The decree is reversed and the cause remanded with directions to uphold the validity., of the will, and for further proceedings consistent with this opinion.

RobiNSON, J., dissents.

Sam RobiNsoN, Associate Justice,

dissenting. It was the opinion of the trial judge who saw the witnesses and heard the testimony that Mr. Farmer was not competent to make a will, and in my opinion the preponderance of the evidence sustains that view.

Mr. Farmer was a resident of North Little Rock for many years. In the early 30’s he lost his eyesight, and the evidence shows that as early as 1941 he began to deteriorate mentally. In 1949 he and Mrs. Farmer went to live with their daughter, Mrs. O’Dell, in Tyler, Texas. During that year Mrs. Farmer fell at the back steps of her home in North Little Rock and broke her hip. The record is not clear on this point, but it appears that Mrs. Farmer had been to Texas and had returned to North Little Rock when she received the injury. In any event, she and Mr. Farmer were at Mrs. O’Dell’s home in Texas when Mrs. Farmer died in November, 1949. The following spring Mrs. O’Dell called her lawyer to draw Mr. Farmer’s will, but the lawyer did not write the will at that time. Instead, he called a doctor to examine into Mr. Farmer’s mental condition. Certainly, no lawyer called to write a will would refuse to do it and call a doctor to give the testator a mental examination unless the lawyer suspected that the person whose will was to be written was mentally incompetent. Just what the doctor found Farmer’s mental condition to be at that time, is not shown by the evidence, but presumably Mr. Farmer was in no condition to make a will, because no will was prepared at that time.

Several months later someone, obviously an attorney, did draw a will, wbicb leaves everything to Mrs. O’Dell. Mrs. O’Dell says that a Judge Powers drew the will and brought it out to her house; that Mr. Farmer signed it and the lawyer then took it back to his office. Mr. O’Dell, the husband of Mrs. 0 ’Dell, says no lawyer was there when the will was executed. One of the witnesses to the execution of the will is Mrs. O’Dell’s son-in-law; the other witness is the family barber. Neither was called in this case to prove Mr. Farmer’s mental capacity. Nor was the lawyer who is alleged to have written the will called as a witness. To prove that the testator was of sound mind at the time of the execution of the will, the proponent of the will called only three witnesses. Two of these witnesses are greatly interested in the outcome of the litigation: Mrs. O’Dell is the sole beneficiary under the will, and, of course, her husband would like to see her win the case. The only other witness called to show the sanity of the testator was a doctor engaged to show Mr. Farmer to be sane. The doctor was called by Mrs. O’Dell to examine Mr. Farmer. There is nothing to indicate that she wanted to prove Mr. Farmer lacked the mental capacity to make a will. Moreover, the failure of the proponent of the will to call witnesses that must have been available speaks volumes. During the time Mr. Farmer was at Mrs. O’Dell’s, he suffered with spells of some kind that caused him to lose consciousness for as much as 45 minutes at a time. Mrs. O’Dell had a doctor with him on these occasions; in fact, in the majority opinion it is pointed out that Mrs. O’Dell testified that while at her home Mr. Farmer was under a doctor’s care and that his health had improved. No doubt it was highly significant to the Probate Judge that the doctor who Mrs. O’Dell says treated Mr. Farmer was not called to testify.

Mr. Farmer moved with Mrs. O’Dell in July, 1949. In the spring of 1950 she had him examined for will-making purposes; in the fall of 1950 the will was executed. Mr. Farmer continued to live with Mrs. 0 ’Dell until the date of his death, January 23, 1953, and yet not one single visitor, neighbor or friend was called to show Mr. Farmer’s mental capacity to make a will. The proponent relied on the testimony of three witnesses only. Her own testimony and her husband’s, and that of a doctor called under strange circumstances to give Mr. Farmer a mental examination.

To show Mr. Farmer’s mental incapacity to make a valid will, friends and neighbors who had known him intimately over a long period of years testified that he began to lose his mind several years before he went to live with Mrs. O’Dell; that he had paresis; that it was generally known in the neighborhood that he had lost his mind; that he did not know what he was doing for a long time before he left North Little Rock; that his condition seemed to grow worse; that he was not rational; that he had a stroke in 1945 or 1946; that he talked like a child and did not know old acquaintances; that this condition existed at the time he left North Little Rock; that at the time Mrs. Farmer fell and broke her hip she cried for help, a neighbor answered her calls and asked Mr. Farmer what was the matter, but he did not answer her; that his mind was not right; that he did not know what he was talking about, and what he said did not make sense; that this condition existed from 1941 to the time he left here a few months before a doctor was called to examine his mentality; that he was not capable of transacting business; that in 1949 Mrs. Farmer had Mr. Farmer put in the County Hospital because she could not control him; and in 1951 he did not know his own grandson.

It appears to me that Mr. Farmer’s mental incapacity to make a will is established by a great preponderance of the evidence. In fact, no disinterested witness, with the possible exception of one doctor, testified that Mr. Farmer had the mental capacity to make a will. I think the decree should be affirmed, and for the reasons set out herein I respectfully dissent.


source: Caselaw Access Project

author: Ed. P. McFaddiN, Associate Justice.

license: Public Domain

text:
    Stovall v. Stovall.
    5-1532
    312 S. W. 2d 337
    Opinion delivered April 21, 1958.

      Meliaffy, Smith & Williams and Robert V. Light, for appellant.

      Willis V. Lewis, for appellee.
   Ed. P. McFaddiN, Associate Justice.

This appeal is an effort by a father to reduce the amount of monthly payments which he agreed to make for the support of his children.

Mr. and Mrs. Stovall were married in Little Book in 1943, and are the parents of three children: twin hoys born in 1951 and a daughter horn in 1954. The Stovalls separated in November, 1955, and a divorce was subsequently obtained by Mrs. Stovall in Pulaski County. In contemplation of the divorce, the parties signed an agreement whereby Mr. Stovall agreed that Mrs. Stovall could have the care and custody of the three children during minority, and that Mr. Stovall would pay her $275.00 per month for the support of the children. The divorce decree incorporated in it the support agreement.

Mr. Stovall was a Lieutenant Colonel in the United States Army at the time of the execution of the support agreement, and Ms Army pay was $726.00 per month. Shortly after the divorce decree he married a lady who had two children; and in June, 1957 he suffered a heart attack. He was about to be retired from the United States Army at retirement pay of $320.00 per month, when, on August 1, 1957, he filed his present petition for modification of the support decree to reduce the amount he was to pay each month for the support of his three children. Mrs. Stovall resisted the petition for modification; the Chancery Court heard the petition and refused to grant Mr. Stovall any relief; and this appeal ensued.

Two points are urged by the appellant on appeal. They are:

I. The trial court had the power to modify the provisions of its Decree relative to child support.

II. The defendant made a sufficient and proper showing of changed circumstances which justified a reduction of the child support payments required by the Decree, and the Chancellor’s finding that an insufficient showing ivas made is contrary to the law and facts, and is opposed to the preponderance of the evidence.

We entirely forego any discussion of the first point because we are convinced that appellant has failed to establish that the Chancery Court was in error in refusing to modify the support decree. The only witnesses in the case were the parties. Mr. Stovall, who lives in California, testified by deposition on August 19, 1957: that he was 43 years of age and resided in California; had been in the Army 23 years; was still receiving $726.00 per month at the time of testifying; that he had no other income; that in September 1957 he would be retired from the Army; that upon such retirement his pay would be only $320.00 a month; and that his present wife was Mrs. Marie Stovall, age 38, who was Educational Advisor, Troop Information and Education, Port Orel, California. Here are Ms answers as to the nature and extent of his disability:

“Question 6. Make a detailed statement relative to the state of your health, and your physical ability to engage in gainful employment after your retirement from the United States Army.
“Answer: In view of a serious coronary thrombosis on 5 June 1957 and per instructions I have received from the attending doctors, my activity will be quite limited for several months yet to come. And after full recovery my activity will still be limited, thereby reducing my chances of obtaining employment in other than non-active forms of employment.
“Question 7. If in Interrogatory No. 6 you indicate that you will not be physically able to be gainfully employed on your retirement, from the United States Army, state the estimated period of time during which you will be so incapacitated. Please attach any physician’s statement, hospital record, etc. which would tend to corroborate your testimony in this respect.
“Answer: The doctors’ estimate, I understand, of the period I will be incapacitated is four to six more months.”

What we have above detailed is all the evidence that was offered by Mr. Stovall. No doctor testified that Mr. Stovall’s heart condition existed or would disable Mr. Stovall for six months, or any other period of time. Mr. Stovall offered no evidence that he had tried to obtain gainful employment or would be refused gainful employment after his retirement. He did not testify what income and property his present wife has, although the fact that she had some employment was shown.

Mrs. Stovall (appellee here) testified that Mr. Stovall knew he was going to retire (after 20 years service) when he signed the agreement to support his children, and that he contemplated obtaining employment after retirement sufficient to support himself; that she surrendered her interest in a home worth $21,000.00 and surrendered all of her dower and property rights in order to get the support agreement for the children; and that the entire $275.00 per month was necessary for the support of the three children.

The rule is well established, that one seeking modification of a prior decree, involving support of children, has the burden of proving (a) changed circumstances since the decree; and (b) that such change in circumstances requires a modification of the decree involving the support of the children. Dobrzeniecki v. Dobrzeniecki, 223 Ark. 828, 270 S. W. 2d 891; Clinton v. Morrow, 220 Ark. 377, 247 S. W. 2d 1015; Roberts v. Roberts, 216 Ark. 453, 226 S. W. 2d 579.

Our cases also hold that the Court is not required to accept as uncontradicted the testimony of a party to the litigation. In McDonald v. Olla State Bank, 192 Ark. 603, 93 S. W. 2d 325, Chief Justice JOHNSON said: “In a long line of opinions we have consistently held that the testimony of interested parties is never considered as uncontradicted. Bridges v. Shapleigh Hdw. Co., 186 Ark. 993, 57 S. W. 2d 405; Davis v. Oakes, 187 Ark. 501, 60 S. W. 2d 922; Walker v. Eller, 178 Ark. 183, 10 S. W. 2d 14.”

As aforesaid, Mr. Stovall’s testimony was not corroborated. Nor was it so detailed and complete as to indicate a full and perfect desire on his part to do complete equity to his own children. Therefore, the decree is affirmed at the cost of appellant.

       By stipulation it was agreed that Mr. Stovall’s retirement from . active duty was consummated on October 23, 1957. The decree herein was rendered on November 5, 1957.


author: Minor W. Millwee, Associate Justice.

text:
    Johnson v. McClure.
    5-1537
    312 S. W. 2d 347
    Opinion delivered April 21, 1958.

      Robinson, Sullivan & Rostech, for appellant.

      Van Johnson, for appellee.
   Minor W. Millwee, Associate Justice.

The question presented is the jurisdiction of a judge of the Pulaski Chancery Court to issue and make returnable before himself a writ of habeas corpus where the real party defendants are residents of a county in another chancery district.

L. P. Johnson and wife resided in Pulaski County, Arkansas with their two minor children for some time prior to February, 1957, when Johnson was convicted of murdering his wife and sentenced to a term in the state penitentiary. On February 12, 1957, the Juvenile Court of Pulaski County issued an order placing the two children in the home of their maternal aunt, Florene McClure, in Texarkana, Miller County, Arkansas. This order was set aside by the court October 4, 1957, upon the petition of its probation officer with a finding that the children were well adjusted and receiving good care in the home of Florene McClure, the only person who came forward and requested their custody.

On October 11, 1957, L. P. Johnson together with his brother Ralph W. Johnson and the latter’s wife filed a petition for a writ of habeas corpus in the Pulaski Chancery Court against Florene McClure, Percy Brown, Carl Adams, Director of the State Department of Public Welfare, and Mary Burt Nash, Referee of the Pulaski County Juvenile Court. The petition alleged that Florene McClure and Percy Brown were holding the two children in Miller County illegally and unable to support them; and that the writ should issue to establish custody of the children in Ralph Johnson and wife whose residence was not disclosed. The writ was made returnable to the Pulaski Chancery Court and served upon Carl Adams and Mary Burt Nash in Pulaski County and upon Florene McClure and Percy Brown in Miller County. There was no allegation in the petition concerning any interest the State Department of Public Welfare might have in the proceeding and it filed no pleadings therein. The Referee of the Pulaski County Juvenile Court filed a response stating that court had relinquished custody of the children under the order of October 4, 1957.

Appellees, Florene McClure and Percy Brown (grandfather of the children), filed their motion to quash the writ of habeas corpus on the ground that it was made returnable to the Pulaski Chancery Court contrary to the provisions of Ark. Stats., Sec. 34-1710. The separate answer of Florene McClure denied the children were in her custody while the answer of Percy Brown admitted he had such custody and further stated that the Probate Court of Miller County had granted him temporary letters of guardianship of said children. This appeal is from the order of the Pulaski Chancery Court sustaining the motion to quash and dismissing appellant’s petition for writ of habeas corpus for want of jurisdiction.

While appellants argue that Ark. Stats., Sec. 34-201, makes it mandatory that any action against the Director of the State Department of Public Welfare be brought and prosecuted in Pulaski County, they make no allegation of any interest he might have in the proceeding and he has claimed none. It is clear from the pleadings that he and the Referee of the Juvenile Court of Pulaski County are only nominal or theoretical party defendants to the instant suit and have no interest in it. The real contest for custody of the two minor children is between the appellants and the appellees, Florene McClure and Percy Brown, who are residents of Miller Connty, Arkansas, and had actual custody of the children when this suit was instituted.

In these circumstances the chancellor correctly concluded that the writ was erroneously made returnable to the Pulaski Chancery Court under Sec. 34-1710, supra. This statute provides that the writ of habeas corpus shall be directed to the person in whose custody the prisoner is detained and made returnable before the supreme, circuit or chancery judge of the county in which it may he served. In construing it we have held that a writ of habeas corpus cannot he made returnable to the issuing judge if it is directed to a county outside the territorial jurisdiction of such judge. State v. Ballard, 209 Ark. 397, 190 S. W. 2d 522. While the judge of the Pulaski Chancery Court had the power to issue the instant writ, he did not have the power to make it returnable before himself or to determine the custody issue raised in the petition. In the absence of any request that the writ he made returnable to the proper court, the chancellor correctly sustained the motion to quash, and the decree is affirmed.

Robinson, J., not participating.


author: G-boege Rose Smith, J.

text:
    City of Cabot v. Morgan.
    5-1560
    312 S. W. 2d 333
    Opinion delivered April 21, 1958.

      Kenneth Coffelt, for appellant.

      Joe P. Melton and Chas. A. Walls, Jr., for appellee.
   G-boege Rose Smith, J.

On January 14, 1957, the Cabot city council adopted an ordinance levying a privilege tax upon those engaged in various occupations within the city. Some eighty people paid the tax, hut the ap-pellee Morgan and about seven others refused to pay. T-hey were brought before the mayor’s court, where it was ruled on May 17 that the ordinance was unconstitutional, and the defendants were discharged. Despite this ruling, on June 12 the city filed a civil action in a justice of the peace court for the collection of the tax from the delinquents.

On July 3 Morgan filed the present petition for a declaratory judgment, naming as defendants the city, its aldermen and recorder, and the justice of the peace, A. B. Robinson. The petition asserts that, although the ordinance vras held invalid by the mayor’s court, the city is nevertheless attempting to force Morgan and the others to pay the tax. The prayer is that the court declare the rights and status of the parties and that, pending the entry of a declaratory judgment, the various defendants be restrained from proceeding further with the city’s civil suit. The chancellor issued a temporary restraining order, which, ultimately led to the contempt proceedings that are being disposed of today in a separate appeal, Robinson v. Morgan, 228 Ark. 1091, 312 S. W. 2d 329.

After the issuance of the preliminary injunction the defendants filed an answer asserting that a civil action was already pending before the justice of the peace and that the chancery court therefore had no jurisdiction in the matter. If, however, the court should hold that it had jurisdiction, the defendants asked for a judgment declaring the ordinance to be constitutional. Upon final hearing the chancellor, without reaching the constitutional question, held that the ruling of the mayor’s court was a binding adjudication, and the defendants were permanently enjoined from attempting to collect the tax from Morgan and the other protestants.

A number of questions are argued in the briefs, but we find it unnecessary to go beyond the appellants’ original contention, that the chancery court should not have entertained this proceeding. It has been pointed out that declaratory judgment statutes, such as our uniform act, Ark. Stats. 1947, Title 34, Ch. 25, are intended to supplement rather than supersede ordinary causes of action. Anderson on Declaratory Judgments, § 48. In harmony with this principle it is well settled that declaratory relief should be withheld when the same questions are already at issue in a pending case. Staub v. Mayor, etc., of Baxley, 211 Ga. 1, 83 S. E. 2d 606; Pugh v. City of Topeka, 151 Kan. 327, 99 P. 2d 862. The point was discussed in City of Johnson City v. Caplan, 194 Tenn. 496, 253 S. W. 2d 725, where the court, after reviewing two earlier decisions, went on to say:

“A reason for the conclusions stated in the two Tennessee decisions above mentioned is very clearly stated in the Michigan case of Updegraff v. Attorney General, reported in 298 Mich. 48, 298 N. W. 400, 401, 135 A. L. R. 931, 933, as follows: ‘We condemn the practice of a person after being charged with violating the law . . . then asking for a declaratory judgment in an independent cause, with the result that two cases involving the same subject matter are pending at the same time. If such, a practice were permitted, it would cast an unnecessary burden on the courts and the law enforcement authorities.’ In the New York case of Woollard v. Schaffer Stores Co., reported in 272 N. Y. 304, 5 N. E. 2d 829, 832, 109 A. L. R. 1262, 1265, the Court said: ‘When, however, another action between the same parties, in which all issues could he determined, is actually pending at the time of the commencement of an action for a declaratory judgment, the court abuses its discretion when it entertains jurisdiction. ’ ’ ’

In the case at bar the pleadings seek a declaratory judgment with respect to only two questions, both of which are involved in the case pending before the justice of the peace. First, Morgan asks the court to determine the effect of the ruling by the mayor’s court. It has been stated that a declaratory judgment will not be granted to determine the validity of prior judicial proceedings, Anderson, op. cit., § 54; but in any event the binding force of the mayor’s ruling can evidently be put at issue by a plea of res judicata in the justice of the peace court. Second, the appellants sought a declaration as to the validity of the ordinance. It is plain enough that the defendants in the pending civil action for the tas are free to raise this constitutional question if they wish.

The appellee argues, however, that the issues cannot be decided in the other case, because an action to collect a privilege tax is not within the limited jurisdiction of a justice of the peace. Ark. Const., Art. 7, § 40. We have pointed out in today’s companion opinion that this is not a suit for a writ of prohibition, in which the question of jurisdiction would be directly at issue. Furthermore, the asserted lack of jurisdiction cannot be said to have been conclusively demonstrated, for we have held that an action to enforce a statutory liability may involve an implied contract and thus come within the jurisdiction of a justice of the peace. Adamson v. Kay, 100 Ark. 248, 140 S. W. 13. Since the jurisdictional question is not free from doubt, it is quite possible that the chancery court, if the present petition were entertained, might decide the point one way, while the justice of the peace, or the circuit court on appeal, might reach exactly the opposite conclusion. To avoid snch a conflict between different courts it is manifestly desirable that the jurisdictional question be finally determined in the suit at law, where it arises in the first instance.

Reversed and dismissed.


author: Paul Ward, Associate Justice.

text:
    Glens Falls Ins. Co. v. Browning.
    5-1545
    312 S. W. 2d 335
    Opinion delivered April 21, 1958.

      McMillen, Teague & Coates, for appellant.

      Botts & Botts and Wood & Smith, for appellee.
   Paul Ward, Associate Justice.

The principal question for decision is whether the jury’s verdict is supported by substantial evidence.

Appellee, W. M. Browning, is the owner of a metal-clad building at DeWitt used to store rice. Appellant, Glens Falls Insurance Company, had insured the rice against the peril of windstorm and the other appellant insurance companies had likewise insured the building. The building and a portion of the rice stored therein were damaged on or about March 20, 1955. At the trial Browning contended the damage was caused by windstorm and appellants contended the damage was caused by collapse of the building — the result of heavy rains and the building’s faulty foundation. The jury returned a verdict in favor of Browning in the full amount sued. On appeal the only point relied on by appellants is “that the physical facts presented in the proof show conclusively that the damage was not caused by windstorm, but was caused by collapse.”

Under the familiar rules of this court the jury’s verdict must be sustained if it is supported by substantial evidence, and in reviewing the testimony it must be considered in the light most favorable to appellees. The testimony will be summarized in the light of these rules.

On the night before the damage occurred there was a heavy rainstorm in the area around DeWitt. When Browning observed the granary building the following morning, the rear end had collapsed onto the ground and a portion of the rice then in storage had become wet and damaged by sifting out at the seams where the building had come apart. Harold L. Smith, a witness for appellants, who has been a practicing engineer in the vicinities of Stuttgart and DeWitt since 1952, made an examination of the damaged building some 25 days after its collapse. He found the metal siding warped or torn loose from the bottom to the top and the north end of the building sitting flat on the ground, while the south end was still on the piers; the north end bore the greater weight and had settled somewhat; the building was built on two kinds of soil, that on the south side being more stable than that on the north side; the northwest corner of the building is buried in the soil approximately one foot in depth; he could detect some saturation of the soil at the time of his examination. In his opinion the damage to the building came from the weight pushing down or pushing sideways. He estimated that the weight on the foundation of the building was about 2 1/2 times more than it should have been. The piers had failed on the east side where the roof was damaged and on the west side where there was a crack in the wall. He remembered the storm on March 20, and knows that a creek about 150 feet from the building was flooded. On cross-examination he stated he did not know the wind velocity in the area of DeWitt on March 20.

In substance, appellee Browning, testified: On March 20, 1955 there was a rainstorm with high wind near St. Charles, and there were considerable limbs thrown all over Main Street. "When I first saw the building in DeWitt the east end didn’t seem to be much changed but when I walked west 5 or 6 feet I saw the building was flat down on the ground; it was raining pretty hard and quite a bit of wind was blowing; in places the sheet iron roofing was bent up 6 to 10 inches, and there was quite a good deal of sheeting loose on the sides of the building —■ mostly on the east side. A shed and shop building nearby were also damaged by the wind; the granary was damaged in several places and I hired men to repair it. The only water that got under the building was from rain that ran off the building and then under it; most of the ground under the building was wet; the grain was about evenly divided in the building — each end was full but some bins in the middle were empty. If the wind pushed the building over, it would cause it to buckle in the middle the way it did; I do not know exactly what kind of a windstorm there was in DeWitt on the 20th but the next morning there were gusts of wind; it was so rough none of us wanted to go on top of the building. At the time I took out the Insurance nothing was said about how the building should be constructed or as to how much grain should be stored therein.

Other witnesses for appellees testified in substance as follows: Lucien Nugent said he didn’t know how hard the wind blew at DeWitt on the night of the 20th, but he did know it blew hard and rained. Lucien Nugent said the wind blew pretty hard — hard enough that his wife was scared and he had to stay up a good while that night on her account. Raymond Horton said the wind was blowing “right strongly” on the night of the 20th, and the next morning he heard the tin roof on the granary flopping in the wind. He also stated that the wind that morning was blowing from the northeast, and the north end of the building was moved to the west about 5 or 6 feet.

Appellants question none of the instructions, and cite no authorities. They rely entirely upon the testimony of Harold L. Smith which, they contend, shows positively and conclusively that the damage was caused by the faulty foundation under the building. We cannot agree with this contention. We can agree that all of the testimony presents a close and difficult question of fact. It is, however, the province of the jury and not ■ this court to resolve this question. .As we view the entire record, there are several facts and circumstances, which constitute substantial evidence upon which the jury could have rested its verdict, even though fair minded men might reasonably disagree.

Appellees have filed a cross-appeal, claiming the trial court should have allowed them interest from May 20, 1955 (60 days after the loss occurred) rather than from the day suit was filed on September 8, 1956. We agree with appellees. The policies in question provide that loss shall be payable 60 days after proof of loss. It appears undisputed that appellants denied liability from the beginning, thereby waiving proof 'of loss. See: Aetna Casualty and Surety v. Peoples Building & Loan Association, 194 Ark. 773, 109 S. W. 2d 943, and Hartford Fire Insurance Company v. Enoch, 79 Ark. 475, 96 S. W. 393.

Appellees’ separate motion for additional attorneys’ fee in this court is denied. The fee allowed appellees’ attorneys by the trial court appears to be reasonable, including this appeal.

Affirmed on direct appeal and' reversed on cross appeal for further proceedings in conformity with this opinion.


author: Sam Robinson, Associate Justice. Ed. F. McFaddin, Associate Justice,

text:
    Robinson v. Morgan.
    5-1539
    312 S. W. 2d 329
    Opinion delivered April 21, 1958.

      Milton Robinson and Eugene G. Fitshugh, for appellant.

      Joe P. Melton and Chas. A. Walls, Jr., for appellee.
   Sam Robinson, Associate Justice.

Appellant, A. B. Robinson, appeals from an order of the Lonoke Chancery Court finding him guilty of contempt of court and the assessment of a fine of $50 and- three days in jail. Appellant is a justice of the peace in the city of Cabot. The city council filed suit in Robinson’s justice of the peace court to collect privilege taxes assessed under City Ordinance No. 96. Previously in the Mayor’s court of the city of Cabot it was held that Ordinance No. 96 is discriminatory and unconstitutional. Appellee herein, Henry Morgan, filed in chancery court a “Petition for Declaratory Judgment under Provisions of Acts of 1953, Act 274”. The petition alleges:

“5. On the 12th day of June, 1957, the defendants acting individually and collectively as the City Council of the City of Cabot, through their attorney, Kenneth Coffelt, filed suit in A. B. Robinson’s Justice of the Peace Court seeking to collect the assessment or tax by civil action under Ordinance No. 96 after the said Ordinance had been held nneonstitntional and unenforceable by the said Mayor’s Court.”
L L
“8. As there is no other adequate remedy at law a declaratory judgment, under the provisions of Act 274 of the Acts of Arkansas of 1953, should be entered setting forth the rights of the parties and until the final hearing and entry of the judgment all parties should be restrained from taking any action upon the ordinance in question.”

Summons was issued directed to A. B. Bobinson individually and as justice of the peace of York Township, and to the various members of the city council. The petition was filed on July 3, 1957, and on the same day the chancery court issued a temporary restraining order enjoining the city of Cabot, members of the city council, and A. B. Bobinson personally and as justice of the peace, from taking any action against Morgan or other persons as residents of the city of Cabot until all the rights and status of the parties are determined by the court. It is not shown that Bobinson as an individual did anything in connection with the case, but as justice of the peace he did proceed to hold court on July 9th and rendered judgment against Morgan and other residents of the city of Cabot in violation of the restraining order. The principal issue, and the only one we reach, is whether the chancery court had jurisdiction to enjoin the justice of the peace from proceeding with the trial of the cases against Morgan and others.

At this point it might be well to point out that ap-pellee, Morgan, attempts to sustain the order of the chancellor finding the justice of the peace guilty of contempt solely on the asserted ground that the chancery court has jurisdiction under the declaratory judgment statute (Act 274 of the Acts of 1953). It is not contended that the petition for a declaratory judgment is in effect a petition for prohibition, or that the petition should be treated as a petition for prohibition. In fact, the petition for a declaratory judgment filed in the chancery court does not allege that the justice of the peace does not have jurisdiction of the parties or the subject matter, hut merely alleges that City Ordinance No. 96 is void.

And while on the subject of prohibition, we might add that although Ark. Stat. § 33-101 gives the chancery court jurisdiction to issue writs of prohibition to inferior courts, § 33-105 provides for notice to the officer or person against whom relief is sought. And § 33-107 gives the party against whom the writ is sought the right to file an answer and show cause why the writ should not be granted. Here it is not contended that notice sufficient to give the chancery court jurisdiction to issue prohibition was served on the justice of the peace.

Now we come to the question of the validity of the order finding the justice of the peace to be in contempt of chancery court by reason of proceeding with the matter pending in the justice of the peace court. If the chancery court was without jurisdiction to enjoin the justice of the peace from proceeding with the cases pending in the justice of the peace court, then the order of injunction is void and the chancery court is without jurisdiction to punish the justice of the peace for proceeding with the trial. Willeford, et al v. State ex rel. etc., 43 Ark. 62; Morgan v. State, 154 Ark. 273, 242 S. W. 384; Martin v. State, 162 Ark. 282, 257 S. W. 752; Pitcock v. State, 91 Ark. 527, 121 S. W. 742.

No case has been called to our attention, nor have we found any authority, for the proposition that one court can enjoin another court from proceeding in a matter pending in such other court; the great weight of authority appears to be to the contrary. In Daniels v. City of Portland, 124 Ore. 677, 265 P. 790, 59 A. L. R. 512, the court said: ‘ ‘ Our attention has been called to the fact that W. A. Ekwall, judge of the municipal court of the city of Portland, has been made a party defendant hereto. That a court of equity has not power to enjoin the judge of another court, see High on Injunctions, 4th ed. § 46.” And in this work (High on Injunctions, 4th ed., § 46) it is said: “And a court of equity is devoid of jurisdiction to grant an injunction against tire judge of another court to restrain him from acting in or making orders in a particular cause. Every judge is supreme and independent in his own sphere, and can not be restrained in the discharge of his functions by the process of injunction.” See, also, 21 C. J. S. § 498.

Nor does our declaratory judgment law- authorize one court to enjoin another. Our statute is patterned after the Federal Rules of Civil Procedure for Declaratory Judgments. It is said in Anderson on Declaratory Judgments, 2nd ed., Vol. 1, p. 836: “It is necessary for the plaintiff to make out a case for injunction in as sure and ample a manner as if the injunction were sought alone, and it is likewise true that the plaintiff must show himself to be entitled to a declaratory judgment in same manner as if such declaration were the only relief sought.”

Here the appellee has not shown that he was entitled to the injunction. The mere fact that he sought a declaratory judgment in addition to an injunction did not give the court jurisdiction to grant the injunction. Our conclusion is that the chancery court was without jurisdiction to enjoin the justice of the peace from proceeding with the trial of the case pending in the justice of the peace court, and, therefore, the chancery court is without jurisdiction to punish the justice of the peace for contempt in proceeding with the pending litigation.

Reversed and the citation for contempt dismissed.

McFaddin, J., dissents.

Ed. F. McFaddin, Associate Justice,

dissenting. I dissent. The majority is holding that a Justice of the Peace can deliberately defy the order of a Chancery Court and still remain unpunished for such contempt. No amount of judicial reasoning can convince me that such a holding is right: it is contrary to all of my concepts of the Judiciary.

Let us review the situation. Here is the order of events:

I. A petition was filed in the Cliancery Court stating that a case was pending in the Justice of the Peace Court asking a declaratory judgment, and asking that the case in the Justice of the Peace Court be not tried until the decision of the Chancery Court on the petition. The defendants in the case were — and I list them just as they appeared in the petition filed in the Chancery Court: City of Cabot; A. B. Bobinson, Individually and as Justice of the Peace of York Township; W. W. Bodie, Individually and as Becorder of the City of Cabot; Chas. Templeton, Fred Wood, W. B. Utley, Willie Bay, C. J. Bice, John Womack, Claude Goforth, and Bennie Jenkins, as individuals and as aldermen of the City of Cabot. (Italics supplied.)

II. The Chancery Court issued a temporary injunction, which ordered each and all of the defendants to suspend any further action in the pending case in the Justice of the Peace Court until the matter could be further heard by the Chancery Court. Here is the way the temporary restraining order read:

“IT IS THEBEFOBE, considered, ordered and decreed that the City of Cabot, W. W. Bodie, as Becorder of the City of Cabot, Chas. Templeton, Fred Wood, W. B. Utley, Willie Bay, C. J. Bice, John Womack, Claude Go-forth, Bennie Jenkins, individually and as’aldermen of the City of Cabot, and A. B. Bobinson, as an individu,al and as Justice of the Peace for York Township, be and they are hereby temporarily restrained from taking any action against this petitioner or any other person as a resident of the City of Cabot until all the rights and status of the parties is determined by this court.” (Italics supplied.)

III. A. B. Bobinson, after having been served with such order of the Chancery Court, proceeded to deliberately violate the order of the Chancery Court: he opened his Justice of the Peace Court on the day he had named and rendered default judgments in the very case concerning which the Chancery Court had told him not to act; and, furthermore, as Justice of the Peace he proceeded to fine the litigants who had failed to appear in his Court since they had respected and obeyed the Chancery Court injunction.

IY. When the Chancery Court adjudged Mr. Robinson to have been guilty of contempt because of the matters recited in Paragraph numbered III above, Mr. Robinson appealed to this Court; and this Court is now reversing the decree made by the Chancery Court and holding that Mr. Robinson could act, as he did, with impunity.

The foregoing is the order of events; and I cannot agree to the reversal by this Court. If the Chancery Court order served on the Justice of the Peace had been absolutely void, still respect for law, and the orders of a superior court, should have prevented Mr. Robinson, as Justice of the Peace, from deliberately defying the order of the Chancery Court. How can we expect the man on the street to show respect for law and order when a Justice of the Peace deliberately defies a superior court?

It was argued that the Chancery Court cannot enjoin the Justice of the Peace Court, but can only prohibit the Justice of the Peace Court. Does anybody think that the Justice of the Peace understood this distinction when he convened his Court? I don’t. We have a Statute (§33-103, Ark. Stats.) in Arkansas on prohibition, which says:

“The writ of prohibition, as here defined, is an order of the Circuit or Chancery Court to an inferior court or tribunal, prohibiting it from proceeding in a cause or matter over which it has no jurisdiction.”

It was argued that the Chancery Court might have issued a writ of prohibition, but could not have issued a writ of injunction. Such a statement is a confession that the Chancery Court had the right to stop the proceeding-in the Justice of the Peace Court, regardless of what the writ of stoppage was called. Furthermore, what is the distinction between injunction and prohibition? Webster’s New International Dictionary says that to enjoin is “. . . to fox-bid; prohibit; . . .” Webster’s Dictionary defines prohibit as, “To forbid by authority or command; to interdict; as, the law prohibits. . . .” Now, I do not think the Justice of the Peace acted in the pending case in his Court because he thought there was any distinction between a writ of injunction and a writ of prohibition. As a matter of fact, it is difficult to get to any sncli distinction in onr statute on prohibition. The fact that the petition in the Chancery Court was called an injunction did not keep it from being likewise a petition for prohibition, because it is the kind of remedy that is sought, and not the name attached to the pleadings, that will determine the relief to be administered. I do not believe that the Justice of the Peace made any distinctions between injunction and prohibition when he convened his Court and rendered default judgments in defiance of the Chancery Court order. It seems clear to me that the Justice of the Peace became infuriated at the order of the Chancery Court in trying to stop him. The language that he used on the occasion clearly so reflects. When a Justice of the Peace cannot respect a Chancery Court order, I think it is time for the Chancery Court to issue and enforce a citation for contempt.

Our cases hold that, when an injunction is issued even erroneously, nevertheless it is a contempt to disobey the injunction: the remedy is to have the injunction quashed. Carnes v. Butt, 215 Ark. 549, 221 S. W. 2d 416; Stewart v. State, 221 Ark. 496, 254 S. W. 2d 55; and Hickinbotham v. Williams, 227 Ark. 126, 296 S. W. 2d 897. Under these-cases, the Justice of the Peace should have obeyed the injunction at all events. I am firmly of the opinion that the-Justice of the Peace was guilty of a contempt of the Chancery Court.

Therefore, I dissent.


author: CarletoN Harris-, Chief Justice.

text:
    Foster v. Howell.
    5-1495
    313 S. W. 2d 81
    Opinion delivered April 28, 1958.
    [Rehearing denied June 2, 1958]

      Kenneth Goffelt, for appellant.

      Fred Neiuth and Robert J. Brown, for appellee.
   CarletoN Harris-, Chief Justice.

This appeal is from a decree of the Pulaski Chancery Court (2nd Division), dated July 16, 1957, cancelling a deed from one Lucy Bennett to appellant, Lillie Belle Foster, the Court finding that “Lucy Bennett is now, and was on the 24th day of April, 1956, senile and incompetent both mentally and physically to carry on her business and manage her affairs; and, the Court doth further find that the consideration mentioned in the deed of the 24th day of April, 1956, was inadequate and has not been paid, and, that the said deed should be cancelled.”

Lucy Bennett, around 80 years of age, lived at 3100 Louisiana Street in Little Rock, which property she owned as the survivor of an estate by the entirety, following the death of her husband. Her daughter, Lucille Bennett Howell, lived with her. On December 9, 1955, Lucy Bennett left her home and went to the home of Lillie Belle Foster, who lived across the street from the Bennett home, claiming that her daughter, Lucille Bennett Howell, appellee herein, was mean to her and would beat her. According to the evidence, the Fosters notified appellee that her mother was there, bnt the daughter never did take her home. Lucy Bennett continued to stay with Lillie Belle Foster and her husband, James Foster. On April 24, 1956, Lucy Bennett executed a deed conveying her home property to Lillie Belle Foster, and on December 17th of the same year, Lucille Bennett Howell filed a petition in the Probate Court alleging the incompetency of her mother and asking to be appointed guardian. The matter was heard on January 17, 1957, and the court appointed appellee guardian for her mother. The instant suit to cancel the deed was filed on February 12, 1957, by Lucille Bennett Howell, guardian, and it was stipulated between the parties that the record in the guardianship hearing might be considered as evidence in this case. In fact, the evidence adduced at the guardianship hearing comprises the entire record in this case, except for additional testimony by Dr. Elizabeth Fletcher.

There are only two questions in this litigation; first, whether Lucy Bennett was mentally competent to execute the deed of April 24, 1956, and second, whether the consideration was adequate.

More often, suits of this nature are commenced and heard after the death of the grantor. Here, the grantor was living at the time of both trials, and appeared in court and testified during the proceedings to determine whether the daughter should be appointed guardian. Her testimony largely related to the execution of the deed to appellant, and the mother’s reasons for deeding away her home. At the time of this hearing, Lucy Bennett had been living with the Fosters for over 13 months, and the deed had been executed nearly 9 months previously. She testified that she went to the Fosters because her daughter was mean to her, was “fighting” her all the time, and “would go off and get drunk and come back and beat me. And I just left.” She stated that her daughter beat her with a washboard and wash sticks, and that such treatment had gone on for some time. The testimony about the beatings was corroborated by two apparently disinterested neighbors, as well as by appellant. From the testimony of Everlena Bell, a neighbor:

Q. Do yon know about the way her daughter beat her up?
A. Yes, she was beat up so until her hands was just drawed up like this and from here down until the end of her feet was swelled this way and she could not walk. I rubbed her with liniment.
Q. Is that the general reputation?
A. Yes, beating up her mother and putting her out doors in the cold, and she sat out there the coldest day it was in December with nothing around her hands and head. ’ ’

She further testified that Lucy was happy, and well cared for by the Fosters, and that in her opinion, Lucy Bennett had “good sense” and “knows what she is doing. ’ ’ Another neighbor, Hattie May Murphy, who lived next door, testified:

“I stayed next door to her and my husband and I know she has beat her mother quite often and we used to wake up at night and go to the window and listen.” She testified that this occurred “A number of times. I don’t know exactly how many times.” She also stated that she had gone over to the Bennett home at the request of Lucy Bennett and washed dirty clothes for Lucy. While it is true that the alleged beatings and mistreatment have nothing to do with whether Lucy Bennett was competent or incompetent, we think such testimony pertinent as showing a reason for her desire to live with somebody else. Under ordinary conditions, a mother would normally leave her property to her children, but under the conditions testified about, a parent might well otherwise dispose of her property, particularly if by so doing, she could move into happier surroundings. When asked if she worked out an agreement to live with the Fosters, Lucy Bennett replied:
“Well, I told them if they would take me and do the best they could for me, I’d give them that home.
Q. Was that as long as yon lived?
A. Yes.
Q. Was that yonr proposition that you made to them?
A. Yes.
Q. You went over there fifteen months ago. Have you been there ever since then?
A. Yes.
Q. Do they take care of you?
A. Do all they can for me.
Q. Do you want for anything at all?
A. No, I don’t want for nothing.
Q. And they treat you good do they?
A. Yes.
Q. And you deeded them this place for them to take care of you as long as you live?
A. Yes.
Q. Did you know what you were doing when you did that?
A. Why sure.”

Both the Fosters testified that Lucy Bennett came to their home of her own accord; that the daughter was notified to come and get her, but did not do so. James Foster testified that he called appellee and told her to come and get her mother and appellee replied:

“ ‘I will be over and get her as soon as I get dressed.’ Well, she never did get there somehow or other. She went off that day and left her house open. I called her again. She said, ‘I left that door open for her to come in.’ She said, ‘Put her out.’ I said, ‘I can’t do that. Yon come get her. I don’t have time to fool with her.’ ”

There is absolutely no evidence that the Fosters induced Lucy Bennett to come to their home or used any undue influence or persuasion in obtaining the deed; nor did Lucille Bennett Howell seem to evidence any concern over her mother leaving the home and moving in with the Fosters, or but little interest in the welfare of her mother, until she learned about the execution of the deed, which was several months later. In conflict with the testimony of the aforementioned witnesses was the testimony of appellee herself, who testified her mother had been “acting awful queer” for 20 years. She testified that she and her mother had mortgaged the home to the Worthen Bank for $410 in order to obtain money for improvements . . . that she had paid the greater part of this indebtedness, having made all monthly payments of $11.40, following Lucy Bennett’s departure from the home, although part of the earlier payments had been made from welfare checks received by the mother. She stated that neighbors cashed her mother’s welfare checks and that children in the neighborhood would talk her out of her money . . . that her mother would go off and leave the house open, and on one occasion locked herself out and came in the window . . . she wandered down to the neighbors on some occasions and would stay a night or two . . . “ anybody that would sell her home for $300, whole house and lot” is incompetent. When asked: “Q. Would you say your mother is senile? A. I think so. Q. You think she is not mentally competent? A. She is not at herself. I think so.” This testimony pretty well summarizes her reasons for considering her mother mentally incompetent, and obviously does not constitute potent evidence for the purpose of establishing incompetency. The only other witness for appellee was Dr. Elizabeth Fletcher of Little Rock, who testified in both the Probate and Chancery hearings. Dr. Fletcher examined Lucy Bennett at the home of the Fosters on September 24, 1956 . . . the examination consisted of talking with, the patient, and lasted about an hour . . . Lucy Bennett stated she left home because her daughter had been mean to her . . . stated her daughter lived across the street . . . was unable to give the then date, her age, the year or the month . . . knew nothing of her life history except that she was born in Mississippi . . . stated that she sold her home for $300 but did not know where the money was. In the doctor’s opinion, Lucy Bennett was senile . . . “from the history, she has shown evidence of mental enfeeblement for some five or ten years.” However, after reading Dr. Fletcher’s testimony, one definitely gains ■ the' impression that she was not emphatic in declaring Lucy Bennett incompetent (to an extent required by the law in invalidating a deed). For instance:

“Q. Now what was your opinion as to her senility?
A. I think Mrs. Bennett is just like any of us will be when we get that old. I think maybe.at times she has some psychotic manifestations such as thinking people are trying to poison her and believing in voodoo and things of that type. Of course, we know she unfortunately is illiterate. I do feel her changes now are due to old age.
Q. Would you say she was senile in your opinion1?
A. I do.
Q. You definitely think she is senile?
A. I do.
Q. Do you believe she is capable of taking care of her own business?
A. I do not think so.
#
■ THE COURT: You don’t think it is safe for her to own the property and try to get welfare checks, try to handle her business?
A. I think somebody needs to help her.
THE COURT: Appoint a guardian for her, is that it?
A. Yes.
* * *
Q. Apparently she is up close to eighty years old. Now is she any worse off than most folks around that age?
A. No, sir, anybody that age and she has an additional problem of not having the education that most of us enjoy.”
In the Chancery hearing, Dr. Fletcher testified as follows :
“THE COURT: Do you think she had the ability to make a deed, Doctor?
THE WITNESS: She did not.
MR. BROWN: Say specifically on the 24th of April, 1956.
THE WITNESS: I do not think she was competent on that date.
MR. BROWN: She would not have had the mental capacity to make a deed at that time?
A. I do not think so.”

We do not feel that the above evidence is sufficient under our holdings to invalidate the deed. As stated in McEvoy v. Tucker, 115 Ark. 430, 171 S. W. 888:

‘ ‘ The test of mental capacity to execute a deed was stated by Justice Riddick in the case of Seawel v. Dirst, 70 Ark. 166, in which case it was said: ‘It follows, therefore, that the proof which is designed to invalidate a. man’s deed or contract on the ground of insanity must show inability to exercise a reasonable judgment in regard to the matter involved in the conveyance. . . . To have that effect (i.e., to invalidate the deed), the insanity must be such as to disqualify Mm from intelligently comprehending and acting upon the business affairs out of which the conveyance grew, and to prevent him from understanding the nature and consequences of his act.’ ”

If the decree is to be affirmed, it must be on the basis of Dr. Fletcher’s testimony. Dr. Fletcher only saw Lucy Bennett the one time, for one hour. The deed had been executed five months earlier, and we are inclined to believe that neighbors, who had known the alleged incompetent for a long period of time, were in a better position to know the true condition than one who had only observed her for so short a period of time; likewise, the neighbors were much more positive in their testimony than was Dr. Fletcher. We particularly note the statement: “I think Mrs. Bennett is just like any of us will he when we get that old.” We conclude that the Chancellor’s finding that Lucy Bennett was mentally incompetent to execute a deed on April 24th, was erroneous.

There is no competent evidence in the record as to the value of the property. Dr. Fletcher was the only witness who testified in this regard, and she prefaced her remarks by saying: “I’m not a very good judge of property.” We deem the consideration adequate, whatever the amount stated in the deed, for it appears that the actual consideration was the agreement to take care of Lucy Bennett the rest of her life. According to Lucy’s testimony, and that of the Fosters, this was the consideration, and apparently was being carried out by the grantees. Such an agreement has been upheld so many times as a valid consideration that a citing of authority is not necessary. While this record, of course, only extends through the latter part of July, 1957, there is nothing therein that would indicate the Fosters were unwilling to carry out their contract. They even acquired a wheel chair for the use of Lucy Bennett; according to her testimony, the Fosters “do all they can for me” . . . treated her well . . . gave her a dollar a week for spending money . . . , and she was apparently completely satisfied with the arrangement.

Accordingly, the decree is reversed and remanded with directions to enter a decree in conformity with this opinion.

       Lucy Bennett testified she was 84. Lucille Bennett Howell, the daughter, testified that her mother was between 75 and 80.

       Lucy Bennett appealed to this Court, and the transcript was lodged. The appeal was subsequently abandoned.

       Lucy Bennett died on November 14, 1957.

       The welfare checks ceased a few months after Lucy Bennett moved to the Fosters.

       Emphasis supplied.


author: • J. SeaborN Holt, Associate Justice.

text:
    Nuckols v. Flynn.
    5-1548
    312 S. W. 2d 444
    Opinion delivered April 28, 1958.

      Brockman & Brockman, for appellant.

      John E. Hooker, for appellee.
   • J. SeaborN Holt, Associate Justice.

Appellant, Nuckols, and appellee, Flynn, entered into an oral agreement whereby Flynn would clear a tract of land owned by Nuckols at a price of $60 per acre. It appears that the number of acres to be cleared was not stipulated at the time the agreement was made. Flynn proceeded with the use of heavy machinery to clear the land of timber, brush and undergrowth, in accordance with the agreement, and Nuckols paid him as the work progressed a total of $2,555.16 for work done. Flynn claimed that he had cleared abont 63 acres of land and demanded $1,196 in addition to the $2,555.16 paid to him by appellant.

Flynn sued appellant for this additional $1,196 and appellant answered with a general denial and further alleged in his answer ‘ ‘ that plaintiff entered into a verbal contract with defendant to clear and prepare approximately 65 acres of land owned by defendant in Lincoln County, Arkansas. That plaintiff was to use heavy-duty equipment which he claimed to own, remove all timber growing and being located on said land and to clear said land ready for the plow. That the plaintiff was to receive $60.00 per acre when said tract of land was cleared according to said agreement. That plaintiff wholly failed to carry out his said agreement and moved his heavy-duty equipment from defendant’s land to land owned by Homer W. Ballou and then moved said equipment to land owned by Jimmie Craig and thereafter voluntarily surrendered all of said heavy-duty equipment to the Little Rock Road Machinery Company, after defendant had advanced to plaintiff the sum of $2,555.16. That defendant was compelled to spend a large sum of money in order to clear the land which plaintiff had abandoned and failed to clear. That much of the 65 acre tract remains uncleared due wholly to plaintiff’s failure to perform his agreement, and due to the fact that plaintiff voluntarily disposed of his equipment and left defendant’s land,” and that he, appellant, had been damaged because of appellee’s failure to perform in the sum of $2,555.16 and asked for judgment for this amount. A jury trial resulted in a judgment in favor of appellee for $1,044.84.

For reversal appellant relies on the following points: “1. The verdict of the jury is against the weight of the evidence. 2. The lower court should have given Instruction No. 8, and Instruction No. 3 and No. 4 are erroneous. 3. The court should have set aside the verdict of the jury. 4. If the judgment is affirmed, a remittitur should be ordered and the amount of recovery decreased.”

Flynn testified that in accordance with the above agreement he cleared about 63 acres. He estimated there was about 1-1/2 or 2 acres in a bog or “frog pond” which he could not clear without his heavy machinery bogging down and offered to clear this frog pond by hand labor, but appellant refused to allow him to do so. The water stands in the frog pond the year around. All the acreage he cleared is now in a rice crop. He had this acreage “chained” and it measured 64.6 acres in the tract. Flynn’s testimony was corroborated by other witnesses. While appellant offered testimony tending to contradict appellee on the number of acres cleared by Flynn, the jury, which was the sole judge of the evidence, the weight to be given to it, and the credibility of the witnesses, found for the appellee and under our long established rule we must affirm if we find any substantial evidence to support the jury’s verdict. See St. Louis Southwestern Railway Co. v. Byrne, 73 Ark. 377, 84 S. W. 469. We hold that the evidence, after reviewing it all, was substantial and sufficient. But, says appellant, the trial court erred in refusing to set the verdict aside because it was against the preponderance of the evidence. We do not agree. Our long established rule, consistently followed, was reannounced in Dudley v. Adams, 227 Ark. 376, 298 S. W. 2d 701, “When the cause reaches us on appeal we do not concern ourselves with determining where the preponderance of the evidence lay but only whether there was any substantial evidence to support the verdict and judgment rendered. In other words, if we find any substantial evidence to support the verdict we must affirm, . . . ”

Appellant also contends that the court erred in refusing to give his Instruction No. 8 and thereby denied appellant the right to submit to the jury his defense of rescission of the original contract. This contention is untenable for the reason that this defense, in effect, was fully and clearly submitted to the jury in Instructions 5 and 6 given at-appellant’s request. These instructions were as follows: “5. If you find from a preponderance of the evidence on the whole case that M. M. Flynn and A. L. Nuckols entered into a contract whereby M. M. Flynn was to clear land owned by A. L. Nneli-ols, which, contract included removing all timber from the land, shearing the stumps level with the ground, and preparing the land ready for the plow, free from timber and kindred growth, for the agreed price of $60.00 per acre; that M. M. Flynn commenced clearing the land and placed his machinery in operation and partially cleared said land, and thereafter, M. M. Flynn surrendered the machinery used to perform the work to the Little Rock Road Machinery Company, and abandoned the job without clearing it, then you will find for the defendant, A. L. Nuckols, unless you find that M. M. Flynn fully performed and completed his contract to clear the land and place it in such condition as it was ready for the plow. No. 6. If you find from a preponderance of the evidence on the whole case that M. M. Flynn and A. L. Nuckols entered into a contract whereby M. M. Flynn was to clear land owned by A. L. Nuck-ols, which contract included removing all timber from the land, shearing the stumps level with the ground and preparing the land ready for the plow, free from timber and kindred growth, for the agreed price of $60.00 per acre; that M. M. Flynn practically cleared the land, and received $2,555.16 for the work; that M. M. Flynn and A. L. Nuckols agreed that A. L. Nuckols could complete the work which remained to be done,- and if you find that A. L. Nuckols spent the sum of $653.20 in order to complete the additional work; if you find that the total amount spent by A. L. Nuckols in clearing the land is the sum of $3,288.96, and if you find the total acreage cleared by Flynn is 53.1 acres; that the total amount, according to the contract price of $60.00 per acre for clearing 53.1 acres of land is $3,186.00 and if you find that A. L. Nuckols has paid more than the contract price agreed on for clearing 53.1 acres, then you will find for the defendant A. L. Nuckols, unless you further find that M. M. Flynn fully performed and completed his contract and cleared more than 53.1 acres of land.” The court was not required to multiply or repeat instructions on any issue.

Appellant next argues that Instructions 3 and 4 given by the court, over his objections, were in error. We do not agree. Instruction 3 provides: “If you find by a preponderance of the evidence that plaintiff contracted with defendant to clear defendant’s land at the agreed sum of $60.00 per .acre, and that plaintiff performed his part of the contract by clearing all of defendant’s land capable of being cleared, and that the defendant has not fulfilled his part of the contract in that he is indebted to the plaintiff for clearing such land, then your verdict will be for the plaintiff in such amount that you find the defendant is indebted to the plaintiff for his services.” Appellant says that this instruction * ‘ omits the defense of A. L. Nuckols and that it is speculative and does not show the exact number of acres that M. M. Flynn was to clear; that further, it is a binding-instruction and makes it imperative that the jury find for the plaintiff.” Instruction .4 provides: “If you find by a preponderance of the evidence that a certain portion of the lands were incapable of being cleared by machinery and that the plaintiff Flynn offered to clear same by hand and that the defendant declined to permit him to do this, then you will not consider the failure to clean that portion of the land as a breach of the contract.” His objection to this instruction is similar, in effect, to his objection to No. 3. These instructions, when considered along with all the other instructions given (and as a whole), as we must do, were correct in the circumstances.

On the record presented, the verdict was not excessive. Finding no error, the judgment is affirmed.

Chief Justice Habéis and Justices McFaddiN and George Rose Smith concur.


text:
    Levins v. Edwards.
    5-1506
    312 S. W. 2d 447
    Opinion delivered April 28, 1958.

      Marcus Fiets and Penix & Penix, for appellant.

      Kirsch-, Cathey & Broion, for appellee.
   Ed. P. McFaddiN, Associate Justice.

This is another one of those unfortunate boundary line disputes between neighbors: a five-foot strip is involved.

Lots 3 and 4, here concerned, face north on Court Street in the City of Paragould; and each lot has a frontage of 100 feet on Court Street, with a depth of 266 feet. Lot 4 is immediately west of Lot 3. Mr. and Mrs. Levins (appellants) have a deed describing their property as, “the east half of Lot 4 and the west one-fourth of Lot 3.” Mr. and Mrs. Edwards (appellees), living immediately to the east of the Levins, have a deed describing their property as, “the east three-fourths of Lot 3.” According to these deeds the dividing line between the two properties should be the line that divides the west one-fourth of Lot 3 from the east three-fourths of Lot 3. But in the earlier deeds to both properties it had been stated that the dividing line was, “the west line of the sidewalk and the extension thereof . . .”, which sidewalk ran north and south somewhere near the boundary line. Thus, this litigation.

When the Edwards erected a fence along the west side of the sidewalk, the Levins brought this suit to enjoin the erection of the fence and to have determined the true boundary line. The Edwards claimed that the west side of the sidewalk was the line because, in the deed from the common grantor of both parcels, the sidewalk was stated to be the line. Trial in the Chancery Court resulted in a finding and decree that the west side of the sidewalk was the boundary between the Levins’ property and the Edwards’ property. This was shown to be about five feet west of the line that would have existed by the deed descriptions if there had been no reference to the sidewalk. The five-foot strip occupied by the sidewalk is “the disputed strip.”

The Levins have appealed, and urge only one point, which we copy, to-wit:

“Under after-acquired property statute, title to disputed strip of land passed to previous owners of appellants’ lands.”

This matter of “after-acquired title” requires further detailing. Mr. Stevenson originally owned both Lots 3 and 4. He divided the properties, and the subsequent conveyances are as follows:

West Parcel

(Levins’ Title)

A. June 12, 1947 Warranty Deed Stevenson and wife to J. C. Gramling, which described the property as the “East Half of Lot 4 and the West one-quarter of Lot 3, ’ ’ but with this language also in the granting clause “It is expressly understood and agreed that the east line of the premises herein conveyed is the west line of the sidewalk (and the extension thereof) which lies east of the sidewalk which runs to the residence on said lands, said sidewalk marking the boundary being the old side walk which led to a building on said lands which was burned or destroyed.”

B. July 10,1950 Warranty Deed, J. C. G-ramling and wife, to H. M. Pritchard, which described the property only as “East Half of Lot 4 and the West one-fonrth of Lot 3,” and with no reference to the sidewalk.

C. June 12, 1951 Warranty Deed from H. M. Prit-chard and wife to the Levins, which described the property as “the East Half of Lot 4 and the West one-fourth of Lot 3,” and with no reference to the sidewalk.

East Parcel

(Edwards’ Title)

A. June 21, 1948 Warranty Deed, Stevenson and wife to J. W. Gramling (son of J. C. Gramling), which described the property as “the East three-quarters of Lot 3”; but with this language also in the granting clause: “It is expressly understood and agreed that the west line of the premises herein conveyed is the west line of the sidewalk (and the extension thereof) said sidewalk marking the boundary being the old sidewalk ivhich led to a building on said lands which was burned or destroyed.”

B. February 22,1949 Warranty Deed, J. W. Gram-ling and wife to J. M. Williams, which described the property as “The East three-fourths of Lot 3,” and with no reference to the sidewalk.

C. February 22, 1951 Warranty Deed, J. M. Williams and wife to J. C. Gramling, which described the property as ‘ the East three-fourths of Lot 3, ’ ’ and with no reference to the sidewalk.

D. February 25, 1952 Warranty Deed, J. C. Gram-ling and wife to the Edwards, which described the property as the “East three-fourths of Lot 3,” and loith no reference to the sidewalk.

The point that the appellants urge is: that J. 0. Gramling at various times owned both parcels (that is, the Levins property on the west and the Edwards property on the east); that in the deed of conveyance exe-exited, by J. C. Gramling and wife to Pritchard, on July 10, 1950, J. C. Gramling conveyed the entire East Half of Lot 4 and the West one-fourth of Lot 3 with no reference to the sidewalk; that this description would include in the conveyance to Pritchard the 5-foot strip here in dispute; that J. C. Gramling in 1951 acquired from J. W. Williams the property described as the West three-fourths of Lot 3; that when J. C. Gramling thus acquired the property from Williams, he acquired the 5-foot strip; that such strip would pass to Pritchard and from Prit-chard to Levins under the after-acquired title statute; and that, even though the west side of the sidewalk had originally been the agreed line, still the failure to mention the west side of the sidewalk as the dividing lino in the subsequent deeds would pass the title to Levins under the after-acquired title statute. This is the appellants’ only point on this appeal.

Appellants-’ argument based on the “after-acquired title statute” is fatally defective in the case at bar because, under appellants’ theory, J. 0. Gramling never acquired the 5-foot strip from Williams. If we assume that the failure to mention the 5-foot strip in the subsequent deeds made the dividing line to be the east line of the west one-fourth of Lot 3, then the title to the 5-foot strip would be in J. W. Gramling, because he did not convey that 5-foot strip to J. M. Williams in the deed of February 22, 1949, since that deed made no reference to the sidewalk. By like, symbol, J. M. Williams did not convey the 5-foot strip to J. C. Gramling in the deed of February 22, 1951, because that deed made no reference to the sidewalk. Thus, according to appellants’ argument, the title to the 5-foot strip would still be in J. W. Gramling and not in J. C. Gramling, who was the grantor to Pritchard, through whom the Levins claim.

The point we make is, that when the appellants argue that the failure to mention the sidewalk as the dividing line in the deed from either one of the Gramlings to their grantees made the true line to be the actual east line of the west one-fourth of Lot 3, then the appellants cannot say that J. C. Gramling ever acquired the 5-foot strip here in dispute when he got the deed from J. W. Williams in 1951. Thus, there was no “after-acquired title” in J. C. G-ramling to pass to Pritchard and the Levins under the after-acquired title statute.

The Chancellor heard this case ore terms, and surveyors testified as to lines; testimony was offered as to the pointing out of boundaries; all other issues were thoroughly developed; and, even after the first hearing, there was a further offer of evidence. It would serve no useful purpose to set out all the evidence in the record. Evidently the appellants could find no error in any part of the decree of the Chancellor, except on the matter of after-acquired title; and we have attempted to demonstrate in this opinion that the after-acquired title statute has no application to the situation here presented. We, therefore, find it unnecessary to detail all of the evidence which caused the chancellor to reach the conclusion that the west side of the sidewalk and its extension is the true boundary between the properties.

Affirmed.

       We have omitted block numbers and name of addition contained in all of the conveyances, as such designations are not questioned.

       The Edwards also cross-complained against J. C. Gramling, as _ their grantor ; and he admitted that if the sidewalk was not the line, then he was liable to the Edwards for breach of his general warranty.

       Our after-acquired title statute is § 50-404 Ark. Stats., and reads: “If any person shall convey any real estate by deed purporting to convey the same in fee simple absolute, or any less estate, and shall not at the time of such conveyance have the legal estate in such lands, but shall afterwards acquire the same, the legal or equitable estate afterwards acquired, shall immediately pass to the grantee, and such conveyance shall be as valid as if such lea-al or eauitable estate had been in the grantor at the time of the conveyance.”


author: Minor W. Millwee, Associate Justice. Minor W. Millwee, Associate Justice.

text:
    Wilson v. Huggins.
    5-1553
    314 S. W. 2d 694
    Opinion delivered April 28, 1958.

      Langston & Walker and Wayne Foster, for appellant.

      Howell, Price and Worsham, and F. J. Howell, Jr., for appellee.
   Minor W. Millwee, Associate Justice.

The issue is whether a suit instituted by the husband of appellant against the husband of appellee in 1951 had abated in 1956 when appellant sought to intervene.

On July 28, 1951 W. P. Wilson filed suit pro se against P. H. Huggins to quiet his title to a residential lot in North Little Rock, Arkansas, and to restrain the defendant from interfering with his possession of the property. In his answer and cross-complaint filed August 10, 1951, Huggins asserted title to the property under a warranty deed from C. K. Lincoln and wife executed June 25, 1948, and charged that plaintiff had unlawfully occupied the lot as a trespasser since October, 1947.

F. H. Huggins died on April 6, 1954. No further action was taken in the suit until May 18, 1956 when appellant filed an intervention in which she alleged that her husband, W. P. Wilson, had conveyed the lot to her in November, 1951; and that appellee, Edna Marie Huggins, had succeeded to all the rights of her deceased husband, P. H. Huggins, under the deed from C. K. Lincoln and wife. After service of process on her as a cross-defendant in the suit, appellee filed an “Affidavit for Abatement of Action” stating that more than one year elapsed after the death of P. H. Huggins before the filing of the intervention; and that no person authorized by law had consented to a revival of the action which had abated and should, therefore, be dismissed. This appeal is from an order sustaining the prayer of the affidavit to dismiss the action as having abated and disallowing appellant’s petition to intervene therein.

We do not agree with appellant’s contention that the chancellor erred in dismissing the action and disallowing her petition to intervene. It is undisputed that P. H. Huggins, the only party defendant to the suit, died more than two years prior to the time that appellant sought to intervene; and that there was no attempt to revive the canse against appellee, or any one else, within the time and manner prescribed by statute (Ark. Stats., Secs. 27-1001 to 27-1021). Two sections of the statute, which is a part of our Civil Code, are particularly pertinent here. Sec. 27-1016 provides: “An order to revive an action against the representatives or successor of a defendant shall not he made without the consent of such representative or successor, unless in one (1) year from the time it could have been first made.” Sec. 27-1018 reads: “When it appears to the court by affidavit that either party to an action has been dead, or, where he sues or is sued as a personal representative, that his powers have ceased for a period so long that the action cannot he revived in the names of his representatives or survivor (successor) without the consent of both parties, it shall order the action to he stricken from the docket.” We have uniformly held the statute to he mandatory in its terms and that the re-vivor, to he effective, must he applied for within the time prescribed. Anglin v. Cravens, 76 Ark. 122, 88 S. W. 833; Prager v. Wootton, 182 Ark. 37, 30 S. W. 2d 845. After the death of F. H. Huggins on April 6, 1954, appellant could have revived the action against the ap-pellee as successor in title to her deceased husband, the original defendant, within the one year period prescribed by Sec. 27-1016. Woolfolk v. Davis, 225 Ark. 722, 285 S. W. 2d 321. Having failed to do so, and the appellee having filed the affidavit prescribed by Sec. 27-1018, the trial court correctly dismissed the intervention and struck the action from the docket as having abated.

Affirmed.

ON REHEARING-

Minor W. Millwee, Associate Justice.

(On Rehearing). In the original opinion we failed to note and give effect to one salient fact which necessitates a reversal of our decision to affirm the trial court’s action in dismissing appellant’s alleged cause of action. According to the stipulation of the parties the deed of June 25, 1948, under which appellee, Mrs. F. H. Huggins, and her husband claimed title was a conveyance to them jointly as husband and wife. Thus she claims title as survivor of the original entirety ■ estate and not as successor, de-visee, heir or personal representative of her deceased husband. Tenants by the entirety take by the entirety and not by moieties. Branch v. Polk, 61 Ark. 388, 33 S. W. 424. Upon the death of F. H. Huggins in 1954 his estate expired forever and there was nothing to revive insofar as the respective' claims of the present parties to the land are concerned.

Since neither the appellant, Eunice M. Wilson, nor the appellee, Edna Marie Huggins, was a party to the original suit between their respective husbands, the intervention filed by appellant on May 18, 1956, was in effect an original action on her part and should be so treated. While the original action had abated insofar as it pertained to F. H. Huggins, it had not abated as to the appellee; and the appellant is entitled to a trial of the issues presented in the intervention as though it were an original action.

The petition for rehearing is accordingly granted. The decree is reversed and the cause remanded with directions to proceed with a determination of the issues presented as an original action filed as of the date of the intervention.


author: Ceorge Bose Smith, J.

text:
    Cannaday v. Cossey.
    5-1541
    312 S. W. 2d 442
    Opinion delivered April 28, 1958.

      Holt, Park & Holt, for appellant.

      N. J. Henley and Opie Rogers, for appellee.
   Ceorge Bose Smith, J.

On March 1, 1956, the appellants bought an improved 100-acre tract of land from the appellees, paying $2,000 down and executing an installment note for the unpaid balance of $6,000. After occupying the property for about six months the Canna-days discovered that the dwelling house had been seriously damaged by termites. They then brought this suit for a rescission of the contract, asserting that the sellers, with knowledge of the damage to the dwelling, had falsely represented it to be “a good house.” Upon conflicting evidence the chancellor concluded that the Cosseys had not acted in bad faith and that the misrepresentation, even if made, was not one that the purchasers were entitled to rely upon. The court accordingly sustained the contract and granted the appellees’ prayer for foreclosure of their vendors’ lien.

In our opinion the plaintiffs failed to meet the burden of proving actual fraud in the transaction. Cossey, who is seventy-five years old, had lived on the place for more than fifty years. The dwelling in question was built partly with used lumber and was twenty-eight years old at the time of the sale. Cossey considered it to be a good house for its age. He candidly admitted having seen flying ants around the farm for forty years or more, but he testified that he had had no experience with termites and did not know what a termite was. It is of course common knowledge that many species of harmless ants are temporarily able to fly.

It was evidently possible for Cossey to occupy the house without realizing its condition, for the damage, though extensive, was not easily discoverable. The floors were covered with linoleum, and the walls had been papered eight or ten years before the sale. The Canna-days themselves lived in the dwelling from March until October without suspecting the presence of termites; it was Mrs. Cannaday who first discovered the condition as she was hanging a picture. Her husband then went under the house to examine the sills. He states that the wood looked sound from the outside, but his hammer “buried up” when he tested the wood by striking it. The plaintiffs also attempted to show by other witnesses that Cossey had actual knowledge of the hidden damage, but this proof raises only a mild suspicion and falls short of establishing the charge of conscious bad faith.

It is insisted, however, that the purchasers were not required to prove a deliberate intention to deceive, since one may be held liable for a false statement which he honestly believed to be true. Fausett & Co. v. Bullard, 217 Ark. 176, 229 S. W. 2d 490. Even so, the representation must amount to more than a mere expression of opinion and must involve a statement of fact that serves as an inducement to the agreement. Wright v. Boltz, 87 Ark. 567, 113 S. W. 201. In the Fausett case, for instance, the seller stated positively, in answer to the purchaser’s inquiry, that conditions underneath the house were excellent, when in fact a serious state of deterioration existed.

In the case at bar no one suggests that the matter of termite damage was ever mentioned during the negotiations for the sale. The complaint alleges simply that Cossey represented the dwelling to be a good house. On the witness stand Cannaday went a bit farther and quoted Cossey as having said, “I have a good sound house here, in good condition.” Cossey denies having made any representations at all about the property. He states that he was ill at the time and left the negotiations to his son-in-law. When the Cannadays came to inspect the house Cossey merely invited them to look around as much as they wished. The chancellor did not find it necessary to determine exactly what representation, if any, was made; but, in view of the conflicting versions of the incident, a finding that Cossey described the dwelling as a good house would not be against the weight of the testimony. A general statement of this kind amounts only to an expression of opinion and cannot be relied on by the purchasers as an assurance against the various defects that are apt to be found in a twenty-eight-year-old dwelling. Parker v. Moulton, 114 Mass. 99; Williston on Sales (Rev. Ed.), § 628. As Williston expresses it: “Statements that things are ‘good,’ or ‘valuable,’ or ‘large,’ or ‘strong,’ necessarily involve to some extent an exercise of individual judgment, and even though made absolutely, the hearer must know that they can be only expressions of opinion.”

Affirmed.

Holt, J., not participating.