author: Carleton Harris, Chief Justice.

text:
    UNION PLANTERS NATIONAL BANK of Memphis, Tennessee v. Clem MOORE & Paul WILLMUTH, partners d/b/a General Oil & Investment Company
    5-5499
    464 S. W. 2d 786
    Opinion delivered March 29, 1971

      Bennett «Sr Purtle, for appellant.

      Highsmith, Harkey «Sr Walmsley, for appellees.
   Carleton Harris, Chief Justice.

This appeal questions the correctness of the ruling by the Independence County Circuit Court that Auto-Kar Distributors, Inc. was doing business in Arkansas without having qualified, and that accordingly, its note and security instrument assigned to Union Planters National Bank of Memphis, appellant herein, could not be sued upon. N. S. Garrott, Jr. owned two corporations, the Garrott Corporation, and Auto-Kar Distributors, Inc. The former is an Arkansas Corporation and sold coin operated automatic car washers. The latter corporation was set up to market these coin operated car washers in Tennessee, Southern Kentucky and Northern Mississippi. Both companies sell a machine known as “Auto-Kar Washer”. A contract was entered into in January, 1967, between Auto-Kar Distributors, Inc. and Clem Moore and Paul Willmuth, partners, D/B/A General Oil 8c Investment Company, for the sale of one of these car washers. This contract was subsequently assigned to appellant, which instituted suit when appellees ceased making their payments. Appellees defended upon the basis that Auto-Kar Distributors, though doing business in Arkansas, had not qualified to do so; that appellant was not authorized to do business in Arkansas, and it was prayed that the complaint be dismissed. After the taking of testimony, the court found that Auto-Kar Distributors, Inc. contracted to sell a car washer to appellees, which was to be erected at Batesville; that it further contracted to supervise the erection of the car washer through its engineer; that Auto-Kar Distributors, Inc. was a foreign corporation incorporated under the laws of the state of Tennessee and had not qualified to do business in Arkansas; still further, that the contract between the parties was first signed by the president of Auto-Kar Distributors, Inc. and then taken by its representative to appellees in Batesville where it was signed by a representative of appellees; that the contract for the sale and erection of the automatic car washer was made in the state- of Arkansas. Upon these findings, the complaint was dismissed, and from the judgment so entered, appellant brings this appeal. For reversal, it is asserted that the court erred in holding that Auto-Kar Distributors was doing business in Arkansas, appellant contending that the transaction was a single isolated sale which would not constitute doing business in this state, and it is further contended that the transaction was interstate in character and qualification to do business was not required of Auto-Kar Distributors.

Mr. Garrott, who lives in Memphis, testified that he. became acquainted with appellees during a period of time when one of the Garrott Corporation salesmen sold units in Arkansas. He said that this corporation entered into a contract with appellees to sell them a complete car wash system, but that the sale was made on condition that it could be financed through the home company in Dallas. However, the parties were unsuccessful in obtaining financing in Dallas, and Garrott testified that it was decided that financing could probably be obtained through the Union Planters National Bank in Memphis through Auto-Kar Distributors. This last is the Tennessee corporation. The witness stated his company did banking business with this bank and the proposed transaction was discussed with bank officials; as a consequence, the bank agreed to handle the financing. Accordingly the first contract was cancelled and a new bill of sale was executed on January 16, 1967. Appellant bank has a required set of forms for use and this form, called “Security Agreement” was executed by Mr. Garrott as president of Auto-Kar Distributers and by Clem Moore for General Oil & Investment Company, the agreement being dated January 23, 1967. It actually is a contract for the sale of the washer, and was assigned by Auto-Kar Distributors to Union Planters National Bank on the same date. Under the provisions of the agreement, the seller retains security title to the goods. At this point, we have the first dispute in the testimony. Garrott testified that Moore had already signed the agreement at the time he (Garrott) signed it in Memphis. Moore subsequently testified that Garrott had already signed it at the time he (Moore) signed it in Batesville. The president of Auto-Kar Distributors further testified, and this is not disputed, that the machine was shipped from Dallas, Texas, F. O. B. to Moore and Willmuth. Garrott testified that this was the only unit that Auto-Kar Distributors had sold in Arkansas. He also testified that there was nothing in the agreement that required his company to furnish any assistance in setting up the unit, but that when the machine was delivered at Batesville, the company sent a man over to supervise the installation of the machinery.

Mr. Willmuth and Mr. Moore testified that the agreement was signed by Moore in their office at Bates-ville, and that Garrott’s signature was already affixed to the instrument when Moore signed it. Both stated that the agreement was brought to the General Oil & Investment Company’s office by a Mr. Ross who was with Auto-Kar Distributors. Moore (Clem) stated that the items comprising the car wash were shipped or brought into Arkansas, part coming from Dallas, another part, a hot water heater, coming from another source which he believed to be Tennessee. He testified that appellees also purchased a vacuum cleaner to use ’in cleaning the inside of the cars which was to be delivered at a date subsequent to the original delivery; this vacuum cleaner was delivered in Batesville by an employee of Auto-Kar. Moore also said that he paid $175.00 for the use of the engineei sent over by Auto-Kar for the purpose of supervising the erection of the unit.

Mr. Garrott again testified on rebuttal that the agreement was not signed when it was sent out by him. “It would have been the poorest business practice in any form ever conducted had I signed that before it was sent over there.” He also denied that there was any vacuum cleaner involved in the transaction at all. Garrott said he had not agreed to furnish any engineer, and that he was denying he had said anything about sending an engineer. The bill of sale does provide for “supervision” for $175.00._

After a close study of the facts in this case, and the authorities cited, we agree with the trial court that the acts of Auto-Kar Distributors, Inc. constituted the doing of business in this state. Cases cited by appellant are distinguishable. McHaney v. Lafayette South Side Bank and Trust Co., 185 Ark. 1022, 50 S. W. 2d 991, involved a foreign corporation, not authorized to do business in Arkansas which had executed a contract renewing a prior guaranty contract entered into and to be performed in another state. Sillin v. Hessig-Ellis Drug Co., 181 Ark. 386, 26 S. W. 2d 122, held that a foreign corporation, without qualifying to do business in Arkansas, may take and foreclose a mortgage to collect its accounts resulting from interstate sales. In Simmons-Burks Clothing Co. v. Linton, 90 Ark. 73, 117 S. W. 775, the court held that prohibiting a foreign corporation from doing business in this state without qualifying to do so, does not prevent such a corporation from taking a note or mortgage to secure a past due debt for goods sold in another state. The case of Goode v. Universal Plastics, Inc., 247 Ark. 442, 445 S. W. 2d 893, relied on by appellant, also involved a contract made in another state.

The facts in the case of Hogan v. Intertype Corporation, 136 Ark. 52, 206 S. W. 58, bear some similarity to the instant litigation. There, a salesman for appellee company, which had its main office in New York, called on the appellant in Arkansas and obtained a written contract for a typesetting machine. The machine was shipped from New Orleans to the appellant, and thereafter an agent of the company arrived in Arkansas and demonstrated to appellant the operation of the machine, whereupon appellant executed notes and mortgage. The chancellor ruled the transaction interstate business rather than business done in this state by a foreign corporation contrary to law. On appeal, we said:

“In the instant case, the property was not only retained by the seller after it reached Arkansas, but an agent of the seller was sent to the State for the purpose of demonstrating that the machine would do the work represented, in order to consummate the sale; and, after making a satisfactory demonstration, the agent accepted in part payment therefor long time notes executed and payable at Huntington, Arkansas, and a mortgage on the machine to secure the notes, which was recorded in Greenwood, Arkansas. This constituted a business transaction in Arkansas by a foreign corporation contrary to the statute law.”

This court reversed the decree and dismissed the case.

In the case now before us, title tp the property was also retained by the seller after it reached Arkansas; there is substantial evidence that an agent, or employee, of the seller was sent to Batesville for the purpose of seeing that the car wash was properly constructed. There was substantial evidence that the contract was executed, and became effective, at Batesville. These facts are all in line with Hogan. In addition, there was also substantial evidence that a vacuum cleaner, necessary in the operation of the car wash, was brought to Batesville by an employee of Auto-Kar. We think these facts establish that Auto-Kar was doing business in Arkansas contrary to the statute.

Nor are we impressed by the argument that this was an interstate transaction. Hogan v. Intertype Corporation supra, points out that one test laid down by Arkansas cases differentiating an interstate transaction from an intrastate transaction is the ownership of the property after it arrives in this state. It has already been pointed out that title was retained by Auto-Kar. Actually, all of the facts heretofore mentioned support the view that this is an intrastate transaction. Let. it be remembered that this is not the case of a resident of this state ordering goods from a foreign corporation, and the foreign corporation honoring that order by shipping the goods to the purchaser. To the contrary, the essential acts necessary to putting the car wash into operation were carried out in this state, viz, the contract was entered into in this state, the car wash was constructed in this state, and supervision for construction was furnished at the site.

Little need be said about the fact that the provisions of Ark. Stat. Ann. §§ 64-1201-02 (Repl. 1966) are also applicable to the assignees of such an unenforceable contract. In Pacific National Bank v. Hernreich, 240 Ark. 114, 398 S. W. 2d 221, this court flatly held that there can be no holder in due course of a negotiable instrument arising out of a transaction which was illegal because an unlicensed foreign corporation was without power to enter into an enforceable contract in Arkansas. In so holding, we said:

“It is settled law that assignees can receive no better rights than their assignors had. The strong language in the Hogan case is excellent—but it is dicta. Thus it is apparent that this is really the first time this court has had occasion to rule directly on the question presented.

To reverse this case and permit enforcement of the notes here sued on would in effect repeal our penal statute prohibiting unlicensed foreign corporations from doing business in this state.”

We held that a transaction of this nature is not merely unenforceable but void ab initio.

Affirmed

Fogleman, J., not participating.

       Garrott had testified that the details of the transaction had been handled by Sam Moore and Carl Ross.


source: Caselaw Access Project

author: George Rose Smith, Justice. John A. Fogleman, Justice,

license: Public Domain

text:
    JULIAN JAMES STORES, INC. v. Bob G. BENNETT
    5-5509
    465 S. W. 2d 94
    Opinion delivered March 29, 1971
    [Rehearing denied April 26, 1971.]

      Douglas Bradley, for appellant.

      Lee Ward, for appellee.
   George Rose Smith, Justice.

The appellee, a real estate broker brought this action to recover a $3,500 commission which he had assertedly earned by finding a purchaser for a 31-acre farm being offered for sale by the appellant, a family corporation owned by Julian James and his wife. This appeal is from a $3,500 verdict and judgment for the plaintiff. For reversal it is contended that the plaintiff’s proof was fatally deficient in four particulars.

We state the facts most favorably to the appellee, as is our rule. On a Wednesday morning, June 18, 1969, Bennett and Julian James happened to meet at the post office in Jonesboro. James orally employed Bennett to sell the farm for $33,000, with the down payment to be $15,000 and the balance to be paid in five years, at T/i% interest. In response to a question Bennett stated that he thought that Wallace Fowler would be interested in buying the property.

On Thursday and Friday Bennett discussed the farm with Fowler and showed it to him. Fowler was interested but wanted easier credit terms. On Friday Bennett talked again with James, who raised the price to $35,000 but reduced the. down payment to $7,500 and extended the period of credit to fifteen years. On Saturday morning Fowler agreed to the new terms. That afternoon Bennett telephoned James and reported that he had sold the land to Fowler upon James’s exact terms. James replied: “That’s great, Bob. . . . You’ve done a good job.”

On Monday morning Bennett received this letter from James, dated the preceding Saturday:-

Since I talked to you today, I have discussed, in detail, the possibility of selling the acreage out by Craighead Forest, with the family, and several things have developed, that has caused us to not sell the property at this time.
From all indications another deal for another piece of property is going to go thru, and if it does, we think it best to hold this acreage, for it might be best to sell it off in lots.
Your interest in selling it and helping us is sincerely appreciated. If and when we decide to think of selling it, we will be glad to talk to you first.

When Bennett called James on Monday morning to express his surprise and disappointment at James’s change of position, James said that his wife wouldn’t let him sell the property. Despite James’s written statement that he and his family had decided not to sell the property, on June 25—only two days later—James and his wife sent Bennett a letter offering him an exclusive listing to sell the property for $37,500. In that letter Mr. and Mrs. James stated that they would like to see Bennett’s client (Fowler) get the property and explained that the new price was a compromise between what James had discussed with Bennett and what Mrs. James wanted for the property. Later on this action was filed, resulting in a verdict for Bennett for the full 10% commission.

The appellant corporation now relies upon four asserted deficiencies in Bennett’s proof to justify its refusal to pay Bennett’s commission. Not one of those grounds for refusal was asserted in James’s about-face letter of Saturday, June 21. Consequently the appellant is confronted with the settled rule that a seller who has attempted to revoke his earlier acceptance of an offer obtained by the broker cannot ordinarily defeat the latter’s claim to his commission upon a ground not originally stated as a basis for the revocation. This introductory statement to an A. L. R. annotation fits the case at bar so precisely that it is well worth quoting:

For example, in a case where a landowner has listed property for sale with a broker, and the latter has procured an oral offer from a prospect so easily that the owner concludes he should have asked more for the property, for which reason he rejects the offer and gives the standard excuse that his wife will not let him sell, or he frankly states that he wants more money, a question arises as to whether he may later defend the broker’s action for commissions or other compensation by asserting other matters not discussed when refusing the offer, such as [several illustrative excuses stated]. As will be seen in III, infra, as a general rule, none of these matters may be raised as a defense under such circumstances. [156 A. L. R. 602.]

The foregoing principle of waiver applies to the first three of the grounds now relied upon by the appellant for a reversal of the judgment. For that reason we need discuss those contentions only briefly.

First, it is argued, on the basis of dictum contained in a footnote in Cherry v. Montgomery, 242 Ark. 233, 412 S. W. 2d 845 (1967), that a broker does not earn his commission if the purchaser’s oral offer is made to the broker rather than to the seller himself. That rule prevails in California, as an incident to the statute of frauds. Mattingly v. Pennie, 105 Cal. 514, 39 Pac. 200, 45 A. S. R. 87 (1895). The rule has never been followed in Arkansas, and, moreover, it does not apply even in California when, as in the case at bar, the seller waives the rule by preventing the broker from bringing the parties face to face. Martin v. Culver Enterprises, 49 Cal. Rptr. 149 (Cal. App., 1966).

Secondly, it is contended that Bennett did not prove Julian James’s authority to act for the family corporation. Bennett showed, however, without contradiction, that James and his wife owned 494 of the corporation’s 500 outstanding shares of stock and that James was the president of the company. To allow such a one-man corporation to avoid its owner’s contract would be a fraud. Security Bank & Tr. Co. v. Warren Light & Water Co., 170 Ark. 50, 278 S. W. 643 (1925). Furthermore, here the corporation perforce relies upon James’s letter of June 21, revoking the contract, but that letter was signed by James as an individual. Finally, the principle of waiver, already mentioned, obviously applies here, for if Mr., and-Mrs. James had been sincere about wanting to sell the property upon the terms accepted by Fowler, they could readily have supplied the necessary corporate resolution.

Thirdly, it is argued that the appellant never agreed to an offer of $1,000 earnest money that accompanied a written acceptance signed by Fowler on Monday, June 23. A complete answer to that contention is that James’s terms of sale made no mention whatever of any earnest money. A seller certainly cannot complain of a provision in the buyer’s acceptance more generous to the seller than what the latter had demanded.

Finally, the appellant, again citing Cherry, supra, argues that Bennett did not prove that the purchaser, Fowler, was financially able to make the purchase. We do not imply that the doctrine of waiver applies to this contention, for some authorities recognize an exception to that doctrine when the seller’s belated objection is based upon a matter that the broker could not have cured even if the objection had been brought to his attention. 156 A. L. R. 604. But here, unlike the fact situation in Cherry v. Montgomery, the uncontradicted proof is that Fowler, the buyer, was financially able to make the purchase. Fowler testified that he was in the retail furniture business, that he owned a farm, and that he was interested in other businesses, which he named. He stated positively that he had been financially able to go through with the contract. On cross examination he said that he had the funds to make the $7,500 down payment, without having to borrow any money. It will also be remembered that on June 25 Mr. and Mrs. James stated in their letter to Bennett that they hoped that Fowler would be the purchaser of the property at the increased price of $37,500. Thus there was an abundance of substantial evidence to support the jury’s verdict upon this issue.

Affirmed.

Harris', C. J., and Fogleman, J., dissent.

John A. Fogleman, Justice,

dissenting. I respectfully dissent because I think the court has capriciously pierced the corporate veil in holding that the evidence showed that Julian James had the authority to employ a real estate agent to sell corporate assets. I humbly submit that the case cited constitutes no authority for the majority’s position. In that case (Security Bank & Trust Co. v. Warren Light & Water Co., 170 Ark. 50, 278 S. W. 643), the evidence showed that one individual, S. R. Morgan, controlled and directed the affairs of the corporation, and the officers of the corporation obeyed his orders. Morgan handled the funds and completely dominated the firm. Bonds of the company and a mortgage securing them were the subject of the litigation. They were signed and impressed with the corporate seal by the president and secretary of the corporation, pursuant to resolution of the directors, and put into Morgan’s hands. Morgan negotiated a loan and pledged the bonds, representing that they were valid, binding obligations, notwithstanding the fact that they had not been authorized by the Arkansas Corporation Commission or countersigned by the trustee. Then, without recording the mortgage, the corporation sold its corporate property to Morgan & Co., which was actually S. R. Morgan. The court treated the corporation as a partnership and properly said that Morgan and his associates were clearly estopped by Morgan’s representations to deny liability on the notes or to repudiate the mortgage. None of the essential facts is present here. There is nothing to show that Julian James dominated the corporation or controlled or directed its affairs, or even his wife, who was the other substantial stockholder. As a matter of fact, the record clearly discloses that Mrs. James had a voice in the affairs of the corporation and used it. The fact that she was willing to authorize a sale at a substantially higher price does not mean that she was willing to, or did, authorize one at the lower price, or the employment of an agent to sell at that price.

Apparently, the majority is treating the husband and wife as an entity, but this fiction was substantially weakened by the Married Women’s Acts early in the century. I have reason to entertain serious doubt that it will be revived beyond the reach of this opinion.

I do not see how the letter of a corporate officer as an individual, undoing an unauthorized act, could possibly constitute either evidence of his authority or ratification of his acts by the corporation. Nor do I find any act whatever on the part of the corporation or Mrs. James to justify the application of the principle of waiver—the voluntary relinquishment of a known right. It is obvious that Mrs. James did not want to sell the property on the terms accepted by Fowler and made herself an obstacle to any corporate resolution to that effect.

James was president and his wife secretary of the corporation. James’ authority was governed by Ark. Stat. Ann. § 64-310 (Repl. 1966). It was not shown that there was any corporate by-law or resolution authorizing him to sell the corporate real estate or to employ an agent to do so. The identity of the directors is not disclosed. They have very heavy responsibilities to minority as well as majority stockholders. It is not shown that the directors even knew of the action of James, unless he and his wife are directors. If so, at least one director did not approve. Thus, cases such as Bodcaw Oil Company, Inc. v. Atlantic Refining Company, 217 Ark. 50, 228 S. W. 2d 626, cannot apply, for there was neither evidence of acquiescence in this transaction nor in similar actions without prior authority. Furthermore, no question of implied authority was submitted’ to the jury.

The issue as to James’ authority was clearly raised by the motion for a directed verdict. The court instructed the jury, over appellant’s objection, that James, as president and majority stockholder, had legal authority to bind the corporation. Neither the circuit judge, appellee’s counsel nor the majority has come up with any authority for this statement. I submit that the giving of the instruction and the denial of a directed verdict were error. I would reverse the judgment and remand for a new trial. Perhaps appellee can more fully develop the cause to justify a finding of agency.


author: Lyle Brown, Justice.

text:
    Solomon FELDMAN, Jr. v. ARKANSAS STATE BOARD OF LAW EXAMINERS
    5-5545
    464 S. W. 2d 789
    Opinion delivered March 29, 1971

      Solomon Feldman, pro se.

      Jack Barron, for appellee.
   Lyle Brown, Justice.

Solomon Feldman, Jr., appellant, made application to the Arkansas State Board of Examiners, appellee, to write the examination scheduled for March 1971. The application was denied. Appellant contends that the action of the board violates constitutionally secured rights; that such action is in conflict with a rule of this court governing admission to the bar; and that the petitioner was not informed of the rule change which would cut off his right to take the examination.

Appellant is a 1965 graduate of the Arkansas Law School. The night school graduated its last class in 1967 and thereafter ceased to operate. In 1968 the board of examiners took cognizance of the fact that an unusual number of the graduates of the school had lately failed the examinations. On July 27, 1968, the board of examiners terminated its approval of the school. That action was pursuant to our Rule XII, which says that a candidate for the bar must be a graduate of a law school approved by the American Bar Association or by the State Board of Law Examiners. (The night school was not on the approved list of the American Bar.) In order not to abruptly withdraw the right of the night school graduates to take the examination, the board made the termination of the school effective after the July 1970 examination. Consequently the graduates were allowed four more opportunities to take the examination, they being given twice a year.

Appellant has twice written the examination and failed—July 1969 and March 1970. He did not offer himself for examination in July 1970. The following month he made application to write the examination to be given in March 1971, and the denial of that application is the basis of this litigation. It should be noted that five years elapsed between appellant’s graduation and the cutoff date. During that period the examination was given ten times.

Appellant contends that the rule as applied to graduates of Arkansas Law School is unconstitutionally retrospective and violates the equal protection clauses of the Federal and State Constitutions. "Previous to the ruling of the Board, the petitioner had the right to take the examination again. That was a vested right which was divested upon the application of the present rule.” Also, petitioner says: "The law as applied by the State Board discriminates against those persons acquiring a degree from the old Arkansas Law School, while it does not work against any other candidate for admission to the bar.”

If the action of the board in removing Arkansas Law School from the approved list was not "invidiously discriminatory,” and if the action had a “rational connection” with the fitness of a certain class of persons to practice law, then the board did not offend against the due process or equal protection clause of the Fourteenth Amendment. Schware v. Board of Bar Examiners, 553 U. S. 232 (1957). The same authority recognizes the power of the states to set high standards of qualifications for the practice of law, just so long as they do not contravene the recited nondiscriminatory and rational connection rules above stated.

We think the action of the board conformed to the principles recited in Schware. The board decided that the academic standards of the school had so declined that an unusual number of the graduates were failing bar examinations; consequently it was thought to be to the best interest of the public and the profession that the school be removed from the approved list. In order to avoid hardship which might appear to be discriminatory, the removal of the school was set up to a future date which would give any graduate who had not taken or passed the bar examination a period of two years (four examination dates) in which to write the examination. It will be remembered that the appellant graduated in 1965; thus a period of five years lapsed before the cutoff date. It would not be illogical to conclude that a 1965 graduate who did not pass the examination in the five year period would not have retained the scholastic attributes needed to succeed in the profession.

Appellant classifies the 1968 action of the board as retrospective. He says he had a vested right to take the examination and that the board’s ruling divested him of that right which he acquired at the time of his graduation. As we have previously pointed out, the board’s action was made to work prospectively. Appellant was given four more opportunities to write the examination. He exercised that privilege on two occasions but for reasons unexplained he did not present himself for examination on either of the other two dates. The authority of the board to approve schools necessarily carried with it the power to revoke approval. When such revocation carries with it a proviso which reasonably protects students who entered the school at the time it was on the approved list, the action of the board has been upheld. Blodgett, State’s Attorney ex rel Bazil v. Boardman, 18 A. 2d 570 (Conn. 1941).

Appellant contends that the rule which eliminated Arkansas Law School from the approved list is contrary to our rules promulgated by constitutional authority. Amend. 28, Ark. Constitution. He points out that this court has made the rule that an applicant has the right to take the bar examination a total of four times and after that only by special permission. Appellant argues that “The State Board of Law Examiners now say that any applicant formerly from the old Arkansas Law School cannot take the examination after July 1970.” Appellant overlooks the fact that the right to take an examination is vested only in those who are graduates of a law school approved by the board or by the American Bar Association.

We come to the last point advanced by appellant. He says he was never informed of the new rule regarding the eligibility of Arkansas Law School graduates to take the examination. Here is the rule adopted in July 1968: “A discussion was had concerning the termination of the approval of Arkansas Law School. It was duly moved by Mr. Leflar and seconded by Mr. Hyatt that the approval of the Arkansas Law School terminate with the July 1970 examination.” The motion, which was unanimously passed, is the only action taken by the board with reference to the termination of approval of the school or the right of the school’s graduates to write the examination. Clearly, of course, the purpose of the rule was to terminate the right, on the cutoff date, of a night school graduate to thereafter write the examination.

Appellant was his only witness before the board. He testified that the secretary gave him two information sheets concerning bar rules; that he had a conversation with Herman Hamilton when the latter was chairman of the board; that he conversed with Ray Thornton when he was board chairman; that he talked with board member Steele Hays; that he had several conversations with the secretary of the board; and that Mr. Hamilton expressed the opinion that he was not cut off from taking the examination. Appellant testified that at no time was he advised of the 1968 rule and he insisted that had he been so advised he would have taken the July 1970 examination. His evidence of the recited contacts was not contradicted. Our problem stems from the fact that we cannot tell from the record when those contacts were made (if in fact some or all of them were made). The point is, if this applicant made timely contact with one or more officers of the board and discussed with them (as he says he did) the subject of his writing the examination, he was entitled to be informed of the deadline imposed by the rule for his taking the examination. Unfortunately, the 1968 rule was never published. The last rules governing admission to the bar were published in 1963. The only archive in which the cutoff rule is to be found is in the minutes of the bar examining committee. (The responsibility for publishing the rules rests with this court; had we timely met that obligation the problem might not now be before us.)

We could say that the burden of establishing the dates of his contacts was on appellant, and affirm. However, since the committee is a creature of this court we prefer to avoid such a minor technicality and give the applicant the benefit of every doubt, just so our action does not offend basic law.

Upon request being made by appellant the board shall set a hearing date, at which the single issue of lack of notice will be explored.

Reversed.

Fogleman, J., not participating.


author: John A. Fogleman, Justice.

text:
    ARKANSAS STATE HIGHWAY COMM’N v. Hansel HIGHFILL et ux
    5-5496
    464 S. W. 2d 784
    Opinion delivered March 29, 1971

      Thomas B. Keys and Hubert E. Graves, for appellant.
    /. Marvin Holman, for appellees.
   John A. Fogleman, Justice.

On. the first appeal in this case, we found that there was error in the circuit court’s failure to strike the landowner’s value testimony in this eminent domain proceeding. We are not confronted with that problem on this second appeal because the trial court instructed the jury not to consider such testimony by Highfill on the retrial. The sole point for reversal is that there is no substantial competent evidence to support the verdict. We might well dispose of this case upon the basis that no objection was made to the value testimony of either of the two other witnesses called by appellees, and no motion was made to strike the testimony of either. The question of competency, if any actually exists, was waived by appellant. Koelsch v. Arkansas State Highway Commission, 223 Ark. 529, 267 S. W. 2d 4; Sneed v. Reynolds, 166 Ark. 581, 266 S.W. 686.

The real basis of appellant’s argument here is that the witnesses based their opinions upon noncomparable sales. One of them, Hobart Yarborough, was unable to find sales of comparable land in the immediate vicinity, so he relied upon three sales of land some distance away. One of these was 254 miles southeast of Clarksville, while the Highfill land was 13 miles west. Another was two miles up Spadra Creek and lay adjacent to the city limits. It was not demonstrated that there were any other dissimilarities in the two tracts. The witness stated that he had used this sale and another from Hardgraves to Morgan in testifying in this and other cases pertaining to creek bottom lands. The third sale was not considered by him when he made his first appraisal, i. <?., before the first trial in this case. Appellant also argues that Yarborough’s professed lack of knowledge about other purported sales about which he was quizzed on cross-examination and his failure to consider other sales as comparable show that his testimony could not be substantial.

Separation of two tracts by distance where they are otherwise similar is not sufficient to show that the sale of one is not evidence of value of the other, where it cannot be said as a matter of law that they are in different localities. St. Louis I. M. & S. Ry. Co. v. Maxfield, 94 Ark. 135, 126 S. W. 83, 26 L. R. A. (n. s.) 1111. See also, Arkansas State Highway Commission v. Ormond, 247 Ark. 867, 448 S. W. 2d 354; Arkansas State Highway Commission v. Clark, 247 Ark. 165, 444 S. W. 2d 702. If the sales relied upon by appellees’ witnesses were not comparable as a matter of law, it was incumbent upon appellant to call that fact to the attention of the trial court. Baker v. City of Little Rock, 247 Ark. 518, 446 S. W. 2d 253. This it did not do. On the basis of disclosures made with reference to the respective tracts we are unable to say that they are not comparable as' a matter of law. Consequently, the weight to be given Yarborough’s testimony was for the jury. Arkansas State Highway Commission v. McAlister, 247 Ark. 757, 447 S. W. 2d 649.

While appellant insists that Yarborough admitted that he did not consider the third sale (from Bailey Barns to Charles Larrison), we construe the witness’ testimony to be that he did not consider it when he made his first appraisal, but did consider it as a basis for his testimony at the' second trial. The knowledge (or lack of knowledge) of the witness as to other sales, if indeed appellees’ data about them was correct, would only bear upon the weight to be given to his testimony. Arkansas State Highway Commission v. Shields, 249 Ark. 710, 460 S. W. 2d 746; Arkansas State Highway Commission v. Ormond, 247 Ark. 867, 448 S. W. 2d 354. We cannot say that it had no substance.

Virtually the same argument is made about the testimony of Harold Lewis, the other value witness called by appellees. One sale which Lewis used in his evaluation of the Highfill property was 12 miles northeast of Clarksville, another was 18 miles from the Highfill land, and he also referred to two of the sales used by Yarborough. He denied that other lands about which he was asked on cross-examination were comparable to that of the Highfills.

We are simply unable to say that appellant has demonstrated that the verdict had no substantial evidentiary support.

The judgment is affirmed.


author: J. Fred Jones, Justice. John A. Fogleman, Justice, Carleton Harris, Chief Justice,

text:
    CITY OF FORT SMITH, Arkansas v. Charley FRANCE et al
    5-5452
    465 S. W. 2d 315
    Opinion delivered March 29, 1971
    [Rehearing denied May 3, 1971.]

      Shaw, Jones ir Shaw, for appellant.

      Floyd Rogers and David O. Partain, for appellees.
   J. Fred Jones, Justice.

This is an appeal by the City of Fort Smith from an adverse decree of the Crawford County Chancery Court in an action brought by the city to quiet its title to part of a 40 acre tract of land in Crawford County. Charley France was the primary defendant in the trial court. He had conveyed small parcels of the land in controversy to the other appellee-defendants and they all claim title by adverse possession. The chancellor confirmed title in Charley France and his wife and in their grantees. On appeal to this court the city relies on the following points for reversal:

“The trial court erred in finding that appellees had acquired title by adverse possession.
The trial court erred in overruling appellant’s motion objecting to entry of judgment and for a new trial.”

Without benefit of abstract of any of the exhibits, the facts of record appear as follows: On May 18, 1935, the City of Fort Smith purchased from Andrew France and Lula France, his wife, several tracts of land in Crawford County in connection with the creation of Lake Fort Smith and Shepherd Spring Lake as a source of water supply for the city. The city acquired, by purchase and by eminent domain, some 10,000 acres for the entire project, but that portion of the land in controversy lies along Clear Creek between the two lakes and is described in the warranty deed of conveyance as follows:

“The Fractional Southwest Quarter of the Northwest Quarter of Sec. 30, Twp. 12 N., R. 29 W., except that part of said tract lying West of a bluff crossing said tract in a Northeasterly and Southwesterly direction.”

While not germane to the issue here, but to emphasize the vagueness of description, this deed also conveyed the fractional west half of the southwest quarter of the same section with certain exceptions; one of which is as follows:

“Beginning at the Southeast corner of Southwest Quarter of Southwest Quarter of Sec. 30, Twp. 12 N., R. 29 W., thence West to Frog Bayou (Clear Creek) thence along said stream in a Northerly direction to a certain slough, thence along said slough crossing another slough and cornering at a certain Box Elder Tree, thence in an easterly direction passing a certain Elm Tree to East line of said SWA of SWA, thence south to place of beginning, containing 20 acres, more or less-.” (Emphasis added).

The deed also contains language as follows:

“And because there are indefinite descriptions in our chain of title we hereby grant and quit claim to the City of Fort Smith, its successors and assigns, but without warranty of any kind all our right, title and interest in and to the following: * * * all that part of Southwest Quarter of Northwest Quarter # # # lyfng East of a bluff which crosses said Southwest Quarter of Northwest Quarter * * * in a Northeasterly and Southwesterly direction.”

After the City of Fort Smith purchased the property in 1955, it caused to be erected, through a W.P.A. project, a fence more or less parallel with the bluff referred to in its deed. The face of the bluff apparently deviates to some extent from vertical inaccessible rock cliffs to steep areas where a person or an animal could go up or down but a vehicle of conveyance could not. Apparently an old road at one time ran along the foot of the bluff. The bluff did not run in a straight line; it jutted out at some places more than at others, but it was apparently well defined across the 40 acre tract here involved. The fence erected by the W.P.A. for the City of Fort Smith was erected in more or less a straight line east of the bluff and averaging about 150 feet from the face of the bluff.

On April 2, 1956, Lula France, as an unmarried person, conveyed by warranty deed to Charley France and Nellie France, his wife, land described as follows:

“All that part of the Southwest Quarter of the Northwest Quarter of Section 30, Township 12 North of Range 29 West, which lies East of the Shepherd Springs Road as now located over and across said forty and North of that part of said forty owned by the City of Fort Smith, Arkansas and that part of the said forty owned by Joe C. Bennet and others. Said deed to Joe C. Bennet as described in records office of the Recorder of Crawford County in deed record Book 178 at page 52. This deed conveys to the Grantee all interest in the above described land not already owned by her.”

In 1966 Charley France and wife conveyed by warranty deeds to Smith and to Morris two small plots 50 by 100 feet in dimension and apparently lying within the area between the fence and the bluff claimed by the city. About this same time Charley France bulldozed a road from the top of one end of the bluff down into the old road near the foot of the bluff, whereupon the City of Fort Smith filed a suit in ejectment but dismissed it without prejudice and brought the present action to quiet its title. Charley France, Smith and Morris pleaded adverse possession for more than seven years. The chancellor found in favor of France, Smith and Morris and decreed title in them by adverse possession. The chancellor who heard the testimony, made his findings of fact and conclusions of law but died before the decree was actually entered thereon. The city’s motion for a rehearing was denied and the decree was entered by the newly elected chancellor on the findings and conclusions of the chancellor who heard the case.

THE APPELLEES’ EVIDENCE

Logan France, a brother of the appellee, Charley France, testified that he actually made the deal for the sale of the land from his parents to the City of Fort Smith and that his father and mother sold approximately 100 acres of land to the city out of the 160 acre tract they owned. He says that at the time of the sale the City of Fort Smith simply wanted 100 acres *)f the bottom land, and that in 1936 the city established its fence on what was supposed to be its west boundary line. He testified that none of the land was ever surveyed prior to the erection of the fence and that his mother and father, while living in a house on top of the bluff, continued to use the property between the bluff and the fence for cow and calf lots and to impound their other livestock. He testified that his brother, Charley, lived on the same property with his mother and father and that after his father’s death in 1952, Charley continued to use the property in the same manner as used by his father and mother and had continued to so use it until the present time. He testified that when the fence was built, the city fenced in the county road which was rerouted along the top of the bluff, and that his father connected fences across the old county road for the city, and so he could have fences connected from the bluff to the city fence on the south end and also on the north end of the property involved. He testified that some bulldozing was done by Charley on a road under the bluff about seven or eight years ago. He testified that Charley lives approximately 300 feet from the north line of the property in question; that his brother, Charley, used the property even before his father passed away in 1952, and that he has continued to use it for livestock pens ever since. He testified that his mother lived in a little house by the side of Charley’s house on the top of the bluff, and that there was a trail leading down from Charley’s house to the property between the bluff and the fence where the livestock was kept. He testified that the trail had been in use for more than 40 years, and that he traveled it in going to school when he was a child. He testified that a part of the property in question was planted in corn in 1935 and that the city built the fence diagonally through the field where the corn was planted.

Mr. W. F. Wright testified that he had lived in the area of this property for 62 years; that he farms, raises chickens and cattle, and does some veterinary type work at times. He testified that about in 1960 he was requested to administer a milk fever shot to one of Charley France’s milk cows and that he did so. He testified that the cow was penned in a lot between the bluff near Charley’s house and the city reservoir fence, and he believes Charley had some other livestock in the lot. He testified that he was familiar with the area between the bluff and the city fence and that it has been in constant use by Charley France and his family through the years.

On cross-examination this witness testified that he had rented land for a period of five or six years from the city for cow pastures inside the fence, but not between the fence and. the bluff. He testified that he knew there had been some bulldozing work done on the property in the past years; that his nephew, Lee Wright, did some dozing work for Charley France on the property several years ago.

Mr. Burton Vaught testified that he lives in Mountainburg, is 49 years of age, grows broilers and is president of the school-board in Mountainburg. He testified that he is well acquainted with the property involved, and that the fence built by the city runs 100 to 150 feet from the bluff, depending on the way the bluff “winds down through there.” He testified that Charley France kept livestock in a lot below his house between the bluff and the fence; that he kept milk cows in the lot; that Charley had a mule in the lot at one time; that he purchased a horse from Charley in 1960 or 1961, maybe 1959, and that the horse was in the lot between the bluff and the fence. He testified that the lot was enclosed by fences across each end of the strip between the bluff and the fence the city built. This witness testified that he purchased the horse for the purpose of skidding logs; that his brother purchased all of the timber on the reservoir area from the City of Fort Smith, and that he did the logging of the timber his brother had purchased. He testified that the city caretaker for the reservoir property showed him the property lines where he was to cut timber. He says that the fence along the lake under the hill was pointed out to him as the property line; that he was told he could cut anything inside the fence for that belonged to the city, but that he was to cut nothing outside the fence.

On cross-examination this witness testified that he was fairly familiar with all the 10,500 acres the city owns around the lakes and that at one time all the city land was either fenced or had posts around it. He testified that the caretaker told him that,

“Anything inside that fence was city property. * * * said just cut inside the fence—its all city property. I said—‘is there any danger getting on anybody elses up there?’ And he said, ‘Not so long as you stay under the ience.’ ”

One of the appellees, Charley France, testified that he lives on the bluff overlooking the property involved; that there is a road as. well as a footpath, or trail, from where he lives down through the property. He testified that the property was deeded to him by his mother in April, 1956. He testified that his father and mother kept cattle, horses, goats and hogs on the property involved, and that he had continued to maintain the corral, or lot fences, as his father and mother had done; and had continued to keep his mules, calves and hogs enclosed on the property. He testified that he had a Mr. Lee Wright do some bulldozing on the property several years ago, and that he would estimate that it was about 12 or 15 years 'ago. He testified that the road came up from around the' end of the bluff and extended through the distance of the 40 acre tract. He testified that he had this entire road worked with a bulldozer by Mr. Wright; that Mr. Wright “just brought the bulldozer down the hill and through the land to the end and fixed the road better than it was.” He testified that after Mr. Wright did the bulldozing work he had the road worked with a bulldozer two other times; once by Bobby Joe Centers and once by Buck Fath. He testified that after the bulldozing work was done he planted some crops on one end of the area, and that he has used the property constantly since his mother deeded it to him.

On cross-examination Charley France testified that Bobby Centers worked the road about three years ago. He testified that his mother and father put fences in from the bluff to the fence built by the W.P.A. on each end of the land involved; that he continued to maintain the fences and use the property between the bluff and the W.P.A. fence. He testified that in maintaining the road Mr. Centers may have pushed out big rocks and some trees with the bulldozer and that Mr. Wright, some 12 or 14 years ago, did the same with his bulldozer. He says that the road has remained open and passable ever since Mr. Wright did the bulldozing work some 12 or 14 years ago. He testified that he does not know whether his father and mother had permission from the city to use the land or not, but that they continued to use it after they sold the land to the city.

Mr. Claude Morris testified that he purchased a team of mules from Charley France; that he is familiar with the property involved and that when he purchased the mules, Mr. France had them, as well as other livestock, enclosed on the area involved. He testified that he had bought a lot from Charley in the area and had a well drilled on it. On cross-examination he testified that he had known Charley all of his life and had spent 29 days in the penitentiary with Charley for cattle rustling.

THE CITY’S EVIDENCE

Dominic Leraris, a civil engineer, testified that he surveyed the land involved at the request of the city in 1967; that he was first on the land June 27, 1967, and that a bulldozer was working a road on the land when he was there.

Mr. Roy E. McCann, Jr., a commercial photographer, identified a number of pictures he took of the area and both he and Mr. Leraris testified that in walking over the property they encountered no fences connecting the city fence line with the bluff.

Mr. Bob Suit testified that he had been superintendent of the reservoir for the City of Fort Smith and had been in almost daily contact with the area involved since December, 1962. He testified that when he first assumed supervision of the reservoir area, it was his understanding that the property involved between the bluff and the fence line belonged to the city. He testified that it was in the Spring of 1965 when he first learned that Charley France was claiming adverse to the city. He says that on that occasion Charley advised him that he was going to cut a road down under the bluff and he advised Charley it was city property. He says Charley responded that if anyone stopped him it would be the sheriff (this was denied by Charley who testified that he and Suit did not get along and that Suit does not adyise him on anything). Suit testified that he is pretty sure it was in 1965 when Mr. Centers was on the property with a bulldozer. He says that he had a work crew place barricades across the road but they were removed. He says that they then drilled holes across the road and set steel pipes in concrete and that the pipes were removed before the concrete set up. He testified that he did not know whether Charley France moved the barricades or not, but he does know Charley had him arrested for blocking a public road.

Mr. Suit testified that he noticed an old fence running out from the bluff but that he does not believe it connects with the city fence. He testified that when he first went up into the area in 1962, Mr. Cole (a former superintendent) went with him and that Mr. Cole pointed out to him that the land between the fence and the bluff belonged to the city. This witness testified that up until this present lawsuit was started, no cattle were on the property involved during the time he had been superintendent in so far as he knows. Mr. Suit testified that Lake Fort Smith had a fence all the way around it when it was first built and that Lake Fort Smith takes in the property in question. He testified that the fence has. fallen in bad repair and that he attempts to keep all the old roads leading into the area blocked and the cattle run out of the area.

Mr. John Luce testified that he had worked for the City of Fort Smith for a period of 41 years; that he was familiar with the area when Lake Fort Smith and Lake Shepherd Springs were formed, and remembers when the property in question was acquired. He testified that it was his understanding, that the city was to get all of the 40 acre tract involved in this case east of the bluff. He testified that it had been his impression that the city owned this property to the bluff until the dispute arose a few years ago with Mr. Charley France, and that he first learned of the adverse claim about 1966. He testified that it was his impression all along, as superintendent of the property involved, that the city owned and controlled the land between the bluff and the fence line. He testified that the land along the very foot of the bluff was pretty rugged; that in many instances the fences were erected along the boundary lines of the city acquisition, but that in most instances the city was not particularly interested in property boundary lines and placed its fences in the most convenient location to keep cattle and livestock out of the water supply. He testified that he first learned of the adverse claim of Charley France when the obstructions he had placed in the old Shepherd Springs Road were removed and he sent some men to the area to replace the obstructions. He testified that there was no roadway from the top of the bluff to the old road where he erected the barricades until Charley France had a roadway cut around the bluff. He testified that this was done in 1965 or 1966 (he thinks it was 1966), and that when steel pipes were put in the road they were removed. He testified that livestock should not have been permitted to run on the city property between the bluff and the fence, and that there was not supposed to be any livestock in that area. He testified that there was a caretaker already hired when he became superintendent in 1945, and that he employed two caretakers in succession. He testified that as far as he knows the caretakers knew where the city boundary lines were; that some of the fence posts burned out, and the fences fell into disrepair over the years for lack of money or personnel to replace or repair them. He testified that the area surrounding the lakes was open range area when the lakes were impounded, and that the main object of fences was to keep cattle out.

On cross-examination this witness testified that he was not superintendent at the time the fence was built; that he simply knows that a fence was built and that he surmises that the fence was to keep the cattle out of the water. He testified that he did not know how long the old road had been between the bluff and the fence. He stated an opinion that livestock could get down from the bluff but that a wagon. or automobile could not. He testified that from 1935 when the city acquired the property, until 1965 or 1966 when he saw a bulldozer on the property, that the city had caretakers in the area and that they attempted to keep cattle out of the area. He testified that he did not know that cattle were running in this area from 1935 until 1965.

Charley France on recall identified the deed from his mother to himself and wife and testified that the description contained in the deed was intended to describe all of the property owned by her in the 40 acre tract.

The discovery deposition of Mrs. Helen Sax was submitted in evidence and she testified that her husband, who is incapacitated, was the first caretaker of the reservoir area. She testified that the W.P.A. built the fence soon after the property was acquired by the city, and that there was no fence built from the bluff to the W.P.A. constructed fence.

On cross-examination Mrs. Sax testified that it had been 30 years, or a little better, since she had been to the property. She testified that the fence went around the city property and that was the purpose of the fence. She testified that it was too difficult to build a fence up against the bluff and that the property between the bluff and where the fence was built belonged to the city and was not fenced in. She testified that Charley France stole some cattle and accused her husband of stealing them.

OPINION

In 1937 Mr. and Mrs. Andrew France conveyed two small tracts by warranty deeds to H. N. Pollock and to Dr. J. S. Gregg. The descriptions in both of these deeds are by metes and bounds beginning at the northwest corner of the “Elsenrath tract” and running to “bottom of bluff joining Fort Smith Lake property, thence South along bottom of bluff. . .” In October, 1949, Mr. and Mrs. France conveyed by warranty deed to John B. Dahin et al, a tract of land in this same 40 acre tract described, in part, as follows:

“Starting at the North East corner of the forty for a place of beginning, thence South to bottom of bluff and then following said bottom of bluff line in a- Southwesterly direction 215 yards to hollow branch this line being the dividing line between the A. J. France and the Ft. Smith lake property.”

There is no evidence in the record that the city ever had its lands surveyed, or ever marked its boundary lines, prior to the institution of this litigation. It is obvious from the descriptions in the 1937 deeds to Pollock and Dr. Gregg that Andrew and Lula France recognized the “bottom of the bluff” as the division line between the property they retained and the property they sold to the city. Andrew died in 1952 and there is considerable evidence that Charley continued to use the land for livestock pens and corrals from 1952 until this suit was instigated. Mr. Suit and Mr. Luce testified that no one was supposed to keep cattle or livestock on the city land between the bluff and the fence, and that the caretakers attempted to keep cattle out of the area. Charley France testified that the words “west of the bluff” as described in the deed to the city, could be construed to mean anywhere between the vertical rock cliffs shown in some of the photo exhibits and the creek at the foot of the hill. In other words, it is his contention that the “bluff” is not a vertical wall across the 40 acre tract, but in some places is a steep hill rather than a sheer wall; and that the terms “west of the bluff” and “bottom of the bluff” as used in the deeds, are ambiguous terms in defining the land boundary line.

In any event, we conclude that the chancellor’s findings are not against the preponderance of the evidence that Charley France and his grantees held and used the property openly, notoriously and adversely to the city for more than the statutory period of seven years. Ark. Stat. Ann. § 37-101 (Repl. 1962); Montgomery v. Wallace, 216 Ark. 525, 226 S. W. 2d 551.

We find no merit in the city’s second point. It appears that the case was fully developed before Chancellor Dunn, prior to his death, as evidenced by his findings of fact and conclusions of law. Chancellor Kimbrough had authority to enter the decree and we find no abuse of his discretion in doing so and in his refusal to reopen the case for a new trial. Hyder v. Newcomb, 234 Ark. 486, 352 S. W. 2d 826.

The decree is affirmed.

Fogleman, J., concurs.

Harris, C. J., dissents.

John A. Fogleman, Justice,

concurring. I would affirm the decree, because I do not feel that appellant has met its burden on appeal.

In cases where location of a boundary line, with overtones of adverse possession, is involved, we have held that the question is determined upon a preponderance of the evidence and that we must affirm a chancellor’s decree unless his holding is clearly against the preponderance of the evidence. Kieffer v. Williams, 240 Ark. 514, 400 S. W. 2d 485. This is simply an application of the long-standing rule that this court will not, on appellate trial de novo, reverse a chancery court decree making findings of disputed questions of fact on conflicting evidence unless they are clearly against the preponderance of the evidence. Hunter v. Dixon, 241 Ark. 725, 410 S. W. 2d 389. It is incumbent upon an appellant to establish that such findings are erroneous. City of Little Rock v. Sunray DX Oil Company, 244 Ark. 528, 425 S. W. 2d 722.

In cases where testimony concerning descriptions, lines, boundaries, corners, location of buildings, physical evidence of points, areas, focal points, etc. is indefinite, we defer largely to the chancellor’s conclusions regarding matters ambiguous in print. Hopkins v. Williams, 215 Ark. 151, 219 S. W. 2d 620. When we cannot be assured that all pertinent evidence considered by the chancellor is before us, in boundary cases, we must affirm his decree. Johnson v. Smith, 215 Ark. 247, 219 S. W. 2d 926.

I am simply unable to say, upon the abstracts of the record before us, that the chancellor’s holding is erroneous or clearly against the preponderance of the evidence. I am compelled to defer to the chancellor’s conclusion under the circumstances. I cannot follow the critical testimony on the points involved, partly because I have no assurance that all pertinent evidence before the chancellor is available to us. In order to follow the testimony with any degree of understanding it would be necessary that each of us have available an abstract or reproduction of many of the exhibits to which the witnesses, the attorneys and the chancellor referred. This is the reason that our Rule 9 (d) requires an abstract of the record of such material parts of the pleadings, proceedings, facts, documents and other matters in the record as are necessary to an understanding of all questions presented to this court. See Rule 9, Supreme Court Rules, 3 A, Ark. Stat. Ann. (Supp. 1969). Compliance with that rule specifically requires:

Whenever a map, plat, photograph, or other exhibit must be examined for a clear understanding of the testimony, the appellant shall reproduce such exhibit by photography or other process and attach such reproduction to the copies of the abstract filed in this court and served upon the opposing counsel, unless this requirement is shown to be impracticable and is waived by the court upon motion.

It was not shown that it was impracticable to reproduce the exhibits in this case, and the requirement was not waived by this court. It seems that reproduction of at least one important exhibit, a plat referred to in oral argument, would have presented no difficulty.

We have affirmed decrees previously upon the basis of my concurrence. In Smock v. Corpier, 226 Ark. 701, 292 S. W. 2d 260, we said:

In reply to the appellee’s criticism of the abstract the appellant insists that it is unnecessary to abstract the testimony in a chancery case, for the reason that this court tries the case de novo. The appellant is mistaken in her understanding of our practice'. The case is tried de novo, it is true, but the trial is upon the evidence as abstracted by the parties and not upon the original record. We have repeatedly required compliance with Rule 9 in equity cases. Davis v. Spann, 92 Ark. 213, 122 S. W. 495; Norden v. DeVore, 207 Ark. 1105, 184 S. W. 2d 585; Reep v. Reep, 219 Ark. 270, 241 S. W. 2d 262.

It is with extreme reluctance that this court considers affirmance of a decree pursuant to Rule 9 (e). It is, and will be increasingly, appropriate that we so act more frequently in view of the case load of this court. My brother Jones has done an excellent and thoroughly painstaking job of analysis of the testimony of the witnesses. I submit that it could not have been done without his reviewing the full transcript of the testimony. I doubt that any other member of the court has the understanding of this testimony to be gleaned from such a tedious and time-consuming perusal. I am aided to some extent by the product of his labors, but I am still unable to exercise any independent judgment as to where the preponderance of the evidence lies on the sharply disputed fact questions involved. I can only concur in the affirmance of the decree.

Carleton Harris, Chief Justice,

dissenting. From the standpoint of proof, I consider this case to be very close, but I do not think that appellees sustained their view. Not only that, but in my opinion the equities are entirely with the City of Fort Smith. Admittedly, the city purchased the property in 1935 from the parents of appellee, Charlie France. Now, France, and others to whom the parents had subsequently conveyed part of the land (after conveying it to appellant) are claiming this same land by adverse possession. I think the evidence indicates that the possession of appellees commenced with permission by the city, and I cannot agree with the majority that appellees have established actual, open, notorious, peaceful, continuous, hostile, and exclusive possession for more than seven years. Of course, there must also be the intent to hold adversely and against the rights of the true owner.

This land is an absolute necessity to the City of Fort Smith in protecting its water supply (Lake Fort Smith) and having purchased the land, it is hardly fair that the city be required to again acquire the same land through eminent domain proceedings.

I respectfully dissent.


author: Conley Byrd, Justice.

text:
    Virgil BROOKS et ux v. C. S. JOHNSON et ux
    5-5491
    465 S. W. 2d 103
    Opinion delivered March 29, 1971
    [Rehearing denied April 26, 1971.]

      Ben E. Rice and U. A. Gentry, for appellants

      Howell, Price, Howell é1 Barron, for appellee.
   Conley Byrd, Justice.

Appellants Virgil and Marcell Brooks, husband and wife, appeal from a decree finding that appellees C. S. and Annie Johnson, husband and wife, are the owners of and entitled to the possession of a 16 foot disputed strip of ground. For reversal appellants contend that the trial court erred in finding the Johnsons are the owners of the property in controversy for the following reasons:

“1. The deed which was the basis of plaintiff’s ownership of the property was never introduced into the record.
“2. Assuming that the deed purporting to convey the property to the plaintiffs was sufficiently identified and made a part of the record, said deed is void for indefiniteness and conveys nothing.
“3. Assuming further that the deed was made a part of the record and should be considered, the plaintiffs had the burden of deraigning title from the sovereign and the mere introduction of a deed conveying the property to appellees even though the description was sufficient, did not constitute a deraignment of title.
“4. The Court erred in refusing to confirm and quiet the defendant’s title, it being undisputed that the defendant had had the actual, open, continuous and adverse possession of the property for a period of 20 years or more.”

The Johnsons instituted this action in the trial court alleging that they “are now, and for a long time hitherto have been the owners of that certain piece or parcel of land situated, lying, and being in the county of Pulaski, State of Arkansas, and described as follows:

“Fifty-eight and four-fifths (58 4/5) acres, more or less, lying in the Northeast quarter (NE 1/4) of Section 33, Township Three (3), Range Ten (10) West, said 58 4/5 acres, more or less, running North and South the entire length of said Northeast quarter of Section 33 and lying immediately East of the Thirty-three and one-third (33 1/3) acres deeded to Matilda Johnson.”

Pursuant to a motion to make the complaint more definite and certain, the Johnsons filed a response setting out a corrected property description according to a survey made by L. M. Harp on June 4, 1969.

Appellants’ answer and counter-claim, as abstracted by them, is as follows:

“ANSWER
“They deny, both generally and specifically, each and every allegation contained in plaintiffs’ complaint and amendments thereto except as hereinafter pleaded and admitted; that plaintiffs do not have title to an accurately described piece of property and their rights in and to the property occupied by defendant and intervenor [Mrs. Brooks] are inferior to the rights of defendant and intervenor in and to the property so occupied and possessed by defendant and intervenor.
“COUNTERCLAIM
“The defendant and intervenor allege that they are the record owners of and reside on the following described property situated in Pulaski County, Arkansas:
‘A part of the East One Half (E 1/2) of the Northeast One Fourth (1/4) of Section Thirty Three (33), Township Three (3) North, Range Ten (10) West of the Fifth Principal Meridian, and more particularly described as follows: Beginning at the Northeast corner of said subdivision, thence West Sixteen (16) chains and seventy eight (78) links, thence South Forty (40) chains and Thirty Two (32) links to Quarter Section line, thence East Three (3) chains and Twenty Eight (28) links, thence North Ten (10) chains, thence East Thirteen (13) chains and Fifty (50) links to the East line of said subdivision, thence North to point of beginning, less and except Four (4) acres, more or less, on the North side thereof, used as a cemetery, containing Fifty Four and 15/100 (54.15) acres.’
“That in addition to owning the foregoing property defendant and intervenor are the owners of an additional strip of land 16 feet wide running along the entire Western edge of the aforementioned property; that their ownership thereof arises out of their continuous possession of said property since June 22nd, 1948, in an actual, notorious, hostile, and exclusive manner with the intent to hold adversely to the claims of all other persons; that the plaintiffs have had notice of the aforementioned adverse possession since June 22nd, 1948; that said lands have been fenced and closed to a point of intersection with a creek traversing the property owned by defendant and intervenor; that said boundary fence to the point of intersection with said creek has constituted the boundary between the property owned by defendant and intervenor and plaintiffs since June 22nd, 1948, and even prior thereto, and plaintiffs have acquiesced thereto. Defendant and intervenor pray the plaintiffs’ complaint and amendment thereto be dismissed; that title to the 16 foot strip of land along the western boundary of land owned by defendant and intervenor be quieted against the claims of the plaintiffs. Filed May 28th, 1970.”

Appellee Callie S. Johnson testified that both his and the Brooks property were at one time owned by his grandfather. He inherited the land in 1929. According to him, during the free stock range era, approximately 1914 or 15, his father and a predecessor of Mr. Brooks each fenced one side of a lane for their cattle’s use to go to a free range in a big bottom north behind their property. The lane was on their common boundry, and each owner fenced 16 1/2 feet inside his property. Over the years the fence set back on appellant’s property had fallen down and been destroyed. However, Brooks’ predecessors in title recognized the true boundary as the boundary between the two properties. When Brooks bought the property in ’47 or ’48, Johnson informed him that Mr. Thompson, Brooks’ immediate predecessor, had inadvertently built a henhouse over on Johnson’s property. He said that Brooks at that time offered to move it and that he suggested Brooks could leave it if he would not build any more encroachments. A short time later the henhouse was torn down. Johnson said the present controversy occurred about four years ago when he talked to Brooks about building a common boundary fence on the true line. At that time Brooks wanted to join in building a common boundary fence but wanted to put it along the old fence.

Appellee Annie Johnson testified that the day Brooks bought the property from Thompson, she pointed out to Brooks the location of the true boundary line and advised him that the fence was not the line. She also recalled the incident referred to by her husband about the removal of the building and testified that the building was removed about a week later but she did not know who removed it.

Claude Stanfill testified that he bought the property now owned by Brooks in 1932, and owned it for 12 years. He traded it to Mr. Thompson. During the time of his ownership he was aware of the true boundary between his property and the Johnsons. During that time he used the strip of land belonging to Johnson under an agreement with Johnson and when he sold the land to Thompson he informed Thompson that the 16 feet was being used with Johnson’s permission.

Appellant Brooks, on the other hand, testified that he purchased the property in 1948, and that when he began work on the barn he recalled Mrs. Johnson telling him that the fence was 16 feet over on her side of the boundary. He said that he then informed her that he bought the property with the fence as the line and would not discuss it further. From the time of his purchase up until the trial he had pastured the area up to the fence and had regularly repaired the fence. His first discussion with Mr. Johnson occurred approximately 4 or 5 years-ago- when Mr. Johnson wished to move the fence over 16 feet. Brooks says that he did tear down the hen-house but only because it was unsightly. He denied Johnson’s conversation about the house. Brooks said Johnson acquiesced in his use of the fence as a boundary until about 4 years ago. At that time Johnson wanted to sell him the strip of property and he told Johnson that he did not feel he should buy his own property. Johnson then wanted to build a partnership fence and his answer was that he would meet him half way—i. e., he would back over one foot and build a fence but he would not build a partnership fence on the alleged line that Johnson had chosen. Admittedly thereafter Johnson attempted to have a survey made and Brooks caused Johnson to be arrested for trespassing. The boundary as surveyed both by his and Johnson’s surveyors would come within 10 feet of Brooks’ house. Brooks maintains that he has always mowed up to the fence line under a claim of right. On cross-examination Brooks testified that his deed introduced into evidence outlined the boundaries of his property.

George West testified that he surveyed the lands for Brooks and that his survey showed the line between the Johnson property and the Brooks property and also the fence line in dispute.

L. M. Hays surveyed the property for the Johnsons. In arriving at the description of the Johnson property he used Johnson’s abstract of title, Brooks’ deed and a copy of a recorded survey made by Francis H. Conway under date of Aug. 7, 1901. In making his survey, Hays found wire embedded in the trees along the true boundary line between the two properties.

We find no merit in appellant’s first three points. Each point is premised on the proposition that the Johnson failed to deraign that title necessary to support an action in ejectment. While it is true that the action as originally filed was in effect an action in ejectment, any lack of equity jurisdiction was cured by appellant’s counterclaim.

Johnson, without objection, was permitted to testify from his own knowledge that his grandfather at one time owned both the lands now owned by him and by Brooks. He also testified with reference to the different persons who had held both tracts under the common owner. While such testimony may have been subject to the best evidence rule, in the absence of such objection, it certainly deraigns the title of both parties from a common source.

Furthermore Johnson testified that the persons under whom Brooks holds his title had recognized his title to the true line. This testimony was substantiated by Claude Stanfill who stated that he was a predecessor in title of Brooks and that he got the permission of Johnson before he tied his pasture fence to the fence in question.

The general rule is that a party in an ejectment suit or an action to quiet title must recover upon the strength of his own title. However, we pointed out in Collins v. Heitman, 225 Ark. 666, 284 S. W. 2d 628 (1955), where the parties trace their title to a common source, the one must prevail who has the superior equity. In this case it appears that the superior equity or prima facie title stands in Johnson. See Weaver v. Rush, 62 Ark. 51, 34 S. W. 256 (1896); McCoy v. Anderson, 137 Ark. 45, 207 S. W. 213 (1910); and 5 ALR 3d 375, § 7.

The evidence with respect to the appellants’ adverse possession is conflicting. The Johnsons testified that Brooks recognized their title and agreed to remove the henhouse at the time Brooks purchased the property in 1948. Brooks, on the other hand, denies that he recognized the Johnsons’ title and claims that at that time he asserted his ownership to the fence.

In Shirey v. Whitlow, 80 Ark. 444, 97 S. W. 444 (1906), we stated the applicable rule in this language:

“. . . If one before the statutory period has run, and before he has acquired title by adverse possession, acknowledges or recognizes the title of the owner, such recognition will show that his possession is not adverse, and the statute of limitations will not commence to run against the owner until the adverse claimant repudiates the title of the owner. . . .”

In Britt v. Berry, 133 Ark. 589, 202 S. W. 830 (1918), we pointed out that where the entry is permissive the adverse possession statute will not begin to run against the owner until an adverse holding is declared and such notice is brought to the knowledge of the owner.

Whether Brooks recognized the Johnsons’ title as the latter testified or whether he asserted his ownership to the fence at the time of his purchase as he testified were issues of credibility. From this record, we cannot say that the Chancellor’s finding in favor of appellees is contrary to a preponderance of the evidence.

Affirmed.


author: Frank Holt, Justice.

text:
    Burniss Shaw WILSON et al v. J. F. McDANIEL et al
    5-5479
    465 S. W. 2d 100
    Opinion delivered March 29, 1971
    [Rehearing denied April 26, 1971.]

      Tompkins, McKenzie ér McRae, for appellants.

      McKay, Chandler ¿r Choate, for appellees.
   Frank Holt, Justice.

Appellants instituted suit to establish their claimed interest in, and for partition of, the 40-acre tract of land here in issue. The present appeal is a sequel to Wilson v. McDaniel, 247 Ark. 1036, 449 S. W. 2d 944, wherein the pertinent facts of this extended litigation are comprehensively detailed. There we reversed a summary judgment for appellees because several material issues of fact were unresolved. The case was remanded, and a trial on the merits resulted in a decree once again favorable to appellees. Hence this appeal.

The land in issue is part of a 240-acre tract owned by H. U. Hancock when he died intestate in 1905. Surviving him were his wife, Eunice, two sons, two daughters, and the five children of a predeceased daughter, Palestine Scott, as his heirs. The two sons, the two daughters, and two of the five Scott children (Henry and B. C.) conveyed to Eunice whatever interests they had in 80 acres which included the 40 acres now in litigation. The deed was dated November 18, 1905, but not recorded until 1930. Eunice died in 1907 and, by a will probated in 1908, devised “all of [her] property” (without enumerating or in any way specifying what constituted that property) to J. H. Hancock, one of her sons, for life and then to his daughters, Myrtle and Bertha, to share and share alike and, at their deaths, to their children. Her will predated by several months the 1905 deed to her.

By an exchange of in. ixuments in 1913 Bertha (who is still alive and without issue) received whatever interests J. H. and Myrtle had in the contested 40-acre tract which she conveyed the same year to A. S. Frazier through whom appellees now claim title by mesne conveyances. Appellees’ predecessors in title entered into possession of the lands in 1913, and appellees and predecessors have held possession and paid all taxes since that time. Myrtle died in 1965, and her two daughters and a son and his wife, appellants herein, now claim an undivided 22/50 interest in fee in the 40 acres, exclusive of a 3/35 interest never conveyed to Eunice since three of the Scott children did not sign the deed. Also claimed is an undivided 22/50 interest as remaindermen of Bertha’s life interest. (As previously indicated, she had conveyed her interest in 1913 to appellees’ predecessors in title.)

The chancellor found that the 1905 deed purportedly conveying 22/25 interests in the lands to Eunice was not delivered during her lifetime and, therefore, was ineffective. He also found that appellees’ predecessor in title, J. R. McDaniel, took possession of this 40 acres in 1913 and that he and his successors in title have had continuous possession with payment of taxes on the land from 1913 to date. Appellants’ complaint was dismissed for want of equity, and title was quieted and confirmed in appellees. For reversal, appellants assert two contentions: (1) The chancellor’s finding that the dead was not delivered is against the preponderance of the evidence; and (2) the statute of limitations in adverse possession does not run against remaindermen until the death of the life tenant.

Appellants argue that a presumption of delivery exists since the deed, duly executed and acknowledged, was properly recorded, and also since it was in the possession of Myrtle, a successor to the grantee’s title. Smith v. Scarbrough, 61 Ark. 104, 32 S. W. 382 (1895). They further assert that this presumption of delivery of the deed is buttressed by other facts such as: The tax records reflect that the 1906 taxes on the purportedly conveyed 80 acres (which included this 40 acres) were assessed to and paid by Eunice; she continued to live on this land with her grandchildren, Myrtle and Bertha, until her death in 1907; her son, J. H. Hancock and his two children, Myrtle and Bertha, continued to live on the land until approximately 1913; the taxes for 1907 through 1911 were assessed to and paid by J. H. Hancock; the 1912 taxes were paid in 1913 by Bertha and her husband; a suit for partition instituted in 1908 by the heirs of H. U. Hancock did not include contestation of those 80 acres, but was restricted to the remaining 160 acres of H. U.’s original 240-acre tract; the exchange of deeds in 1913 between Myrtle and Bertha dividing the lands and Bertha’s conveyance of her interest in 1913 to her uncle, A. S. Frazier, who in the same year conveyed his interest to appellees’ predecessor in title; in an action brought in 1914 by the five Scott children involving this property, J. H. Hancock and Bertha claimed title under the 1905 will and deed, which were exhibits in that litigation; and Bertha, in the present action, testified to some of the occurrences which she could recall surrounding the execution of the deed.

While the recording of a duly executed and acknowledged deed, as well as its being found in the possession of the grantee (in 1958), will raise a presumption of delivery, the other factors enumerated by appellants do not conclusively establish that presumption. The taxes may well have been assessed to Eunice simply because she, thinking the 80 acres were hers irrespective of delivery of the deed, requested that they be charged to her. A partition suit need not involve all lands in which ownership is claimed. Furthermore, proof that the heirs simply considered Eunice to be the owner of those 80 acres does not establish delivery of the deed. Similarly, the fact that J. H. Hancock and Bertha made prior claim under the deed or that Bertha could recall and testify to its execution does not conclusively amount to proof of its delivery.

Upon first appeal of this case, we enumerated certain factors which raised the possibility or factual issue that the children and grandchildren of Eunice individually agreed to convey their interests to her; that such agreement was conditioned upon the premise that everyone would join in executing the deed; and that since this did not occur, the deed was not delivered. Wilson v. McDaniel, supra. This position certainly appears to be supported by the fact that the grantors are designated in the deed as “The heirs and legatees of H. U. Hancock now deceased.”

In our former opinion we reviewed the litigation instituted in 1914 by the five Scott children, including the two who signed the 1905 deed, against J. H. Hancock, Myrtle Hancock, Bertha Hancock Bethany and her husband. In that action they asserted that Eunice Hancock owned no interest in this 40 acres (and also other lands) except dower and homestead, or a life estate which expired at her death. These five heirs asserted that the defendants were denying the plaintiffs’ title and interest in the lands. The three defendants answered and admitted that three of the five Scott children held a 3/5 of a 1/5 interest, however, that the two who signed the 1905 deed had no interest. The deed was thus put in issue. In a substituted complaint these five Scott children again alleged that Eunice Hancock, their grandmother, had only a life estate in the lands and, therefore, could not convey the lands by her will. In a 1916 decree the trial court agreed with the plaintiffs, the Scott children, and held all five of them to be owners of an undivided 1/5 interest in the lands.

After reciting these proceedings in Wilson v. McDaniel, supra, we said:

“* * * The basis of the rendition of this judgment is not set out in the judgment, but it is at once evident that the court did not, at least as far as B. C. and H. F. Scott were concerned, consider the deed to Eunice Hancock to be valid. Another inference can also be drawn from the deed itself. One of the grantors mentioned in the deed is W. A. Scott—but W. A. Scott did not sign the instrument. The acknowledgments also show that some signed on one date, and others on a subsequent date. These circumstances, together with the fact that the deed was not recorded until 22 years after the death of Eunice, somewhat raise an inference that the deed was not delivered during the lifetime of Eunice Hancock; that is, these circumstances raise the possibility that the children and grandchildren of Eunice, individually agreed to convey their interest to her, but such agreement was conditioned upon the premise that everyone would join in executing the deed; since this did not happen the deed was never delivered.”

We then indicated that a delivery is incomplete where made by some of the parties to a deed which shows on its face that it was intended to be jointly executed so that all should be bound by its covenants. Consolidation Coal Co. v. Yonts, 25 F. 2d 404 (6th Cir. 1928). See also Annot., 140 A. L. R. 265 (1942); 26 C. J. S., Deeds, § 49.

This rule of law is now the law of the case and is certainly sufficient to rebut the presumption of delivery; and, when applied to the facts of the case at bar, we think this rule controls the issue of delivery. We therefore cannot say that the chancellor’s finding that the 1905 deed was not delivered is against the preponderance of the evidence. It follows that appellants were not remaindermen to a life estate in the lands here in issue; consequently, their second point for reversal—i. e., as remaindermen they are not barred by limitations—need not be discussed.

Affirmed.

       B. C. and H. F. (Henry)