text:
    Leggett v. State
    4863
    299 S. W. 2d 59
    Opinion delivered February 18, 1957.
    [Rehearing denied March 18, 1957.]

      John W. Bailey, for appellant.

      Tom Gentry, Attorney General, and Thorp Thomas, Assistant Attorney General, for appellee.
   George Rose Smith, J.

The appellant was convicted of murder in the first degree and was sentenced to death. Among many objections made during the trial the main ones relate to the selection of the jury, the denial of a request for a change of venue, and the court’s instructions to the jury.

It is apparent from the record that news about the crime and its investigation had been extensively reported in the press and by radio and television. Many veniremen who had formed opinions on the basis of such reports were excused by the court, but the appellant insists that four jurors whom he challenged for cause should also have been rejected. Each of these four men stated in substance that he had formed an opinion about the case and that evidence would be required to remove his opinion, but upon further questioning each man also declared that he could lay aside his preconceived view and try the case impartially upon the law and the evidence.

It is settled by many decisions that a tentative opinion .of this kind, based upon newspaper reports and the like, does not disqualify a prospective juror. The appellant relies chiefly upon the early case of Polk v. State, 45 Ark. 165, but that decision was disapproved in Hardin v. State, 66 Ark. 53, 48 S. W. 904, and has not been followed in any later case. Sneed v. State, 143 Ark. 178, 219 S. W. 1019; Howell v. State, 220 Ark. 278, 247 S. W. 2d 952. Nor was one of these four men shown to be disqualified by his statement on voir dire that on the issue of the accused’s asserted insanity he would be guided by the medical testimony. Upon its being explained that the opinions of lay witnesses might also be offered in evidence this juror expressed his willingness to give such testimony whatever credit he thought it entitled to receive.

The first four days of the trial were devoted to the •selection of the jury. On the third day the appellant filed a written motion for a change of venue, supported by two affidavits, and the testimony of these affiants was offered on the fourth day. One of these witnesses said in effect that 'the homicide had been widely publicized and that there was a general belief throughout the county that Leggett was guilty. The other expressed the same thought, although it developed on cross-examination that his knowledge was largely limited to the attitude prevailing in two wards in Little Rock. At this point in the trial eleven jurors had been chosen. In denying the motion the judge expressed his confidence in the impartiality of these eleven and his belief that the panel would soon be completed, which proved to be the case.

It cannot be said that the court abused its discretion in refusing to order a change of venue. What the statute requires is a showing that the minds of the inhabitants of the county are so prejudiced against the accused that a fair trial cannot be had. Ark. Stats. 1947, § 43-1501. Formerly the court was restricted to determining the credibility of the affiants supporting the motion, but the 1936 revision of the statute permits the court to ascertain whether the allegations of prejudice are well founded. Robertson v. State, 212 Ark. 301, 206 S. W. 2d 748. Here the trial judge had listened for more than three days while hundreds of veniremen were searchingly examined under oath. In deciding whether the appellant’s two witnesses had correctly estimated the local sentiment the court was entitled to consider the views of scores of citizens already heard. Although many veniremen had reached positive conclusions from what they had read or heard, there is no indication that the news reports were biased or represented a. studied effort to inflame the public. Meyer v. State, 218 Ark. 440, 236 S. W. 2d 996. Despite the defendant’s, theory that it was impossible to obtain a fair-minded jury within the county, the court was convinced by testimony heard at firsthand that this goal had almost been reached. In these circumstances the conclusion that the asserted prejudice did not exist lay well within the limits of the court’s discretionary authority.

On the merits it is contended that the court erred in refusing to charge the jury on the lesser offense of murder in the second degree. Whether that instruction should he given depends in every case upon the evidence. Here the deceased, Joe King, was a fourteen-year-old boy who lived with his mother and stepfather about a mile from Jacksonville. On the night of December 23, 1955, young King went to a picture show in Jacksonville and was last seen by his friends as he started home alone. His body was found four days later in woods near the highway about three and a half miles from the city. An autopsy showed that bruises on his face had been inflicted before he died and that death was caused by strangulation.

Leggett was questioned in January and confessed his guilt. His narrative is the only direct evidence of the exact manner in which the crime was committed. Leggett said that he picked up King, who was hitchhiking, and offered to drive him to his home. Leggett at first stated that the boy called him a son of a bitch when he drove past the place which the boy pointed out as his home. Leggett hit King in the face twice with his fist, dazing him, and then drove to the spot where King’s body was found. There he choked the boy until he thought he was dead and dragged the body to a thicket. On his way back home Leggett threw King’s pocketbook into some weeds by the road. In his confession Leggett described the place where the wallet was thrown; he later went with the officers to the scene, and the pocketbook was just where he said it would be. In a second account of the crime Leggett said that King refused to engage in an act of sexual perversion and that he killed the boy for fear that he would report the matter.

Upon this proof the court was not required to charge the jury on the lesser degrees of homicide. A similar situation was presented in Alexander v. State, 103 Ark. 505, 147 S. W. 477, where, as here, the defense was a plea of insanity, the accused did not testify, and the defendant’s proof was directed to the issue of his mental capacity. In upholding the trial court’s decision to submit a form of verdict for first degree murder only we said: “However, in the present case it would not have been error for the court to refuse to charge the jury as to the degrees of homicide lower than murder in the first degree; for, according to the undisputed evidence, appellant was guilty of that crime, if he was of sufficient mental capacity to commit it . . . Without any provocation except an epithet, he went off and armed himself with a pistol, returned in twenty or thirty minutes to the place where he had left his intended victim, and deliberately slew him.” Other cases applying the principle include Jones v. State, 52 Ark. 345, 12 S. W. 704, and Clark v. State, 169 Ark. 717, 276 S. W. 849.

Another point urged for reversal centers upon the court’s action in giving an oral instruction to the jury after counsel for the accused had asked that the instructions be in writing. Ark. Const., Art. 7, § 23. At the defendant’s request the court had given a written instruction submitting four possible verdicts, the first one being: “We, the jury, find the defendant guilty of murder in the first degree, as charged in the information, and fix his punishment at death by electrocution.” (The other three related to a finding of guilty with the punishment of life imprisonment, a finding of not guilty, and a finding of not guilty by reason of insanity.) After deliberating for two hours the jury returned to the courtroom and asked, among other things, that this instruction be read again, wbich was done. When the jury again retired the court recalled them, apparently at once, and added this oral charge: “I am going to instruct you further, gentlemen, that if you find the defendant guilty of murder in the first degree, as charged in the information, and you desire that he suffer the death penalty, you may also bring in a verdict, ‘We, the jury, find the defendant guilty of murder in the first degree, as charged in the information,’ and stop — -that automatically imposes the death penalty and it is the duty of the Court to sentence him. You have that other alternative.”

After the jury had again, left the courtroom the defense objected to the charge’s having been oral. There was no request that the supplemental instruction be reduced to writing, which, if accomplished before the end of the trial, would have complied literally with the constitutional requirement. Reed v. Rogers, 134 Ark. 528, 204 S. W. 973. Within fifteen or twenty minutes the jury returned a verdict in the form described in the oral instruction. The members of the jury were polled, and all answered that this was their verdict.

Even though the court’s procedure may not have, satisfied a strict interpretation of the language in the constitution, it is readily apparent that no prejudice could possibly have resulted. The constitution contemplates that the court will have some freedom in the matter of giving instructions on its motion after the jury has retired. National Lbr. Co. v. Snell, 47 Ark. 407, 1 S. W. 708. Here the oral instruction was short, clearly worded, and an accurate statement of law. The complaint is merely that it was not read from a piece of paper or reduced to writing at once. This situation falls within our ruling in Merrill v. City of Van Buren, 125 Ark. 248, 188 S. W. 537, where it was said: “We would be compelled to reverse the judgment of the court below because of the failure to reduce the charge to writing if we did not think it affirmatively appears that no prejudice resulted from the failure of the court to reduce the instructions given to writing. Appellant’s instructions . . . were in writing, while the ones given by the court were few in number and simple in their nature and there was no opportunity for disagreement about what the court had declared the law to be. This is not a case where a copy of the instructions would have been required in a discussion before the jury of the law of the case as applied to the evidence, nor one in which there was opportunity for disagreement in settling the bill of exceptions. It is, of course, proper always for the trial court to reduce the instructions to writing and thereby obey the letter of the Constitution and of the statute, and reversals must follow the failure so to do when the request is made, except in cases similar to this where it can be affirmatively said that no prejudice resulted from that failure.”

We have painstakingly examined the record and have considered all the points raised. It is our conviction that the appellant received a fair trial and that the court below committed no reversible error in the proceeding*.

Affirmed.


source: Caselaw Access Project

author: Paul Ward, Associate Justice.

license: Public Domain

text:
    Cox v. Darragh Company.
    5-1150
    299 S. W. 2d 193
    Opinion delivered February 18, 1957.
    [Rehearing denied March 25, 1957.]

      W. B. McHaney and Melvin E. Mayfield, for appellant.

      J. Bruce Streett, James M. McHaney, and Owens, McHaney, Lofton & McHaney, for appellee.
   Paul Ward, Associate Justice.

Appellee sued appellant on a promissory note. The only defense interposed was usury. The case was tried before the Circuit Judge, sitting as a jury, and judgment was rendered in favor of appellee.

The sole question presented to us is whether there is substantial evidence to support the decision and judgment of the trial court.

The facts involved in this case, which in most part are undisputed, are substantially as hereinafter set out. Appellee, with its head office in Little Bock, Arkansas, is a corporation which owns and operates a feed store in Camden. The Camden store does business under the name of Darco Feed Mills. Ted Darragh is the Vice-President and General Manager of appellee corporation. Appellant, C. S. Cox, being indebted to the Camden store in the amount of $3,019.43 executed a note in that amount on August 4, 1954 to the Darco Feed Mills, with interest at the rate of 6 per cent per annum. It was agreed that appellant would pay the above amount in 6 monthly installments — the first 5 installments were to be $500 each and the last one to be $519.43, in addition to the interest which had accumulated when each successive installment became due. It was contemplated that appellee would calculate the amount of each monthly payment (including interest) and place the same on the back of the note. In fact the note itself refers to a “schedule on the back.”

It was the contention of appellee in the trial below that a mathematical error was made in calculating the interest and in placing the erroneous figures on the back of the note. It is admitted that two or more of the interest calculations amounted to more than 10 per cent. Appellant paid the first and second installments as called for in the schedule, and he testified that on each occasion he protested to a Mr. Johnson (the manager of the Camden store) that he was being charged more than 10 per cent interest, and that on each occasion Mr. Johnson told him, in effect, that he would have to pay what the schedule called for.

Mr. Darragh’s explanation of what happened is substantially as follows: When Mr. Darragh was told of tlie transaction he called Mr. Lovett who was cashier of the Commercial National Bank in Little Rock and asked him to figure the interest; Mr. Lovett, who was busy at the time, said he would have his secretary make the calculations and call him in a short while; When the secretary called she gave Darragh the figures which were placed on the back of the note, and; That he assumed the figures were correct and did not check them personally. At the same time, according to Darragh’s testimony, he had his secretary insert the above figures in a letter which he had already dictated to appellant. Darragh further testified that the matter of excess interest was not brought to his attention until about the first of December when he promptly wrote a letter to appellant and apologized for the error in the interest calculations, explaining a mistake had been made, and gave him the correct interest calculations.

The judgment of the trial court must be sustained if there is substantial evidence from which it could find that the first interest calculations were the result of a mistake and that there was not present at any time the intent on the part of appellee to charge more than 10 per cent interest. In the early case of Garvin v. Linton, 62 Ark. 370, 35 S. W. 430, 37 S. W. 569 (on rehearing), this court announced this rule:

“There can be no usury when the amount taken in the contract for interest in excess of ten per cent per annum Avas reserved through a mistake or ignorance of the fact that it was in such excess. If the lender, by mistake of fact, by error in calculation, or by inadvertance in the insertion of a date, contracts to receive an illegal rate of interest, ‘ such mistake, error or inadvertance will not stamp the taint of usury on such engagement, nor cause to be visited upon him, who did not knowingly and intentionally disregard the law in this behalf, the highly penal consequences of an usurious offense.’ ”

In the same case the court also said: “To constitute usury in this state, there must be an intention to take or receive more than 10 per cent per annum interest.” Further on in the opinion the court, aftering commenting on numerous other decisions, stated that it was sufficient to constitute usury if the lender alone had such intent. The plain rules above announced have never been revoked by this .court but they have been approved. In the case of Hinton v. Brown, 174 Ark. 1025, 298 S. W. 198, at page 1027 of the Arkansas Reports, the court quoted with approval from the decision in the Garvin ease, supra, to the effect that a mistake in charging an illegal rate of interest will not stamp the transaction with the taint of usury. In addition to the above this court in the case of Temple v. Hamilton, 178 Ark. 355, 11 S. W. 2d 465, announces the universally approved rule that “the burden of proof is upon the party who pleads usury to show that the transaction was usurious.”

Under the factual situation in this case and in accordance with the legal principles above announced we must hold that the judgment of the trial court is sustained by substantial evidence, and the same is hereby affirmed.

Affirmed.

Justice George Rose Smith not participating.


author: Sam Robinson, Associate Justice.

text:
    North v. Griffin.
    5-1152
    298 S. W. 2d 700
    Opinion delivered February 18, 1957.

      Thomas L. Cashion and W. K. Grubbs, for appellant.

      J. W. McCall, Memphis, Tenn., and Ed Trice, for appellee.
   Sam Robinson, Associate Justice.

On the 5th day of December, 1952, the appellant, L. C. North, sold to appellee, Mrs. J. W. Griffin, a 640 acre farm located in Chicot County. As part of the consideration, the purchaser executed a promissory note in the sum of $24,000 secured by mortgage; the note and mortgage do not bear interest. North filed this suit, asking that the note and mortgage be reformed to provide for the legal rate of interest. The chancellor’s decree was against reformation, and North has appealed. To justify the courts in reforming a written instrument, the evidence must be clear, cogent and decisive.

Here, we cannot say the testimony produced in favor of reformation meets that test. The note and mortgage were prepared by Mr. J. W. McCall, an attorney, of Memphis. He is the regular attorney for Griffin, and it was at Griffin’s suggestion that Mr. McCall was selected to do the legal work in connection with the sale. At the time of the sale, the parties entered into a contract for the operation of the property that was being sold. It was agreed that North would remain on the farm, and manage the operation of it for a percentage of the profits. North remained on the land pursuant to that agreement, but, later, the contract was terminated by mutual consent. It is North’s contention that at the time of the sale of the land and execution of the note and mortgage it was agreed that the balance of the purchase price of $24,000 would not bear interest as long as the contract to operate the farm remained in effect; but, at the termination of that contract, the note and mortgage would begin to bear interest. North is corroborated to some extent by the testimony of his wife; however, Griffin and McCall positively deny that there was any such agreement. They contend that it was part of the condition of the sale that the note representing the unpaid part of the purchase price should bear no interest. It is clear from the record that the interest was not left out inadvertently. The mortgage was prepared on a form, and that part of the printed matter with the blank space for the interest to be inserted is deleted by being marked through with a pen. The alteration of the printed form is very obvious, and is such that it would attract one’s attention immediately. In view of the testimony of McCall and Griffin, along with the altered form used in preparing the mortgage, we cannot say that appellant has proven his case by clear, cogent and decisive testimony.

Affirmed.


author: Carleton Harris, Chief Justice.

text:
    Ahrens v. Haskin.
    5-1130
    299 S. W. 2d 87
    Opinion delivered February 25, 1957.

      Thomas B. Tinnon, for appellant.

      Emery D. Curlee, Chicago, 111., for appellee.
   Carleton Harris, Chief Justice.

Appellee, A. C. Haskin, is a real estate broker at Mountain Home, Arkansas, and appellant, Bichard Ahrens, owned and operated an ice manufacturing plant and cold storage locker plant in said location. Appellant entered into an oral non-exclusive listing agreement with appellee, whereby appellee was to sell the property and receive a commission of five per cent. Appellant directed appellee to ask the price of $27,500.00. Appellee made contact with one Joe Watson, and showed Watson the property on May 20th, 1954. Watson was interested, bnt did not wish to negotiate further until his uncle (a Mr. Esker Watts, who lived out of the state, and who had been engaged in the cold storage locker business for some years) had a chance to look at the property. Some six weeks later, appellee showed the ice and locker plant to the uncle, who recommended against his nephew’s purchasing same at the $27,500.00 price. Watson returned to his home in West Virginia, but in January, 1955, came back to Mountain Home, where further conversations were held with appellee. The evidence shows that "Watson advised appellee that he would pay “in the neighborhood” of $20,000 for the property. Appellee inquired of appellant as to whether he would be willing to take a reduced price, and appellant replied that his wife would not sign for any lesser amount. In the meantime, appellant had learned that Watson was back in the county, and had made a visit to Watson’s home, but had been unable to locate him. Early in February, appellant went directly to Watson and began negotiations. On the same day, and prior to contacting Watson, appellant had a conversation with appellee in which he suggested that the two of them go to see Watson and determine if he would pay the $27,500. Appellee replied that there was no use to see him “at that figure.” Appellant declined to reduce the price, and. went on to personally contact Watson himself. The sale was consummated in early April at a price of $21,000. Appellee instituted suit for the five per cent of the sale price, and the Court awarded him such amount, ($1,050). From said decree of the Court comes this appeal.

There is not a great deal of conflict in the evidence, but one main difference relates to the terms of the agreement. Appellant stated that the five per cent commission was only to be paid if appellee succeeded in selling the property for $27,500, while appellee testified that he was to receive the five per cent irrespective of the purchase price. The only direct evidence on this point was the testimony of the two principals, which, as stated, was in direct conflict; however, Joe Watson, the purchaser of the property, testified that he inquired of appellant as to whether he intended paying appellee any commission, and was told by appellant that he “would take care of him.” The matter was purely a, question of fact for the Court to determine, and we have heretofore held that a Chancellor’s findings will not be disturbed unless clearly against the weight of the evidence. Lupton v. Lupton, 210 Ark. 140, 194 S. W. 2d 686 (1946).

Appellant argues that the original negotiations were unproductive of a sale, and such were abandoned in June, 1954. He then contends that the resumption of the negotiations seven months later was directly between appellant and Watson; that these latter negotiations were the sole cause of the sale, and appellee had nothing to> do with it. We cannot agree with this contention. It is true that negotiations between appellee and Watson were-temporarily broken off when Watson returned to West. Virginia in June, 1954. It is, however, undisputed that, upon his return to Mountain Home, he talked with appellee on several occasions relative to the property, and it is undisputed that appellee endeavored to obtain the permission of appellant to offer the property at a lower price. It is also undisputed that appellant, on the same day that he went to see Watson and began to‘ negotiate on his own, first tried to get appellee to go with him to see if the prospective purchaser could not be talked into giving the full amount that had been asked. We conclude from the evidence that appellee still had his authority to promote a sale, and that the-negotiations carried on by him with Watson, after the latter’s return in January, were under full authority from appellant.

In order for Haskin to recover his commission, it must first be found that his efforts were the procuring-cause of the sale. Hartzog v. Dean, 216 Ark. 17, 223 S. W. 2d 820. It is undisputed that Watson was first contacted by appellee in regard to the sale of the property. Appellee took him to the plant where the premises might be viewed. Later, appellee took Watson’s uncle through the plant. He had several conversations with Watson after the latter’s return, and tried to prevail upon appellant to reduce the price in order to further the sale. Certainly, he endeavored to maintain the prospective purchaser’s interest in the property. There is no indication that Watson would have even known that the property was being offered for sale had not appellee, under his agreement with appellant, contacted him with reference thereto. Likewise, there is no indication that appellant would have known of Watson’s interest except upon advice of appellee. Under the evidence, it is apparent that appellee would have pursued the sale to its conclusion had appellant authorized him to offer the property for the price that was finally received. The fact that the property was sold on modified terms is immaterial. Hartzog v. Dean, supra. We consider that Haskin was the procuring cause of the sale, and so find. On the whole case, we are of the opinion that the Chancellor’s findings are supported by the evidence. The cause is accordingly affirmed.

       Peoples Bank of Mountain Home is only a nominal party as it is holding a sufficient amount of money belonging to Ahrens to satisfy any judgment obtained by appellee.


author: J. Seaborn Holt, Associate Justice.

text:
    Hughes v. Harris.
    5-1172
    299 S. W. 2d 85
    Opinion delivered February 25, 1957.

      B. W. Thomas, for appellant.

      Roy Mitchell, for appellee.
   J. Seaborn Holt, Associate Justice.

September 27, 1955, appellant, Mae Hughes, sued appellee, A. L. Harris, for $1,650 alleged to be due her for the use, and as rental, of a building which she owned. Appellant answered with a general denial. By agreement trial was had before the court sitting as a jury and resulted in a verdict and judgment for appellee. This appeal followed.

For reversal appellant contends that the court erred in permitting evidence that tended to question appellant’s title to the building and also that the judgment was contrary to the laiv and the evidence. The record reflects that on December 30, 1952, appellant, and her then husband (W. H. Hughes) entered into a written contract with appellee, Harris, which was denominated “Contract and Working Agreement,” and which contained the following provisions:

“This agreement made and entered into on this 30th day of December, 1952, by and between W. H. Hughes and Mae Hughes, his wife, hereinafter called parties of the first part, and Albert Harris, Sr., hereinafter called party of the second part, WITNESSETH: For and in consideration of the sum of $1.00 paid to each other and the covenants and conditions herein contained, both parties agree as follows: That first parties will furnish to second party, the building located at 310 Whittington, Hot Springs, Garland County, Arkansas, for the purpose of operating a cleaning plant. Second party agreed to place machinery now owned by second party, necessary to equip said location for the operation of a cleaning and pressing plant and to place said plant in operation as soon as he can reasonably do so. Each party is to receive one-half (1/2) the net income from said business, after the payment of all operating expenses . . . Second party reserves the right to sell the equipment and business at any time. HOWEVER, in case of sale by second party, the purchaser shall enter into a Lease Agreement to lease said building from first parties for a period of one year at the monthly rental of $50.00 and said rent is to be paid the first day of each month during the leasehold agreement ... It is ■agreed between the parties hereto that said agreement shall not constitute a partnership and shall be considered a ‘working agreement’ in the nature of a rental ■agreement . . . It is mutually agreed between the parties hereto that second party shall exercise complete managerial authority over said place and business and that first parties are not to interfere and have any voice in said management.”

The evidence was to the effect that the cleaning and pressing equipment was moved into appellant’s building between October 1, 1952 and December 30, 1952, but was never in fact set up and operated. Appellee so testified. Appellee further testified that he moved out that part of the equipment on which the Home Finance Company had a mortgage, stored it elsewhere, and then gave W. H. Hughes, husband of appellant, a Bill of Sale for the rest of the equipment in order that Hughes might dispose of it in his auction business, and get Harris his money out of it, that Mae Hughes called appellee (Harris) about moving the equipment and that he told her he had given her husband a Bill of Sale for it and had also given her husband a cash register for which he (appellee) had paid $75. Appellee never claimed any interest in appellant’s real property adverse to appellant.

As we interpret the above contract between Mae Hughes and appellee Harris, it was, in effect, an agreement under the terms of which Mrs. Hughes was to furnish the building and Harris would furnish the equipment, manage and operate the business, and all profits, after expenses, were to be divided equally between them. There were never any profits. There was no provision that Mrs. Hughes should have $50 per month rental for her building while the cleaning and pressing business was being operated by Harris. Tbe only reference to a $50 per month rental appears in the above provision of the contract which provides that Harris reserves the right "to sell the equipment and business at any time. HOWEVER, in case of sale by second party, the purchaser shall enter into a Lease Agreement to lease said building from first parties for a period of one year at the monthly rental of $50 . . .” Since, as we pointed out, the business was never in fact operated there were no profits, and Harris gave a bill of sale for the equipment to Mrs. Hughes’ husband, W. H. Hughes, one of the parties to the contract, clearly, Mrs. Hughes was not entitled to claim any rental in the circumstances.

Under our well established rule, we must affirm this judgment if we find any competent, substantial evidence to support it. The weight of the evidence and credibility of the witnesses were for the sole determination of the court, which, as we have often said, has all the finality as the verdict of a jury. Holman v. Armstrong, 187 Ark. 958, 63 S. W. 2d 339. Appellee’s testimony was substantial and sufficient to warrant the findings and judgment of the trial court.

Affirmed.


text:
    Northwest Land Co., Inc. v. Sugg.
    5-1132
    299 S. W. 2d 63
    Opinion delivered February 25, 1957.

      Cockrill, Limerick & Ljaser, for appellant.

      Kay Matthews, Richard L. Pratt and Cooper Ja■coivay, for appellee.
   J. Seaborn Holt, Associate Justice.

This litigation involves land outside the corporate limits of the City of Little Rock and described as Lots 1, 2, 3, 4 and 5, Block 10, Hamilton and Brack’s Addition to the City of Little Rock, Arkansas. Northwest Land Company, Inc. (appellant) on March 10, 1955, filed suit against J. W. Sugg, Frank and Mary Pinkerton, Ira Loyd, Clara Hamilton and H. J. Burney, her guardian, to remove certain alleged clouds on the title to this property, the alleged clouds consisting of certain tax deeds to appellees. Appellant also asked that a confirmation decree confirming title to said lands in the State of Arkansas be cancelled. In the alternative appellant prayed that it be permitted to redeem on the ground that Clara Hamilton was an incompetent at the time of the tax sale and at all times thereafter. Appellant, Clara Hamilton, answered with a general denial and in a cross complaint against appellant, Northwest Land Company, and appellees, Frank and Mary Pinkerton and Ira Loyd, prayed that title to the lands be quieted in her. She also alleged in her answer irregularities in her commitment to the State Hospital and the appointment of her guardian. The Pinkertons answered alleging that they had acquired title to Lots 1, 2, 3, and 4 above by valid tax deed from the State of Arkansas and also by adverse possession, and prayed that title to these lands be quieted in them. Ira Loyd, though duly served, filed no pleadings, and has not appealed. January 24, 1956, following a trial, the court entered a decree quieting title to Lot 5, Block 10, in appellant land company, against any and all claims of Clara Hamilton, J. W. Sugg or Ira Loyd and further decreed that title to Lots 1, 2, 3, and 4, Block 10, be quieted in Frank Pinkerton and Mary Pinkerton, free of any claim of interest by Northwest Land Company, Inc., Clara Hamilton or H. J. Burney, her guardian.

Northwest Land Company, Inc., has appealed from that part of the decree quieting title to Lots 1, 2, 3, and 4, Block 10, in the Pinkertons. Clara Hamilton has appealed from that part of the decree quieting title to Lot '5, Block 10, in Northwest Land Company, Inc., and quieting title in Lots 1, 2, 3, and 4, Block 10, in Frank and Mary Pinkerton. Appellant says: “This appeal by appellant, Northwest Land Company, Inc., resolves itself into two questions. First: Appellant’s right to attack the tax sale for 1937 taxes and the confirmation thereof, and Second: In the alternative, if the sale for nonpayment of 1937 taxes is upheld, appellant’s right to redeem from the tax sale.”

For reversal Northwest Land Company contends that the tax sale to the State of Arkansas was absolutely void because of excessive costs, erroneous descriptions and insufficient notice of sale; that it has the right to attack the confirmation decree within one year after Clara Hamilton’s disabilities are removed, or, in any event within two years or within three years after Clara Hamilton’s disabilities are removed, and finally, in the alternative, that appellant has the right to redeem from the tax sale.

It appears that Clara Hamilton acquired title to the five lots in question, through her mother’s will, in 1936. This property, while owned by Clara Hamilton, was sold to the State at a tax sale in November 1938 for the 1937 taxes. The State of Arkansas sold by tax deed these five lots to appellee, J. W. Sngg, on April 3, 1941, and by mesne conveyances the Pinkertons acquired a deed to Lots 1, 2, 3 and 4 on April 16, 1947, have paid the taxes, occupied and improved the property since they acquired it, and Ira Loyd acquired a deed to Lot 5, based on the tax deed to Lot 5. On November 10, 1942, the State’s title to these lots was confirmed by the Pulaski Chancery Court.

Clara Hamilton was committed to the State Hospital October 30, 1939, after having been properly and legally adjudged insane on that date. On December 4, 1939, C. M. Walser, on his petition, was appointed guardian of the person and estate of Clara Hamilton, and on March 2, 1943, H. J. Burney was appointed her guardian in succession. H. J. Burney sold the five lots involved here to Gladys Knighton on May 25, 1953, and this sale was confirmed by the Probate Court, and on appeal to this court was affirmed, Hamilton v. The Northwest Land Co., Inc., 223 Ark. 831, 268 S. W. 2d 877. On June 29, 1953, Gladys Knighton deeded these five lots to appellant, Northwest Land Company, Inc., Clara Hamilton was released from the State Hospital, December 30, 1953, and her guardian, Burney, had not been discharged.

The Northwest Land Company’s contention that the tax sale was void because the lands were improperly described in the tax sale, and advertised separately resulting in excessive costs, we hold to be untenable. In this connection, the land company says: “Each of the parcels was advertised under separate calls which thereby rendered the costs excessive by the inclusion of an additional 25 cents publication fee,” and relies on § 84-1104 Ark. Stats. 1947 (Sec. 2, Act 170 of 1935) which provides: “Such list of delinquent lands shall be published in some newspaper of the county . . . All contiguous city lots in any city block owned by one person shall be listed and published under one item and as one tract. The legal fees for the publication of delinquent real property tax lists shall be twenty-five cents (25c) per tract for the first insertion, and ten cents (10c) per tract for each subsequent insertion . . .” Clearly we think tins section applies only to city lots within a. city block and does not apply here for the reason that it’s conceded that the five lots here involved are located outside of the City of Little Rocíe. There is yet another reason why this section does not apply here and that is, it also appears that the five lots here involved were not contiguous to Lots 8 through 12, Block 10, Hamilton & Brack’s Addition to the City of Little Bock, which were sold at the same tax sale, together with these five lots, but were, in fact, separated from them by an eleven foot alleyway.

We hold that the description above used in the tax sale was sufficient. The property was conveyed as Lots 1 through 5, Block 10, Hamilton & Brack’s Addition to the City of Little Bock, when as pointed out, the lots were not within the City of Little Bock. This description, however, was sufficient. It appears there was only one Hamilton & Brack’s Addition in Pulaski County and it is difficult to see how there could be any confusion in the location of these lots. In the recent case of Cook v. Langhorne, 219 Ark. 443, 242 S. W. 2d 838, wherein lots were sold for taxes describing them as being in the City of Texarkana, when, in fact, they were not, we said: “In our opinion the description of these lots, as they were forfeited and also deeded by the State, was definite to and understandable by any person of ordinary knowledge. There is only one Forest Park Addition to Texarkana and it is difficult to see how one could possibly be misled as to where the lots were located. Certainly appellant, who bought from the man who platted the lots and named the addition, gives no indication that he was ever confused or misled by the description . . .”

Appellant’s next contention, that the tax sale was void because sufficient notice of the sale was not given, is also without merit. Here it is undisputed that the tax sale was duly confirmed by appropriate proceedings. This confirmation cured any irregularities in the notice of the tax sale. In Billingsley v. Lipscomb, 211 Ark. 45, 200 S. W. 2d 510, we said: “When the power to sell land for the non-payment of the taxes due thereon did not exist, the sale is void, and the confirmation thereof may be collaterally attacked. If, however, the power to sell existed, but was defectively exercised, the defects may be and are cured by appropriate confirmation proceedings which are not attacked within the time, and in the manner provided by law.”

Appellant next argues that it “may attack the confirmation decree within one year after Clara Hamilton’s disabilities are removed,” and relies on Sec. 9 of Act 119 of 1935. At the time of the confirmation decree involving the five lots here, on November 10, 1942, the provisions of Act 423 of 1941 (now § 84-1325 Ark. Stats. 1947) which fully covered the subject, were in effect and we hold that this act controlled. It is significant that this act contained no saving clause in favor of insane persons or infants. "We must presume that the legislature intended just what the act says and deliberately omitted any saving clause to infants and insane persons. “. . . it is a general rule that where the legislature has not seen fit to except a particular person or class of persons from the operation of such statutes (of limitation), the courts will not assume the right to do so. Except, therefore, as the statute of limitations makes express exceptions in favor of such persons, the statute will be applied against the rights of persons laboring under legal disability. Similarly, as a general rule where an exception to the operation of the statute of limitations is not expressly mentioned in the statute, no such exception will be made on the ground of inability to bring suit, absence or non-residence of a party, or evasion of process. It has been held that the courts in construing a special statute of limitation will not read another statute into it and thus incorporate exceptions not contained therein, or give it any new or unusual interpretation.” 34 Am. Jur. § 186 p. 150-151. “The rule that the court will not read exceptions into the statute of limitations applies in the case of persons non compos mentis. Generally if there is no saving clause or exception in favor of incompetents, the statute will run against claims in their favor the same as against claims of others not expressly mentioned in the exceptions of the statute . . .”34 Am. Jur. § 201, p. 162. Therefore, since the enactment of Act 423 of 1941, insane persons stand in the same position as persons who are sane, and are given the right to redeem within one year from the date of the confirmation decree.

As indicated, Clara Hamilton’s guardian, Burney, conveyed those five lots to Gladys Knighton on proper order from the Probate Court on May 25, 1953, and by this conveyance he conveyed all the interest Clara Hamilton had in the lots at the time. Since we are holding that Clara Hamilton was sane at the time of the tax sale to the state, and that the state acquired good title to these five lots under the tax sale, and that the Pinker-tons by mesne conveyances acquired good title to Lots 1, 2, 3, and 4 (on April 16, 1947) it follows that Clara Plamilton had no interest in these four lots that her guardian could later convey to Gladys Knighton, and, therefore, the Pinkertons’ title to Lots 1, 2, 3, and 4 is good as against Clara Hamilton, H. J. Burney, guardian, and appellant land company.

The contention of Clara Hamilton on her cross appeal that she had never been legally declared insane and had been fraudulently confined in the State Hospital is without merit and contrary to the record presented, which shows: ‘ ‘ Order of Commitment — State of Arkansas ■ — ■ County of Pulaski In the Probate Court of Said County

“Be it Remembered, that at the October term, 1939, of the Probate Court of Pulaski County, Ai’kansas, Hon. Frank H. Dodge, Judge, presiding, among others, the following proceedings were had in said court on the 30 day of October 1939, a day of said term, to wit: In the matter of the charge of insanity against Miss Clara Hamilton.

‘ ‘ On this day is presented to the court the affidavit of John C. Curtis a reputable citizen of Pulaski County, Arkansas, wherein he states that Clara Hamilton, a citizen and resident of said County, is insane, and that she should he confined in an asylum for care and treatment.

“And it appearing to the court from the testimony of C. C. Reed, M. D. and Jno R. May, M. D. two competent and disinterested physicians of said County, that the said Clara Hamilton is insane as alleged, the Court doth so find.

“It is therefore ordered and adjudged by the court that the said Clara Hamilton be committed to the Arkansas State Hospital for Nervous Diseases, and there confined for care and treatment. And it is further ordered that a duly certified copy of this order and of all papers pertaining thereto be delivered to the Superintendent of said hospital as his authority for receiving and confining the said Clara Hamilton.

State of Arkansas County of Pulaski I, L. A. Mashburn, Clerk of the Probate Court within and for the County aforesaid, do hereby certify that the foregoing is a true and complete copy of the original order and judgment of said Court therein set forth, and of all papers pertaining thereto, as the same appear of record and on file in my office.

In Testimony Whereof, I have hereunto set my hand and affixed the seal of said Court this 30 day of October 1939.

“By L. A. Mashburn, Clerk,

“By Alma Allnut, D. C.”

As to Lot 5, the Chancellor correctly found and decreed “That the title of Northwest Land Company, Inc., to Lot 5, Block 10, Hamilton & Brack’s Addition to Little Rock, is hereby quieted against any and all claims that may be asserted by Clara Hamilton, J. W. Sugg or Ira Loyd.” We hold that title to this Lot 5 was acquired by appellant land company, through the guardian’s deed to Knighton and any interest that Ira Loyd or J. W. Sugg might have claimed is foreclosed since they were made parties to this suit, duly summonsed, did not plead or appear, but wholly made default.

On the whole case, finding no error, the decree is affirmed.

Mr. Justice Millwee not participating.


author: Ed. F. McFaddin, Associate Justice.

text:
    Shults v. Shults.
    5-1177
    299 S. W. 2d 57
    Opinion delivered February 25, 1957.

      J. Loyd Shouse and Arthur N. Wood, for appellant.

      Arnold M. Adams and Garvin Fitton, for appellee.
   Ed. F. McFaddin, Associate Justice.

The appellants, as plaintiffs, sought to set aside a conveyance of real and personal property made to appellee. From a decree refusing all the relief they desired, the appellants bring this appeal.

Mr. and Mrs. James W. Shults died intestate some time about 1920, survived by several sons and daughters. Two of the sons were Virgil Shults and Delmer Shults and they were single and unmarried: ‘ ‘ they were old bachelors.” For a valuable consideration, all the other heirs of Mr. and Mrs. James W. Shults conveyed to Virgil Shults and Delmer Shults the home place of 139 acres here involved. Some of the heirs conveyed to Virgil and some to Delmer, so that the two brothers did not own equally, but together they owned the entire fee and lived on the land.

In 1950 Virgil Shults died intestate and his interest in the home place descended to his four surviving brothers and the heirs of his two deceased sisters — some thirteen persons in all. After the death of Virgil Shults his heirs, in 1950, conveyed the Virgil Shults interest in the home place and personal property to Delmer Shults, the surviving bachelor brother, who continued to live on the farm. The nature of this conveyance — whether absolute or in trust — is discussed in Topic II, infra. Delmer lived on the home place until a few months before his death. On October 22, 1952, Delmer executed a warranty deed conveying to his brother, A. J. Shults, of Phillipsburg, Missouri (appellee here), the entire 139 acres and also all personal property owned by Delmer Shults.

On January 4, 1953, Delmer Shults died intestate; and this suit was subsequently filed by the plaintiffs as the administrator and all the heirs at law of Delmer Shults (except defendant, A. J. Shults) against A. J. Shults, to cancel the said deed and bill of sale of October 22,1952. Two claims were made by plaintiffs: first, that A. J. Shults exercised undue influence on Delmer Shults to obtain the said conveyances; and, second, that Delmer Shults held the title in trust for all of the heirs of Mr. and Mrs. James W. Shults, the original owners. Trial in the Chancery Court resulted in a decree (a) denying the claim of undue influence; and (b) denying most of the trust claim. Appellants bring this appeal.

I. The Matter Of Undue Influence. In August, 1952 it was determined that Delmer Shults was suffering from cancer. At that time, he was living alone on the 139 acre farm. His condition gradually grew worse; and in October, 1952 he got one of his friends to take him to Harrison, Arkansas. There Delmer called by long distance his brother, A. J. Shults, who lived at Phillips-burg, Missouri, and informed him of the malignancy. A. J. Shults came immediately to Delmer’s home. Next day the two went to Harrison where Delmer executed the deed and bill of sale here attacked. Then A. J. Shults took Delmer to Little Rock for examination regarding the malignancy. The doctors’ report was that Delmer had only a few months to live. Delmer and A. J. returned to the home place; an auction sale was conducted of the farm equipment and livestock; and Delmer went to Missouri to live with A. J. Shults. Later, Delmer was transferred to a nursing home in Missouri and was visited every day by A. J. Shults until January 4, 1953, the date of death, as aforesaid.

It is admitted by all sides that Delmer Shults was sane at the time he executed the deed in October, 1952; but witnesses for the plaintiffs said that after A. J. Shults arrived on the scene he made all the decisions and Delmer merely acquiesced. Such was the main basis for the claim of undue influence. But there is strong evidence to disprove any undue influence: (1) Delmer sent for his brother, A. J.; (2) the notary public who prepared the deed and took Delmer’s acknowledgment testified in favor of the validity of the deed and the conveyance of the personal property; and (3) it was in keeping with previous transactions in the family for title to pass from brother to brother. In short, a careful study of all the evidence fails to convince us that the Chancellor was in error in holding the plaintiffs’ evidence insufficient to establish undue influence.

II. The Matter Of Delmer Shults As A Trustee. The plaintiffs claimed that when they, or their ancestors, executed the deeds to Delmer Shults in 1950 (conveying the Virgil Shults interest in the land and personal property) it was then agreed by Delmer Shults that he would hold the entire farm and all the personal property thereon as trustee, and that on his death the entire 139 acres and all personal property would go to Delmer Shults’ heirs at law. There was an attempt to make proof of such a promise of trust by Delmer Shults as regards the real estate. There was practically no evidence of a trust of any kind as regards the personal property; and the evidence as to the real property, even if admissible, was entirely too sketchy to substantiate such a broad claim that Delmer Sbults agreed to bold bis own interest in bis own property in trust for bis own heirs.

The Trial Court held, however, that certain of the conveyances made to Delmer Sbults in 1950 (of the Virgil Shults interest) were based on a trust; that is, Delmer Sbults agreed that at bis death the interest of such grantors in the real estate would revert to them. The Court held that such evidence was clear, cogent, and convincing; and so decreed a trust regarding the interests that Delmer Sbults received from such grantors. The effect of such bolding was to give the said grantors (some of the appellants herein) an undivided interest in the 139 acres of land. A. J. Sbults has not challenged that part of the decree by cross-appeal, so we leave it undisturbed.

Affirmed.


text:
    Timmons v. City of Morrilton.
    5-1158
    299 S. W. 2d 647
    Opinion delivered February 25, 1957.
    [Rehearing denied April 1, 1957.]

      E. II. Timmons, pro se, for appellant.

      George F. Hartje and Phillip H. Loh, for appellee.
   Ed. F. McFaddin, Associate Justice.

This is an appeal by E. H. Timmons against three parties, being (1) Clyde Wallace; (2) George Brannan; and (3) the City of Morrilton. For each identification we will refer to the parties by name; and we will discuss separately the appeal of Timmons against each such party.

I. The Appeal Of Timmons Against Wallace. On October 19, 1955, Timmons filed a complaint in the Chancery Court against Clyde Wallace. Subsequently there were a number of amendments to the complaint, so that finally the allegations were: that on February 28, 1948, Clyde Wallace, for the consideration of $450.00 cash, conveyed to Timmons Lots 13, 14, 15, and 16 in Block 6 of Hamilton and Wilson’s Addition to the Town of Lewisburg, Arkansas (a part of Morrilton); and that Clyde Wallace and his predecessors in title, some time between 1926 and 1948, erected obstacles and obstructions that prevented Timmons from full possession of the property described in the deed.

Wallace’s answer was a general denial, plea of limitations, laches, and res judicata. At the trial a voluminous record was made, but the entire claim of Timmons against Wallace may be disposed of by noticing one defense — that is, limitations. Timmons introduced the original deed that Wallace executed to him. It was dated February 28, 1948, and was filed for record by Timmons on April 16, 1948, and duly recorded. Any obstruction or encroachments involving the property Wallace conveyed to Timmons existed prior to and at the time of the delivery of the deed and were visible and obvious, so there was a constructive eviction the day of the deed. Yet Timmons delayed from February 28, 1948 until October 19,1955 before filing any action or suit of any kind against Wallace. The statute of limitations for breach of covenant is five years. See Bird v. Smith, 8 Ark. 368; and Lampkin v. Long, 226 Ark. 476, 290 S. W. 2d 623. The statute begins to run on tbe day of tbe breach of the quiet enjoyment. Gibbons v. Moore, 98 Ark. 501, 136 S. W. 937. When the land conveyed is at that time in possession of a stranger, the covenant is broken the date the deed is made, and limitations commences immediately. Abbott v. Rowan, 33 Ark. 593; Van Bibber v. Hardy, 215 Ark. 111, 219 S. W. 2d 435.

In the case at bar, any obstruction existed the day the deed was delivered, so limitations commenced that day and the action was barred at the expiration of five years. The deed was executed in 1948 and Timmons filed no suit against Wallace until this one in 1955, so Timmons was barred by limitations in the suit against Wallace. Therefore, the Chancery Court decree in favor of Wallace is affirmed.

II. The Appeal Of Timmons Against Brannan. Timmons filed suit in the Chancery Court against the City of Morrilton and Clyde Wallace on October 19,1955, making numerous allegations about obstructions in the streets. On March 29,1956, George Brannan filed his intervention, which stated, inter alia:

“Comes George Brannan and for his Intervention and Motion to Dismiss states:

“That plaintiff’s pleadings filed herein contain certain allegations that involve intervenor’s land, fences, and improvements, alleging, among other things, certain obstructions to streets in an area formerly known as Lewisburg, which is now purported to be a part of the City of Morrilton.

‘ ‘ That said obstructions complained of by plaintiff are fences which belong to intervenor individually, and some of which he owns jointly with plaintiff.

“That plaintiff has heretofore complained of said alleged obstructions. That said complaints have heretofore been thoroughly litigated by this court and the Supreme Court.

“That the case of Timmons v. Brannan, 219 Ark. 636, 244 S. W. 2d 136, was decided by the Supreme Court on the 3rd day of December, 1951. That a subsequent suit on the same issues between the same parties was decided by the Supreme Court on the 20th day of June, 1955. Said case is found in 225 Ark. 220, 280 S. W. 2d 393. That the intervenor and plaintiff are same parties that were involved in said suits. That the issues therein in reference to streets .and obstructions are the same raised by plaintiff herein, and which have heretofore been adjudicated and decided by this Court and affirmed by the Supreme Court.

“That intervenor pleads Bes Judicata to plaintiff’s suit for the reason that it appears on the face of his pleadings that same has been heretofore .adjudicated.”

Timmons’ full answer to the intervention reads as follows:

“Plaintiff denies that intervenor has any property rights that will be affected by reason of any allegations contained in plaintiff’s complaint. Plaintiff admits that intervenor is the individual owner of the fences located in the public streets of Morrilton and which constitute a public and private nuisance. Plaintiff disclaims any right of ownership in fences situated in and across the public highways of the City of Morrilton, and cheerfully consents to the removal of any fences which prevent the use of the highways of the City of Morrilton.”

At the trial on April 13, 1956, from which comes this appeal, the entire transcripts were introduced containing the complete records before the Arkansas Supreme Court in each of the cases of Timmons v. Brannan— that is, 219 Ark. 636, 244 S. W. 2d 136; and 225 Ark. 220, 280 S. W. 2d 393. It is beyond peradventure of a doubt that three of the streets claimed in the present suit to be obstructed were the same streets involved in the two previous cases. The Trial Court made this finding in the decree in this case:

“(a) . . . the testimony, including the admitted testimony of the plaintiff, E. H. Timmons, shows that three of the street obstructions herein sought by this action to be caused to be removed were the identical obstructions and fences heretofore litigated in this Court in the case of E. H. Timmons v. George Brannan and thereafter decided by the Supreme Court of Arkansas on the 20th day of June, 1955, and reported in Law Reporter Vol. 99 No. 18, at page 637. That by reason thereof, the plea of the intervener, George Bran-nan, of res adjudieata should be sustained and

“(b) that the testimony of the plaintiff is otherwise insufficient to entitle the plaintiff to the relief sought against the intervener, George Brannan.”

There is no need for us to state again, in this third case of Timmons v. Brannan, the applicable rules of res judicata that were stated in the second case of Timmons v. Brannan, supra. We affirm the present decree of the Chancery Court involving the issues between Timmons and Brannan.

III. The Appeal Of Timmons Agamst The City Of Morrilton. On October 19, 1955, Timmons filed suit against the City of Morrilton, alleging that he (Timmons) owned certain described property that abutted on named streets in the City, and that the City was permitting the said streets to be obstructed, with the result that Timmons was deprived of ingress to, or egress from, his property. The prayer was that the City be enjoined from permitting the said obstructions to remain.

These were the same streets involved in the case of Timmons against Wallace which we have already discussed in Topic I; and also these were the same streets involved in the Brannan cases, which we have already discussed in Topic II. It is obvious that Timmons’ claims against the city must fail when his claims fail — as they have — against Wallace and against Bran-nan. So, without discussing other reasons, we affirm the appeal of Timmons against the City of Morrilton because he has had his day in Court against the other interested litigants involving the same issues.


author: Minor W. Millwee, Associate Justice.

text:
    Ehrlich v. Castleberry.
    5-1178
    299 S. W. 2d 38
    Opinion delivered February 25, 1957.

      Bailey, Warren S Bullion, for appellant.

      Langston & Walker, for appellee.
   Minor W. Millwee, Associate Justice.

This is a suit by appellee, Precious Castleberry, to have a deed and two allied instruments declared a mortgage, and for an accounting and recovery of an alleged overpayment of the mortgage indebtedness to the appellants, Nates Ehrlich and L. A. Gardner, doing business as Arkansas Paint & Roofing Company. Appellants defended on the ground that the transactions in question constituted an absolute conveyance of the property to them and asked that their title thereto be quieted.

At the conclusion of the trial on April 18, 1955, the late Chancellor Rodney Parham found for appellee and directed that the parties proceed to work out an accounting along specific lines designated by the court in accordance with the evidence. Judge Parham had been forced by illness to leave the bench by the time an agreement was reached on the accounting feature. Original counsel on both sides withdrew from the case and present attorneys were employed. This appeal is from a formal decree entered by Chancellor Rorex on May 28, 1956, in which a deed, rental agreement and option to purchase were construed, and reformed to read, as a mortgage upon which appellee still owed a balance of $1,801.69 as of April 10, 1956. Since there is no dispute as to the amount of the indebtedness, if any, the sole issue is the correctness of the holding that the transactions in question should be construed as a mortgage.

The evidence reflects that appellee is a Negress with a limited education and slight familiarity with legal transactions. In 1945 she purchased two adjoining lots situated at 1500 and 1502 East Second Street in Little Rock, Arkansas, for $2,700. Each lot had a small house on it. Appellee lived in one of the houses and conducted a small business of some sort in the other. Appellants are partners engaged in the sale of building materials and as general contractors specializing in home construction and repairs. They also make loans to owners who desire to improve or repair their property. Appellant Ehrlich is in charge of the business and office work while Mr. Gardner looks after construction.

In March, 1951, appellee had become delinquent on the monthly purchase money payments on the two lots upon which she still owed a balance of $768.00. In an effort to meet three delinquent monthly payments and satisfy the demands of a tax title purchaser for $250.00, appellee approached appellants about a loan. "While there is a sharp dispute in the testimony concerning the negotiations at that time, it is clear that appellee had no intention of selling her property and sought some arrangement whereby appellants would pay off the indebtedness on the lots, repair the houses,, which were in a bad state of repair, and allow appelleeto make repayment and redeem her property.

After appellants inspected the property, but before-any determination was made as to the amount of the repairs, appellee executed a general warranty deed of the lots to appellants on March 17, 1951. A few days later appellants paid off the balance of the mortgage-indebtedness dne by appellee on the purchase price of the lots and $250.00 to the tax title purchaser. On March 26,1951, the parties executed two instruments designated ‘ ‘ Rental Agreement ’ ’ and ‘ ‘ Option to Buy. ’ ’ Under the first instrument appellee was to pay appellants a monthly rental of $116.67 for the two lots. The second instrument provided that appellee should notify appellants not later than April 1, 1952, of her desire to exercise the option to buy the lots one month later for $9,000 plus 8°/o interest per annum payable in 120 monthly installments of $109.20 each. In addition appellee was required to pay $15.80 monthly for taxes and insurance. Although appellee sought specific information on, and a contract for, the repairs none was ever furnished or negotiated.

Appellee paid appellants $1,313.24 from March 21, 1951, to April 30, 1952. Appellants also collected an additional $280.00 from a tenant in one of the houses during this period and in May, 1952, appellee paid appellants $125.00 and the tenant paid $35.00. The cost of labor and materials used in repairing the houses amounted to $3,215.

Although no contract to that effect was ever executed, Ehrlich testified that appellants agreed to sell one of the lots to appellee for $13,000 in June, 1952, when they delivered to appellee a small “Customer’s Receipt Book” captioned: “8% Purchase Contract, $13,000.00.” When asked to explain the sharp increase in price over that stipulated in the option to purchase, Ehrlich stated the sale was subject to appellants’ payment of the insurance, taxes and repairs for an unspecified “term of the contract” despite the fact that the insurance and tax payments were already included in the payments appellee was making.

Appellee continued to pay appellants $25.00 weekly from June, 1952, to December, 1954, and appellants credited her with such payments monthly on the booklet they had furnished her. Including monthly rentals of $35.00 collected from a tenant-in one of the houses, appellants had been paid a total of $6,003.24 when the instant suit was filed December 8, 1954. After all payments had been credited by appellants, appellee still owed a principal balance of $12,375.14 on only one lot at that time according to the booldet furnished her. The transactions listed on appellants books with reference to the two lots were under the heading, “Castleberry Property,” and recited the execution of the deed, rental agreement and option to purchase but made no reference to any contract for $13,000. There is also a ledger notation that in April, 1952, appellee refused to sign a note and mortgage drawn by appellants in connection with the option to purchase.

The legal principles applicable in cases like this were clearly stated by Chief Justice Hart in Clark-McWilliams Coal Co. v. Ward, 185 Ark. 237, 47 S. W. 2d 18, as follows: ‘ ‘ The general doctrine prevails in this State that the grantor may show that a deed absolute on its face was only intended to be a security for the payment of a debt and thus is a mortgage. Since the equity upon which the court acts arises from the real character of the transaction, any evidence, written or oral, tending to show this, is admissible. If there is a debt existing with a loan of money in advance, and the conveyance was intended by the parties to secure its payment, equity will regard and treat an absolute deed as a mortgage. However, the presumption arises that the instrument is what it purports to be; and, to establish its character as a mortgage, the evidence must be clear, unequivocal, and convincing. By this is meant that the evidence tending to show that the transaction was intended as a security for debt, and thus to be a mortgage, must be sufficient to satisfy every reasonable mind without hesitation.” In that ease the court again approved this statement from the early case of Scott v. Henry, 13 Ark. 112: “And, for the purpose of ascertaining the true intention of the parties, it is a well established rule, that the courts will not be limited to the terms of the written contract, but will consider all the circumstances connected with it; such as the circumstances of the parties, the property conveyed, its value, the price paid for it, defeasances, verbal or written, as well as the acts and declarations of the parties and will decide upon the contract and the circumstances taken together.” See also, Buffalo Stave & Lumber Co. v. Rice, 187 Ark. 731, 62 S. W. 2d 2; Carpenter v. Walker, 199 Ark. 829, 138 S. W. 2d 68; Watson v. Clayton, 203 Ark. 1097, 160 S. W. 2d 849; Newport v. Chandler, 206 Ark. 974, 178 S. W. 2d 240, 15 A. L. R. 1096; Gray v. Butrum, 217 Ark. 967, 234 S. W. 2d 774.

The question whether a deed to realty, absolute on its face, when construed together with a separate agreement or option to repurchase by the grantor amounts to a mortgage, or is a conditional sale, depends on the intention of the parties in the light of all the attendant circumstances. 59 C. J. S., Mortgages, Sec. 28. It is settled by our decisions that whenever a vendor, at the time of a sale, is indebted to a purchaser, and continues to be indebted after the sale, with the right to call for a reconveyance upon payment of the debt, a deed absolute on its face will be considered by a court of equity as a mortgage. Matthews v. Stevens, 163 Ark. 157, 259 S. W. 736. As Judge Knox stated in Newport v. Chandler, supra: “It is unquestionably within the power of two individuals, capable of acting for themselves, to make a contract for the purchase and sale of land, with a reservation to the vendor of a right to repurchase the property at a fixed price and at a specific time. If such transaction is security for a debt, then it is a mortgage, otherwise it is a conditional sale. In practice the line of demarkation between a mortgage and a sale with a right of repurchase is shadowy, and it is frequently a matter of great difficulty to determine to which category a given transaction belongs.”

We are convinced that the evidence here is of that clear, cogent and convincing character necessary to support the trial court’s conclusion that the deed and allied instruments were actually intended as a mortgage. Appellants cite several cases holding that before reformation of a written instrument is authorized there must be either a mutual mistake of the parties, or a mistake on one side and fraud or inequitable conduct on the other.. It is clear from the evidence that appellee never intended a sale of her lots to the appellants and their awkward effort to extract $13,000 plus 8% interest from her for only one of the lots, under the circumstances, amounts to something less than equitable conduct.

In reaching the conclusion that the instant transactions were intended as a mortgage, we share the views expressed by Judge Butler in Buffalo Stave & Lumber Co. v. Rice, supra: “In reviewing the decisions of courts of chancery on questions of this character, great weight should be given to the opinion of the court as the presiding judge may be fully apprized of the existence of circumstances which but dimly appear to us from an examination of the record. The learned chancellor had an intimate knowledge of the instant case from its inception and of the character and situation of the parties and the course of the lawsuit. He interpreted the instruments, viewed in the light of the attendant circumstances and the evidence adduced, as a security for a debt, that security having been changed from the lien given by the court by instruments which were in effect nothing more than a mortgage. He concluded that this was the intention of the parties, and we are unable to say, after a careful consideration of the record before us, that he has wrongly decided.”

The decree is affirmed.


author: George Rose Smith, J. W. W. West,

text:
    Lytle v. Zebold.
    5-1137
    299 S. W. 2d 74
    Opinion delivered February 25, 1957.

      Brockman & Brockman, for appellant.

      Robert A. Zebold and Coleman, Gantt & Ramsay, for appellee.
   George Rose Smith, J. W. W. West,

a resident of Jefferson county, died testate in 1953, leaving an estate consisting of real and personal property. By Ms will tbe testator, wlio left no descendants, first provided for Ms widow, next made specific devises to three churches at Wabbaseka, Arkansas, and then left the residue of Ms estate in trust for purposes to be described in a moment. During the administration of the estate the present petition for a construction of the will was filed by the appellants, who are five of the eight named beneficiaries of the trust. It is the appellants’ contention that the trust is invalid for several reasons. The attack is defended by the four appellees, being the executor and the other three named beneficiaries. This appeal is from an order of the probate court sustaining the validity of the trust.

The trust provisions of the will are extremely long and need only be summarized. The testator first directed his trustees to divide the corpus of the trust into as many equal parts as there should be survivors among eight named persons, whom we will refer to as the life beneficiaries. These eight, who in fact all survived the testator, are his brother, his sister-in-law, his two sisters, two nieces, a great-niece, and a long-time employee. All except the sister-in-law and the employee were related to the decedent by blood.

After the division of the trust property into eight parts the trust is to be administered pursuant to seven paragraphs of the will, which are to this effect:

(1) The income from the share of each life beneficiary may, in the discretion of the trustees, either be paid to that beneficiary or be accumulated.

(2) In case of illness or other misfortune on the part of a life beneficiary the trustees may expend income accumulated for him and may also invade his part of the principal.

(3) Upon the death of each life beneficiary any accumulated income being held for him becomes a part of his estate.

(4) Upon the death of the employee beneficiary his share of the corpus is to be divided equally and added to the other shares originally created.

(5) Upon the death of each of the other life beneficiaries his share of the principal is to remain in trust, the income to be paid to or accumulated for his heirs, as determined by the Arkansas law of descent and distribution.

(6) Upon the death of the last surviving life beneficiary the trust property is to be distributed per capita among the lineal descendants of those life beneficiaries who were kin to the testator by blood. Should any of these distributees be a minor his share is to remain in trust and be delivered to him when he reaches the age of twenty-one.

(7) If, at the death of the last surviving life beneficiary, there should be no such living lineal descendants, the trust property is to be conveyed “to the Board of Directors of the Wabbaseka Public Schools, now designated as School District Number 12 of Jefferson County, Arkansas.”

The appellants’ first attack upon the trust is based on proof that in the interval between the execution of the will and the testator’s death School District No. 12 was consolidated with another district to form Wabbaseka School District No. 7 of Jefferson County. It is argued that the original district has ceased to exist, that the gift to that district was an essential part of the testamentary plan, and that the invalidity of this element in the scheme results in the failure of the trust as a whole.

This argument is unsound, for either of two reasons. To begin with, West did not limit his benevolent intent to the particular school district then existing. Instead, he referred broadly to the Wabbaseka public schools, “now designated” as District No. 12. This language is amply sufficient to show that West’s bounty was meant to extend to a successor of the district specifically named. See McDonald v. Shaw, 81 Ark. 235, 98 S. W. 952. Second, the gift over to the schools and the rest of the trust are not so interdependent that both must stand or fall together. That conclusion would follow only if the remainder to the school system is such an essential factor in the plan that it cannot be separated without defeating the testator’s purpose in creating the trust. Cf. Rest., Trusts, § 65. It is plain, however, that West’s primary concern lay with the life beneficiaries and those of their descendants who were of his blood. We find nothing in the will to indicate that the testator’s solicitude for his relatives' was dependent upon the continued existence of a particular school district.

The appellants ’ insistence that the trust violates the rule against perpetuities must also be rejected. That rule requires an interest to vest not later than twenty-one years after some life in being at the creation of the interest. G-ray, The Rule Against Perpetuities (4th Ed.), § 201. In this case the eight life beneficiaries represent the measuring lives in being at West’s death. It appears that the estate will vest at the death of the last surviving member of this group, with merely a postponement of enjoyment in the ease of remaindermen who are then minors. But even if it might be said that such a minor’s interest will not vest until he attains twenty-one, the period allowed by the rule has still not been exceeded. This is true because membership in the class is limited to lineal descendants who are living at the expiration of the last measuring life.

In a third contention the appellants stress the fact that the executor has converted the entire trust estate into personal property. It is said that the language of this will would have created a fee tail at common law. It is then argued, on the authority of Denson v. Thompson, 19 Ark. 66, that the same words which would create an estate tail as to land give to the first taker an absolute interest in personal property.

Among several answers that might be made to this contention the simplest one is that this language would not have created a fee tail at common law. For such an estate to be created the succession must be confined to the issue of the first taker; the estate is not a fee tail if the limitation permits the interest to pass to persons other than the bodily heirs of the first taker. Rest., Property, § 59. Here West directed that the trust property be divided and that a specific portion of the corpus be allotted to each life beneficiary. There is no requirement that the interest of a particular life beneficiary must pass to his bodily heirs alone. To the contrary, it is contemplated that the interest of a life beneficiary who dies without direct descendants will eventually pass to collateral kindred. Thus the limitation fails to satisfy a fundamental condition to the creation of an estate tail.

Finally, it is shown that two of the life beneficiaries already have one child each. We are asked to declare that the interest of these two children is a vested remainder rather than one contingent upon their being alive at the death of the last surviving life beneficiary. This question was not decided by the trial court, if indeed it was even raised below, and we too must decline to explore this problem. For one thing, the two children are not parties to this litigation and therefore would not be bound by any determination we might make. Hogan v. Bright, 214 Ark. 691, 218 S. W. 2d 80. For another, it is not suggested that the requested declaration of law would have any practical effect whatever. It is not our practice to speculate upon issues having only a theoretical value.

Affirmed.

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