author: Conley Byrd, Justice.

text:
    Mrs. Earl DOOLEY et al v. Wilmer WELCH et al
    4262
    Opinion delivered September 25, 1967

      Wayne Jewell, for appellants.

      J. S. Brooks and R. H. Peace, for appellees.
   Conley Byrd, Justice.

This litigation was commenced by appellees Wilmer Welch et ux against appellant Mrs. Earl Dooley to determine the west boundary line of the Welch property and the east boundary line of the Dooley property. After Mrs. Dooley’s answer was filed, appellees Jewell Darden et ux filed an intervention to reform a deed, claiming a one-acre tract lying within the lands claimed by Mrs. Dooley in her answer. Appellant Marvin Darden, Jewell Darden’s grantor, was made a party defendant to the intervention. W. T. Dar-den, father of Mrs. Dooley, Marvin Darden and Jewell Darden, was also an uncle of appellee Wilmer Welch and is the common source of title of all lands involved.

The trial court awarded appellees Wilmer Welch et ux the lands described in their deed, (which they had received by mesne conveyances from W. T. Darden), subject to a 15-foot easement for the purpose of ingress to Mrs. Dooley’s home, and directed that Mrs. Dooley’s house, which encroached on the lands, be removed. In the controversy between Jewell Darden and Mrs. Dooley and Marvin Darden, the court reformed the deed to describe the lands in Section 26 instead of Section 35 as set out in the deed. Mrs. Dooley and Marvin Darden have appealed.

In the boundary dispute between the Welches and Mrs. Dooley, the testimony shows that W. T. Darden conveyed to one Bert Wilson, by metes and bounds description, the land now owned by Wilmer Welch; and that, by the same metes and bounds description, Bert Wilson conveyed to the Welches in 1959. After Bert Wilson took possession of the property he constructed a fence approximately 35 feet east of his west boundary. The fence still existed at the time of the trial. Mrs. Dooley acquired her property in 1962 through Marvin Darden, (who had acquired it under his father’s will), by deed which described the lands as the fractional SE¼, SE¼ Sec. 26, T 17, R 17, containing 8 2/3 acres. Mrs. Dooley caused F. M. Methvin, the County Surveyor, to survey her lands in 1963, using the fence line as the boundary. Thereafter she tore down the old Darden home and rebuilt her present home, which encroaches some five feet on the metes and bounds description contained in the Wilmer Welch deed.

With the record showing the conveyance of the Welch lands by the metes and bounds description, the burden was cast upon Mrs. Dooley to show her alleged adverse possession. Obviously, she has not had possession long enough for the seven-year statute to run, and the record is void of testimony that anyone held adversely to the Welches prior to the time Mrs. Dooley received her deed. The use of the premises for a roadway by Mrs. Dooley and her predecessors would give them only a right of prescription for roadway purposes, and this was recognized in the trial court’s decree. Therefore we affirm the chancellor’s decree as to the boundary dispute.

Regarding the reformation of the deed, appellants contend that the court erred in awarding to intervenors the one acre of land out of the tract purchased by Mrs. Dooley without notice of intervenors’ claim, and that the trial court should have awarded the intervenors judgment against appellant Marvin Darden.

There is ample testimony, corroborated by persons not party to the litigation between intervenors and appellants, to show that the intervenors paid Marvin Dar-den $100 for the acre of ground; that the acre was stepped off in Section 26; that the intervenors cleaned up the bushes; and that Marvin Darden owned no land in Section 35 which would fit the description contained in the deed but that he did own lands in ‘Section 26 where the one acre was stepped off. With respect to appellants’ contention, they are met with the facts that lack of notice or knowledge on Mrs. Dooley’s part was not pleaded; that nothing in the record showed that Mrs. Dooley had actually taken possession of any part of the lands other than that where her house was located; that the description in her deed was void for indefiniteness; and further, that it was shown by Marvin Darden’s testimony that he was still exercising some control and possession over the premises within the last two or three years — he having done some fencing.

It is true that Marvin Darden testified definitely that he intended to convey one acre in a square in the northeast corner of Section 35, but in reading all of his testimony it is observed that he could not remember how old he was, whether his father had conveyed the land in Section 35 prior to his death, and that he did not know whether he owned Section 35 at the time the deed was made. In view of the fact situation in which Marvin Darden testified, the chancellor could properly have disregarded his testimony as being untrustworthy. Consequently, we hold that there was sufficient evidence to support the reformation of the deed. Burchfield v. Banks, 202 Ark. 209, 149 S. W. 2d 551 (1941).

Appellants are concerned because Mrs. Dooley bas been ordered to remove the encroachment of her house from the Welches’ property. We need not decide here how the trial court should enforce its order, but we do point out that the Welches in their brief indicate that, since the encroachment is within the 15-foot easement awarded Mrs. Dooley, it will not be necessary to relocate the house.

Affirmed.


source: Caselaw Access Project

author: Carleton Harris, Chief Justice.

license: Public Domain

text:
    Jerry L. CARTER et al v. Cleve ZACHARY et al
    5-4227
    418 S. W. 2d 787
    Opinion delivered October 2, 1967

      U. A. Gentry, J. Patrick Reilly and Mike J. Etoch, for appellants.

      George K. Cracraft, John L. Anderson and David Solomon, for appellees
   Carleton Harris, Chief Justice.

This litigation is quite complicated. On February 1, 1960, Cleve Zachary and wife went to the store of Abe J. Davidson in Marvell, Arkansas, and executed a promissory note in the amount of $22,794.04 to Davidson, with interest at the rate of 8% per annum. The purpose of the note was to satisfy an indebtedness due Davidson by Ellis McKissic and wife, the McKissic indebtedness having accumulated over a period of several years.

In March, 1957, McKissic had given a real estate deed of trust to Davidson to secure a $5,000.00 note, this debt being due in November 1957; in October, 1957, a note executed by McKissic in favor of Helena Federal Savings and Loan Association, had been purchased by Davidson for $13,240.15, this note being due in November, 1957. In December, 1957, McKissic executed a note to Davidson in the amount of $18,905.45, with interest at the rate of 10%, due February 28,1958. This note was endorsed by Zachary. By the end of 1959, only a minimal amount had been paid, and, after the adding of interest, McKissic’s balance was $20,722.05. In January, I960, an additional amount of $2,072.00 was added, making a grand total of $22,794.05. The recitation in this paragraph relates the facts leading to the signing of the note from Zachary to Davidson in February, 1960.

On the same day, in Davidson’s office, McKissic and wife executed a quitclaim deed to Zachary for 160 acres of land, being McKissic’s farm. Zachary then executed an agreement to reconvey the lands to McKissic upon the repayment by the latter of the indebtedness, plus interest. The agreement also provided for McKissic to pay all taxes' and to repay any further amounts loaned by Zachary, together with interest. Also, on this same date, McKissic and wife acknowledged that the $22,794.04 was the correct amount that they owed, and they signed a statement recognizing that they were indebted to Zachary in that amount. In January, 1963, Zachary made the final payment to Davidson on the note (that he had signed in behalf of McKissic), the total amount including interest being $27,505.18) Shortly thereafter, Zachary notified McKissic to quit the premises; however, McKissic ignored the notice and stayed on.

In September, 1963, Zachary executed an “Offer and Acceptance” with appellant, Jerry L. Carter, for sale of the McKissic lands for the sum of $26,000.00, the sale to be closed by December 1, 1963, and, since Mc-Kissic remained on the property, Zachary instituted an, unlawful detainer action against McKissic in January, 1964. In August, 1964, Carter was' granted leave ;by the court to file an intervention, and he sought to require Zachary and wife to specifically perform the agreement to sell him the McKissic lands, and asked in the alternative, that he be awarded damages against Zachary. Zachary answered the intervention with a general denial. In March, 1965, McKissic amended his complaint, asserting that the deed had been given as a mortgage, and further alleging that Zachary was guilty of usury. In May, McKissic instituted a cross-complaint against Davidson, contending that the latter had made usurious charges. Davidson answered with a general denial, and, the cause having been transferred to equity, the case w'as heard by the Chancery Court in November, 1965. After hearing the evidence, the court found:

1. That McKissic had failed to prove the allegations of usury against Davidson, and dismissed that complaint.

2. The intervention of Carter was dismissed.

3. The quitclaim deed from McKissic to Zachary, together with the agreement to reconvey from Zachary to McKissic, was intended by all parties in interest to he:

“a mortgage with right of redemption given to _se-cure a debt owed by the Defendant to the Plaintiff, Cleve Zachary, in the sum of $22,794.05, which debt bore interest at the rate of 10% per annum until paid; that said lien was also given to secure any and all other advances made by Cleve Zachary to Ellis McKissic during the period of redemption; that said period of redemption had not expired at the commencement of this action.
“5. That up to and including January 14th, 1963, Cleve Zachary advanced additional sums to the Defendant in such an amount that said indebtedness aggregated on that date, the total sum of $27,505.18; that same is now in default; that the Defendant is indebted to the Plaintiff for his principal and interest in the aggregate sum up to this date in the aggregate sum of $37,516.66.
“6. The Court further finds that Cleve Zachary, as Mortgagee in possession of the properties, has paid all taxes and assessments due on said lands for the years 1962, 1963 and 1964, in the total sum of $758.24, and has been compelled to pay premiums of insurance upon the improvements thereon in the sum of $216.58.”

The court then made a finding that McKissic was entitled to a credit for the reasonable rental value of the lands, which was f ound to be $2,040.00 per year, or a total amount of $8,120.00, and was likewise entitled to a further credit of $834.68. Judgment was thereupon entered for Zachary against McKissic in the amount of $29,536.80, and the court directed that if this amount, together with costs, was not paid within 60 days, the property should be sold at public sale. From the decree so entered, Carter appeals from the dismissal of his intervention against Zachary, and McKissic appeals from that portion of the court’s order holding “that there was no usury in any of the transactions involved in said cause and denying to the defendant, Ellis McKissic, any relief either against the plaintiff, Cleve Zachary, or the third-party defendant, Abe J. Davidson.”

We proceed to a discussion of each of these contentions.

1. Was the February, 1960, deed from the McKissics to the Zacharys intended as a mortgage f The Zach-arys have not appealed from the court’s decision holding that the deed, in effect, was a mortgage, and this question is appealed only by Carter, who, of course, cannot prevail in his prayer for specific performance, unless the Zacharys owned the property.

Carter asserts that the deed given on February 1, 1960, conveyed the lands to Zachary, and that McKissic did not comply with the agreement to reconvey, and thus lost his right to claim the property. Evidence was offered by a witness, James Suitt, that McKissic had recognized Zachary’s title, and had so advised Suitt when applying for a production loan. No point would be served in detailing the testimony of the various witnesses, for we are of the opinion that the testimony of Zachary and his wife justified the Chancellor in reaching his conclusion. It is well established that the question of whether a deed to realty (when absolute on its face, and construed together with a separate agreement to repurchase) amounts to a mortgage, or a conditional sale, is to be determined by the intention of the parties. Ehrlich v. Castleberry, 227 Ark. 426, 299 S. W. 2d 38. In Newport v. Chandler, 206 Ark. 974, 178 S. W. 2d 240, we said:

“It is unquestionably within the power of two individuals, capable of acting for themselves, to make a contract for the purchase and sal© 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. *** ”

The examination of Zachary during the trial reflects the following:

“Q. At the time that you all went down there to have the papers fixed, did you go down there with the intention of getting a deed for the property that day?
A. No, sir, I didn’t go down there with intentions of getting* a deed then.”

Zachary stated that the deed was taken for security.; Annie Zachary testified likewise. We think it is clear that the deed was intended as a mortgage.

2. Was Carter entitled to specific performance, or m the alternative, to damages from Zachary/ The testimony reflects that on September 5, 1963, Zachary, acting on advice of counsel, agreed to convey merchantable title to Carter for $26,000.00, subject to good title, and Carter gave Zachary a check in the amount of $500.00 as earnest money. There is evidence that Zachary thought, and with good reason, that McKissic had abandoned his claim to the farm. Although we feel that the record supports the view that Zachary acted in good faith in offering to sell the lands to C'arter, there is no point in reviewing the testimony, since we do not decide this point on that premise. Nonetheless, we do not think that Carter is entitled to damages. Appellant’s claim in this respect is based on the difference in the contract price and the market value of the land; under the contract, he would have purchased the lands for $26,000.00, the agreemnt reciting that the transaction would be closed by December 1, 1963. The only evidence offered by appellant as to damages was his owh testimony, and this was not at all forceful. When asked by his attorney as to the fair market value of the land on December 1, 1963, Carter replied, “I don’t really know [our emphasis]. I was offered $32,000.00 for it prior to that and I didn’t take it.” It will be noted that appellant admitted that he did not know the value of the land on December 1, 1963, and the purported purchasers were not called upon to testify. The testimony about the offer of $32,000.00, if competent otherwise, certainly was hearsay evidence. This was all the evidence relative to damages, and could hardly support such an award. For that matter, the testimony of Carter, since appellant is an interested party, does not stand under the law as uncontradicted, and the court was not required to accept the testimony as correct. McDonald v. The Olla State Bank, 192 Ark. 603, 93 S. W. 2d 325. Appellant apparently recognizes that his proof is inadequate, for he closes his brief by stating that if specific performance of the contract is now impossible, he “is entitled to damages for breach of the contract, and that the case must be remanded to Chancery Court in order that those damages may be determined. ” As a rule, Chancery cases are developed completely on trial, and a final determination is made in this court on the record presented. We rarely remand a case simply to develop proof on one phase, where that proof could have been offered at the original trial.

3. Is McKissic entitled to relief from Ztachary because of usury 1 McKissic contends that usurious interest was charged by Davidson, and that Zachary, as a. volunteer, in settling this indebtedness, paid these usurious charges without first ascertaining the accuracy of Me-Kissic’s account with Davidson. It is admitted that Zachary did not know of any usurious or improper charge, but it is contended that he made no inquiry of McKissic as to the correct amount, and therefore, Zachary is not entitled to reimbursement.

In the first place, we think the evidence is heavily against this appellant’s contention. One clearly gains the impression from reading this record that Zachary assumed this indebtedness purely as an act of friendship .to McKissic, and the evidence reflects that Zachary was entirely willing, before the suit was filed, for McKissic to pay the indebtedness assumed without interest being paid to the former. It is difficult to visualize any person assuming a debt of another of nearly $23,000.00 (aside from the interest that would have to be paid) without first being requested to do so, and further, without ascertaining from that person the proper amount of the debt. Such a transaction, though possible, is contrary to human experience. We think logic supports the testimony offered that these parties met at the office of Davidson, and entered into the transaction. Certainly, the record discloses a written acknowledgment by McKissic that he owed $22,794.04, the amount for which Zachary executed the note to Davidson. In Lowe v. Walker, 77 Ark. 103, 91 S. W. 22, Walker made a loan to Lowe to enable the latter to pay off a debt due to a Mrs. Bice. Thereafter, Lowe raised the issue of usury. Walker testified that he had no notice of the usury though Lowe testified to the contrary. The Chancellor found for Walker, and Lowe appealed. In affirming the Chancellor, this court, through Justice McCulloch, said:

“Appellee was not affected by usury in the contract between Lowe and Mrs. Rice. Conceding that the debt was tainted with usury, Lowe elected to pay it, and procured its payment by appellee. He cannot defeat his liability to appellee for the money because the original debt to Mrs. Rice which it extinguished was tainted with usury. ’ ’

There is yet another complete defense, but it will be discussed under the next heading.

4. Is McKissic entitled to relief from Davidson because of usury % Let it be remembered that the burden of proving usury is on the one who alleges it. Let it further be remembered that McKissic never raised any claim of usury until March, 1965, when, in an amendment to his answer, he alleged usury against Zachary, and subsequently in May, the same contention was raised against Davidson in a third party complaint. Without discussing the testimony on this point, some of which was uncertain and confusing, it is sufficient to state that any usurious transactions are barred by the statute of limitations. The last transaction occurred on February 1, 1960, when Zachary settled McKissic’s indebtedness by executing the note to Davidson. The last note given by McKissic himself to Davidson occurred on December 10, 1957, when he executed his note in the amount of $18,905.45. McKissic’s contention that the statute of limitations does not apply is based on his assertion that fraud was practiced upon him, but there is no proof of this allegation in the record. There is no evidence of concealment, or fraudulent acts. In fact, one item which is alleged to constitute usury is the amount of $2,072.00, which was added to the account in January of 1960, and which clearly appears in writing for anyone to see. McKissic stated that he never did see any of the instruments or papers, and said that he did not know he had signed a quitclaim deed; that Da vidson kept these papers for him, but there is no evidence that McKissic even asked to see any instruments or the account, or that he made any inquiry whatsoever. In Williams v. Purdy, 223 Ark. 275, 265 S. W. 2d 534, we stated that mere ignorance of one’s rights does not prevent the operation of the statute of limitations; in the event there are affirmative and fraudulent acts of concealment, the statute commences to run when the fraud is discovered. McKissic had been dealing with Davidson for years, and part of his claim of usury dates back for a long period of time. Yet, no contention along this line was made until May, 1965, more than fifteen months after Zachary had instituted suit to obtain possession of the lands in question.

On the whole case, we are unable to say that the Chancellor’s findings were against the preponderance of the evidence.

Affirmed.

      Dhe figure “.04” is used at times, while “.0'5” is also used.

      There is no explanation of why these various pleadings were filed so long after the original suit was commenced.

      The check was never cashed, and was returned to this appellant.

      The court originally sustained objection to the testimony concerning an offer, but subsequently permitted it. Later, Carter testified that the property had increased in value by March of 1964 to $35,000.00.

      Carter’s pleading sought $10,000.00 damages.

      Ark .Stat. Ann. § 37-206 (Repl. 1962) lists the actions which must be brought in three years, and Ark. Stat. Ann. § 37-209 (Repl. 1962) sets out those that must be commenced within five years after the cause of action shall accrue. It is immaterial here whether the three year statute or the five year statute is applicable.

      McKissic also testified that he did not know that Zachary had executed the note assuming his (McKissic’s) indebtedness, and did not know that Zachary had ever endorsed his note.


author: George Rose Smith, Justice.

text:
    Nicholas W. RIEGLER Jr. v. Mary Miller RIEGLER
    5-4259
    Opinion delivered October 2, 1967

      Howell, Price & Worsham, Dale Price and Fletcher Jackson, for appellant.

      H. B. Stubblefield and Tom Eisele, for appellee.
   George Rose Smith, Justice.

The parties were married in 1943 and separated in 1964. In January, 1965, Mrs. Riegler obtained a decree awarding her separate maintenance and the custody of the couple’s five daughters, the oldest of whom was then 18. In March, 1966, Mrs. Riegler filed suit for an absolute divorce on the ground of personal indignities. Dr. Riegler did not oppose his wife’s suit for a divorce, but he did resist her claims to alimony, child support, and a share of lps property. This appeal and cross appeal relate only to those contested matters, presenting primarily questions of fact.

I. The decree awarded Mrs. Riegler alimony of $250 a month, which is to be increased to $350 when the jointly owned family residence is sold and she surrenders possession. The decree also awarded her $550 a month for the maintenance of the minor children, with a similar $100 increase upon sale of the residence. (Dr. Riegler does not now question this award.) The decree recognizes Dr. Riegler’s asserted desire to provide his children with a college education and directs that if he fails to do so voluntarily the matter will be submitted to the court for decision.

Ordinarily the amount to be allowed as alimony and child support lies within the sound discretion of the chancellor. Childers v. Childers, 229 Ark. 11, 313 S. W. 2d 75 (1958). Here Dr. Riegler contends that his former wife’s misconduct precludes her from any award of alimony and, alternatively, that the monthly allowance is excessive in view of her independent means and his ability to pay.

We find no abuse of the chancellor’s discretion. By tacit consent the parties allowed the case to proceed in two stages. It was first submitted to the court’s master in chancery as an uncontested case on the issue of the plaintiff’s right to a divorce. With respect to property rights, however, the issues were reserved for an adversary hearing before the chancellor. At that hearing the chancellor refused to consider proof of Mrs. Riegler’s supposed misconduct. On that point counsel made their record by offers of proof.

The chancellor rightly rejected the charge of misconduct. We have some doubt about the parties’ agreed procedure, for such a two-step approach might be used to achieve a collusive divorce. In any event, however, the testimony heard by the master is not abstracted; so we are unable to compare the spouses’ relative fault. Much of the misconduct attributed to Mrs. Riegler occurred years ago and falls within the doctrine of con-donation. Finally, the fact that Dr. Riegler does not question his wife’s suitability to have the custody of the children confirms the view that Mrs. Riegler is of good character.

The evidence about Mrs. Riegler’s independent means is in such conflict that we are unable to estimate the worth of her property with accuracy. Much of it is involved in litigation. Moreover, even if we take a liberal view of the value of Mrs. Riegler’s property, her available income would still be only a small fraction of Dr. Riegler’s. According to his 1965 federal income tax return, his net income, before the deduction of alimony, was $59,431.35. His federal and state income taxes totaled $26,088.72, leaving* him a net income of more than $33,000. It is quite evident that the alimony and child support allowances fall well below Dr. Riegler’s ability to pay. We are unwilling to modify the chancellor’s award of alimony, either upward or downward.

The matter of the children’s college education was deferred for a later decision. What we have to say in Part V of this opinion may be pertinent if that question comes up in the future.

II. The weight of the evidence supports the chancellor’s award of a 1964 Chevrolet to the appellee. Not only is there convincing proof that Dr. Riegler gave this car to his wife, but there is no showing that the court’s disposition of the car resulted in the appellee’s receiving* more than one-third of her husband’s personal property, taken as a whole.

III. For a number of years preceding the trial Dr. Riegler practiced general medicine in partnership with his father. In attempting to arrive at the plaintiff’s statutory one-third interest in the partnership property, Ark. Stat. Ann. § 34-1214 (Repl. 1962), the chancellor made specific awards for some items, such as cash on hand and the value of partnership life insurance, and then directed that Mrs. Riegler he given a specified share of accounts receivable as they are collected in the future.

This approach to the problem is wrong. Under the Uniform Partnership Act Dr. Riegler’s rights in specific partnership assets are those of a tenant in partnership. Ark. Stat. Ann. § 65-125 (Repl. 1966). A judgment creditor properly reaches that interest by means of a charging order. Section 65-128. What the chancellor should do is to determine the value of Dr. Riegler’s interest in the partnership, treating the accounts receivable as assets having a provable fair net present value. That determination will result in a monetary decree in the plaintiff’s favor, to be enforced, if necessary, by a charging order. We cannot make the determination ourselves on the record before us, for the proof is far from adequately developed. Further proceedings will be necessary on remand.

IV. There are two disputes about the cash value of insurance policies. One relates to policies owned by the partnership and will therefore be considered on remand, under Part III. The other concerns the value of policies owned by Dr. Riegler individually. The chancellor fixed Mrs. Riegler’s interest in those policies at $8,811.38, deriving that figure from a statement of Dr. Riegler’s assets prepared by his accountant. Mrs. Rieg-ler insists that the court should have considered instead the doctor’s sworn answers to interrogatories propounded to him. Those answers, however, gave the cush values as of November 26, 1965. The accountant stated the values as of May 11, 1966, the date of the divorce decree. The chancellor correctly chose the latter as the controlling date for his determination.

V. The decree for separate maintenance awarded Mrs. Riegler $600 a month “for maintenance of herself and the four children now in her custody.” In the interval between that decree and the one now being reviewed Mrs. Riegler spent a total of $3,187.68 for college educational expenses of her oldest daughter, who was of age when the separate maintenance decree was entered, and for similar expenses of her next daughter, who reached 18 before the rendition of the later decree. The chancellor directed Dr. Riegler to repay $2,749.00 of those outlays.

That direction was an error. Ordinarily a mother who spends more for child support than the court has allowed her cannot recover the excess, because an award of child support ought not be increased retroactively. She should apply in advance for a larger allowance. Gant v. Gant, 209 Ark. 576, 191 S. W. 2d 596 (1946). On the other hand, a father may by contract bind himself to go beyond the decree in supporting a daughter who has reached her majority. Worthington v. Worthington, 207 Ark. 185, 179 S. W. 2d 648 (1944). Mrs. Riegler insists that the proof establishes such a contract on Dr. Riegler’s part.

We do not so find. Dr. Riegler testified, as most fathers would, that he wanted all his children to have a college education. We do not read his testimony, however, as embodying an agreement to pay the expenses now at issue. To the contrary, he said that if he paid for his daughters ’ higher education he expected them to treat him with the respect due a father and to counsel with him about their college training. He complained, among other things, that his oldest daughter had told him to go to hell and had declared that the only thing he had to do with her education was to give her the money to spend as she chose. On the proof as a whole Mrs. Riegler did not sustain the burden of proving an agreement for support over and above the allowance made by the separate maintenance decree.

VI. In 1960 Dr. and Mrs. Riegler borrowed $7,-141.25 from Mrs. Riegler’s aunt, Mrs. Wagar. Both spouses signed a note for that amount, payable to'Mrs. Wagar and Mrs. Riegler jointly (apparently beeanse the money was taken from a joint bank account that seems to have been established by Mrs. Wagar in the name of herself and Mrs. Riegler). At the trial Dr. Riegler insisted that his liability on the note was barred by limitations, but the chancellor rejected that defense, holding that Dr. Riegler’s obligation on the note is still enforceable.

We disagree with that view of the problem. This issue does not involve a division of property owned by the husband. Instead, Mrs. Riegler is contending that her former husband is contractually bound to repay her for money borrowed from her aunt, who died before the trial, without regard to the fact that Mrs. Riegler is a joint maker of the note. No such cause of action was asserted by the plaintiff in her complaint or other pleadings. The proof was not developed with respect to the source of the money borrowed, the extent of the doctor’s obligation, or the circumstances surrounding a part payment by Mrs. Riegler herself which is said to have tolled the statute of limitations. The evidence falls so decidedly short of sustaining Mrs. Riegler’s right to recover upon the note that this aspect of the case must be decided in Dr. Riegler’s favor.

VII. What we have said disposes of most of the points urged by Mrs. Riegler on cross appeal, such as her demand for more alimony and child support, for reimbursement for additional college expenses paid by her, and for an even greater recovery upon the Riegler-Wag’ar note. One remaining- issue on cross appeal is Mrs. Riegler’s request that she recover $654.95 expended by her for medical treatment for the minor children, after the entry of the separate maintenance decree. That decree, however, directed that Dr. Riegler be consulted before medical or dental expenses for his children were incurred. He was not so consulted. He testified without contradiction that he might have obtained the services of his fellow doctors either as a matter of professional courtesy or at a reduced rate if he had been afforded an opportunity to do so. Upon that proof he cannot fairly he saddled with the charges now being asserted.

VIII. We affirm the chancellor’s award of a $3,-500 attorney’s fee to the appellee’s counsel and allow an added $1,000 for their services in this court, to he applied upon their fee.

Affirmed in part, reversed in part, and remanded.

Byrd, J., not participating.


author: Paul Ward, Justice.

text:
    Arnold WOOD d/b/a Arnold Wood Radio and TV Service v. Ned DOWNING
    5-4271
    418 S. W. 2d 800
    Opinion delivered October 2, 1967

      James E. Evans and Curtis E. Rickard, for appellant.

      Bass Trumbo, for appellee.
   Paul Ward, Justice.

This litigation concerns a “lay-a-way” sale of a color television set.

Arnold Wood d/b/a Arnold Wood Radio and TV Service (appellant) is engaged in retailing and servicing radios and TV sets in Springdale.

On January 5, 1966 Ned Downing (appellee) made an agreement with, appellant, at his store, to buy a specific color TV set for the price of $450. He paid $100 down and agreed to pay the balance upon delivery at a later date. The agreed date and term of delivery are in dispute, and this dispute is the issue in question.

Early in May of 1966 appellee went to the store to pay the balance due and pick up the set, and he was informed by appellant that he had sold the set to another person and that he had no other set of the same make. Appellee then demanded the return of the $100; appellant refused, and appellee instituted suit to collect the money.

A trial before the court, sitting as a jury, resulted in a judgment against appellant, and he now prosecutes this appeal.

Appellant’s testimony is, in substance, that: At the time the sale was made at his store it was agreed and understood by both parties that appellee was to pay the balance of $350 and pick up the set within thirty days; he put the set in storage and held it until about the last of April when he sold it to another person, and; appellee did not come back to pay for, and pick up, the set until around the first of May.

Appellee and his wife (who was also present) testified in substance: They informed appellant, when the sale was made, that they were building a house in Springdale and did not want to accept delivery until the house was finished which would be sometime about the first of March; appellee went back in April and told appellant the house was not finished, and was informed the set was in storage; they went back later when the house was finished and were told the set had been sold to another person, and; appellant refused to refund the $100.

The record reveals some corroboration of appellee’s version, (a) Appellant’s wife (who works in his store and was present when the sale was made) admitted she heard something about the construction of the house, (b) Clarence Payne, who was building the house for appellee, is a cousin to appellant, (c) The original sales slip shows these words written on the bottom — ‘ ‘ in cash, no credit”, but these words were not on the copy given to appellee.

In view of the above it is our opinion that the decision of the trial court (sitting as a jury) is supported by substantial evidence. Also we point out that appellant, after the lapse of thirty days from January 5th, was still holding the set in storage and that he did not give appellee notice he intended to sell the same to another party. Under the situation here we think appellee was entitled to a reasonable notice under Ark. Stat. Ann. § 85-2-706 (3) (Add. 1961).

Affirmed.


author: Lyle Brown, Justice.

text:
    The DOWNTOWNER CORPORATION v. COMMONWEALTH SECURITIES CORPORATION
    5-4257
    419 S. W. 2d 126
    Opinion delivered October 2, 1967

      Reinberger, Eilbott, Smith & Staten, for appellant.

      Coleman, Gantt, Ramsey & Cox, for appellee.
   Lyle Brown, Justice.

Appellant, The Downtowner Corporation, based at Memphis, Tennessee, brought this suit to recover on an alleged implied contract existing between Downtowner and appellee, Commonwealth Securities Corporation of Pine Bluff. Whether or not an implied contract in fact was created between the parties is the determining issue before us.

In 1962 Downtowner entered into a licensing agreement with Franklin D. Keith and Robert C. Lowther. That agreement gave the licensees the right to nse the trade name, mark, and design of Downtowner in the operation of a new motel to be constructed by licensees in Pine Bluff. For that privilege, licensees agreed to pay ten cents per day per motel room as a royalty and five cents per day for advertising expenses. There was also a provision for the payment of sign rentals. Licensees also committed themselves to purchase from licensor, or its subsidiaries, practically every item needed in the day-to-day operation of a modern motel. These need not be here itemized but the items of royalty fees, payment for advertising, and for sign rentals are important because recovery is sought for them.

Keith and Lowther proceeded to construct a motor inn of 91 rental units and, as authorized in the licensing agreement, operated under the name of Downtowner Motor Inn. The inn was constructed on land owned by Commonwealth, a long-term lease having been executed between Keith, Lowther, and Commonwealth. The lease payments were subrogated to the construction financing furnished by a savings and loan association. Keith and Lowther became heavily indebted by 1965 to numerous creditors in Pine Bluff and to the parent Down-towner in Memphis. In June of that year, Keith and Lowther quitclaimed all their interest (except the licensing agreement, which was non-assignable) to Commonwealth and ostensibly went to Louisiana.

It was Commonwealth’s decision that the interests of all creditors would best be served if the ‘ ‘ doors could be kept open” until the property could be leased or sold to some experienced and reliable operator. Commonwealth retained Keith’s and Lowther’s manager. The president and secretary of Commonwealth, inexperienced in the hotel or motel business, took the responsibility of looking after financial affairs as best they could.

It was thought wise to first contact Downtowner in Memphis. It was desired that Downtowner purchase the property, or in the alternative, enter into a managerial arrangement. A meeting was set np with R. L. Kirkpatrick, executive vice-president of Downtowner, for July 1, 1965. This was only seven days after Commonwealth had taken over the operation. P. R. Clark, Commonwealth’s secretary, and the innkeeper, represented Commonwealth at the meeting in Memphis.

The Memphis meeting started a series of contacts and negotiations which continued until February 1966. By that time it appeared that a satisfactory arrangement could not he consummated between the parties. During the interim, Commonwealth had purchased and paid for various Downtowner operating supplies and in most respects operated as if it were a part of the Down-towner chain. Late in February 1966, Downtowner notified Commonwealth to remove all evidence of the Down-towner trademark which appeared on innumerable items used in the daily operations. Commonwealth set about to comply. The name was changed to Down Town Motel. Complaint was registered because of the similarity of that name to “Downtowner.” The name was subsequently changed to “Ambassador Motel.”

Suit was filed on or near March 30, 1966, by Downtowner, seeking royalty and advertising fees for the period beginning with June 23, 1965. Additionally, judgment was sought for sign rental accruals. Since there had been no affirmative commitment by Commonwealth to pay any of these charges, this question arises: was a contract implied in fact between the parties 1 That is the thrust of appellant’s argument.

No definition by this court of an implied contract has been called to our attention. However, we have cases on the subject and the holdings there are consistent with the law to be shortly cited. For example, see Worth James v. P. B. Price Const. Co., 240 Ark. 628, 401 S. W. 2d 206 (1966); Caldwell v. Missouri State Life Insurance Co., 148 Ark. 474, 230 S. W. 566 (1921); and Blake v. Scott, 92 Ark. 46, 121 S. W. 1054 (1909).

Confusion has resulted from the interchangeable use of the terms “implied contract” and “quasi-contract.” Quasi-contracts are hot based on promises to pay or perform. They are obligations which are creatures of the law designed to afford justice. Generally, an indispensable element of a contract, express or implied in fact, is a promise.

“This latter class [implied contracts] consists of obligations arising from mutual agreement and intent to promise but where the agreement and promise have not been expressed in words. Such transactions are true contracts and have sometimes been called contracts implied in fact. The elements requisite for an informal contract, however, are identical whether they are expressly stated or implied in fact.” Williston on Contracts, Third Edition, Section 3 (1957).

Restatement recognizes an exception to the rule that a promise must be oral or written, “or must be inferred wholly or partly from such conduct as justified the promisee in understanding that the promisor intended to make a promise.” Restatement, Contracts, % 5 (1932). That exception is stated in § 72 (2):

“Where the offeree exercises dominion over things which are offered to him, such exercise of dominion in the absence of other circumstances showing a contrary intention is an acceptance. If circumstances indicate that the exercise of dominion is tortious the offeror may at his option treat it as an acceptance, though the offeree manifests an intention not to accept. ’ ’

That exception, however, is not here applicable. It should be noted that the exception is predicated on an offer. No offer, written or oral, was ever made by Down-towner of Memphis to Commonwealth which designated a tender of specific services covered by royalties, fees, and sign rentals. We have previously mentioned the July 1 conference in Memphis. Following that, ten letters were exchanged between the two parties over a period of eight months. An operational vice-president of Downtowner, and possibly another official, went to Pine Bluff and visited the property. At no time were royalties, fees, or sign rentals mentioned to Commonwealth officials. It is true that appellant made some monthly hillings addressed “Downtowner of Pine Bluff.” They were not addressed to Commonwealth. Surely, had Downtowner of Memphis been honestly looking to Commonwealth for these hillings, Downtowner would have mentioned the alleged monthly delinquencies to Commonwealth in at least one of the many letters written Commonwealth. Moreover, as' late as January 1966, Downtowner requested of Keith and Lowther that they pay the debts being sought in this suit from Commonwealth.

The circumstances just recited weaken the contention that the billings to Downtowner of Pine Bluff constituted notice to Commonwealth that the latter was expected to pay. Keith’s and Lowther’s licensing agreement with Downtowner of Memphis was in fact not can-celled until March 2,1966. Under the terms of that agreement, Keith and Lowther could not transfer the license to a third party. So it cannot be said that Commonwealth succeeded to the privileges and obligations of that contract. Any obligations arising between the parties in this case had to result from some agreement made between them after July 1, 1965.

When Commonwealth took over the enterprise it is undisputed that only a brief operation was anticipated. Is it reasonable that Commonwealth would want to subscribe to the involved services? The business was already burdened with debt and the interim operation was costly to Commonwealth. Had Commonwealth’s secretary been told at the Memphis meeting that royalty payments, advertising fees, and sign rentals would be required if the name “Downtowner” was used, it is more reasonable to believe that the connection with Down-towner at Memphis would then and there have been, abandoned.

The endeavor of Commonwealth to keep the business open was expected to benefit all the other creditors, including- appellant Downtowner. The Pine Bluff Down-towner was one of its nationwide affiliates. Rehabilitation would mean a retention of that association. It would be profitable to appellant and the supply firms owned by it. The fact that Downtowner, Memphis, had good reason to benefit from continuing its Pine Bluff connection is significant in evaluating the intent of the parties.

Prom what has already been said, our evident holding is that Commonwealth was not guilty of tortious conduct from June 23, 1965, until February 1966. February marks the date Commonwealth was requested to remove all Downtowner signs, marks, trade-marks, and similar indications that the operation was a Downtown-er affiliate.

We now consider the second time period, namely the time during which the name “Down Town Motel” was used. Roughly, that period would be from early March to October 27, 1966. First it should be pointed out that Downtowner uses the words “tortious conduct” and at the same time uses the contract price of $13.65 per day in calculating damages. That is not consistent. Nor is Downtowner’s plea for damages consistent with the record. Commonwealth moved to require Downtown-er to elect between suing on contract and damages for infringement for use of Downtowner’s name. According to the record, Downtowner waived any claim for damages and sought recovery “for the franchise fees for the use of the name.”

Irrespective of the facts just recited, Downtowner has not preponderantly shown an infringement during the second time period. That allegation is based on the similarity of outdoor advertising. In March 1966, Commonwealth directed a painter to change the outdoor signs. Downtowner’s registered “crest,” topped by a crown, was removed along with the crown. That was changed to a simple rectangle. “Downtowner Motor Inn” was removed and the words “Down Town Motel” were placed in the rectangle. The president of Commonwealth explained that the motel was in downtown Pine Bluff; that he was active in a movement of downtown merchants to bring more business into the heart of the business district; hence he thought the name “Down Town Motel” would not only identify its location but would make a contribution to the efforts of organized downtown merchants.

We hold that Commonwealth’s sign was not so deceptively similar to Downtowner’s as to be likely to confusion, to the advantage of Commonwealth. See Dad’s Root Beer Co. v. Atkin, 90 F. Supp. 477 (1950).

Finally, Downtowner seeks to enjoin appellee from future appropriation of Downtowner’s trade name, mark, and design. Commonwealth is not authorized by contract with Downtowner to utilize those registered marks. We see no necessity in issuing an injunction to cover the subject. That matter has apparently become moot.

Our reasons for denying relief to Downtowner do not coincide with the reasons stated by the trial court. Notwithstanding that difference in reasoning, we affirm the result of the trial court. Langley v. Reames, 210 Ark. 624, 197 S. W. 2d 291 (1946).

Affirmed.

Harris, C. J., not participating.


author: John A. Fogleman, Justice.

text:
    John P. CORN v. ARKANSAS WAREHOUSE CORPORATION et al
    5-4265
    Opinion delivered October 2, 1967

      Frank Warden Jr., for appellant.

      James R. Howard and Moses, McClellan, Arnold, Owen & McDermott, for appellees.
   John A. Fogleman, Justice.

Appellant brought this action to quiet his title to a tract of land in the SW¼ NW¼ of Section 14, Township 1 North, Range 12 West in Pulaski 'County described by a metes and bounds description. He claimed title by a quitclaim deed dated February 26, 1962, from the Chicago, Rock Island and Pacific Railroad Company, alleging a claim of title from T. P. Blunt and wife, M. J. (or M. A.) Blunt. Blunt was admittedly a source of title common to the parties. Appellant also claimed title by payment of taxes for seven years under color of title and fifteen years on vacant, wild and unimproved lands. He sought to cancel as clouds on his title any and all documents under which appellees claim to have owned, purchased or redeemed all or any part of the lands.

Appellees filed a. general denial of the allegations of appellant’s complaint and prayed dismissal thereof. The chancellor held that appellant failed to meet the burden of proof imposed upon him and dismissed his complaint for want of equity. This appeal is from that decree.

The lands involved were part of a tract known as the Blunt Five-Acre Tract, being a square in the Southwest Corner of the NW¼ of Section 14, Township 1 North, Range 12 West. The entire tract was purportedly conveyed to W. P. Brady, as trustee, by T. P. and M. J. Blunt, his wife, by quitclaim deed on July 31, 1906, and in turn by Warranty deed executed by Brady and wife to the railroad company on June 6, 1907. The railroad company purported to convey to appellant the lands described in his complaint by quitclaim deed dated February 26, 1962. At that time appellant was admittedly the owner of a one-acre square in the northwest corner of the Blunt tract. The tract described in the deed from the railroad company to appellant contained approximately three-fourths of an acre and lay immediately east of the one-acre tract already owned by appellant. It was bounded on the east by the right-of-way of the Little Rock expressway and on the south by the right-of-way of the railroad company.

It was shown that a one-acre square lying, immediately east of appellant’s one acre in the northwest corner of the Blunt tract had been conveyed by Thomas P. Blunt and M. A. Blunt, his wife, to Belle Anderson by warranty deed on June 26,1884. This deed was recorded in the deed records of Pulaski County on June 29, 1885. On March 6, 1963, one Maria ¡Scott executed a warranty deed conveying a tract which would include all of the tract claimed by appellant under the deed from the railroad. Appellees offered the testimony of one Elisha Jackson, a minister, to establish that Maria Scott was the daughter and sole surviving heir of Belle Anderson. If his testimony be given full credit, the appellees have record title by virtue of the earlier deed from the Blunts for all of the tract claimed by appellant except for a small triangle on the east not included in the one-acre tract conveyed to Belle Anderson.

Appellant attacks the credibility of Jackson and says that no weight should be given to his testimony. He says that the witness’s answer showed confusion and that if he is correct as to the date of death of Belle Anderson, she would have been 100 years old, as indicated by a Pulaski County certificate of marriage of an Isabella Spears to Creen Anderson. It appeared from other conveyances introduced that Green Anderson was the husband of the grantee in the deed from the Blunts. Although at one point on cross-examination, Jackson said that Belle Anderson died three or four years before Green Anderson, he positively testified both on direct and cross-examination that she married after Green’s death and gave other testimony indicating that she survived him. He did not know Green Anderson as -well as he did Belle because the former did not attend church but she did. The witness said he lived within three blocks of them. He did not know whether Maria Scott was Green’s daughter or not. Appellant introduced a deed dated December 11, 1918, from a Bell Anderson, widow of Green Anderson, conveying other lands in the vicinity to one Lula Bowers, recited in the deed to have been the only known blood relative of Green Anderson. The deed also contained a recitation that it was made in fulfillment of a request made by Green Anderson during his last illness. An affidavit by the grantor recorded as a part of this document states he died April 22, 1918. If Maria Scott was not the daughter of Green Anderson, but was the daughter of his wife, legitimate or not, this deed would not necessarily be contradictory to Jackson’s testimony. We cannot say that the trial judge, who saw and heard the witness, should have given this testimony no weight, nor should we entirely discard it here, since the trial court had the opportunity to observe the witness, notice his demeanor in answering questions and his interest or lack of interest in the case. Little v. Holt, 229 Ark. 627, 318 S. W. 2d 157. Appellant was unsuccessful in showing record title in himself to the tract in dispute because of the earlier deed to Belle Anderson, regardless of the weight to be given to the Jackson testimony.

The major thrust of appellant’s argument seems, however, to be based upon the contention that his title should be confirmed because the railroad company had paid taxes on the land for more than fifteen years. He relies on Ark. Stat. Ann. § 37-102 (Repl. 1962) providing that payment of taxes for seven years on unimproved and unenclosed land shall be deemed to be possession if the taxpayer has color of title. He also relies on § 37-103 providing that payment of taxes on such lands for a period of fifteen years creates a presumption that the taxpayer or its predecessor in title held color of title to said land prior to the first payment and that all sue! payments were under color of title.

In this respect he relies on the testimony of one W. A. Nickerson, am abstractor sine© 1962 and prior to that time, Land and Tax Agent for the Chicago, Rock Island and Pacific Railroad Company for 34 years. He was in charge of right-of-way, payment of taxes and other matters pertaining to real estate. Through him various plats were introduced to support Ms testimony that the tract in question was witMm the boundaries of the property in the right-of-way of the railroad, even though he stated that the only purpose for wMch this tract was used was for a borrow pit when they needed dirt in 1944 and again in 1953. He stated that during all the years he was with the railroad the taxes on its right-of-way were always paid by paying each county tax collector the amount of taxes due on railroad properties. These payments were based on. total assessment of miles of trackage, side tracks, buildings and right-of-way real estate as certified by the Arkansas Tax Commission (now Tax Division of the Public Service Commission). The tax receipt for 1935 was introduced as typical. It shows payment of taxes of Choctaw, Oklahoma and Gulf Railroad Company. No description of any property of any Mnd appears on this receipt. TMs witness handled the sale of the property to appellant and saw that the property was taken off the right-of-way description on the tax books. He identified a tax assessor’s description change covering this change. This memorandum purported to list certain lands in Section 14, Township 1 North, Range 12 West wMch had previously been listed on the tax hooks as right-of-way, together with an additional one-acre square and to show new descriptions resulting from the conveyance from the railroad to Corn, the taking of certain highway right-of-way and a deed for a tract from Com to the railroad company. The descriptions of the tracts noted as being right-of-way were void for indefiniteness. There was also introduced a certificate of the county clerk as to certain real property descriptions appearing on the tax hooks for the years 1956 and 1960 and assessed in the name of “C. R. I. & P. RR” and for the year 1962 in the name of John P. Com. These descriptions are also void for indefiniteness, referring to “SW cor of Blount Tract W of QL” and “Pt SW NW of Blounts 5 ac tr”. Rhodes v. Covington, 69 Ark. 357, 63 S. W. 799 ; Teer v. Plant, 238 Ark. 92, 378 S. W. 2d 663. No other evidence as to the payment of taxes by the railroad on the lands included in the right-of-way assessed by the Tax Division of the Public Service Commission or its predecessors was offered. No explanation of the failure to offer the official records showing the land descriptions constituting the railroad right-of-way was given. Under Ark. Stat. Ann. § 84-601 (Supp. 1965) and § 84-603 (Repl. 1960) these properties of a railroad company are to be reported by the railroad to this assessing authority annually.

In addition to the deed from Maria Scott, appellees claim title by virtue of a tax deed from the Commissioner of State Lands dated September 10, 1946. This deed was based upon a forfeiture of a tract described as*“T. P. Blunt 5 acre tract W of Quapaw Line SW¼ NW¼ Sec. 14, T. W of 1 N, Range 12 W, 1.10 acres”, admittedly a description void for indefiniteness. An effort to correct the description was made in the deed. Even if the purportedly corrected description could be said to be sufficiently definite, the state’s title is based upon the description under which the tax sale and forfeiture were had and no title was thereby conveyed. In view of the disposition we make of the case, this deficiency is of little significance.

In a suit to quiet title the petitioner must rely on the strength of his own title, not the weakness of his adversary’s. Lawrence v. Zempleman, 37 Ark. 643; Chapman & Dewey Land Co. v. Bigelow, 77 Ark. 338, 92 S. W. 534 (error dism. 206 U. S. 41, 27 S. Ct. 679, 51 L. Ed. 953); Gibbs v. Pace, 207 Ark. 199, 179 S. W. 2d 690; City of Fort Smith v. Mikel, 232 Ark. 143, 335 S. W. 2d 307; Brown v. Masterson, 240 Ark. 880, 402 S. W. 2d 666. The burden of proof to establish title was upon appellant. Morris v. Breedlove, 89 Ark. 296, 116 S. W. 223; Rushing v. Thompson, 208 Ark. 248, 185 S. W. 2d 941; City of Fort Smith v. Mikel, supra.

Appellant first contends that the decree appealed from, is erroneous “as not deciding the issues between the parties”. This is actually an argument that the case should he tried de novo — an assertion that can hardly be the subject of any dispute. Appellant then contends that his title should he quieted on trial de novo. But, except as to the small triangular tract, we agree with the trial court that appellant failed to meet his burden to show his own title. The record title to the remaining lands is either in appellee Arkansas Warehouse Corporation, or the heirs of Belle Anderson. The testimony of Nickerson is not sufficiently clear to justify quieting appellant’s title by reason of the payment of taxes required by either § 37-102 or § 37-103. The official record of the property included in the assessment of the railroad right-of-way should have shown without question whether these lands were included. The failure of appellant to produce these records or satisfactorily explain this failure may be taken to indicate to the trier of the facts that their production would have revealed evidence adverse to appellant’s position. Failure of a party to produce a written instrument upon which he relies or which would tend to establish an issue of fact, when within his power to do so, creates a presumption that its production would disprove his contention. Ramey v. Fletcher, 176 Ark. 196, 2 S. W. 2d 84; Miss. R. Fuel Corp. v. Young, 188 Ark. 575, 67 S. W. 2d 581; Sparkman Hard wood Lbr. Co. v. Bush, 189 Ark. 391, 72 S. W. 2d 527; Security State Fire Ins. Co. v. Harris, 220 Ark. 900, 251 S. W. 2d 115.

Appellant also asserts that it was incumbent upon defendants to plead and prove whatever grounds for relief they might have. We need not determine what effect, if any, the failure of appellees to assert their title and ask that it be quieted may have upon any future action, but certainly this failure to do so does not entitle appellant to the relief sought by him in spite of his failure to meet his burden of proof.

We find that appellant was. entitled to have his title quieted as to the triangular tract of land included in the deed from the railroad company to appellant lying east of the tract conveyed by the Blunts to Belle Anderson. As to this tract, the decree is reversed and the cause remanded for the entry of a decree quieting title in appellant as against appellees. As to the remainder of the tract, the decree is affirmed.

Byrd, J., disqualified and not participating.

      Another warranty deed executed by Maria Scott on June 1, 1966, subsequent to the filing of this action, was received in evidence. This deed was identical to the first except that it contained a recital that Maria Scott was the sole surviving heir of Belle Anderson.

      The marriage certificate shows that Isabella Anderson was 17 years of age when she married Green Anderson in 1878. Jackson said that she died 13 or 14 years ago. This would have made her 92 years of age, at the most.

      He stated that this was the main line and Hot Springs, branch of the Chicago, Rock Island & Pacific Railroad Company.

      Appellant’s attorney sought to make an explanation in oral argument hut this was not in evidence before the Chancellor nor is it in the record here.


author: J. Fred Jones, Justice. John A. Fogleman, Justice,

text:
    Leo D. ANDERSON v. CITY OF EL DORADO
    5282
    418 S. W. 2d 891
    Opinion delivered October 2, 1967

      Brown, Compton & Prewett, for appellant.

      James Spencer and Don Gillaspie, for appellee.
   J. Fred Jones, Justice.

This is an appeal from the Union County Circuit Court. The appellant was charged with a violation of Ark. Stat. Ann. § 41-1124 (Repl. 1964), which provides as follows:

“Every person who annoys or molests any child is a vagrant and is punishable upon first conviction by a fine of not exceeding Five Hundred Dollars ($500.00) or by imprisonment in the county jail for not exceeding six [6] months or by both such fine and imprisonment and is punishable upon the second and each subsequent conviction by imprisonment in the State Prison not exceeding five [5] years.”

Appellant was first tried and convicted in the El Dorado Municipal Court. He appealed to the Union County Circuit Court and upon a verdict of guilty at a jury trial, the court fixed punishment of a fine in the amount of $250.00 and six months in the Union County jail. In his appeal to this court, the appellant relies on two points for reversal:

“1. The evidence viewed from its highest probative value, is not sufficient to justify a verdict of guilty of the offense charged, as rendered by the jury of six men.
“2. The Court erred in admitting the testimony of O’Neal Griffin of the El Dorado Police Force, wherein he was permitttd to repeat a statement alleged to have been made by the defendant before the Municipal Court affirming a statement he was purported to have made to the police officers immediately following his arrest, and at a time when he had not been apprised of his constitutional rights. ’ ’

We are of the opinion that there was ample evidence to sustain the conviction under the first point relied on by the appellant, but that the judgment must be reversed and the cause remanded for a new trial under the second point.

The precise question presented here, and the one on which we base our decision, is whether or not a confession made to police officers during their investigation and which is barred as admissible evidence under amendment VI of the United States Constitution can, nevertheless, be proven by rebuttal to a denial on cross-examination when offered in the form of a judicial admission at a previous court hearing that such confession had previously been made to the police officers.

The facts in this case briefly are as follows: On the -evening of October 28, 1966, two young brothers, 14 and 12 years of age, had finished with their separate paper routes in El Dorado and had started home traveling separately on their bicycles. The older child had stopped at a newsstand, and as he came out of the newsstand, a man, whom he later identified as the appellant, stopped him and asked if he was making much money on the paper route. The child talked -with the man a few minutes and started on home. When the boy reached a railroad crossing on his way home, the same man was sitting in his automobile stopped at the crossing waiting for a train to cross. The man again spoke to him and offered him Two Dollars to get into the automobile. When the boy refused, the man offered Five Dollars and advised the child of perverted sexual desires. The child refused to get into the automobile but went on home and related the incident to his mother. The mother called the city police and gave them a description of the man and the automobile, including its make, color, and the first two digits of the license number, as related to her by the child. In the meantime, the younger child arrived home, and apparently not aware of his brother’s experience, related a similar offer of Two Dollars, then Five Dollars, to go riding with a man in an automobile of the same description as related by the older boy.

When the appellant was first arrested, he was charged with driving without a driver’s license and was taken to the police station. The boys reiterated to the police officers, in appellant’s presence, what had been said to them and identified the appellant as the one who had said it.

According to Police Officer Brewster, he advised appellant of his constitutional rights against self-incrimination and to the benefits of counsel, after which the appellant admitted he had talked to the boys and had said the things they accused him of saying.

At his trial in the El Dorado Municipal Court, appellant testified in his own defense. He denied in Municipal Court, as well as in circuit court on trial de novo, that he had talked with the boys at all. The primary question at the trial on the merits, concerned the identification of the appellant as the man involved. The boys testified at the trial in circuit court as to what was said to them, and they identified the appellant as the one who had said the things he was accused of saying. We are of the opinion that the testimony of the boys alone, if believed by the jury, was sufficient evidence to sustain the conviction. Cook v. State, 196 Ark. 1133, 121 S. W. 2d 87; Martin v. State, 151 Ark. 365, 236 S. W. 274.

At the trial in circuit court on appeal, and in anticipation of the prosecution offering proof as to a confession made by the appellant to the arresting officers, a hearing to determine the voluntary nature of the confession was properly conducted by the trial court in chambers, out of hearing of the jury. Officer Brewster testified in chambers that the appellant denied at his trial in Municipal Court that he talked with the boys, but did admit in Municipal Court that he had told the police officers that he had talked with the boys. The appellant denied making a confession or any admission of guilt to the police officers and denied being advised at all as to any of his constitutional rights.

At the conclusion of the proceedings in chambers, the trial judge announced his decision as follows:

‘ ‘... It is going to be the ruling of the Court that the admission or confession of this defendant was made voluntary, that it was made without coercion, duress, threat, abuse, enticement, or promise. However, it is not clear to my satisfaction that it was made after he was apprised of his Constitutional rights of an Attorney. That is a burden on the City to prove, therefore, it is going to be the ruling of the Court that such statement was made in response to interrogation without first advising the defendant of his right to counsel and, therefore, inadmissible.”

In anticipation that the prosecution might attempt to prove that the appellant had testified in Municipal Court that he had confessed his guilt to the arresting officers, the appellant’s attorney sought a ruling of the court on admissibility, and the court ruled as follows:

“I don’t see why such statement is inadmissible. I think that any statement made in open court is a judicial statement and if he now denies such statement, the 'City may prove same, after laying a foundation and further, such statement is not collateral.”

Upon returning from chambers and resumption of the trial before the jury, the appellant testified in his own behalf as to his activities and whereabouts during the day and night before and after his arrest, and on cross-examination, over the objections of the appellant, he was asked questions and gave answers as follows:

‘ ‘ Q. Did you testify in Municipal Court at the time you were tried before Judge Ragsdale?
A. Yes, sir.
Q. Did you say that time you admitted doing what you are accused of doing here?
A. No, sir.
Q. You did not?
A. No, sir.
Q. You are sure of that?
A. I told him I was not guilty of that charge his officers placed on me.
Q. I asked you if you made a statement then. But you have previously made a statement that you had done what you are here accused of; have you stated that you made no such statement in Municipal Court?
A. I did not say I was guilty in Municipal Court.
Q. That’s not exactly what I asked and I think you are smart enough to know the difference. What I asked you is did you make a statement in Municipal Court what you said you had previously admitted the charges that are here brought against you in Municipal Court?
A. No, sir.”

At the close of the defendant’s evidence, the prosecuting attorney then called Officer O’Neal Griffin as a witness in rebuttal and, over the objections of the appellant, he was questioned and gave answers as follows:

“Q. Did you [sic] make any statement in Municipal Court?
A. He said that he had told us that he did talk to the hoys.
Q. Did he say anything about whether he had talked to them along the line that they had accused him of talking to them?
A. He said he had.”

Amendment VI to the Constitution of the United States is as follows:

“In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation ; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense.” (Emphasis supplied.)

Article 2, § 10 of the Arkansas State Constitution is as follows:

“In all criminal prosecutions the accused shall enjoy the right to a speedy and public trial by impartial jury of the county in which the crime shall have been committed; provided that the venue maybe changed to any other county of the judicial district in which the indictment is found, upon the application of the accused, in such manner as now is, or may be, prescribed by law; and to be informed of the nature and cause of the accusation against him, and to have a copy thereof; and to be confronted with the witnesses against him; to have compulsory process for obtaining witness in his favor, and to be heard by himself and his counsel. ’ ’

At the close of the hearing in chambers, the learned trial judge correctly stated the law pertaining to the admission of confessions in the prosecution of criminal cases. We agree with the trial court’s opinion announced in chambers that the confession accredited to the appellant by Officer Brewster was made before appellant had been apprised of his right to counsel, and that the statement was, therefore, inadmissible under the United States Supreme Court decision of Miranda v. Arizona, 384 U. S. 436, 16 L. Ed. 2d 694.

Even before Miranda, in the case of Dement v. State, 236 Ark. 851, 370 S. W. 2d 191 (1963), this court said:

“It is well settled that under the Fourteenth Amendment of the United States Constitution and Article 2, § 10 of the Constitution of Arkansas acceptance of a plea of guilty without first giving or offering the accused benefit of counsel constitutes a denial of due process of law.”

In that case we cited Carnley v. Cochran, 369 U. S. 506, 82 S. Ct. 884, where it was stated:

“... the record must show, or there must be an allegation and evidence which show, that an accused was offered counsel, but intelligently and understandingly rejected the offer. Anything less is not a waiver.”

Thus it is seen that under amendment VI, supra, the right to the assistance of counsel for defense in a criminal prosecution, is a right to have the assistance of counsel, and since Miranda v. Arizona, supra, there is no question this right to have the assistance of counsel is of the same dignity as the other rights the accused shall enjoy under amendment VI.

As a general rule the trial court was correct in holding that a statement made in open court is a judicial statement and admissible as evidence against the accused at a subsequent trial, Barnhardt v. State, 169 Ark. 567, 275 S. W. 909, hut this is not true when the statement was inadmissible as in violation of constitutional rights in the first place.

The case of Bayless v. United States, 150 F. 2d 236, is a case in point. In that case, Bayless signed a confession to bank robbery when he was arrested. He pled guilty in court and was sentenced. At a hearing on a petition for habeas corpus, the court found that the defendant had not intelligently waived his right to counsel and had not been advised of his constitutional right to counsel. His plea of guilty was held void and he was granted a new trial. At the subsequent trial, Bayless was asked on cross-examination if he had previously confessed and if he had not previously entered a plea of guilty. In again reversing the conviction, the Eighth Circuit Court of Appeals said:

“The fact that this tainted evidence was offered as part of the cross-examination of defendant, is, we think, quite immaterial. The coerced confession and plea were used to convict the defendant, and as said in Malinski v. People of the State of New York, supra, ‘Constitutional rights may suffer as much from subtle intrusions as from direct disregard.’
“We again point out that here the confession and plea of guilty have been adjudged to be coerced, and hence, - there seems to be no escape from the conclusion that the conviction based, we must assume, in part at least upon this tainted evidence can not stand. The judgment appealed from is therefore reversed and the cause remanded with directions to grant defendant a new trial.”

We are of the opinion that the trial court was correct in holding that the statement made by the accused “was made in response to interrogation without first advising the defendant of his right to counsel and, therefore, inadmissible.”

We are of the further opinion that when the front door was thus barred by constitutional amendment, and properly closed to the admission of the proposed evidence by the trial court in this case; that same evidence could not be entered through the back door disguised in the robes of a judicial admission.

For the error indicated, the judgment of the trial court is reversed and this cause remanded to the Union County Circuit Court for a new trial.

Reversed and remanded.

Harris, C. J. and Fogleman, J., concur.

John A. Fogleman, Justice,

concurring. I concur in the result, but am not willing to accept all the inferences that might be drawn from the majority opinion. Appellant was arrested on Thursday, October 27th, and while at the police station he made several telephone calls. He was released on bond at 5 a.m. on Friday and went home. He returned to El Dorado Municipal Court that afternoon and announced ready for trial.

This evidence offered was not that of a statement made during in-custody interrogation. As a voluntary statement made while testifying in open court or a comment during the course of arraignment and trial when there was available to him all the safeguards which a court can afford, I do not think this would have been prohibited by the Miranda decision. Appellant had been released from custody, had the opportunity to avail himself of the services of counsel and doubtless would have been allowed additional time to do so had he needed it. Yet, I agree that the testimony should have been excluded, after objection, because there is no showing of the circumstances under which this statement was alleged to have been made in the Municipal Court. If made on cross-examination after objection, it would have been inadmissible in my opinion. But if made under circumstances showing it to be voluntary, I would hold otherwise. Under the Miranda decision the burden is on the prosecution to establish a knowing and intelligent waiver of constitutional rights, and I think this rule should be applied here.

I want to make it clear that I deem it unnecessary to appoint counsel for indigent defendants on misdemeanor charges. I fear that some of the language in the majority opinion might be taken as an expression of such a necessity, although I do not think it is so intended.

I am authorized to state that the Chief Justice joins in this opinion.


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    Thorp THOMAS et al v. STATE of Arkansas
    5266 through 5273
    418 S. W. 2d 792
    Opinion delivered October 2, 1967

      Alston Jennings, for appellants.

      Joe Purcell, Attorney General; Don Langston, Asst. Atty. Gen., for appellee.
   Conley Byrd, Justice.

The appellants, Thorp Thomas, Chester Boyer, Leon Brents, Charles F. Wells, Everett Hamm Jr., and Gene Wirges, bring their separate appeals, consolidated here, challenging the authority of the trial court to assess court costs against them upon dismissal of criminal charges against them.

Except for the insertion of the individual names of appellants, the orders entered by the trial court read, ‘ ‘... it is by the Court . . . ordered . . .that the indictment against the said Thorp Thomas be dismissed and that Thorp Thomas be discharged, upon payment of costs.”

The order assessing court costs against the defendant upon dismissal of the indictment is void and of no effect, Melton v. State, (Ala. Ct. of App.) 1 So. 2d 920 (1941), and is a violation of due process of law, Giaccio v. Pennsylvania, 382 U. S. 399 (1966). Nor was any objection necessary since the court exceeded its authority, Sibley v. Leek, 45 Ark. 346 (1885).

Reversed and dismissed.


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    Carl WIDMER v. J. I. CASE CREDIT CORPORATION
    4266
    Opinion delivered October 2, 1967
    [Rehearing denied November 13, 1967.]

      Carl Widmer, pro se.

      Charles R. Garner, for appellee.
   Conley Byrd, Justice.

This action by appellee, J. I. Case Credit Corporation, against appellant, Carl Widmer, was previously before this court in Widmer v. J. I. Case Credit Corp., 239 Ark. 12, 386 S. W. 2d 702 (1965). After remand a trial on the merits was had, resulting in a judgment for appellee as assignee of a note executed by appellant to Fort Smith Tractor Company, Inc., for farm equipment. This appeal is on a partial record containing only the mandate of this court from the previous appeal; appellant’s answer; numerous requests for admissions of fact; the answers given thereto; the interlocutory orders of the trial court; motions for summary judgment and notwithstanding the verdict; and the final judgment. For reversal, appellant contends that the note was usurious and that appellee is unable to enforce the contract because it is an unlicensed foreign corporation doing business in Arkansas contrary to Ark. Stat. Ann. § 64-1202 (Repl. 1966).

The note sued on is not usurious on its face. Appellant’s contention of usury is based on two propositions: (1) that one of the pieces of farm equipment was not delivered to him because it was not received by the seller, or its successor, until after appellant was in default, and (2) that less of each payment should have been applied to interest and more to principal. We find both contentions to be without merit. On the first point, we have held that institution of a suit for more than a party is entitled to does not constitute usury. Mid-State Homes, Inc. v. Knight, 237 Ark. 802, 376 S. W. 2d 556 (1964). The record shows that the trial court’s judgment gave appellant credit for the undelivered machinery. On the second point, appellant errs in the method by which he applies his installment payments- to principal and interest, for the lender is entitled to apply the payment first to the interest due on the total indebtedness, and the balance, if any, to the principal. Hare v. General Contract Purchase Corp., 220 Ark. 601, 605, 249 S. W. 2d 973 (1952).

With respect to the other issue, the requests for admissions of fact readily show that appellee is an unlicensed foreign corporation doing business in Arkansas contrary to the provisions of § 64-1202, supra. However, the negotiable paper here sued upon was not executed directly to appellee but was given to the Fort Smith Tractor 'Company, Inc., of Fort Smith, Arkansas. There are no facts in the record to show that the assignment from Fort Smith Tractor Company, Inc., to appellee was made in the state of Arkansas.

The penalty provision of Ark. Stat. Ann. § 64-1202 (Repl. 1966) provides:

“. . . any foreign corporation which shall fail or refuse to file its articles of incorporation or certificate as aforesaid, cannot make any contract in the State which can he enforced by it either in law or in equity, . .”

Thus it is seen that the penalty provision applies only to contracts made in this state, and that, being penal in nature, it must be strictly construed in favor of those against whom the penalty is sought, Alexander Film Co. v. State ex rel. Phillips County, 201 Ark. 1052, 147 S. W. 2d 1011 (1941).

Therefore, since appellant failed to show that the assignment between Fort Smith Tractor Company, Inc., and appellee was entered into in the state of Arkansas, the trial court properly overruled his motion for summary judgment on this issue.

In this respect, we point out that upon this partial record, appellant complains only of the trial court’s failure to grant his motion for summary judgment, and of course upon a motion for summary judgment the burden is upon the movant to show that no justiciable issues exist, Ark. Stat. Ann. § 29-211 (Repl. 1962)., If the designation of the points to be relied upon on appeal had been sufficient to reach the trial court’s finding on this issue, the burden of showing its right to maintain its action would have been upon appellee, Miellmier v. Toledo Scale Co., 128 Ark. 211, 193 S. W. 497 (1917).

Affirmed.


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    OLD AMERICAN LIFE INS. CO. v. UNION NATIONAL BANK exec.
    5-4294
    419 S. W. 2d 122
    Opinion delivered October 9, 1967

      Jack Young, for appellant.

      Billy L. Satterfield, for appellee.
   Carleton Harris, Chief Justice.

William V. Browning purchased a hospitalization policy from the Southern Union Life Insurance Company, making application for same on January 21, 1965. The policy obligations of Southern Union were assumed by Old American Life Insurance Company prior to the filing of this action. The application was taken by K. L. McGuire, described by appellant in its statement of the case as “a special agent of Southern Union with authority to solicit applications for insurance.” At the time of making application, Browning paid an enrollment fee of $10.00, and an amount equal to a month’s premium ($9.95). On J anuary 27, 1965, the policy was issued, and was delivered to Browning by McGuire the next day. On this date McGuire also collected from Browning the sum of $109.45, representing eleven months ’ premium under the policy.

There is a clause in the policy which provides that certain diseases, and surgery resulting from sickness, are covered after six months if the policy is issued on a monthly basis; covered after three months if same is issued on a quarterly basis, after forty-five days if issued on a semi-annual basis, and coverage is provided after only fifteen days if the policy is issued on an annual basis. On April 28, 1965, more than fifteen days after the issuance of the policy, but less than six months from January 27, 1965, Browning was hospitalized for surgery for a bleeding ulcer, and the question at issue in this litigation is whether coverage existed. The parties have stipulated that, if coverage was in effect, the company was obligated in the sum of $1,467.02, exclusive of penalties, attorneys fees, and costs. The company denied liability, and suit was instituted by Browning. On trial, the Pulaski Circuit Court (Second Division), sitting as a jury, found as follows:'

“That the Plaintiff and the Defendant entered into a contract or policy of insurance and at the time the policy in question was delivered to the Plaintiff, the Plaintiff was given a receipt dated January 28, 1965, which stated:

‘RECEIVED OF Mr.’William Browning $119.40 plus $10.00 for the first 12 month’s cost beginning with the date of the policy.’

The policy itself states that the insured will be ‘covered after 15 days if issued on an annual basis.’ The policy provided for a 6 months’ waiting period if issued on a monthly basis.

The Court finds that by paying the 12 months’ costs, or annual premium, the insured was covered by the 15 day waiting period instead of the 6 months’ waiting period. The Court further finds that the insurance company was estopped by the action of its agent to deny that the 15 day waiting period was in effect.

The parties stipulated that:

‘K. L. McGuire was, on January 28, 1965, an agent for Southern Union Life Insurance Company, acting for them in binding the company on the aforementioned contract.’ ”

Judgment was rendered against Old Américan Life Insurance Company in favor of Browning in the amount of $1,467.02, plus 12% penalty, attorney’s fee in the amount of $485.00, and costs in the sum of $11.80. From the judgment so entered, appellant brings this appeal. For reversal, it is urged that' the court erred in admitting’ testimony of oral statements and representations tending to change or modify the written documents, and further, that the court erred in concluding that the agent • had authority to contract outside the written terms of the policy of insurance.

Over objections, the court permitted Browning to testify that Mr. McGuire, and another representative of Southern Union Life Insurance Company, talked with him about purchasing a policy. Browning stated that they did not have a sample of the policy with them; he desired to see one before making the purchase, and they agreed that he would pay his enrollment fee and a month’s premium, which would enable the policy to be issued: Browning testified that he was told that if he bought the policy for only a month, there would be a six months’ waiting period, while if he paid a year’s premium, there would only be a fifteen day waiting period. Browning stated that he did not want any policy for just one month, but wanted to pay his premium for twelve months. In line with this conversation, he gave McGuire a check for $19.95, representing the enrollment fee and a month’s premium, it being understood that the balance of the year’s premium would be paid when the policy was delivered. One week after the application was submitted, McGuire took the policy to Browning, and the latter then gave the agent a check in the amount of $109.45, payable to the Southern Union Life Insurance Company, representing the full premium for one year. McG-uire then gave to Browning a company receipt (the name of the company appearing in print at the top, together with its address), which shows that he received of the policyholder “$119.40, plus $10.00 for the first 12 months’ cost, beginning with date of the policy.” The record reflects that both checks given by Browning were presented to the Union National Bank, and were stamped by the bank, “paid.” This was all the proof offered in the case, Browning’s testimony being undisputed.

Appellant argues that the court erred in permitting this oral testimony; that there are no ambiguities in either the application, or the policy, and the written contract between the parties cannot be varied by oral evidence. The application itself does not state at any place that Browning was applying for a policy that would be paid monthly. A box at the top of the lefthand corner of the page reflects monthly payments to be $9.95, quarterly payments, $29.85, semi-annual payments, $59.70, and annual payments, $119.40. This certainly shows that one can obtain a policy for any of these periods. At the bottom of the page, there is a notation by McG-uire showing that one month’s premium had been paid. On the face of the policy, there is a schedule showing (as in the application) the amount of one month’s premium, three months’, six months’, and twelve months’. The effective date is shown to be January 27, and the initial term is shown as expiring on February 27. It is appellant’s contention that the payment of the premium for eleven months was simply, under the policy, the payment of eleven renewals in advance.

Let it here be pointed out that, though appellant, in its statement of the case, says that McGuire was “a special [our emphasis] agent,” the italicized word does not appear in the stipulation entered into between the parties. The stipulation simply reads, as set out in the court judgment, “K. L. McGuire was, on January 28, 1965, an agent for Southern Union Life Insurance Company, acting for them and binding the company on the aforementioned contract.” The company argues that McGuire was only authorized to .sell insurance and deliver policies. It will be noted however, that there is nothing in this stipulation which sets out that McGuire’s authority was limited in any manner. While the stipulation recites that McGuire was acting for the company in binding it on the contract, there is no language which indicates that this represented his full authority. We think that, to say the least, under all the circumstances, there is an ambiguity here which creates a question of fact, i. e., what was the authority of McGuire in the instant case? Of course, juries (or the 'Circuit Court sitting as a jury) determine fact questions.

Under the stipulation relative to agency, the company receipt given to Browning by McGuire on January 28 (one day after the policy became effective) showing payment of a year’s premium, and the other facts herein mentioned, we think a question of fact was presented to the court relating to the authority possesssed by the agent. The court decided this question adversely to appellant company, and we are unable to say that there was no substantial evidence to support the findings.

Affirmed.

      Browning has since died, and Union National Bank, executor of his estate,' has been substituted as party plaintiff.

      While the record definitely shows that the checks made out to the company were paid, there is no evidence as to whether the company tendered a refund of any part of the last amount paid.


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    Calvin DAVIS v. STATE of Arkansas
    5289
    419 S. W. 2d 125
    Opinion delivered October 9, 1967

      Kenneth Coffelt, for appellant.

      Joe Purcell, Attorney General; Don Langston, Asst. Atty. Gen., for appellee.
   George Rose Smith, Justice.

The trial court, sitting without a jury, found the appellant guilty of robbery and sentenced him to three years imprisonment. For reversal it is contended that the court erred in admitting proof of an oral confession made by the accused while he was being questioned by four police officers.

At about nine o’clock on the night of February 14, 1966, a man armed with a pistol held up the clerk in a Little Rock liquor store and took about $100 in cash and a bottle of whiskey. At about midnight the North Little Rock police arrested the appellant, Calvin Davis, and his companion, George Overton, who was wanted for several robberies. Davis was then nineteen years old and bad no prior criminal record. The two were riding in a pick-up truck that belonged to Davis’s employer and was being driven by permission.

Overton eventually pleaded guilty to the offense now in question and to four other robberies. In the court below, however, Overton exonerated Davis of any complicity in the offense with which Davis was charged. Overton testified that he alone committed the robbery while Davis waited in the truck and that Davis knew nothing about it. Davis’s testimony was to the same effect. The principal evidence connecting Davis with the crime was his asserted in-custody confession, in which he admitted that he knew that Overton entered the liquor store with the intention of committing robbery.

As we have said, Overton and Davis were picked up in North Little Rock at about midnight. An hour or so later they were turned over to the Little Rock police, who questioned them separately at about two o’clock in the morning. According to the ’State’s proof the officers warned Davis of his right to remain silent and of his right to an attorney. After having been so warned Davis at first said that he did not want to tell what had happened. The officers nevertheless continued the interrogation. Davis then said that he was willing to discuss the case but that he would rather not sign anything. The officers soon elicited the oral confession that constituted the principal evidence against Davis at the trial.

Under the ruling in Miranda v. Arizona, 384 U. S. 436 (1966), the alleged confession was plainly inadmissible. There the court, after detailing the officers’ duty to warn a suspected person of his constitutional rights; went on to say: “Once warnings have been given, the subsequent procedure is clear. If. the individual indicates in any manner, at any time prior to or during questioning, that he wishes to remain silent, the interrogation must cease. At this point he has shown that he intends to exercise his Fifth Amendment privilege; any statement taken after the person invokes his privilege cannot he other than the product of compulsion, subtle or otherwise.” Here the State’s own proof shows that the rule just quoted was violated by the officers who interrogated Davis. His asserted confession was therefore inadmissible.

Reversed and remanded.


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    PIGGOTT STATE BANK v. POLLARD GIN CO.
    5-4275
    419 S. W. 2d 120
    Opinion delivered October 9, 1967

      Gus R. Camp, for appellant.

      Kirsch, Cathey & Brown, for appellee.
   George Rose Smith, Justice.

The one question in this case is whether the plaintiff-appellant bank, in lending $1,200 to Denzil Karnes upon the security of crops to be grown by him during the ensuing year, inserted in its combined Financing Statement and Security Agreement a description of the crops sufficient to put third persons on notice under the Uniform Commercial Code. The chancellor held the description to be fatally defective and accordingly dismissed the bank’s suit for conversion against the appellee gin company, which had bought the cotton crop from Karnes.

This is the description used in the Financing Statement and Security Agreement: “'CROPS. All of the following crops to be planted or growing within one year from the date hereof on the lands hereinafter described: 7 acres of cotton and 53 acres of soybeans to be produced on the lands of S. E. Karnes; 11.6 acres of cotton and 50 acres of soybeans to be produced on the lands of Mary Gilbee; 4½ acres of cotton and 11 acres of soybeans to be produced on the lands of George Nixon; all of the above crops to be produced in Clay County, Arkansas during the year 1965.”

We agree with the chancellor’s conclusion. With respect to crops the Code requires, both as to the financing statement and as to the security agreement, that there be a description of the land that is involved. Ark. Stat. Ann. §§ 85-9-203 and 85-9-402 (Add. 1961). The description “is sufficient whether or not it is specific if it reasonably identifies what is described.” Section 85-9-110. The Commissioners’ Comment to the latter section states: “The test of sufficiency of a description laid down by this Section is that the description do the job assigned to it — that it make possible the identification of the thing described.”

Here the description referred merely to seven acres of cotton to be produced on the lands of S. E. Karnes (together with two other similar references). Neither the security instrument nor the proof adduced at the trial sheds any light whatever upon the questions (a) whether Denzil grew exactly seven acres of cotton on the S. E. Karnes land in 1965 and (&) whether anyone else was also growing cotton upon the S. E. Karnes land. We need not speculate upon what might hare been the posture of the case if both these possibilities had been explained, for that is not the situation before us.

X>f course we do not cite as controlling authority decisions of this court that were handed down many years before the enactment of the Commercial Code. Yet we have no hesitancy in relying upon such decisions when they help us to decide whether, in the language of the Code, a description “reasonably identifies what is described.” We have said more than once that “a mortgage of a specified number of articles out of a larger number will not be allowed to prevail, unless it furnishes the data for separating the property intended to be mortgaged from the mass.” Krone & Co. v. Phelps, 43 Ark. 350 (1884): Dodds v. Neel, 41 Ark. 70 (1883). That principle is so reasonable and so plainly applicable to the case at hand that we see nothing to be accomplished by a more extended discussion of the matter.

Affirmed.