author: Paul Ward, Associate Justice. Sam BobiNSON, Associate Justice.

text:
    Arkansas State Board of Architects v. Clark.
    5-988
    291 S. W. 2d 262
    Opinion delivered July 11, 1956.
    [Rehearing denied July 2, 1956.]

      Mehaffy, Smith & Williams and B. S. Clark, for appellant.

      Fiets & McAdams and Barrett, Wheatley, Smith & Beacon, for appellee.
   Paul Ward, Associate Justice.

The appellant is the Arkansas State Board of Architects, created by Act 270 of the Acts of Arkansas for 1941 (Ark. Stats. § 71-301 et seq.) Appellant will hereafter be referred to as the Board. Appellees, T. J. Clark and C. L. Adkison are residents of Jonesboro, Arkansas. Two separate suits were filed in the chancery court, one against each of the above named appellees, but the allegations and the issues in both suits are essentially the same and we shall hereafter treat them as one suit against both appellees.

On May 25,1955 tibe Board filed a complaint against T. J. Clark stating:

“The defendant prepared plans and specifications for the construction of an elementary school in Nettle-ton, Craighead County, Arkansas for the Nettleton-Phil-lips School District, the construction cost of which will amount to approximately $60,000.00. The defendant is not licensed to practice architecture in Arkansas as required by the provisions of the Arkansas Architectural Act, Act 270 of 1941, Section 71-301 et seq., Arkansas Statutes 1947, annotated.”

The prayer was to enjoin Clark “from the further preparation of any plans or specifications pertaining to the construction” of the said school building; and “from practicing architecture in any manner in the State of Arkansas without first being licensed as required by law. ’ ’

On August 15,1955 Clark filed his Motion to Dismiss for the reasons that: (a) The complaint fails to state grounds upon which injunctive relief is authorized; (b) The plaintiff has an adequate remedy at law, and; (c) The plaintiff seeks to enjoin an alleged crime.

On October 31, 1955 the cause was submitted to the trial court on appellees ’ Motion to Dismiss, no testimony being taken. The trial court found that Act 270 of 1941 provides substantial legal remedies for its own enforcement, that it contains no provision for injunctive relief against violators, and accordingly dismissed the complaint.

Act 270 mentioned above contains, among other provisions, the following: Division II Section 1 states that “in order to safeguard life, health and property, no person shall practice architecture in this State . . .” unless he shall have secured a license to do so. Division VII Section 1 provides that any person who shall practice or offer to practice the profession of architecture in this state without being registered, etc. shall be guilty of a misdemeanor and shall, upon conviction, be sentenced to pay a fine of not less than $50 nor more than $500 or suffer imprisonment for a period not exceeding three months, or both, each day of such unlawful practice to constitute a distinct and separate offense.

This court has had many occasions to consider the power of the chancery courts to issue injunctive relief in situations somewhat similar to those presented by this case. Some of the cases in which injunctive relief has been upheld by this court are Van Hovenberg v. Holman, 201 Ark. 370, 144 S. W. 2d 718; Ritholz v. Arkansas State Board of Optometry, 206 Ark. 671, 177 S. W. 2d 410; Meyer v. Seifert, 216 Ark. 293, 225 S. W. 2d 4, and Arkansas Bar Association v. Union National Bank, 224 Ark. 48, 273 S. W. 2d 408.

Two of the cases in which this court has denied in-junctive relief are State v. Vaughan, 81 Ark. 117, 98 S. W. 685, and State, Ex Rel. Robinson, Prosecuting Attorney v. Crown, 211 Ark. 67, 199 S. W. 2d 323.

Our decisions seem to be in harmony on certain general principles regarding the power of courts of equity in the injunctive field. In the Vaughan case, supra, the following statement was approved: “It is no part of the mission of equity to administer the criminal law of the state . . . except so far as the same may be in-, cidental to the enforcement of property rights, and perhaps other matters of equitable cognizance.” Again it-was stated: “A chancellor has no criminal jurisdiction. Something more than the threatened commission of an offense against the law of the land is necessary to call into existence the injunctive powers of the court. There must be some interferences, actual or threatened, with property or rights of a pecuniary nature; but when such interferences appear the jurisdiction of a court of equity arises and is not destroyed by the fact that they were accompanied by or are themselves violations of the criminal law.” Substantially the same pronouncements were made in the Meyer case, supra, after which the court quoted with approval, ‘ ‘ ‘ On the other hand, if the public nuisance is one touching civil property rights or privileges of the public or the public health is affected by a physical nuisance or if any other ground of equity jurisdiction exists calling for an injunction, a chancery court will enjoin notwithstanding the act enjoined may also he a crime. The criminality of the act will neither give,nor oust jurisdiction in chancery.’ ”

In this case appellant stresses the fact that, even though property rights may not he endangered, the health and safety of the general public are in danger, calling attention to the purpose stated in said Act 270 as set forth above. Appellant recognizes in its brief that it is necessary to show that “(a) the illegal practice of architecture amounts to a public nuisance, and (b) the illegal practice affects public health and safety.” It is noted here that appellant merely alleges that Clark prepared plans and specifications for the construction of the school building and that he was not licensed to practice architecture in Arkansas as required by said Act 270, there being no allegations that Clark was incompetent to prepare such plans or that his conduct created a nuisance or in any way endangered the public health and safety.

Our interpretation of the cases above mentioned in which injunctive relief was granted does not justify appellant’s contention for a reversal in this case. The cases mentioned are distinguishable from the case under consideration because of the facts or the law involved. In the Van Hovenberg case, supra, appellee was attempting to build a filling station in the City of Texarkana in violation of a city ordinance and injunctive relief was granted, after the taking of testimony, on the ground that individual property rights were involved. In the Rithols case, supra, appellant was enjoined from practicing optometry in violation of Act 94 of 1941. The injunction was issued after evidence was taken and the case decided on its merits. Said Act 94, regulating the practice of optometry, provided in Section 8 that the Board had a right to bring a suit.to enforce or restrain the violation of any provisions of the act, and Section 15 provides that any violation of the act may be enjoined in the chancery courts of this -state. Neither of these provisions appears, in the act under consideration. This court approved an injunction in the Meyer case, supra, after a hearing on the facts, against one attempting to erect a nonfireproof building within the limits of the fire zone district. The decision rested on a substantial showing of property damage to the plaintiff’s property and adjoining property through an increased fire-hazard. In the Arkansas Bar Association case, supra, injunctive relief was granted on the merits after a full hearing on testimony and the question of the court’s power to grant injunctive relief was not raised in the trial court or in this court.

Since appellant makes no allegation that the acts complained of in this case constitute a nuisance or a threat to the public health and welfare, it must rely upon the wording of the Act itself to supply this deficiency. However Act 270 does not declare the illegal practice of architecture to be a nuisance, and even if it did that alone would not necessarily make it such. In a long line of cases this court has held, with reference to municipalities, that the declaration in a city ordinance that certain acts constitute a nuisance does not make them such in fact. In Ward v. City of Little Rock, 41 Ark. 526, at page 529, this court said: “The ordinance prohibiting the working of convicts in the city and declaring the same a nuisance, was wholly ineffectual for any purpose.” At page 530 we said: “But this does not authorize the council to condemn any act or thing, as a nuisance, which, in its nature, situation or use does not come within the legal notion of a nuisance.” In DeWitt v. Lacotts, 76 Ark. 250, 88 S. W. 877, this court said: “Those statutes endow municipal corporations with power to prevent and abate nuisances, but they do not authorize the declaration of anything to be a nuisance which is not so in fact.” Similar declarations were made in Lonoke v. Chicago, Rock Island & Pacific Railway Company, 92 Ark. 546, at page 551, 123 S. W. 395; Town of Dardanelle v. Gillespie, 116 Ark. 390, at page 393, 172 S. W. 1036; Bryan v. City of Malvern, 122 Ark. 379, at page 381, 183 S. W. 957; Merrill v. City of Van Buren, 125 Ark. 248, at page 254, 188 S. W. 537; Wilkins v. City of Harrison, 218 Ark. 316, at page 320, 236 S. W. 2d 82, and; City of Springdale v. Chandler, 222 Ark. 167, at page 168, 257 S. W. 2d 934.

After a careful consideration of the various expressions by this court on questions similar to the one presented here, we have concluded that the chancellor was right in refusing injunctive relief on the allegations contained in appellant’s complaint, for the principal reason that Act 270 itself provides an adequate remedy. If Clark and Adkison are in fact violating the provisions of the act under consideration they are subject to a fine up to $500 or 90 days imprisonment, and each day of violation constitutes a separate and distinct offense. This, in effect, is the holding in the case of State, ex rel. Robinson, Prosecuting Attorney v. Crow, supra. There, the prosecuting attorney filed a suit to enjoin the State Board of Chiropractic Examiners from issuing licenses by reciprocity to applicants to practice in that field without requiring such applicants to present a certificate of ability in the basic sciences. A demurrer was filed to the complaint, and it was sustained by the trial court. Upon appeal this court sustained the action of the trial court. The act involved in that case'was No. 147 of the Acts of 1929 which provided pénalties for its violation. After setting out the penalties provided for in the act this court stated:

“So it is manifest that the Basic Sciences Act provides a plain and adequate remedy at law for the enforcement of its provisions without any necessity of applying to a court of equity to restrain a violation of the Act. Assuming without deciding that the State Board of Chiropractic Examiners is in error in licensing by reciprocity applicants from other States to practice chiropractic in this State without first requiring the presentation to it by such applicants of a certificate from the Basic Sciences Board, we think appellant should have pursued the enforcement remedy provided in the Act.” Following the above the court said: “ ... the act prescribed the method of enforcement by prosecution and there is no necessity of resorting to the extraordinary remedy by injunction.”

In the well considered case of Smith v. Hamm, 207 Ark. 507, 181 S. W. 2d 475, this court, in considering the power of chancery courts to grant injunctive relief in nuisance cases, made announcements which we think are applicable to the case under consideration. In that case certain parties sought to enjoin the activities of other parties which were punishable by the criminal law but which were alleged to be a nuisance. The trial court sustained a demurrer to the complaint. This court, in sustaining the action of the trial court on the ground that injunctive relief was not proper, made these statements: “The fact that appellee’s conduct was of a character to constitute a nuisance is not within itself sufficient to authorize the use of an extraordinary process of injunction for the abatement thereof.” Following the above quote the court cited cases and quoted with approval the general rule found in 28 Am. Jur. 339, Injunctions, § 150. Contained in this quotation is the following: “In order, however, to obtain relief by injunction against the commission of acts of a criminal character, on the ground of injury to the property rights of an individual, the court will require that the complainant clearly show such facts and circumstances in the particular case as will justify the court in granting the relief desired.” (emphasis supplied). While appellant in the case under consideration makes it clear that it is not relying on an injury to the property rights of an individual but on the ground of an injury to the public safety and welfare, yet we see no reason why it should not also be required to clearly show facts and circumstances which would entitle it to injunctive relief. The court’s statement in the Hamm case is, we think, applicable to this case: “The complaint here failed to directly allege any such injury or damage, and such cannot reasonably be inferred from the facts which were alleged.”

We see no merit in appellant’s suggestion that we treat its petition for injunctive relief as a petition for a declaratory judgment. The issue in which appellant is interested, and the issue before this court, is not the constitutionality of said Act 270 or the interpretation of any of its provisions. The issue here is whether appellant’s complaint contains sufficient allegations to invoke equitable jurisdiction, and our decision would necessarily be the same regardless of the method of approach.

It follows from what we have said above that the decree of the trial court must be, and it is hereby, affirmed.

Affirmed.

Justices Holt and RobiNsoN dissent.

Sam BobiNSON, Associate Justice.

The General Assembly of this State, in an attempt to regulate the practice of architecture and thereby prevent the construction of buildings that might constitute a hazard to the public, at its 1941 Session, adopted Act No. 270, Ark. Stats. § 71-301. The preamble to the Act is as follows: “Whereas, in order to safeguard life, health and property, it is important that the practice of architecture in this State should be regulated.” The Act provides for the licensing of architects, and makes it a misdemeanor for any one to practice architecture without being licensed. There are certain, exemptions, among which are: “Buildings that are constructed at a cost, not including site, of not to exceed $10,000.00 provided said buildings are not intended, or adaptable, for public assembly or other occupancy that would be hazardous to said occupants in event of structural failure, fire or panic by said occupants.” The Emergency Clause provides: “That inasmuch as designs for the construction of public and private works within the State of Arkansas are in progress, and that the design of all such public and private works, within the specific regulation of this Act, ought to be regulated in order to safeguard life, health, and property, etc.”

Of course, it is the duty of all law enforcement officers to enforce the Act. But the Act consists of sixteen numbered sections and, from a practical standpoint, if the Act is enforced at all it will be due to the efforts of the State Board of Architects created by the Act. A constable, or a policeman, or a prosecuting attorney does not ordinarily examine the plans and specifications of a school being constructed in the community, to determine if such plans and specifications were prepared by a licensed architect. In the case at bar, the State Board of Architects discovered that appellee Clark was preparing plans and specifications for a public school, the construction of which would cost about $60,000.00; that the ap-pellee Adldson was going to supervise the construction of the building in an architectural capacity. The Board knew that neither of these men was a licensed architect, and that the lives of many children were thereby endangered. The principal purpose of Act 270 of 1941 was to prevent the very thing from happening that occurred here. It was the duty of the State Board of Architects to prevent the school from being constructed from plans prepared by some one other than a licensed architect. In an attempt to do its duty, the Board filed this suit, asking that appellees, who are not licensed architects, be enjoined from practicing architecture. Apparently, the Board has no other recourse to prevent the unlawful construction of the school. If the appellees had been deterred by the threat of the conviction of a misdemeanor for violating Act 270, this suit for an injunction would have been unnecessary.

The situation is exactly like that described in Meyer v. Seifert, 216 Ark. 293, 225 S. W. 2d 4. There, the court said: “It is characteristic of most instances in which injunctions against criminal acts are sustained that the threat of punishment after the event will not have a very strong deterrent effect upon the offender, as to some acts. This is because the criminal punishment is small and unimportant as compared with the benefits or profits expected to be gained from the criminal act. Oftentimes the act is a recurrent or continuing one, necessitating numerous successive petty prosecutions if the regular criminal procedure is to be followed. Frequently the acts are such that it is difficult to get jury convictions, either because local juries are prejudiced against the enforcement of the particular law involved, or for some other equally practical reason.” And also, what Judge Frank Smith said, in State, ex rel. Hale, Prosecuting Attorney v. Lawson, 212 Ark. 233, 205 S. W. 2d 204, is applicable: “Evidently the impending prosecution has been held ineffective to compel the dairymen to submit their cows to the required inspection, as they are still refusing to submit to the inspection. An injunction restraining them from selling their milk in Jonesboro, or elsewhere, will no doubt prove more effective.” In the case at bar, there is no adequate remedy at law. Although, subsequent to completion of construction of the school, Clark and Adkison would be convicted of a misdemeanor, it is not likely that the school building will be torn down, even though it may be very dangerous to the children attending the school.

The majority distinguish Meyer v. Seifert, supra, on the ground that in that case property rights were involved; but here, human lives are involved, and it was pointed out in the Meyer case that an injunction would lie if the public health were affected. When lives of little school children are endangered, it cannot be said that public health is not affected. This court has repeatedly held that where the public health is affected an injunction will lie, although the act, which is sought to be restrained by the injunction, is a crime.

In Van Hovenberg v. Holman, 201 Ark. 370, 144 S. W. 2d 718, the court said: “Appellees insist that, since an ordinance pronounces penalty for violation, appellants’ rights are thereby circumscribed, and injunction does not lie. We cannot assent to this view. The ordinance prohibits erection and operation without the permit, and fixes a penalty of not more than $100 for violation. But the primary and fundamental purpose of the ordinance was to prohibit operation — not to punish. It is definitely settled that equity will not interfere to stay proceedings in a criminal matter. Here, however, the relief sought is abatement of unauthorized conduct. If it should be held that penalty of the ordinance deprived equity of jurisdiction, then any person desiring to proceed in violation of law could pay the maximum fine and become immune thereafter except as to damages. This is not the law. ’ ’

In Ritholz v. Ark. State Board of Optometry, 206 Ark. 671, 177 S. W. 2d 410, the court said: “The action is not one to enjoin the commission of a crime, as such. Its purpose, primarily, is to prevent the illegal practice of optometry, rather than to penalize the practitioner. If the latter alone were the object, Chancery would be without jurisdiction. The rule, as stated in 28 American Jurisprudence, Injunctions, § 148, at page 338, is that acts amounting to a public nuisance will he restrained if they affect the civil or property rights or privileges of the public, or endanger the public health, regardless of whether such acts are denounced as crimes.”

The language of the court in the Ritholz case is peculiarly applicable to the situation in the case at bar. The primary purpose of this suit is to prevent the illegal practice of architecture rather than to penalize the practitioner. The complaint alleges that appellees do not have a license to practice architecture, but are doing so. This, in itself, amounts to an allegation that the appel-lees were committing a nuisance.

In Hudkins v. Arkansas State Board of Optometry, 208 Ark. 577, 187 S. W. 2d 538, the court quoted with approval from Chief Justice Hill’s opinion in State v. Vaughan, 81 Ark. 117, 98 S. W. 685: “ ‘. ... if the public nuisance is one touching civil property rights or privileges of the public, or the public health is affected by a physical nuisance, or if any other ground of equity jurisdiction exists calling for an injunction, a Chancery Court will enjoin, notwithstanding the act enjoined may also be a crime.’ ” And the court further stated, in the Hudkins case: “As to the subject matter from which the case at bar proceeds, there is, upon the one hand, clear distinction between criminal conduct and punishment, while upon the other hand there is the public’s right of protection against continuing practices of unlicensed individuals who persist in an activity legislatively found to be inimical to the common welfare. ’ ’

In State, ex rel. Atty. Gen., v. Karston, 208 Ark. 703, 187 S. W. 2d 327, the court held that it was proper to enjoin Karston from operating a gambling house although the operation of a gambling house in the State of Arkansas is a,felony.

In Ark. Bar Assn. v. Union National Bank, 224 Ark. 48, 273 S. W. 2d 408, the Bank was enjoined from • en-' gaging in the practice of law without a license, when to. do so was a violation of the law. ■ •

In Meyer v. Seifert, supra, Judge Leflar said: 45A second contention urged by the defendants is that equity it without power, or should not exercise the power, to enjoin maintenance of the prohibited structure.- The argument is that the ordinance prescribes criminal punishments, making violation a misdemeanor punishable by fine of not less than $10 nor more than $100 for each day of violation, and that this remedy is exclusive. That equity will not act to restrain ordinary violations of the criminal law, hut will leave the task of enforcing the criminal laws to courts having criminal jurisdiction, is basic learning in our legal system. But is equally basic that if grounds for equity jurisdiction exist in a given case, the fact that the act to be enjoined is incidentally viola-tive of a criminal enactment will not preclude equity’s action to enjoin it. ./j

“In one of the most publicized cases that ever'arose in Arkansas, Chancellor Martin enjoined the holding at Hot Springs of a world championship heavyweight prize fight between James J. Corbett and Robert Fitzsimmons. State ex rel. Atty. Genl. v. Corbett, Fitzsimmons, et al., Martin’s Chanc. Decisions 366.” . . . Judge Martin is then quoted with approval, as follows: “If the public¡ health is affected by a physical nuisance, or if any other ground of equity jurisdiction exists calling for an injunction, a chancery court will enjoin, notwithstanding the act enjoined may also be a crime. The criminality of . the act will neither give nor oust jurisdiction in chancery.” ‘Accord: Hudkins v. Arkansas State Board of Optometry, 208 Ark. 577, 187 S. W. 2d 538; State ex rel. Atty. Genl. v. Karston, 208 Ark. 703, 187 S. W. 2d 327; State ex rel. Hale v. Lawson, 212 Ark. 233, 205 S. W. 2d 204. Hundreds of cases in other states are to the same effect. See State ex rel. Smith v. McMahon, 128 Kans. 772, 280 Pac. 906, 66 A. L. R. 1072 (injunction against widespread practice of criminal usury); Fitchette v. Taylor, 191 Minn. 582, 254 N. W. 910, 94 A. L. R. 356 (injunction against unauthorized practice of law); State ex rel. Crow v. Canty, 207 Mo. 439, 105 S. W. 1078, 15 L. R. A., N. S. 747, 123 Am. St. Rep. 393, 13 Am. Cas. 787 (injunction against illegal bull fights).”

In Arkansas State Board of Architects v. Bank Building & Equipment Corp. of America, 225 Ark. 889, 286 S. W. 2d 323, this court held that under the statute involved here the appellee could be enjoined from practicing architecture.

In my opinion, the allegations that an unlicensed architect was preparing plans and specifications for a public school building, that the construction of the building would be supervised by an unlicensed architect, and that the building would be completed under such an arrangement unless the defendants were enjoined, are good allegations as against a demurrer.

For the reasons set out herein, I respectfully dissent.

Mr. Justice Holt joins in this dissent.


source: Caselaw Access Project

author: Sam RobiNsoet, Associate Justice.

license: Public Domain

text:
    Lewis v. Miller.
    5-992
    291 S. W. 2d 255
    Opinion delivered June 11, 1956.
    [Rehearing denied July 2, 1956.]

      Garlos B. Hill, for appellant.

      Jameson & Jameson, for appellee.
   Sam RobiNsoet, Associate Justice.

The issue here is whether an instrument which, on its face, purports to he a deed, is in fact a mortgage. Appellees, I. 0. Miller and Helen M. Miller, own a home in Fayetteville which was mortgaged to a building and loan association. In 1941, the mortgage was foreclosed and the property sold at the foreclosure sale to a Mr. Parks. H. 0. Davis was a friend and neighbor of the Millers; after having seen an account of the sale in a local newspaper, he called on the Millers and offered his assistance in saving their home for them; of course, this was agreeable to the Millers. Davis, for the consideration of $1,670.00, obtained a deed to the property from Mr. Parks. Davis then agreed with the Millers that he would convey the property to them upon being reimbursed for all he had spent on it, plus 6.7% interest. It appears that the value of the property at the time Davis received the deed from Parks was about $6,000.00. There is evidence that in 1955 the property was worth $11,500.00.

In 1942, Mrs. Miller learned that Davis wanted to get his money out of the property. She contacted her friend, the appellant, Mrs. Jessie A. Lewis, who agreed to come to the aid of the Millers. The transaction was handled in this manner: Mrs. Lewis put up $2,200.00 to pay Davis, plus $25.00 for the examination of the abstract of title. Davis conveyed the property to the Millers, and they, in turn, gave to Mr. and Mrs. Lewis what appears, on its face, to be a warranty deed to the property. Mr. Miller and Mrs. Lewis then executed what is designated as a lease agreement, which provides that the property is leased to Miller for the term of two years, at a monthly rental of $25.00, the first payment being due on or before July 1, 1942. The lease agreement further provides that for the additional consideration of $1.00 and the prompt payment of the monthly rental and $2,225.00 plus interest at 6.7% per annum from July 1, 1942, in addition to any amount spent by Mrs. Lewis for taxes, repairs, improvements, interest, together with any other expenditures which she may have made on the property, she would re-convey the property to the Millers at any time within the two year lease period. The monthly rent payments were to be credited against the indebtedness. The Millers claim that in 1944, before the expiration of the lease agreement, they wrote a letter to Mrs. Lewis exercising their option to purchase, and asked for a statement of the account, but that the letter was not answered. The Millers continued to pay the rent until 1952; in November 1953, I. 0. Miller wrote to Mrs. Lewis, asking for a statement of the account, and indicated his-intention to exercise his right to re-purchase. It appears that Miller was unable to get a statement of the account from Mrs. Lewis, and he, therefore, filed this suit in August 1954. The Chancellor held that the deed from the Millers to the Lewises, along with the lease agreement is, in fact, a mortgage. The Lewises have appealed.

There is only one issue, and that is, whether the so-called deed to the Lewises is, in fact a mortgage. In order to show that an instrument which, on its face, appears to be a deed is, in fact, a mortgage, the evidence must be clear, concise and convincing;

The court said, in Buffalo Stave & Lumber Company v. Rice, 187 Ark. 731, 62 S. W. 2d 2: “It is likewise the rule that, where a deed purports on its face to convey the absolute title, and where the contention is made that it was in fact intended as a mortgage, the evidence to support that contention must be clear, unequivocal and decisive. Henry v. Henry, 143 Ark. 607, 221 S. W. 481. In the case cited, and in all other authorities dealing with the subject, in determining whether a deed absolute on its face is such, indeed or only to be considered as a mortgage, the real question for the court’s determination is what was the intention of the parties at the time; and where such deed is accompanied by an agreement to reconvey upon certain conditions, it is proper to construe the agreement and the deed together to determine whether that agreement was conditional sale or whether it should be deemed to be a mortgage when the transaction is considered as a whole. But the court, in determining the question, is not limited to the determination from the instruments alone, hut from these and whatever extrinsic facts or circumstances are disclosed by" the evidence. In reviewing the decisions of courts of chancery on questions of this character, great weight should be given to the opinion of the court as the presiding judge may be fully apprized of the existence of circumstances which hut dimly appear to us from an examination of the record.”

The evidence here is completely convincing that the parties intended the transaction to he a mortgage. In the first place, in an effort to save her home, Mrs. Miller contacted Mrs. Lewis, seeking aid. It does not appear that Mrs. Lewis was in the market buying property, or had any thought of buying this particular property at the time, but merely wanted to help the Millers save their home. The property was actually worth around $6,000.00, and Mrs. Lewis paid out only $2,225.00 at the time of the transaction; it is not likely that the Millers, who had title to the property at the time, would have conveyed the property to Mrs. Lewis at such a low figure on a straight-out sale. There is other testimony from which there are strong inferences that the transaction was merely a loan made by Mrs. Lewis to help the Millers save their home, but we need look no farther than the testimony of Mrs. Lewis herself. Following are extracts from her testimony:

‘ ‘ Q. And how did you arrive at the figure $2,225.00 plus 6.7 interest?
“A. I didn’t. That was the Miller — Davis came over with that. That’s what Mr. Davis had in it and Mr. Miller said, ‘we’ll pay you 6.7 interest just the same as we have paid Davis.’
“Q. Well, then, in other words, they wanted you to hold the place in trust for them?
“A. No, just hold the place while they paid it out.
“Q. Just to hold the place while they paid it out?
“A. Yes, there was never any trust mentioned.
“Q. Well, you bought it with that intent1?
“A. Yes, I bought it with that intent; if they paid it; that’s what I told them, if they didn’t pay it I intended to take it.
“Q. Now, can you explain why you provided in your lease agreement, as and when and if they exercised their option to re-purchase the place according to the instrument, that they would have to re-imburse you for the amount that you had paid H. 0. Davis with interest, plus taxes, special assessments and insurance premiums, why did you want them to pay the taxes, insurance premiums, special assessments?
“A. Oh, my goodness, I didn’t want to buy the place and then keep it up.
“Q. Now, then, according to this instrument it provides when the Millers exercise this option that they would have to’ reimburse you for these expenditures ?
“A. Well,.I should think so, less the payments that they had made.
‘ ‘ Q. Now why did you want them to re-imburse you for those expenditures?
“A. Well, you see, if I was giving them credit each month, on that, naturally I’d put my expenses and give them credit for what had been paid out, and whatever was left over went on the principal.
“Q. The principal of the debt?
“A. Yes.”

In Clark-McWilliams Coal Co. v. Ward, 185 Ark. 237, 47 S. W. 2d 18, the court said: “The general doctrine prevails in this State that the grantor may show that a deed absolute on its face was only intended to be a security for the payment of a debt and thus is a mortgage ... In the early case of Scott v. Henry, 13 Ark. 112, the court said: ‘And, for the purpose of ascertaining the true intention of the parties, it is a well established rule that the courts will not be limited to the terms of the written contract, but will consider all the circumstances connected with, it; such as the circumstances of the parties, the property conveyed, its value, the price paid for it, defeasances, verbal or written, as well as the acts and declarations of the parties and will decide upon the contract and the circumstances taken together.’ In that case, the court said that under the facts proved, although the evidence, was not absolutely conclusive, still, under the uniform rules of courts of chancery, the court must treat the contract as a mortgage. This rule has been steadily adhered to ever since and applied by the court according to the particular facts and circumstances of each case. Wimberly v. Scroggins, 128 Ark. 67, 193 S. W. 264; Hays v. Emerson, 75 Ark. 551, 87 S. W. 1027; Rushton v. McIllvene, 88 Ark. 299, 114 S. W. 709; Gates v. McPeace, 106 Ark. 583, 153 S. W. 797; Snell v. White, 132 Ark. 349, 200 S. W. 1023; and Kerby v. Feild, 183 Ark. 714, 38 S. W. 2d 308.

“However, every case must, of necessity, depend upon its peculiar circumstances. No fixed rule can be laid down by which it can be ascertained with mathematical certainty whether the proof has met the test above described. In the very nature of things, no decisive standard can be laid down to determine the sufficiency of the evidence. The reason is that the facts and circumstances stand in different relation to each other in separate cases, and what might satisfy the mind standing in a certain relation to surrounding facts and circumstances might not be clear and decisive proof in another case. Like any other fact to be proved by evidence which satisfies the mind of its truth, the proof may be inferred from the attendant circumstances and often cannot be proved in another way.”

Affirmed.


author: Lee Seamster, Chief Justice.

text:
    Jones v. State.
    4842
    291 S. W. 2d 501
    Opinion delivered June 18, 1956.
    No brief for appellant.

      Tom Gentry, Attorney General, Roy Finch, Jr., Asst. Atty. General, for appellee.
   Lee Seamster, Chief Justice.

The appellant, Otis Jones, was charged by information on July 20, 1955, with the crime of murder in the second degree. The cause came to trial on December 9, 1955, in the Pulaski Circuit Court, first division, and the jury returned a verdict of guilty of involuntary manslaughter. Punishment was fixed at three years in the Arkansas State Penitentiary and a fine of $1,000.00. This appeal follows.

The evidence reveals that the appellant, a cafe proprietor in North Little Rock, Arkansas, operated a small parking lot next door to his cafe and charged a fee of 25 cents for the privilege of parking on the lot. On June 25, 1955, at approximately 9 o’clock p. m., the deceased, Dennis Lee Martin, and James Bobinson, parked a car driven by deceased on appellant’s parking lot. A misunderstanding arose between the parties about the payment of the parking fee, but the sum demanded was paid. The deceased and James Bobinson left the parking lot soon thereafter. About one o’clock a. m., they secured another car belonging to Martin’s brother since the vehicle in which they were riding developed mechanical difficulties. They met Nem Parker, who was driving Martin’s brother’s car and the three of them proceeded back to the Otis Jones Cafe and again drove into the parking lot.

The deceased was driving the vehicle and demanded the privilege of parking the car without payment of another parking fee. Otis Jones demanded another fee and again an argument ensued.

The appellant testified that while he was talking to the deceased on the driver’s side of the car, James Bobin-son, an occupant on the other side of the car, pulled out a knife and cut the hands of Jones’ two sons; that Bobin-son threatened him with the knife when he went to the other side of the car; that Bobinson started to get out of the car with the knife in his hand and he (Otis Jones) shot at Bobinson but hit the deceased, who died shortly thereafter.

Vernon Jones, a son of Otis Jones, testified that after the cut-was inflicted to his hand, he went around to the driver’s side of the car and pushed inward on the door to keep the deceased in the car; that the car door came open during the struggle and the shot accidentally hit his leg,.

The State introduced evidence to the effect that Bobinson did not cut either of appellant’s sons with a knife; that appellant walked around the car and fired a shot into the deceased without provocation.

Although the testimony of many of the witnesses was conflicting, the jury chose to believe the version of the story as related by the State’s witnesses. On appeal, this Court will not disturb the verdict unless there is a lack of substantial evidence to support the jury’s verdict. Where the evidence is conflicting, as in this case, this Court will give the testimony tending to support the verdict its highest probative value. Powell v. State, 213 Ark. 442, 210 S. W. 2d 909.

The appellant contends that the trial court erred in failing to direct a verdict for acquittal. It is not error for the court to refuse to direct a verdict of acquittal, where the evidence is conflicting and presents a question for the jury to determine. Graham v. State, 197 Ark. 50, 121 S. W. 2d 892.

The appellant further contends that the court erred in failing to declare a mistrial because the prosecuting attorney asked the appellant the following: “Is that the way you felt about the other man you murdered too?” The trial court sustained an objection to this statement and admonished the jury to disregard the statement. Moreover, the appellant, under questioning by his attorney, explained fully about the former trouble as referred to in the prosecutor’s question. We think the court’s prompt admonition and the appellant’s explanation overcame any advantage the prosecution may have obtained by asking the question. See Walker v. City of Fayetteville, 93 Ark. 443, 125 S. W. 412; Wallin v. State, 210 Ark. 616, 197 S. W. 2d 26.

The appellant’s contention that the court erred in modifying Instruction No. 5 offered by appellant will not be considered since no exceptions were saved to the court’s action. The court gave a correct instruction covering the subject of the offered instruction and is not required to repeat its instructions to the jury. See Wallin v. State, supra.

The appellant objected generally to all of the instructions given by the trial court. This Court has consistently held that objections en masse to all of the court’s instructions will not be considered if any of the instructions are good. Ford v. State, 222 Ark. 16, 257 S. W. 2d 30. We find no error in the instructions in the instant case.

By assignment 16, the appellant alleges error because of the excessiveness of the verdict.' The punishment assessed was within the limit provided by statute.

Finding no error, judgment is affirmed.


author: J. SbabobN Holt, Associate Justice.

text:
    Ellington v. Remmel.
    5-968
    293 S. W. 2d 452
    Opinion delivered June 18, 1956.
    [Rehearing denied October 1, 1956.]

      Tommy H. Russell, for appellant.

      Townsend & Townsend and O. D. Longstreth, Jr., for appellee.
   J. SbabobN Holt, Associate Justice.

Appellant, W. J. Ellington, filed a petition alleging, ‘ ‘ That on June 13, 1955, the City Council of the City of Little Rock, Arkansas, passed Ordinance No. 9841, which Ordinance abandoned the City’s right, title and interest to the following described street: West 31st Street from the east property line of Taylor Street east for approximately 140 feet to the west property line of an alley platted through Block 14 and the Replat of a part of Block 9, C. 0. Brack’s Addition to the City of Little Rock, Arkansas. That the aforementioned action by the Little Rock City Council stands to cause great harm to the plaintiff and others situated similarly to him in that the valuation of their property will be greatly decreased and their enjoyment of their respective properties will be greatly curtailed. That a large group of property owners in this area have objected and continue to object to this action by the City Council. That numerous property owners in this area have not consented to the abandonment of this street nor have they any desire to do so.” He further alleged that the council acted without authority and prayed that said ordinance be declared void and that the street in question be reopened, etc. Appellees, interveners, answered alleging that they were the only abutting property owners on said street, that the City Council acted within its authority in enacting the ordinance in question and that said street was properly closed in compliance -with § 19-3825 to 19-3830 inch Ark. Stats. 1947. On December 13, 1955, a hearing was had and on evidence presented by both parties the court found that the ordinance in question “was duly passed by the City Council of Little Rock, Arkansas, and that all the provisions set out in Sections 19-3825 to 19-3830, Ark. Stats., 1947, have been fully complied with; that said street as shown on the plat has not been actually used as a street by the public for the last five years; and that the City Council has the power to vacate and abandon said street by proceeding in the manner followed in this instance,” and from the decree in this •appeal.

, For reversal appellant relies on two points: “I. The Chancellor’s finding of fact is not supported by the evidence. II. That the Court committed error in finding that all of the provisions of Sections 19-3825 to 19-3830, Ark. Stats., 1947, had been fully complied, with, and thereby dismissing the. Plaintiff’s complaint.”

At the outset we are confronted with an insufficient abstract by appellant, and we have concluded that the decree must be affirmed for this reason. Bule 9 — (d) of this court provides: ‘‘Abstract.-The appellant’s abstract or abridgment of the record should consist of an impartial condensation, without comment or emphasis, of only such material parts of the pleadings, proceedings, facts, documents, and other matters in the record as are necessary to an understanding of all questions presented to this court for decision. The abstract shall contain full references to pages of the record. When testimony is abstracted the first person rather than the third person should be used. Whenever a map, plat, photograph, or other exhibit must be examined for a clear understanding of the testimony, the appellant shall reproduce such exhibit by photography or other process and attach such reproduction to the copies of the abstract filed in this court and served upon opposing counsel, unless this requirement is shown to be impracticable and is waived by the court upon motion.”

The record [transcript] reveals that the parties to this litigation presented seven witnesses whose testimony covered approximately 30 pages therein. It further appears that several of these witnesses had the benefit of a map or plat, from which they testified, showing the location of the street, lots, and surrounding property involved, and this plat or map has not been reproduced in appellant’s abstract, thus denying us the benefit of it. Appellant has attempted to condense and abbreviate all of the testimony of the witnesses on only one page of his abstract and brief. From this abbreviation we are unable to understand, or gather, matters material to a necessary comprehension of all questions presented to us for a decision without exploring the record. We are not required to explore the one record [transcript] that is presented to us, this duty rests on appellant, and it is further his duty, as indicated, to furnish this court such an abridgment of the record that will enable us to understand the matters presented. This he has not done. We said in Files v. Tebbs, 101 Ark. 207, 142 S. W. 159, “This court, not having had the same opportunity as counsel in the case to become acquainted with this litigation and not being furnished the means for an intelligent consideration and review of it by an abstract as required by rule nine, necessarily can not pass upon its merits without exploring the transcript, which, as has been often heretofore said, it can not be expected to, and will not, do, and this without regard to whether such failure to furnish an abstract is relied upon for an affirmance by opposing counsel or not. Haglin v. Atkinson-Williams Hdw. Co., 93 Ark. 85, 124 S. W. 518; Brown v. Hardy, 95 Ark. 123, 128 S. W. 858; Jett v. Crittenden, 89 Ark. 349, 116 S. W. 665, and cases cited.” See also Golden v. Wallace, 212 Ark. 732, 207 S. W. 2d 605; and Barrett v. Fort Smith Structural Steel Co., 220 Ark. 114, 246 S. W. 2d 414.

Decree affirmed.


author: Ed. F. MoFaddiN, Associate Justice.

text:
    Gammill v. City of Blytheville.
    5-982
    291 S. W. 2d 503
    Opinion delivered June 18, 1956.

      James Gardner and Gene Bradley, for. appellant.

      Elbert Johnson, Taylor & Sudbury and Reid & Burge, for appellee.
   Ed. F. MoFaddiN, Associate Justice.

This suit is an effort by appellants to be allowed to erect a filling station on lots they own in the City of Blytbeville. The lots are located outside of the fire limits; and Ordinance No. 422 of Blytbeville provides that no filling station, apartment bouse, or building for any business purpose, shall be erected in Blytbeville outside of the fire limits until a permit be obtained from the City.

The appellants applied to the City Council for such permit; a number of property owners objected; the matter was beard by the City Council; and the permit denied. Appellants then filed this suit in the Chancery Court to enjoin the City and its officials from interfering with appellants in the erection of the proposed filling station on the lots in question, alleging, inter alia, that the lots were in a business district; that they were suitable only for business property; and that the City bad acted arbitrarily in refusing the permit. Various property owners intervened to support the City; the Chancery Court denied the appellants the prayed relief; and this appeal ensued. The issues here are: (1) did the City Council act arbitrarily in refusing the permit; and (2) did the Chancery Court decide against the preponderance of the evidence.

The complaint alleged, and the evidence offered by appellants was designed to show: that “Crosstown” is a business- section in Blytheville located several blocks West of the main business section; that TJ. S. Highway No. 61 traverses Twelfth Street or Division Street, running North and South; that Main, Walnut, Chiekasawba and Hearn Streets run East and West and intersect Twelfth or Division Street — Main being the South one of said streets and Hearn being the North one; that the lots owned by the appellants are located at the Northeast corner of the intersection of Division and Walnut Streets; that from Walnut, extending South to the City limits, there are many places of business fronting on Division Street, being filling Stations, restaurants, tourist courts, grocery stores, etc.; that appellants’ lots are on U. S. Highway No. 61, which is an arterial highway; that across Walnut Street South of appellants’ lots, there is a drive-in ice cream place, called ‘ ‘ Kream Kas-tle”; that the natural development of the business section of “Crosstown” must be to the North; and that the said lots are ideally suited for a filling station.

Appellants also urge most vigorously that their lots are just North across Walnut Street from the property involved in the case of City of Blytheville v. Lewis, 218 Ark. 83, 234 S. W. 2d 374, wherein the property owner was permitted to make commercial use of the lot, and that the drive-in ice cream place, called “Kream Kastle” is now on the lots involved in that litigation. In addition to the case of City of Blytheville v. Lewis, supra, appellants cite us to these cases, which are urged as supporting appellants ’ contention: City of Little Rock v. Pfeifer, 169 Ark. 1027, 277 S. W. 883; City of Little Rock v. Sun Bldg. & Developing Co., 199 Ark. 333, 134 S. W. 2d 582; City of Little Rock v. Bentley, 204 Ark. 727, 165 S. W. 2d 890; City of Little Rock v. Joyner, 212 Ark. 508, 206 S. W. 2d 446; and City of Little Rock v. Stannus, 218 Ark. 893, 239 S. W. 2d 283. Appellants claim that in City of Blytheville v. Lewis, supra, we recognized “Crosstown” as a business district in Blytheville; and they quote to us this language from City of Little Rock v. Pfeifer, supra:

“When a business district has been rightly established, the rights of the owners of property adjacent thereto cannot be restricted so as to prevent them from using it as business property. It is the contention of the protestants that residence property adjacent to a business district becomes, on that account, less desirable for residence use. Conceding this to be true, and it is undoubtedly true, in a sense, that property thus located is not as desirable as residence property, it demonstrates the rights of owners of border line property between residence and business district to use their property for either purpose. In other words, if it has become less desirable for residence property because of its proximity to the business district, they have the legal right, without interference, to use it for business purposes.”

Even though the appellants have made a strong case, nevertheless, we have these matters: (a) the City Council of Blytheville denied the permit; (b) the Chancery Court denied relief; and (c) there is sufficient evidence to sustain the decisions of both the City Council and the Chancery Court. Briefly, here is a resume of some of the evidence offered by the appellees: (1) "Walnut Street marks the extreme Northern limits of the “Crosstown” section; (2) the only business structure of any sort North of Walnut Street is a private hospital located on the Northwest corner of the intersection of Division and Hearn Streets, two blocks North and across Division Street from the lots in question; (3) this private hospital was built more than twenty years ago and before the City of Blytheville had enacted the ordinance here involved; (4) extending from the appellants’ lots East to the main business district of Blytheville are seven blocks, each and all containing many residences and no business establishments; (5) extending West from appellants’ lots to the city limits of Blytheville there are no business structures on Walnut Street; (6) in the same block with appellants’ lots there have recently been constructed several fine homes, each costing from $20,-000.00 to $50,000.00, and several of these homes have been constructed in the last four years; (7) many fine homes have been constructed on Walnut Street and Chickasawba Street since 1950, and there has been no business development on either of these streets. Appel-.lees also lay great stress on our language in City of Blytheville v. Lewis, supra, wherein we said:

‘‘ There is little dispute in the evidence which shows that for more than 20 years a well-defined business district, known as ‘Crosstown,’ has been maintained along Division Street for several blocks northerly to the point where appellee’s lot is located, and with Walnut Street as the northern terminus of said district.”

It is emphasized that after the above quoted language used in 1950 — that Walnut Street was the Northern terminus of the district — the. City of Blytheville has not allowed any permits for business property North of Walnut Street; that fine homes have been built on the lots adjacent to or near to the lots in question; and that we have here an advancing residential district, and not one which is retreating before the advance of commercial development. This last matter is a most cogent argument and, with the other recited facts, distinguishes the case at bar from any of those cited by appellants. Here we have an advancing residential district, with new and fine homes constructed close to appellants’ lots. This is not a case wherein old homes have been allowed to deteriorate in the face of an advancing commercial district ; but this is a case in which new homes are being built nearer and nearer to the lots now sought to be used for business purposes.

We recognized (in City of Little Rock v. Sun Bldg. Co., 199 Ark. 333, 134 S. W. 2d 583) that a line must be drawn somewhere to separate business property from residential property. In City of Blytheville v. Lewis, supra, this Court said that Walnut Street was the North limit of the “Crosstown” district. The City Council has adhered to that line, and fine residences have been built, with Walnut Street as the line of demarcation between residence and business property. The property here involved is adjacent to such residences and is susceptible to use as residential property. We cannot say that the City Council was arbitrary in refusing appellants a permit, or that the Chancery Court decided against the preponderance of the evidence.

Affirmed.

         This Ordinance No. 422 is not a zoning ordinance, but a restrictive ordinance. The authority of the City to have an ordinance of such type is not questioned on this appeal. ■


author: G-eoege Rose Smith, J. Paul Ward, Associate Justice,

text:
    Billingsley v. Pruitt.
    5-995
    291 S. W. 2d 498
    Opinion delivered June 18, 1956.

      Chas. F. Cole, for appellant.

      W. D. Murphy, Jr., for appellee.
   G-eoege Rose Smith, J.

This suit was brought by the appellant, Ida Billingsley, to foreclose a mortgage upon certain lots in Batesville. The cause of action is admittedly barred by limitations, but the original mortgagors did not interpose that defense. The statute was pleaded, however, by the principal appellee, W. F. Armstrong, and the only question in the case is whether Armstrong is entitled to rely upon the defense of limitations. The chancellor upheld Armstrong’s plea, dismissed the complaint as far as the land is concerned, and limited the plaintiff to a personal judgment against the mortgagors.

These are the facts: On May 2, 1947, the mortgage in question was executed by H. A. Pruitt and his wife to secure a $1,500 note to John Edwards. The last installment on the note was due February 2, 1949. The Pruitts paid only $100 to Edwards, and in 1950 the note was purchased by Mrs. Pruitt’s parents, Dr. and Mrs. Billingsley, who took an assignment of the note and mortgage. After Dr. Billingsley’s death this suit was filed on October 12, 1954 — more than five years after the maturity of the debt. It is conceded that the Pruitts made no payments after the dne date of the note, and of course no such payments were indorsed on the margin of the record. The Pruitts preferred not to plead the defense of limitations against Mrs. Pruitt’s mother.

Armstrong’s interest in the land derives from a second mortgage which the Pruitts executed in 1949 to secure a debt owed to M. F. Highsmith. This mortgage recited the priority of the Edwards mortgage and authorized the second mortgagee to pay off the first mortgage and be subrogated to its lien. Highsmith foreclosed the junior mortgage in 1952, without mating the senior mortgagee a party to the suit, and bought the property at the foreclosure sale. In June of 1954 High-smith deeded the land to a corporation in which he is a stockholder, and on the day before this suit was filed the corporation conveyed the land to Armstrong by warranty deed. Armstrong made a down payment of $500, gave a mortgage for the unpaid balance of $5,500, and testifies that he knew nothing of the first mortgage when he bought the property.

The appellant argues that inasmuch as Highsmith’s mortgage was expressly subordinate to Edwards’ first lien Highsmith was not a third party within the meaning of the statute that requires payments to be indorsed of record in order to keep the lien alive as against third parties. Ark. Stats. 1947, § 51-1103. It is then contended that Armstrong stands in no better position than Highsmith and cannot interpose a plea that is personal to the original mortgagors.

A manifest flaw in this argument lies in its disregard of the fact that Mrs. Billingsley’s mortgage is barred not merely of record but also in actuality. In the cases cited by the appellant, such as McFaddin v. Bell, 168 Ark. 826, 272 S. W. 62, the mortgagor had tolled the statute by payments made less than five years before suit was filed, but the mortgagee had not made the required indorsement on the margin of the record. In that situation the defense of limitations is not available to the original debtor or to anyone else who is not a stranger to the transaction. In the case at bar, however, the debt was not kept alive by payments, and, unless the defense of limitations bas been waived, the right to foreclose is barred “as to all parties and for all purposes.” Bank of Mulberry v. Sprague, 185 Ark. 410, 47 8. W. 2d 201.

We think it plain that Armstrong is not bound by the Pruitts’ election not to defend the case. It must be remembered that the Pruitts have no interest whatever in the land, for the Highsmith foreclosure divested their equity of redemption. Clark v. Lesser, 106 Ark. 207, 153 S. W. 112. If, as the appellant urges, the plea of limitations is personal to the Pruitts, the statement means no more than that they are free to admit their liability on the note. With respect to the land the plea is similarly personal to Armstrong, who is the real party in interest. His choice cannot be dictated by the Pruitts, who have no pecuniary interest in his dispute with the appellant. It is apparent that if the appellant’s argument were accepted it would follow that a mortgage, barred both of record and in fact for fifty years or more, could still be foreclosed, with the mortgagor’s consent, as against subsequent purchasers for value. Needless to say, that is not the law in this state.

Affirmed.

Ward, J., dissents in part.

Paul Ward, Associate Justice,

dissenting. After much deliberation I find myself unable to entirely agree with the majority opinion.

1. In the first paragraph the majority opinion states that: “The only question in the case is whether Armstrong is entitled to rely upon the defense of limitations,” which he pleaded in this action. Prom this I gather that the opinion rests on the principle that Armstrong did have a right to plead the statute of limitations. It occurs to me that this announcement is contrary to the former holdings of this court. In the case of Less v. Manning, 202 Ark. 138, 149 S. W. 2d 40, at page 143 of the Arkansas Reports, we find this statement: “The statute of limitations would not begin to run until payment was due: nor can a third party interpose the defense for the debtors.” It is stated by the majority, and I agree, that Armstrong was a third party. In the case of Henry v. Coe, 200 Ark. 44, 137 S. W. 2d 897, at page 47 of the Arkansas Reports, in speaking of who can plead the statute of limitations, the court said: “The statute of limitations was personal as to them, and they did not plead it.”

2. I agree with the majority that Armstrong is a purchaser for value of the land involved and as such is a third party, and, with'the exception mentioned below, his title is not affected by the first mortgage. I think however that the reason why Armstrong is not affected is not because he was entitled to plead the statute of limitations but because he had a right to rely on Ark. Stats. § 51-1103.

3. In my opinion, since it is conceded that Armstrong still owes a large portion of the purchase price which he agreed to pay for the land in question, that Mrs. Billingsly should have a right to have her note paid out of the balance which Armstrong owes to the trucking company. My reasons for this conclusion are as follows: First, Pruitt was the only person who could plead the statute of limitations and he did not do so; Second, High-smith having taken a second mortgage in which the first mortgage was specifically recognized, was not a third party under the holding of many of our decisions and could not therefore plead the statute of limitations; (This question is exhaustively discussed in 174 A. L. R. at page 687); Third, Highsmith having come into a court of equity seeking relief on technical grounds, must first offer to do equity, and; Fourth, under the views which I have expressed equity would be done and no one would be hurt. Mrs. Billingsly would collect a just debt, High-smith would not only collect the money he loaned under his second mortgage but [being the owner of the trucking company] he would make a handsome profit in addition:, and Armstrong would not be required to pay one penny more than he agreed to pay and would have his land clear of all incumbrances.

Under the view which I hold none of the diré consequences predicted by the majority would result. The majority opinion expresses the fear “that a mortgage, barred both of record and in fact for 50 years or more, could still he foreclosed, with a mortgagor’s consent, as against subsequent purchaser for value.” This could not happen for the simple reason that such a purchaser would be protected by Ark. Stats. § 51-1103 mentioned above.


author: Geoege Rose Smith, J.

text:
    Rhea v. State.
    4843
    291 S. W. 2d 505
    Opinion delivered June 18, 1956.

      Kenneth Coffelt, for appellant.

      Tom Gentry, Attorney G-eneral and Thorp Thomas, Asst. Atty. General, for appellee.
   Geoege Rose Smith, J.

This is a petition filed by Sewell Rhea, a sixteen-year-old boy, for a writ of cer-tiorari to quash a circuit court order by which Sewell was found to be' in contempt of court and was sentenced to serve 100 days in the county jail. The question is whether the petitioner, as a witness in the court below, was entitled to refuse to testify on the ground of self-incrimination. Ark. Const., Art. 2, § 8. Petitioner also relies on the similar clause in the Fifth Amendment to the federal constitution, but that clause does not apply to proceedings in the state courts. Adamson v. California, 332 U. S. 46, 67 S. Ct. 1672, 91 L. Ed. 1903.

The petitioner’s brother, Keith Dale Rhea, was charged with having burglarized a service station owned by Mick Richards. During the trial of that case, which resulted in an acquittal, Sewell Rhea was called as a witness by the prosecuting attorney and was asked this question: “Did you, in the company of your brother, Keith Dale Rhea, break into Mick Richards’ service station in May of this year?” The witness refused to answer the question and was thereupon held to be in contempt of court.

Inasmuch as an affirmative answer to the prosecuting attorney’s question would undoubtedly have been incriminating, the witness was clearly entitled to remain silent unless there is some circumstance in the case that deprives the petitioner of his constitutional privilege. The State suggests two reasons for withdrawing the protection of the Bill of Rights, but neither suggestion is sound.

First, the State relies upon the provisions of Ark. Stats. 1947, § 43-915, which reads: “In all cases where two or more persons are jointly or otherwise concerned in the commission of any crime or misdemeanor, either of such persons may be sworn as a witness in relation to such crime or misdemeanor, but the testimony given by such witness shall in no instance be used against him in any criminal prosecution for the same offense.” It is contended that this section confers immunity against subsequent prosecution and effectively destroys any possibility that the witness’s forced admissions may ever prove to be incriminating.

It is plain, however, that this statute applies only to proceedings before a grand jury. The statute was enacted as § 67 of Chapter 45 of the Bevised Statutes of 1838. This chapter relates to criminal procedure and, as may he readily seen from the table of contents which follows its title, is subdivided to conform to the various steps involved in a criminal proceeding. Sections 59 through 77 define the procedure to be observed by grand juries. When § 67 is read together with the sections that immediately precede and follow it there can be no doubt that it pertains only to testimony taken in the course of a grand jury investigation. And, with a single exception, the statute has been so applied in the reported cases. Buzzard v. State, 20 Ark. 106; Ex parte Butt, 78 Ark. 262, 93 S. W. 992; Claborn v. State, 115 Ark. 387, 171 S. W. 862; Lockett v. State, 145 Ark. 415, 224 S. W. 952.

It is true that in State v. Quarles, 13 Ark. 307, the statute was inadvertently applied to testimony adduced at a trial before a petit jury. The court’s discussion, however, was directed to an entirely different issue, and there is nothing in the opinion to indicate that the court consciously meant to extend the statute beyond the scope clearly intended by the legislature. We do not regard the Quarles opinion as a controlling precedent on the issue now presented.

Second, the State contends that Sewell Bhea has already been convicted for the burglary of Bichards’ filling station and therefore can be compelled to testify about a crime for which he cannot again be put in jeopardy. Wigmore on Evidence (3d Ed.), § 2279. The defect in this argument lies in the State’s inability to prove the asserted prior conviction. It would hardly be contended that every witness who claims his constitutional privilege must first prove the negative by demonstrating that he has not been convicted. Bather, when the claim of privilege is apparently well founded the burden logically and fairly rests on the State to refute the claim by showing that a prior conviction has robbed the testimony of its incriminating effect.

Here the proof falls a good deal short of establishing a prior conviction. There is admittedly no written record of such a conviction by any court. The State attempted to prove by the county judge, C. 0. Smithers, that Sewell Rhea had been found guilty by the juvenile court and had been sent to the Boys’ Industrial School, but Judge Smithers’ candid testimony does not satisfy the State’s burden of proof. He recalled that Sewell had been brought before the juvenile court by the prosecuting attorney, but he is not certain that charges were preferred in writing. No copy of any such charges was produced by the State. Judge Smithers concluded that Sewell should be in the reform school, but he is unwilling to say that the boy was sent to that institution for the particular offense of breaking into the service station. “It seemed that it was that plus some other things. We didn’t think maybe he was telling all the truth about them.” There is no written record of the juvenile court decision; Judge Smithers simply turned the boy over to the sheriff with an oral order that he be taken to the Industrial School.

The legislature declared by Act 398 of 1955 that the Boys’ Industrial School shall be deemed an accredited educational institution and “is not, and shall not be a part of the penal system of this State, nor shall it be construed as a penal institution.” Ark. Stats., § 46-302.1. We need not, and do not, decide whether the sending of a boy to the Industrial School can amount to a conviction within the prohibition against double jeopardy. We merely hold that the State’s burden of proving a conviction for the burglary of the service station was not discharged by the inconclusive oral evidence that was produced in the trial court. For all this record shows the petitioner may have been committed not for any specific offense but only because the juvenile court made a general finding of delinquency. Ark. Stats. § 46-302.2. Proof more clear-cut than this is needed to deprive a citizen of the protection afforded by the constitution.

Writ granted.


author: Paul Ward, Associate Justice.

text:
    McKee v. Gay.
    5-999
    293 S. W. 2d 450
    Opinion delivered June 18, 1956.
    [Rehearing denied October 1, 1956.]

      William 8. Arnold, for appellant.

      Etheridge & Sawyer, for appellee.
   Paul Ward, Associate Justice.

Prior to 1927 C. L. Gay was the owner of Section 33, Township 16 South, Range 4 West in Ashley County Arkansas. In the Southwest quarter of said section there is a brake or slough, known as Holloway Brake, which lies [for all purposes of this opinion] in the shape of a horseshoe with the south prong intersecting the west boundary line of said quarter section of land near the southwest corner thereof and with the north prong cutting the west boundary line of said quarter section of land • approximately 1,500 feet (or more) to the north. The brake or slough. Itself is apparently several hundred feet wide, and within the horseshoe there is approximately 35 or 40 acres of land — the exact amount of land being immaterial at this point.

On December 29, 1927 the said O. L. Gay made a deed to one A. T. Christian to the land within the horseshoe [and part of the brake or slough] by a description which reads as follows:
“Beginning at a point at the low-water marie on the line running between .Sections 32 and 33 on the South side of the inside of the shoe of Holloway Brake, thence running South along said line between Sections 32 and 33, 1,523 feet, to the low-water mark on the North side of Holloway Brake, thence Eastward along the low-water mark of said Brake to a point of beginning, containing 43 acres, more or less.” (emphasis supplied)
On October 27, 1947 A. T. Christian conveyed to appellant, Frank McKee, the same land described above by a deed containing exactly the same description. Previously thereto, and on May 27, 1944, the said C. L. Gay deeded to appellees, G. W. Gay and C. A. Gay, all of the land he owned in said Section 33 (including of course the Southwest quarter thereof) by a description which reads as follows:
“All of Section 33, Township 16 South, Range 4 West, except 43 acres, more or less, lying East of the Section line between Section 32 and Section 33 in the bend of Holloway Brake.”

The proof indicates that there is valuable timber growing in Holloway Brake, and apparently the question of the ownership of this timber led to this litigation. Holloway Brake appears to be a marshy depression, some times being practically filled with water and at other times it is practically dry or the water stands in holes. It is stipulated and agreed that the brake is not a navigable stream, and on this fact appellant bases his contention that by virtue of his deed aforementioned he is a riparian owner and as such, under the law, he is the owner of Holloway Brake to the center line thereof. It is the contention of appellees, however, that appellant is not a riparian owner and that Ms land extends only to the limits of the boundaries described in Ms deed.

It is our conclusion that appellant’s contention cannot be sustained.

Under the holding of this court in Kilgo v. Cook, 174 Ark. 432, 295 S. W. 355, and under the holding by the Supreme Court of Wisconsin in the case of Allen v. Weber, et al., 80 Wis. 531, 50 N. W. 514, 27 Am. St. Rep. 51, we are forced to conclude that appellant is entitled to no more land than is contained Avithin the boundaries set out in the deed to him. In the Kilgo case, supra, appellee claimed the rights of a riparian owner under a deed which fixed as one of his boundaries the bank of War Eagle Creek. The court there noted that appellant Kilgo had previously thereto become the owner of the entire bed of War Eagle Creek by virtue of the fact that said creek had not been meandered by the government survey. In disposing of Cook’s contention the court said:

‘ ‘ The title to the bed of the stream having been conveyed to appellant prior to appellee’s acquisition of title, appellee took with notice of the prior grant and must be held to have known that his western boundary line was the brink of the east bank of War Eagle Creek, and that he acquired no title beyond the ripa.” ■

In the Allen case, supra, the same question raised here by appellant was decided adversely to his contention where the language in the description of the deed was very similar to that contained in appellant’s deed. In that case the court commenting on a description containing the words: “ ‘To the low-water mark; thence northerly along the low-ivater mark .. . .’ ” (emphasis supplied), stated that “There could be no language of description more clearly indicating the exact line than is found in the conveyances of this strip of land; . . . ” The court also said: “The language ‘along the bank’ is not as certain and specific as the language ‘along low-water mark.’ ” The- court in the Allen case also commented on the fact that the description in the deed there under consideration was an indication of the intention of the parties to convey only the land described. In the case under consideration all of the facts and circumstances indicate clearly that it was the intention of C. L. Gay in his deed to Christian to convey only the land contained within the boundaries of the deed of conveyance, and the record also discloses that the government survey took no note of the land now constituting Holloway Brake.

This suit was instituted by appellees for a declaratory judgment, asking the court to set out their rights and interests in Holloway Brake as opposed to appellant’s claim. The trial court’s finding in favor of appel-lees was based upon the principles above announced, but we are somewhat disturbed about the court’s language in describing the dividing line between appellant and ap-pellees. It appears to us that the court’s description may or may not be correct. It followed generally the same language used in the deed of conveyance to appellant and then attempted to explain that the low-water mark was to be determined by reference to the character of soil and the appearance of vegetation, etc., realizing, no doubt, the difficulty of determining what the low-water mark was at the time the land was surveyed just prior to the first deed executed by C. L. Gay in 1927. It occurs to us that since the one definite description contained in the 1927 deed was the west boundary line of the 48 acres there described, this west boundary line being 1,523 feet north and south along the section line between Sections 32 and 33, we think the trial court made a helpful suggestion, [not taken advantage of by either party] that a surveyor be employed [at the cost of both parties] to determine a clear description of appellant’s land. Obviously, if a surveyor could mark off 1,523 feet along said dividing section line with each end thereof extending into the brake and being of the same elevation, that such a line would be the true west boundary line of appellant’s property. If such a line could be established, then the line drawn from one end thereof around the edge of the brake, maintaining the same level, to the other end of the line, would constitute a true designation of the line between the two parcels of land here involved. As stated above it is possible that the line designated by the trial conrt duplicates the line which we have suggested bnt on the other hand it is possible that it does not.

Therefore we have decided to remand this cause so that the trial court may give both sides a reasonable time in which to request a survey if one is so desired. If no survey is requested by either party within the time fixed by the trial court, it will then reaffirm the decree already rendered by it herein.


author: Sam Robinson, Associate Justice.

text:
    Reed v. Billingslea.
    5-1004
    291 S. W. 2d 497
    Opinion delivered June 18, 1956.

      Max M. Smith, for appellant.

      George Howard, Jr., for appellee.
   Sam Robinson, Associate Justice.

The question here is whether the appellant, Willie Cora Lee Hudson Reed, is the heir of Ollie Hudson, who died intestate on the first day of July, 1955, while a resident of Jefferson County. The chancellor held against heirship.

It is established by the evidence that appellant is the illegitimate daughter of Hudson. While living in Milwaukee, Wisconsin in June 1944, appellant desired to obtain a government job, and, to do so, it was necessary that she have a birth certificate; she wrote to her father in Pine Bluff, asking that he obtain and send to her snch a certificate. Hudson complied with her request, and the certificate states that he is the father of appellant; he signed it before a notary public. This birth certificate is the basis of appellant’s claim that she is the heir of her father, Ollie Hudson, although she is an illegitimate daughter.

An Act of the General Assembly of 1853, Ark. Stats. § 61-301-302, provides: (1) “In all cases hereafter, when any person may desire to make a person or persons his or her heirs at law, it shall be lawful to [do] so by a declaration in writing in favor of such person or persons, to be acknowledged before any judge, justice of the peace, clerk of any court, or before any court of record in this State.” (2) “Before said declaration shall be of any force or effect, it shall be recorded in the county where the said declarant may reside, or in the county where the person in whose favor such declaration is made, may reside.”

Since it is clear that appellant cannot prevail because the birth certificate shows no intent on the part of Hudson to make her his heir, it is unnecessary to discuss other points.

Application of the statute is not limited to situations where a person desires to make an illegitimate child his heir, but applies to any one that a person may desire to make his heir. The title of the act, as appearing in the Acts of 1852-4-6-8, page 207, is as follows: “An act to authorize and prescribe the manner by which persons in this State may adopt illegitimate children and others, and make them their Heirs at Law.” Thus, according to the act, a person may make any one his heir. But, a mere acknowledgment in writing by one person that another person is his illegitimate son or daughter is not sufficient under the statute to make such illegitimate person an heir of a father recognizing him as a son or daughter. The statute provides: “When any person may desire to make a person or persons his or her heirs at law, it shall be lawful to [do] so by a declaration in writing in favor of such person or persons.” Certainly, under this statute, nothing less than a declaration clearly stating that one wishes to make another his heir will suffice. Here, Hudson does not indicate in any manner that he wished to make appellant his heir. He merely procured for her a birth certificate, at her request. This cannot be said to be a declaration in writing to the effect that he wanted to make her his heir.

Affirmed.


author: Sam RobiksoN, Associate Justice.

text:
    Bryant v. Green.
    5-1006
    293 S. W. 2d 447
    Opinion delivered June 18, 1956.
    [Rehearing denied October 1, 1956.]

      Robert J. Brown, for appellant.

      Parker Parker, for appellee.'
   Sam RobiksoN, Associate Justice.

This is a suit by the appellees to foreclose a vendor’s lien on property sold to appellants, Raymond C. Bryant and his wife, Lydia. Burl Johnson, Bryant’s tenant, is also made a party defendant. The land is located in Yell County, and the Bryants were served with summons in Pulaski County. In addition to asking for judgment on the debt secured by tbe lien, tbe appellees seek a judgment for money owed by tbe appellants on open account. Tbe Bryants filed a motion to strike that part of tbe complaint dealing ‘with the open account; tbe Chancery Court’s action denying tbe motion is one of tbe principal issues on direct appeal.

On cross-appeal appellees contend, among other things, that all payments bad been applied by appellees to tbe open account, and that tbe chancellor erred in applying any of tbe payments made by tbe Bryants to tbe indebtedness secured by tbe lien.

In 1948, appellees, W. H. Green and Viola Green, sold to appellants, Baymond C. Bryant and Lydia C. Bryant, 200 acres of land in Yell County for tbe consideration of $12,000, of which $3,000 was paid in cash, and the vendor’s lien retained for $9,000, at 6% interest. Subsequently, Green extended credit to Bryant on various items totalling $3,691.23. Bryant paid to Green a total of $6,970.49. At tbe request of Bryant, D. B. McClure, a public accountant, figured tbe balance owed by Bryant to Green. McClure was called as a witness by Green, and at tbe conclusion of bis testimony it was not clear as to just bow much was owed on tbe indebtedness secured by tbe lien, or tbe balance on tbe open account. Tbe court said, speaking to counsel for both sides: “Will you let Mr. McClure figure all of that and send me tbe figures? Will that be all right to both of you?” The lawyers on both sides stated that it would. Later, tbe court prepared a statement of findings and it is set out therein that $7,634.90 is owed by tbe Bryants which is secured by tbe lien, and that, in addition, Baymond Bryant is indebted to W. H. Green in tbe sum of $1,817.29.

Appellants say that tbe court erred in denying their motion to strike that part of tbe complaint alleging an indebtedness other than tbe one secured by tbe vendor’s lien; that there is a misjoinder of causes of action; that tbe Yell Chancery Court does not have jurisdiction to render judgment on an open, account where tbe defendants have been served with summons in Pulaski County. In support of this contention, appellants cite Barr v. Cockrill, 224 Ark. 570, 275 S. W. 2d 6, to the effect that “in order to obtain judgment against a defendant in a county other than that in which a suit is brought on a transitory action, said defendant must be jointly liable with a defendant who resides or is summoned in the county where the suit is filed. ’ ’ Of course, this is a correct statement of the law, hut it has no application here. Ark. Stats. § 27-1301 is controlling, and provides: “Several causes of action may be united in the same complaint, where each affects all the parties to the action, may he brought in the same county,' be prosecuted by the same kind of proceedings, and all belong to one of the following classes: First. Claims arising out of contracts, express or implied . . .” Appellants contend that this statute is not applicable here because Burl Johnson, Bryant’s tenant, who was in possession of the real property, -was made a party as well as Lydia Bryant, the wife of Raymond C. Bryant. Lydia Bryant is liable on the debt secured by the vendor’s lien, and it is claimed by Green that she is liable on the open account. Johnson was the Bryants’ tenant; no judgment was rendered against him, and he is not an appellant here. This entire controversy grows out of contracts between the parties. Moreover, the Bryants filed an answer prior to filing a motion to strike.

Appellants also argue that the court erred in charging them with a $100 item and a $600 item, and failing to give them credit for an additional payment of $1,000. But we cannot say the court’s finding in respect to these items is contrary to a preponderance of the evidence. Appellant also says that the statute of frauds applies to the $100 item and the $600 item. It is contended that Bryant is being required to answer for the debts of another; however, it appears that these were original obligations of Bryant.

On cross-appeal, appellees contend that the court erred in applying payments made by Bryant to the indebtedness secured by the lien; that Green had applied the payments to the open account, which he had a right to do as Bryant had not directed that the payments be applied to either account. It appears from the record, however, that Bryant made the payments on the lien debt, that G-reen had so understood it, and had applied the payments accordingly. Bryant testified as follows:

“Q. The transaction you entered into, being the balance of the payments on the place, were to be made at the rate of $1,000.00 per year, bearing 6% interest?
A. That is correct.
“Q. Bach payment was to have the interest taken out of it and the balance applied on the principal?
A. Yes, sir.
“Q. And the residue applied to the principal?
A. That is right.
“Q. Did you, this year, go to the home of Mr. and Mrs. Green to ascertain the state of the note?
A. Yes, sir.
“Q. Did you and he look at the records and from them take off the payments that had been made and putting them down and then having him to sign showing that they had been paid?
A. Yes.’?

The witness introduced in evidence a statement of the lien account set out at the bottom of an affidavit regarding the legal title to the land. It appears that the payments were applied against the lien indebtedness, and we cannot say the chancellor’s holding in this respect was contrary to a preponderance of the evidence.

On cross-appeal, appellees make other points, all of which we have examined carefully, but we find no error.

The decree is affirmed on appeal and on cross-appeal.