author: Jim Johnson, Associate Justice.

text:
    Stallcup v. Stevens.
    5-1965
    329 S. W. 2d 184
    Opinion delivered November 30, 1959.

      Douglas Bradley, for appellant.

      Barrett, Wheatley, Smith & Deacon, for appellee.
   Jim Johnson, Associate Justice.

This case involves a boundary line dispute.

Suit was brought in Chancery Court by appellee, Ralph J. Stevens, seeking to enjoin appellant, F. P. Stallcup, from interfering with fences located between the lands of the parties. A temporary restraining order was issued by the court against F. P. Stallcup enjoining him from molesting the fences in question. Appellant, F. P. Stallcup was joined in his answer and crosscomnlaint by appellants James F. Stallcup and Maxine Stallcup Gregg, as interveners who own an interest in the Stallcup property. The answer and cross-complaint allege inter alia that the metes and hounds description contained in appellants’ deed was a mutual mistake of fact both as to course and distance by the parties at the time. In addition to a prayer for dismissal, appellants also prayed that the metes and bounds description of their deed be reformed to establish the west line of their property to be a straight line between two corners alleged to be known, rather than follow the metes and bounds description contained in their deed; further praying that title to the property be quieted in them.

Appellee thereupon answered the cross-complaint and amended his complaint denying inter alia that the west line of the metes and bounds description contained in appellants’ deed was in error; denying that there was any mistake and denying that appellants were entitled to have their deed reformed. They alleged, in effect, that fences divided the land of appellee and the land of appellant at all. times for more than 30 years and that there had been an adverse holding by appellee, and those under whom he claimed, of the land up to the division fence during this entire period of time. The amendment to the complaint prayed for damages caused by acts committed by appellant against the property of appellee.

Upon final hearing the learned Chancellor found as follows:

“ (1) That the intervention and cross-complaint of F. P. Stallcup, James T. Stallcup and Maxine Stallcup Gregg be and the same is hereby dismissed for want of equity;
“(2) That the temporary restraining orders heretofore rendered be and are hereby made permanent;
“ (3) That the present fence is the true and proper boundary line between the lands of the plaintiff and the defendant and cross-complainants; that the defendant, F. P. Stallcup, should be and is permanently enjoined and restrained from interfering with or damaging any of the fences between said lands. He is also enjoined and restrained from interfering with or damaging any of the fences on the lands of plaintiff along Greensboro. Road or wheresoever situated;
“ (4) That plaintiff have and recover of and from the defendant, F. P. Stallcup, judgment in the sum of $150 as damages sustained by plaintiff as a result of cutting fences, cutting timber and damaging land; and
“(5) The defendant, and cross-complainants pay all costs hereof.”

From the above decree comes this appeal.

This being a suit in Chancery, on trial de novo we find the facts to be as follows:

About seventy-five years ago, F. P. Stallcup’s father received a deed to land described by metes and bounds, and which was referred to as containing thirty-eight acres. The lines are all definite except that the West metes and bounds line running to the South part of the land reaches a point which is less than the thirty-five rods called for in the deed from the Southeast corner of the quarter section. The land is described as follows:

“Beginning at the northeast corner of the northwest quarter of Section 9 in township 14 north, range 4 east, and running west forty (40) rods, thence south nine degrees east eighty (80) rods, thence south nineteen (19) degrees east twenty (20) rods, thence south sixty rods to a stake with white oak 14 inches in diameter east 5 links, thence east thirty-five (35) rods to the southeast corner of the said northwest quarter of Section 9, thence north one hundred and sixty rods (160) rods to the beginning corner, containing thirty-eight acres, more or less.” (Emphasis supplied.)

Complaint filed by appellee sets out as an exhibit a decree awarding dower which was rendered in the same court on August 21, 1929. This decree established the line of the land which was set out by commissioners and awarded by the Court to Zilphia Dorton, (widow of Brady Dorton) the predecessor in title to appellee. The proof in this case shows that the line established by that decree was based on fences that were then in existence and which have been recognized as separating the lands of the parties for all these years.

Testimony relative to the fence is as follows:

Ralph Stevens, appellee, testified that of his own knowledge a fence south of the Greensboro Road had been in the same location as now as far back as he can recollect. There has never been any occupancy or use of any land west of the fence and south of the Greensboro Road in the last twenty years by anyone other than appellee and his brother.

[Before Jonesboro became an important settlement in Craighead County, a community called Greensboro northeast of Jonesboro, at the Greene County line, was the commercial metropolis of the county. A road connecting Jonesboro and Greensboro is one of the historical landmarks of the county. This road crosses the south portion of the land here involved.]

Ralph Stevens further testified that there has been a fence north of the road between the land claimed by Mr. Stallcup and the land that he claimed in the same location as now more than thirty years. Neither Mr. Stallcup nor any of his relatives during the last thirty years have ever had any use of any of the land west of the fence either north or south of the road. Mr. Stallcup destroyed 600 or 700 feet of the fence. That’s why there are some comparatively new fence posts north of Greensboro Road. “I put the fence on the survey line. It corresponded with where the fence had been . . . The old fence had been there longer than I can remember, at least forty years. ’ ’

C. P. Chesier testified that he has lived in the area since 1898. Fences have been in the same location as now all that time. When he first became acquainted with the land, Brady Dorton was using and claiming the land west of the present fence location. He was one of the commissioners to assign dower to Mrs. Brady Dorton (Zilphia Dorton).

Alba Chesier testified there has been a fence in the present location to his recollection twenty-five or thirty years. He is forty-one years old. During 1958 he pastured the part north of the road. He gave it up about September 1; would have used it a month and a half longer at $1.00 a head; stopped using it on account of the fence being torn up and his stock got out. He had seven and eight head there. In building the fence in 1952 or ’53 they followed the survey.

James Yates testified: There has been no change in the location of the fence between the Stevens land and the Stallcup land during the twelve years he has been familiar with it. The fence built in 1952 or ’53 replaced a fence in the same location. One time Mr. Stallcup cut three or four hundred feet of the fence. It has been cut many times since. “It’s been a question to rent it to somebody for pasture because I have to go by and fix the fence all the time.” The labor and material in repairing the fence the last two years was probably not over $75.00. Timber has recently been cut in the southeast portion of the Stevens land. It would take about $75.00 to level the ruts out of the land cut by hauling the timber. “On some occasions I saw Mr. Stallcup cut the fence and on some occasions he told me he did.”

Appellant, F. P. Stallcup, testified: ‘ The north and south fence south of Greensboro Road was built by me in 1929 and 1930. Ralph Stevens’ brother had the land west of the fence terraced. Q. When was the first time that you knew of anyone claiming that particular 100-foot strip adversely to you?” (This is the land immediately west of the fence). “A. Well, it was in 1928 or 1929 when the commissioners was down there. Q. What commissioners ? A. The commissioners followed the decree of the Chancery Court in dividing the property belonging to B. L. Dorton. Q. This is part of the same fence that was built in 1953? A. Part of the same fence I was tearing down, yes, sir ... I paid for the cutting of the trees west of the fence I put up in 1928 or 1929. Q. Wrere you present in this Court something over a year ago when you were enjoined from interfering with the north and south fence? A. Yes, sir. Q. You have cut that fence some since then, have you? A. Yes, sir, I have cut the fence. Q. Then you later cut the east and west fence west of the north and south fence? A. Yes, sir.”

As we view this case, appellants claim under a deed made in 1884 to Thomas C. Stallcup, father of appellant, F. P. Stallcup. This deed has definite courses and distances. The only difficulty is that the south line is reached at a point less than 35 rods west of the southeast corner of the quarter section as called for by the deed. Appellants desired the Trial Court to disregard the courses for the west line and to run straight from a point 40 rods west of the northeast corner to a point 35 rods west of the southeast corner. Under the law the Court could not do this because: (1) distances yield to courses; (2) the fence between the parties had been recognized as the line for over 30 years; (3) the statement of acreage was not a covenant; and (4) appellants did not make as parties those essential to reformation of a deed executed more than 70 years ago.

In a suit to reform a deed the grantor in the deed, or, if dead, his heirs, and those claiming under him, are necessary parties. Oliver v. Clifton, 59 Ark. 187, 26 S. W. 817; Knight v. Glasscock, 51 Ark. 390, 11 S. W. 580; Ward v. McMath, 153 Ark. 506, 241 S. W. 3.

It is well settled by the decisions of this Court that, in defining the boundaries of a tract of land, where the descriptions given are uncertain and conflicting, distances yield to courses, and courses to monuments. See: Joseph v. Baker, 95 Ark. 150, 128 S. W. 864; Scott v. Dunkel Box & Lbr. Co., 106 Ark. 83, 152 S. W. 1025; Dierks Lbr. & Coal Co. v. Tedford, 201 Ark. 789, 146 S. W. 2d 918; Garrett v. Musgrave, 215 Ark. 835, 223 S. W. 2d 779.

To entitle a party to reform a written instrument upon the ground of mistake, it is essential that the mistake be mutual and common to both parties. Hicks v. Rankin, 214 Ark. 77, 214 S. W. 2d 490; Tomlinson v. Williams, 210 Ark. 66, 194 S. W. 2d 197; McClelland v. McClelland, 219 Ark. 255, 241 S. W. 2d 264; Paschal v. Swepston, 120 Ark. 230, 179 S. W. 339.

It must be remembered that the line was determined by commissioners and fixed by the Court August 21, 1929, and appellant, F. P. Stallcup, testified “the north and south fence, south of Greensboro Eoad, was built by me in 1929 or 1930.” He alone knew whether he built the fence before or after the decree awarding dower to Zilphia Dorton. His uncertain statement must be taken most strongly against him, indicating he built the fence after the line was fixed by the decree of 1929. The record reflects that his mother, Iliza Dorton, (daughter of Zilphia Dorton) appellants’ predecessor in title, was a party to that proceeding. The record further reflects that he recognized the existence of the decree.

The Chancellor correctly found and established the line between the parties as being where it had been for thirty years and more. See: McDonald v. Roberts, 177 Ark. 781, 9 S. W. 2d 80; Buchanan v. Roddy, 171 Ark. 855, 286 S. W. 1020; Robinson v. Gaylord, 182 Ark. 849, 33 S. W. 2d 710; Short v. Smithy, 224 Ark. 363, 273 S. W. 2d 393; Jewel v. Shiloh Cemetery Assn., 224 Ark. 324, 273 S. W. 2d 19; Carter v. Roberson, 214 Ark. 750, 217 S. W. 2d 846; particularly see Seidenstricker v. Holtzendorf, 214 Ark. 644, 217 S. W. 2d 836, a case directly in point and controlling here.

From what we have said above, we therefore find that there was an established line between the lands of appellants and appellee; that appellant, F. P. Stallcup, cut the fence on that line, that he was enjoined from committing such depredations, that he violated the injunction ; that in addition to cutting the fence he had timber on appellee’s land cut and hauled away and thereby damaged the land. The Chancellor’s decree is in all respects hereby affirmed.


source: Caselaw Access Project

author: Carleton Harris, Chief Justice.

license: Public Domain

text:
    Lawrence v. Lawrence.
    5-1924
    329 S. W. 2d 416
    Opinion delivered December 7, 1959.

      James L. Sloan, for appellant.

      Lloyd B. McCain, for appellee.
   Carleton Harris, Chief Justice.

This appeal is a further phase of litigation dealt with by this Court in Lawrence v. Lawrence, 225 Ark. 500, 283 S. W. 2d 697. Josiah "W. Lawrence, who was the owner of the realty here in question, died on November 28, 1946, leaving as his survivors a widow, Annie Lawrence, and two sons, Jay D. Lawrence, appellant herein, and Charles D. Lawrence. Charles D. Lawrence died testate on January 25, 1950, leaving as his sole survivor, his widow, Vivian H. Lawrence, appellee herein. On May 9, 1950, the mother, Annie Lawrence, conveyed the realty involved herein to her son Jay, by warranty deed. On April 15, 1952, Mrs. Lawrence died. In the earlier appeal, this' ■Court held that the will of Josiah W. Lawrence devised the realty in trust to Annie Lawrence for life for the benefit of herself and two sons, and that the remainder .in fee was vested in the sons, Jay D. Lawrence and ■Charles D. Lawrence. The interest of Charles D. Lawrence passed under his will to Vivian. Accordingly, appellant and appellee were the owners of an equal undivided interest in the realty as tenants in common.

Pursuant to the deed from his mother on May 9, 1950, Jay Lawrence took possession of the realty, managed it, collected rentals, made improvements, and paid the taxes and insurance premiums, both before and after the death of his mother. All of the property involved is located in McGehee, Desha County, and is described as follows:

Lot 7, Block 9, Addition “A”, McGehee, Desha County, Arkansas, (designated by the Chancellor as House No. 1).

Lot 8, Block 9, Addition “A”, McGehee, Desha County, Arkansas, (designated by the Chancellor as House No. 2).

Lot 4, Block 8, Maulding’s Addition, McGehee, Desha County, Arkansas, (designated by the Chancellor as House No. 3).

In Lawrence v. Lawrence, supra, this Court remanded the case for further proceedings, and the Chancery Court, after hearing further evidence, ordered partition and accounting between the parties as follows:

“That the claim of Jay Lawrence for repairs on the property involved during the lifetime of Mrs. Annie Lawrence shall be denied. * * * there is hereby a partition in kind of Lot 7 and 8 in Block 9 of Addition ‘A’ to the City of McGehee, Desha County, Arkansas, as follows:

(1) Lot 8 in Block 9 of Addition ‘A’ to the City of McGehee, Desha County, Arkansas, is hereby partitioned to the defendant, Jay D. Lawrence, together with all the improvements thereon and the furnishings thereof.

(2) Said Lot 7 of Block 9 of Addition ‘A’ to the City of McGehee, Desha County, Arkansas, together with the improvements thereon and the furnishings thereof, is hereby partitioned to the plaintiff, Vivian H. Lawrence.

* * * Lot 4 in Block 8 of Maulding’s Addition to the City of McGehee, Desha County, Arkansas, together with the improvements thereon and the furnishings therein is not susceptible to partition in kind and that the same should be sold and the proceeds of said sale to be divided equally between the plaintiff, Vivian H. Lawrence and the defendant, Jay D. Lawrence.

* * * that the defendant, Jay D. Lawrence, be and he is hereby ordered to account for the rentals collected from all of these properties from September 1, 1957, including the rental of Lot 8 (House No. 1) occupied by the defendant, which rental on said Lot 8 shall be at the rate of $55.00 per month, and to pay one-half (%) of the net rental into the registry of this Court for the use and benefit of Vivian H. Lawrence. It is further ordered, adjudged and decreed that the plaintiff, Vivian H. Lawrence, is indebted to the defendant, Jay D. Lawrence, in the sum of $1,059.80 for which defendant shall have judgment against the plaintiff to be paid out of the funds accruing to said plaintiff from the sale of Lot 4 in Block 9 (8) of Maulding’s Addition to the City of McGehee and her one-half of the said rentals accruing from all said properties from September 1, 1957, to date, heretofore ordered paid into the registry of this Court for the benefit of said Vivian H. Lawrence.”

From such decree, appellant brings this appeal.

For reversal of the decree, appellant relies upon the following points:

“I.
The Chancery Court Erred in Disallowing the Appellant’s Claim for Improvements Made By Him While Holding the Realty As A Life Tenant.
II.
If the Appellant is Not Entitled to an Allowance for Services Rendered in Managing the Realty, Then The Appellee is Not Entitled to an Allowance for Use and Occupation of the Realty by Appellant.
III.
The Rule Concerning Betterments Applies to Improvements Made By the Appellant While Holding the Realty As A Tenant In Common With The Appellee.”
I.
An examination of Exhibit 231 reflects that improvements of $2,042.68 were placed on house No. 1 by appellant between the time he received the deed from his mother and the time of her death. Exhibit 231 reflects no improvements on houses No. 2 and No. 3 during the same period. House No. 1 was awarded to Jay Lawrence by the decree, which resulted in appellant getting the entire benefit of the improvements to that particular property. At any rate, we consider appellant’s contention to be without merit. As found by the trial court, Jay D. Lawrence, after obtaining the interest of his mother, held as a life tenant (for the life of Mrs. Annie Lawrence), and not as a tenant in common with appellee. From the court’s opinion:
“He is not entitled to recover for the repairs and improvements as against the fee remainder or reversionary interest. Smith & Shoptaw v. Stranton, 187 Ark. 447. In the accounting repairs are claimed but no rents .accounted for. This is hardly consistent. The life tenant gets the rents but stands for the repairs. Tenants in common share the rent as well as the repairs. This claim for repairs during the lifetime of Mrs. Annie Lawrence is denied.”

In Smith & Shoptaw v. Stranton, supra, we said:

“It is the general rule that a life tenant may not recover from the reversioner for improvements made by the former and consequently no charge for the same can be made upon the inheritance. To this general rule exceptions may, and do, arise, where to apply it would be contrary to good conscience and fair dealing.”

Such exceptions are cited in the Restatement of the Law of Property, Volume I, Section 127, page 404. The Chancellor apparently found that this case did not come within any exception to the general rule, with which finding we agree. Appellant relies on Weatherly v. Purcell, 217 Ark. 908, 234 S. W. 2d 32, but there, the facts were decidedly different. From the opinion in that case:

“The evidence in the present case indicates without question that up until 1946 everyone who had anything to do with the land assumed that the 1889 deed conveyed a fee simple title to John E. Purcell. John E. Purcell executed a deed in 1930 purporting to convey a fee simple to Weatherly. That gave Weatherly ‘color of title’ within the meaning of the Betterments Act. * * * It is not necessary now to review all the evidence introduced; it suffices to say that when Weatherly made the improvements upon the land for which he now seeks reimbursement, he had no idea that he owned only an estate pur autre vie while John E. Purcell lived. He peaceably improved the land while in possession under color of title believing himself to be the owner in fee simple. ’ ’

It would certainly appear that Weatherly, who was undisturbed in his claim to the property for that period of time, and claiming under one whose apparent ownership had been recognized by “everyone who had anything to do with the land”, was justified in believing himself to be the owner.

II.

Appellant more or less concedes that under our holding in Campbell v. Selig, 216 Ark. 330, 225 S. W. 2d 340, he is not entitled to an allowance for services rendered in caring for the property; appellant states:

“However, if the appellant is required to forego valuable services, it is no more than equity, * * * to apply the rule of Cannon v. Stevens, 88 Ark. 610, to the effect that a tenant in common in possession of the common land is not liable to a co-tenant for rent unless there has been an actual ouster of the co-tenant or a promise to pay rent for use and occupation.”

We have held that since each tenant in common has the right to occupy the premises, neither can exclude the other, and a tenant in possession who does not exclude his co-tenant is not liable for rent. Hamby v. Wall, 48 Ark. 135, 25 S. W. 705. Here we deem the evidence sufficient to establish exclusion from the premises. In fact, the original suit was based on the contention by appellant that he was the sole owner of all the property here involved. He took complete charge of the realty, paying all the taxes, renting and collecting rentals, authorizing and making whatever improvements and repairs he deemed necessary, all without consultation with, authority from, or accounting to, his co-tenant. Under the record before us, it is obvious that appellant’s acts were entirely consistent with the acts of one who is exercising exclusive ownership over property, and entirely inconsistent with the acts of one who is only managing for the benefit of somebody else. We find no merit in this contention.

III.

Section 34-1423, Ark. Stats. (1947) Anno., provides as follows:

“If any person, believing himself to be the owner, either in law or equity, under color of title, has peaceably improved, or shall peaceably improve, any land which upon judicial investigation shall be decided to belong to another, the value of the improvement made as aforesaid and the amount of all taxes which may have been paid on said land by such person, and those under whom he claims, shall be paid by the successful party to such occupant, or the person under whom or from whom he entered and holds, before the court rendering judgment in such proceedings shall cause possession to be delivered to such successful party.”

This is commonly known as the Betterments Act. The' trial court found, and appellee argues, that this was an. action for an accounting and partition between tenants-in common, and the Betterments Statute had no application. The court applied the rule found in 4 Pomeroy’sEquity Jurisprudence 712, Section 1240. A discussion of this question is unnecessary, since we are clearly of the opinion that, even if the rule of figuring betterments as such under the statute applies, appellant is not entitled to relief under the plain provisions of that statute.. It will be noted that the statute provides “peaceably improved”. Even the evidence on behalf of appellant reflects that most of the improvements were made after appellant had notice that appellee was claiming half interest in the property. Improvements made with the knowledge that another is claiming an interest in the property can hardly be characterized as improvements made under a bona fide belief of ownership, as required by the statute. While not controlling, it might also be noted here that appellant’s explanation relative to the reason for his mother deeding him the property in 1950, is rather vague and indefinite. Some of the questions propounded on cross-examination were obviously based on the theory that the deed had been given solely as an attempt to strengthen appellant’s position against the impending claim of appellee, and appellant’s answers were hardly sufficient to dispel any suspicion that this might be true. According to his testimony, the mother “had done a lot more for C. D. Lawrence than she ever did for Jay D. Lawrence”, and appellant stated that she had always wanted him to have the property. There was also an obscure reference to litigation arising out of a loan made by Mrs. Annie Lawrence to Charles and appellee “* * * I also know that before — er about the time that my mother gave me a deed to this property there was some other litigation in — er my brother-had died — it was a store building involved that she loaned them $12,000.00 to build and at the time they didn’t — at the time of his death the building came back to mother * *

The special chancellor wrote a very exhaustive opinion, and evidently gave this case considerable study and close attention. He prepared a compact summary of the three properties, showing the value of the houses, improvements and repairs, taxes, insurance, rents, and a comparative showing of values of the properties before and after repairs and improvements. It is apparent from his opinion that he considered appellant was not acting in good faith in making the improvements and was endeavoring to “improve” the co-tenant out of her interest in the property. He found “from the evidence that the amount spent and the nature of the improvements in connection with remodeling, repairing and improving House No. 1 is out of proportion in value and nature to what the court can equitably permit a tenant in common to expend and charge the other tenants with part payment thereof, if there be any equitable way around it.” The court then proceeded to partition the property in a manner which, we have concluded, under the record before us, was equitable and just to each co-tenant.

Finding no error, the decree is affirmed.

       This holding reversed the trial court, which held that Annie Lawrence had taken a fee simple title under the will of her late husband.

       This fact was not specifically mentioned in the Chancellor’s opinion, but was evidently considered in making the order of partition.

       “Where two or more persons are joint purchasers or owners of real or other property, and one of them, acting in good faith and for the joint benefit, makes repairs or improvements upon the property which are permanent, and add a permanent value to the entire estate, equity may not only give him a claim for contribution against the other joint owners, with respect to their proportionate shares of the amount thus expended, but may also create a lien as security for such demand upon the undivided shares of the other proprietors.
      [In many jurisdictions it is held that a tenant has no lien as against his cotenant in respect of his share of rents or profits received by the cotenant. On the other hand, as between the parties themselves, it is frequently held that the court in partition proceedings will hold that one tenant is entitled to a lien against the interest of his cotenant for rents and profits received by such cotenant which equitably belong to the tenant.]”

       “This court finds and holds that partition in kind as to House No. 1 and No. 2 and sale of House No. 3, may be equitably and justly done in this manner:
      Partition House No. 1 to Jay D. Lawrence, defendant, he to absorb the costs of remodeling, repairing, improving, and refurnishing same, including taxes in the sum of $218.70 and the insurance during the period.
      Partition House No. 2 to Vivian Lawrence, plaintiff, she to reimburse Jay D. Lawrence for the entire bill for remodeling, repairing, improving and refurnishing House No. 2 in the sum of $3,971.27, in-eluding' the insurance in the sum of $336.78 and the taxes during those years. Since the taxes on House No. 1 and No. 2 were paid on one call, a total of $437.40, Vivian Lawrence will reimburse Jay D. Lawrence for one-half that amount in the sum of $218.70, making the total reimbursement on this item of $4,526.75. As to the disparity in value between House No. 1 and House No. 2, it will be noted that the value of the properties, less the repairs and improvements, House No. 2 is valued at $4,628.73, and House No. 1 at $2,841.55, showing inferentially that the difference in value between the properties, if there be a difference, was largely made or occasioned by reason of the expenditures of Jay D. Lawrence.
      On House No. 3, Jay D. Lawrence expended for repairs and improvements $2,854.15, taxes $198.90, and insurance $95.91, a total of $3,148.96. Vivian Lawrence owes Jay D. Lawrence one-half of this amount in the sum of $1,574.48. When this sum ($1,574.48) is added to the sum ($4,526.75) owing on House No. 2, there results the sum of $6,101.23 owing by Vivian Lawrence to Jay D. Lawrence.
      The rents for which Jay D. Lawrence should account, figuring House No. 1 at the same rental as House No. 3, during the period of accounting, amounts to the sum of $2,964.50, plus $5,345.01, plus $2,-964.50, a total of $11,274.01. Jay D. Lawrence is responsible to Vivian Lawrence for one-half of this sum of $5,637.01. Deduct this sum from the $6,101.23, leaves Vivian Lawrence indebted to Jay D. Lawrence in tire sum of $464.22, to be answered for in sale of House No. 3.
      This leaves House No. 3 to plaintiff and defendants as tenants in common, and it is found that this house should be sold to the highest bidder for partition and the clerk of this court named as commissioner to make sale and accounting thereof.”


author: J. Seaborn Holt, Associate Justice. Carleton Harris, Chief Justice,

text:
    Price v. Edmonds.
    5-1980
    330 S. W. 2d 82
    Opinion delivered December 7, 1959.
    [Behearing denied January 11, 1960]

      W. II. Dillahunty, Hale é Fogleman, for appellant.

      Fletcher Long, for appellee.
   J. Seaborn Holt, Associate Justice.

Appellee, Edmonds, is a resident and taxpayer of the City of West Memphis, Arkansas, and pays electric and water rates to a distribution system there which the city owns and operates for distribution of electric power and water to its inhabitants. The ownership of the system is exclusive in the city by ordinance enacted in 1954. Appellants are the duly appointed and acting members of the utility commission and are charged with the operation of the electric power distribution system, the water works and sewer systems of West Memphis. It appears undisputed that some of the members of the commission have made contracts with concerns in which members of the commission have an interest. Appellee, Edmonds, brought the present action in which he sought a restraining order enjoining appellants, as the utility commission and as individual members, from entering into any type of contract, or making payments under any previous contracts, with concerns in which one or more of the commissioners may have an interest, and further sought permission to inspect the records and books of the utility district which he alleged had been denied him.

On a hearing for a temporary injunction, the trial court’s “Order For Temporary Belief” contained, among others, the following recitals: “On the 30th day of June, 1959, the above entitled cause came on for a hearing upon the petition and prayer of the plaintiff for temporary relief in the following respects: (1) that the utility commissioners acting for the City of West Memphis, Arkansas, be enjoined and restrained from making and collecting rates for utilities; (2) that the utility commissioners aforesaid be enjoined and restrained from spending funds of the utility commission in connection with contracts with themselves or with companies in which a commissioner has a beneficial interest; and (3) that petitioner Cecil Edmonds, as a citizen and rate-payer, be allowed to examine any and all records of the aforesaid utility commission. * * * It is, * *' *, by the court CONSIDERED and ORDERED that (1) petitioner’s prayer that the utility commissioners of West Memphis be enjoined and restrained from making and collecting utility rates should be and it is hereby denied; that (2) petitioner’s prayer that the utility commission of West Memphis and each member thereof be enjoined and restrained from making contracts and spending commission funds with its own members and/or companies in which they have a beneficial interest should be and it is hereby granted; and that (3) petitioner’s prayer that the utility commission be compelled to make all its records available to him for examination has been taken out of the jurisdiction of this court by a Mandate of the Supreme Court of Arkansas dated July 2, 1959.”

Appellant says, “The only question now before this court is that of the propriety of the granting of the temporary injunction. ’ ’

On the record presented, we hold that the trial court correctly granted temporary injunctive relief and that there was no abuse of the court’s discretion in so doing.

Here the facts are undisputed that appellants, while acting as the utility commissioners for West Memphis, were spending funds of the utility commission in connection with contracts with themselves or with companies in which a commissioner had a beneficial interest. In these circumstances, what we said in Riggs v. Hill, 201 Ark. 206, 144 S. W. 2d 26, applies with equal force here. “The granting or refusing of injunctive relief rests within the judicial discretion of the trial court, and its action in the matter will be sustained on review by an appellate court, where the power has not been abused. Ordinarily, it is sufficient if a transaction is shown which makes a proper subject for investigation in a court of equity. The rule applies to the grant or denial of a preliminary injunction, and to rulings on motion to dissolve the injunction. Such orders will not he disturbed on review unless they are contrary to some rule of equity, or the result of improvident exercise of judicial power.” 28 Am. Jur., 500, 501.

We reaffirmed this holding in the more recent case of Scrivner v. Portis Mercantile Company, 220 Ark. 814, 250 S. W. 2d 119, in this language: “As to (c), an appeal may be taken from the issuance of a temporary injunction. Ark. Stats. 1947, Sec. 27-2102. But the granting of the order is a matter that lies within the chancellor’s discretion. Riggs v. Hill, 201 Ark. 206, 144 S. W. 2d 26. By his pleadings Scrivner concedes that the State owns the land and that he is in effect a trespasser. The prosecuting attorney, pursuant to his authority to represent the State in civil actions (Secs. 24-101 and 24-103), asks that the trespass be enjoined pendente lite. The proof taken at the preliminary hearing sustains the view that Scrivner’s possession is wrongful. There was no abuse of discretion in the issuance of the injunction.”

On appellant’s contention that Edmonds had no right to maintain the present suit against the commission, we hold that since the evidence shows that he was a citizen, property owner, taxpayer, rate-payer or “consumer”, he did have the right to maintain the present suit. The Constitution of Arkansas, Article 16, Section 13, provides: “Any citizen of any * # * City * * * may institute suit in behalf of himself, and all others interested, to protect the inhabitants thereof against the enforcement of any illegal exactions whatever.”

Many of our cases indicate that this section of the constitution was designed to prohibit the illegal expenditure of government funds before they occur. This right has been extended in suits brought against improvement districts by property owners residing therein. In the recent case of Keenan v. Williams, Chancellor, 225 Ark. 556, 283 S. W. 2d 688, there was at issue the misuse of district funds by the commissioners of a drainage district and complaint was brought by three landowners within the district. We there said: “It cannot be doubted that these matters are within the jurisdiction of equity. The state’s policy is declared by the constitution, which authorizes any citizen of a county, city, or town to institute suit to prevent the enforcement of illegal exactions. Art. 16, Sec. 13. Even though the constitution does not expressly refer to improvement districts it has been repeatedly held that, in harmony with the constitutional policy, equity has jurisdiction of suits to prevent the misapplication of improvement district funds. Huddleston v. Coffman, 90 Ark. 219, 118 S. W. 1010; City of Bentonville v. Browne, 108 Ark. 306, 158 S. W. 161; Seitz v. Meriwether, 114 Ark. 289, 169 S. W. 1175.”

In this connection we must not overlook what also appears to be the undisputed facts: (1) The ownership of the distribution system is in the City exclusively. (2) The funds collected from rates, subject to payment of debts and outstanding liens for bonded obligations, are public funds. (3) The directing body of the utility district, the commissioners, has authority originating exclusively in a grant from duly elected public officials, the city council. (4) Edmonds has a proprietary and pecuniary interest in the distribution system and in the funds of the district, and represents the class which owns the whole interest, subject only to payments already mentioned.

Ordinarily, as appellants contend, the utility commission would have been the proper party to institute this action; however, in the instant case the record shows that they took no action whatever until they were brought into court by appellee who charged them with having committed illegal and unlawful acts which they admitted to be true. In the case of Seitz v. Meriwether, 114 Ark. 289, in which the right of a taxpayer to sue was questioned, (an improvement district case which involved a municipal corporation and its inhabitants) we there said: “A court of equity may, at the suit of property holders or taxable inhabitants of a municipal corporation, restrain the corporation and its officers from making an unauthorized appropriation of the corporate funds. This is so because the corporation holds its money for the corporators, the inhabitants of the town or city, to be expended for legitimate corporate purposes, and a misappropriation of these funds is an injury to the taxpayer, for which no other remedy is so effectual or appropriate as an injunction.”

Yet it appears that they still contend that they have done no wrong officially or individually. In the circumstances, we hold, as above indicated, that appellee acted properly in bringing this suit since appellants, in effect, had declined to take action.

On the question of appellee’s right to inspect the books and records of the commission, our governing rule is announced in 189 Ark. 914, 75 S. W. 2d 666, City National Bank v. Wofford, as follows: “* * # a party to a pending action has no right to call for books, papers and documents as to his adversary merely for the purpose of entering into a ‘fishing examination’ of them. To authorize their production there must be a substantial showing that the book, paper or document sought for contains material evidence in support of the cause of action or defense of the party asking for it. A mere suspicion that it contains such evidence does not warrant an order for its production. The enactments upon the subject generally make it a condition that the books, etc., required shall contain evidence relating to the merits of the case.

‘ ‘ Section 1393 of Elliott on Evidence provides: ‘ The fundamental requirement as to the sufficiency of the motion or petition is that it mnst be shown upon good and sufficient cause that the books, papers or documents sought to be produced or inspected contain evidence material and pertinent to the issues and on behalf of the applicant.

“ * * It is not sufficient to allege generally the materiality of the books or documents, as this would not only be the averment of a conclusion, but would permit the question of materiality to be decided by the applicant instead of by the court. Hence it is not sufficient to allege that such books or papers contain evidence relative to the merits of the action, but it must be made to appear wherein such relation consists. In other words, the rule, as stated by the court is: It is well settled that an order for discovery and inspection will never be granted unless the necessity therefor is clearly shown. ’ ’’

Accordingly, the decree is affirmed.

Harris, C. J., and McFaddin, J., dissent.

Carleton Harris, Chief Justice,

dissenting. I am of the opinion that the temporary injunction should not have been issued because all of the proper parties were not before the court. Though the utility is operated by the Board, such operation is actually under the supervision of the City Council. The statute requires that the Board shall report to the Council “with reference to the conditions and affairs of the municipal plants under its control at such time and in such manner as the City Council may designate ’ and the Council has full authority to repeal or amend any ordinance which it has passed pursuant to Act 562 of 1953. This is not a taxpayer’s suit because no tax monies are involved. Edmonds is simply a customer of the utility. I am strongly of the view that the city of West Memphis and the City Council are necessary parties in the case, and since they were not before the court, there was a defect of parties, and the prayer for injunction should not have been granted.

Ed. F. McFaddin, Associate Justice, dissenting. I recognize the rule to be, as stated in Riggs v. Hill, 201 Ark. 206, 144 S. W. 2d 26, and reaffirmed in Scrivner v. Portis Mercantile Co., 220 Ark. 814, 250 S. W. 2d 119: that in an appeal from an order granting or refusing a temporary injunction, the Chancellor’s exercise of discretion is usually sustained. In other words, on appeal from an order granting a temporary injunction, we are usually inclined to leave undisturbed the Chancellor’s discretion because the merits of the case have not been fully decided. But, in the case at bar, I cannot agree that the temporary injunction should have been issued, because I am of the opinion that the Court did not have before it all proper parties; and this question had been raised by a demurrer which the Court had overruled before granting the temporary injunction.

This is the first time that Act No. 562 of 1953 (as now found in § 19-4051 Ark. Stats.) has been before this Court; and I think the Act deserves serious study. The Act allows a City of the first class, which owns a municipal utility, to enact an ordinance appointing a commission of five • citizens to operate the public utility. I will refer to these five as the ‘ ‘ Commissioners ’ ’. The title to the public utility does not pass from the City to the Commissioners; and there is nothing in the Act that says that the Commissioners have the power to bring or defend lawsuits. The title to the property still remains in the municipality, and the Commissioners are merely trustees of the municipality in the operation of the utility and at all times subject to the action of the City Council.

I am thoroughly of the opinion that the trustees of a trust have no power to deal with themselves in handling the trust funds. But I think the beneficiary of the trust (that is, the City Council) should first he called on to stop such dealings, rather than for a mere utility user (as was the appellee Edmonds in this case) to maintain a plenary suit. Edmonds does not occupy the position of a taxpayer in this case because there are no tax moneys involved: he is a mere utility user. He could no more sue the Commissioners, as he is here trying, than any utility user could sue the Board of Directors of the corporation owning and operating a utility system.

Edmonds should have gone to the City Council of West Memphis and asked the Council to investigate this matter of the Commissioners dealing with themselves. If the Council had not acted, then Edmonds could have made proper allegations to that effect and joined the City of West Memphis and the Council members in the litigation. I think that such demand on the Council was essential. The situation of Edmonds in the case at bar is very similar to that of a minority stockholder in a corporation, who may think the Board of Directors to be doing something wrongful : such minority stockholder must first go to the Board of Directors (that is, the City Council in the case at bar) and ask the Board of Directors to act. Then if the Board of Directors fails to act, the corporation and the directors must be joined in the litigation brought by such minority stockholder. See Red Bud Realty Co. v. South, 153 Ark. 380, 241 S. W. 21.

If one utility user in West Memphis can bring a suit against the Commissioners whenever he pleases, then every other utility user can at any time bring such a suit against the Commissioners of the utility; and the result will be that the Commissioners will be busy defending lawsuits rather than operating the utility and reporting to the City Council. Section 9 of the Act No. 562 of 1953 says that the Commissioners will report to the Council; and that is where Edmonds should have first gone to ask for redress. There is no allegation in the complaint in this case that Edmonds ever took the matter up with the City Council of West Memphis. In the evidence it is said that the Mayor agreed to something when Edmonds talked to him; but the Mayor is not the City Council.

I think the City of West Memphis and the City Council are necessary parties in this case. This is not a taxpayer’s suit and cannot be brought under Article 16, Section 13 of the Constitution. Neither is this a suit within the purview of § 20-113 Ark. Stats., because I consider Section 8 of the Act 562 to be impotent: it violates Art. Y § 23 of the Constitution. In the final analysis, this is a suit brought by a utility user against the Commissioners who are trustees for the City; and the City and its Board of Aldermen are essential parties to this litigation. Until those parties were before the Trial Court there was a defect of parties and the temporary injunction should not have been issued. For these reasons I respectfully dissent.

       The demurrer read: “That the petitioner has not the legal capacity to maintain this cause of action in that there _ are no tax moneys involved in the operation of the utility commission of West Memphis, Arkansas paid either hy the petitioner or others that he may represent.”

       Section 6 of the Act says: “Said board created pursuant to the provisions of this act shall have full power to operate and control the plant or plants entrusted to its direction by the city ordinance creating said board .... and subject to such restrictions as may be prescribed by the ordinance creating said board”. Section 9 of the Act says: “Said Board shall make due report to the City Council with reference to the conditions and affairs of the municipal plants under its control at such time and in such manner as the City Council may designate”; and Section 12 of the Act says: “Nothing contained in this act shall be construed to prohibit the city council of any city subject to the terms of this act from repealing or amending any act which it may have passed pursuant to the authority herein conferred”.


author: Ed. F. McFaddin, Associate Justice.

text:
    Weaver v. Weaver.
    5-1967
    329 S. W. 2d 422
    Opinion delivered December 7, 1959.

      Paul K. Roberts, for appellant.
    No brief filed for appellee.
   Ed. F. McFaddin, Associate Justice.

This is a divorce case and the question is whether the Trial Court was correct in sustaining the defendant’s demurrer to the plaintiff’s evidence on the issue of residence or domicile.

The appellant, Mrs. Weaver, was plaintiff below. She filed suit for divorce on May 23, 1958 alleging, inter alia, that she lived in Bradley County, Arkansas; that the parties were married in Bradley County in December, 1948, and lived there together as husband and wife until May, 1958, “when plaintiff was forced to leave defendant because of his indignities toward her”. In his answer, Mr. Weaver said: “. . . that this plaintiff has unlawfully removed their two children, both of whom are beyond the age of tender years, from the jurisdiction of this Court, . . .”

In the trial before the Court on December 5, 1958 Mrs. Weaver testified, as regards her residence and domicile:

I am working in the Methodist Hospital in Memphis, Tennessee, as a nurses’ aid. I went up there May 24, 1958. My home is in Bradley County, Warren, Arkansas. I have maintained my home here all my life. The reason I am in Memphis is because I am trying to make a living for my two children. I could not get employment here. I am in Memphis temporarily. I am living with my mother, Mrs. Ella Dearman, 4127 Mamie Drive. . . . I am there temporarily. The only time I have been in Bradley County since I left here was on visits and a vacation.”

To corroborate her testimony as to residence or domicile in Bradley County, Mrs. Weaver called two witnesses, being Mrs. Tate and Mrs. Nichols. Mrs. Tate’s testimony was: “I have known Mr. and Mrs. Weaver for five or six years. I lived neighbors to them here on Shop Street in Warren from 1952 until about two months ago. Prom 1952 on my husband and I visited the Weavers in their home”. Mrs. Nichols’ testimony was: “I have known Mr. and Mrs. Arthur Weaver for years. They lived on Shop Street here in Warren. I know from my own personal knowledge that Mrs. Weaver has been a resident of Bradley County, Arkansas, for the last 9 years. She went to Memphis on May 23 or 24 in 1958.”

At the close of the plaintiff’s case, Mr. Weaver filed a demurrer (Act No. 470 of 1949, as found in § 27-1729 Ark. Stats.) to the plaintiff’s evidence, saying: “There has been no corroboration that the plaintiff is a resident of Arkansas. There has been no proof that the plaintiff is a resident of Arkansas”. The Trial Court sustained the demurrer; and we conclude that the Court was in error. Under our holding in Werbe v. Holt, 217 Ark. 198, 229 S. W. 2d 225, the evidence in behalf of the plaintiff should have been given its strongest probative force, and the demurrer should have been overruled if, from such evidence, the Court could have found that Mrs. Weaver was still domiciled in Bradley County and only temporarily away. We believe that it was possible for such a finding to have been made. We are not deciding here as to what the Chancery Court would hold on final weighing of the evidence: the issue here is whether there was enough evidence on residence or domicile to require a final weighing; and we hold that there was.

This case presents the repeatedly recurring distinction between domicile and residence. Prior to 1931 it was the holding of this Court that divorce proceedings could only be maintained in the county of domicile of the plaintiff or cross-complainant. But the Arkansas Legislature, by Act No. 71 of 1931, enacted that mere residence of the plaintiff was sufficient to give Arkansas courts jurisdiction for divorce. In Squire v. Squire (decided November 21, 1932), 186 Ark. 511, 54 S. W. 2d 281, this Court upheld the Act No. 71 of 1931. It is apparent that this decision did not destroy domicile as a basis for jurisdiction: it merely allowed residence as an additional basis. In other words, Arkansas would grant divorces on either domicile or residence, whichever be proved.

The rule of Squire v. Squire remained the law of Arkansas until April 28, 1947, when this Court, in Cassen v. Cassen, 211 Ark. 582, 201 S. W. 2d 585, overruled Squire v. Squire and returned to the old rule of domicile as the essential for jurisdiction: in other words, we held residence alone was not sufficient. Then the Arkansas Legislature, by Act No. 36 of 1957, enacted that residence alone would be sufficient. The said Act specifically stated that Squire v. Squire was to be followed, rather than Cassen v. Cassen. In Wheat v. Wheat (decided by this Court on December 22, 1958), 229 Ark. 842, 318 S. W. 2d 793, this Court upheld the Act No. 36 of 1957. So that now mere residence is sufficient for jurisdiction in divorce cases; but certainly domicile is still, and always has been, sufficient. In Wheat v. Wheat the majority recognized that Arkansas divorces based on mere residence may not be entitled to full faith and credit in other States, whereas, divorces based on domicile are entitled to full faith and credit in other States. Thus, the majority opinion recognized that jurisdiction has all the time existed based on domicile.

In the case at bar, Mrs. Weaver certainly had a domicile somewhere. She testified that her domicile was in Bradley County, Arkansas, and that she was working in Memphis only temporarily and that she returned to Bradley County on visits and on her vacation. The divorce suit was filed May 23, 1958. Mrs. Weaver’s neighbors testified that she had lived in Bradley County for more than nine years and that she did not go to Memphis until May, 1958, and had been back on visits. Had she acquired a domicile in Tennessee? Domicile includes the animus manendi-, a person acquiring a domicile keeps such domicile until another one is acquired. Of domicile, the Supreme Court of the United States has said in Williams v. North Carolina, 325 U. S. 226, 65 S. Ct. 1092, 89 L. Ed. 1577, 157 A. L. R. 1366: “Domicile implies a nexus between person and place of such permanence as to control the creation of legal relations and responsibilities of the utmost significance.”

In Troillet v. Troillet, 227 Ark. 624, 300 S. W. 2d 273, we cited from Oakes v. Oakes, 219 Ark. 363, 242 S. W. 2d 128: “To effect a change of domicile from one locality, state, or country, to another, there must be an actual abandonment of the first domicile, coupled with an intention not to return to it, and there must be a new domicile acquired by actual residence in another place or jurisdiction, with the intention of making the last acquired residence a permanent home. . . . The change of residence must be voluntary; the residence at the place chosen for the domicile must be actual, and to the fact of residence there must be added the animus menendi>>.

There was no showing that Mrs. Weaver had acquired a domicile in Tennessee; so it could have been found from the evidence that her Arkansas domicile continued. If such be true, then the Bradley Chancery Court had jurisdiction. It follows that the decree sustaining the plaintiff’s demurrer is reversed and the cause is remanded for further proceedings not inconsistent with this opinion.

       In Wheat v. Wheat this Court said: “The legal history that lay behind Act 36 is well known. The Civil Code of 1869 required the plaintiff in a divorce case to prove residence in the state for one year next before the commencement oí the action. C. & M. Digest § 3505. In 1931 the legislature amended the statute to require only that the plaintiff prove residence for three months next before the judgment and for two months next before the commencement of the action. Ark. Stats. § 34-1208. In 1932 we held that the amended statute meant residence only, not domicile. Squire v. Squire, 186 Ark. 511, 54 S. W. 2d 281. This interpretation was followed until 1947, when we overruled the Squire case and held that the statutory reference to residence meant domicile. Cassen v. Cassen, 211 Ark. 582, 201 S. W. 2d 585, noted in 2 Ark. L. Rev. 111. The Cassen case did not reach the constitutional question now presented, as the decision involved only an issue of statutory construction. It cannot be doubted that by Act 36 the legislature intended to restore the rule of the Squire case, for the emergency clause in the act refers specifically to that decision and to the Cassen case.”


author: George Rose Smith, J.

text:
    Schnedler v. Heller.
    5-1984
    329 S. W. 2d 432
    Opinion delivered December 7, 1959.

      Sydney S. Taylor, for appellant.

      Richard W. Hobbs, for appellee.
   George Rose Smith, J.

This appeal from the probate court involves an antenuptial contract between the decedent, Milton Heller, and his second wife, the appellee. Heller seems to have deserted his first wife and his infant daughter in New York in about 1939. Eventually Heller settled in Hot Springs, Arkansas, and married the appellee in 1955. Before the marriage the couple executed, in triplicate, an antenuptial contract by which each renounced all interest in whatever estate the other might leave at death.

Heller died in Hot Springs on October 27,1957, from a heart attack, as he was preparing to fly to New York to visit his daughter, the appellant, who is now grown and married. The appellee was appointed as administratrix of her husband’s estate and insists that she is entitled to dower in his property. This claim is disputed by the appellant, who began this litigation by filing a petition asking that Mrs. Heller be required to produce the antenuptial contract and to abide by its terms. To this petition the appellee pleads two defenses: First, she and her late husband canceled the contract, and, second, the contract was voidable because Heller induced her to execute it by misrepresenting the amount of property he then owned. The probate judge upheld the appellee’s position on both, issues and accordingly dismissed the appellant’s petition.

On the second point, involving the contention that the appellee was overreached by her intended husband, we are of the opinion that the probate court was without jurisdiction. This issue is controlled by our decision in Carter v. Younger, 112 Ark. 483, 166 S. W. 547, where we held that the probate court is without power to set aside a separation agreement on the ground of unfairness, it being said: “Under these allegations of the pleadings, we are of the opinion that it was within the province of the probate court as incident to its jurisdiction to assign dower to determine whether the separation agreement . . . was afterward abrogated by the parties who made it. . . . This is as far, however, as the probate court had jurisdiction to inquire. It had no jurisdiction to determine as to whether or not the separation agreement was fair and just. These were issues that could only be determined in another forum. The probate court had no jurisdiction to grant equitable relief.” Since that decision the jurisdiction of the probate court in this particular has not been enlarged by any new constitutional or statutory provision.

On the first point we have concluded that the weight of the evidence is against the court’s finding that Mr. and Mrs. Heller agreed to cancel their antenuptial contract. The only testimony to that effect was given by the appellee herself, an interested party, who says that she and her husband threw their copies of the agreement into the fireplace in January of 1957, as part of a reconciliation following a temporary separation. This testimony is entirely uncorroborated, except for the fact that Heller’s copy of the agreement was not found in his safety deposit box after his death.

The appellant testified that she and her father were reunited in New York in April of 1957, upon his initiative, after they had not seen each other for eighteen years. Mrs. Schnedler states that her father showed her the antenuptial contract and explained its terms in detail. Two other kinsmen of the decedent, an attorney and a business associate, also testify that Heller showed them the contract on this visit to New York. We think it unlikely that Heller would have mentioned the contract to his daughter if it had been abrogated in the preceding January, as the appellee says it was. That Heller exhibited the contract in New York is further confirmed by the fact that Mrs. Schnedler, after her father’s death, came to Arkansas, went to her father’s attorney, and obtained his signed copy of the contract. If Heller did not discuss the matter with his daughter there is no explanation of how she knew that such a document existed and could be sought out. Thus we think the preponderance of the evidence rather clearly supports the view that the agreement was not canceled in January of 1957.

The judgment is reversed and the cause remanded, without prejudice to the appellee’s right to request a transfer to equity for further proceedings upon the issue that lies beyond the probate court’s jurisdiction. Merrell v. Smith, 226 Ark. 1016, 295 S. W. 2d 624.


author: Paul Ward, Associate Justice. Ed F. MoF addin, Associate Justice,

text:
    Nelson v. Eckert.
    5-1973
    329 S. W. 2d 426
    Opinion delivered December 7, 1959.

      Rhine & Rhine, L. B. Smead, for appellant.

      Frierson, Walker & Snellgrove, for appellee.
   Paul Ward, Associate Justice.

This appeal presents two principal questions growing out of an automobile collision which resulted in the death of all parties here concerned. One, what statute of limitation applies and two, does the right of action survive?

Carlos Levone Nelson, a resident of Greene County, Arkansas, and Charles Crumpler, a resident of Columbia County, Arkansas, were acquaintances in the Army, stationed at Port Hood, Texas, awaiting discharge. Charles, who was discharged first and had returned to his home, borrowed his mother’s car, went to Greene County, and picked up the parents of Carlos (Pred and Myrtle Nelson) and then proceeded to Port Hood to pick up Carlos who was at that time in the process of being discharged. On the way back to Arkansas and while they were still in Texas Charles’ car was wrecked and all the occupants above mentioned were killed. The wreck occurred on July 1, 1954.

On June 11, 1956, Hobert Nelson, as the Administrator of the estates of Pred Nelson, Myrtle Nelson, and Carlos Nelson, filed a Complaint in the Greene County Circuit Court where the Nelsons all lived against W. C. Eckert, the Administrator and personal representative of the estate of Charles Crumpler. In this Complaint it was alleged, among other things, in substance that the Nelsons paid a consideration to Charles to safely transport them to Texas and then to transport them and Carlos from Texas to Arkansas; that Charles was guilty of willful and wanton negligence in driving too fast and in trying to pass another car, which negligence resulted in wrecking his car and killing said occupants; and that the estate of each deceased was entitled to recover $50,000.00 from the defendant. To the above Complaint the defendant (appellee here) filed a motion to dismiss on the grounds of lack of jurisdiction and venue.

On August 13, 1956, the Court sustained the Motion and made an Order dismissing the Complaint, stating in the Order that the plaintiff had confessed the Motion. On January 17, 1957 (within one year after the filing of the Greene County Complaint but more than two years after the accident) appellant filed a Complaint in Columbia County, Arkansas, and secured service on appellee. This Complaint was essentially the same as the one filed in Greene County except that it contained the following paragraph: “That this suit was filed in the Circuit Court of Greene County on June 11, 1956; summons issued on the same and served on the defendant and a non-suit taken on said suit on the 13th day of August 1956”.

To the above last mentioned Complaint appellee filed a demurrer on the grounds that the Complaint did not state facts sufficient to constitute a cause of action, and that the Complaint shows upon its face this cause of action is barred by the statutes of limitations. Thereafter appellant filed two amendments to the Complaint, one asking for punitive damages and the other attaching the pleadings and order in the Greene County case as exhibits. After each amendment appellee offered the same demurrer except that the last one contained this additional ground, to-wit: ‘ ‘ The Complaint as amended and exhibits show upon their face that this cause of action abated upon the death of Charles Crumpler ’ ’. On February 23, 1959, the trial court sustained appellee’s demurrer and dismissed plaintiff’s cause of action without specifying the basis or reasons for its action.

One. Under the view which we have adopted it is unnecessary to consider appellee’s contention that the Greene County Order of dismissal was in fact a nonsuit, that the statute of limitations was not thereby tolled, that the Greene County action was ineffective to toll the statute, and that, therefore, no suit had been filed by appellant within the statutory period of limitations. These contentions of appellee are based upon the assumption that the applicable statute in this situation is the Arkansas two-year statute of limitations. In this assumption we think appellee is in error.

It is agreed by all parties that since the accident happened and the Nelsons were all killed in Texas, any cause of action which appellant has in this instance accrues by virtue of the substantive laws of Texas. It is further shown and agreed that the law of Texas provides a cause of action in favor of the estate of anyone who is wrongfully killed in that State. The Legislature of this State passed Act No. 53 in 1883, Section 1 of which is now Ark. Stats. Section 27-903 and Section 2 of said Act No. 53 is now Ark. Stats. Section 27-904. Section 27-903 for the first time provided for a cause of action in a wrongful death case in favor of the estate of a person who was killed. Section 27-904 provides, among other things, that every such action shall be commenced within two years. Thus, it is seen that the same Act which creates the cause of action in this State also contains the statute of limitations. This is known in judicial parlance as a built-in statute of limitations. Since the present cause of action does not arise under Section 27-903 it must follow that Section 27-904 — the two-year limitation portion — likewise cannot apply. With one exception to be noted later it is well settled that in an action of this kind the statute of limitations of the forum (that is the State in which the cause of action is tried) controls. In fact both parties agree that the Texas statute of limitations is not applicable here. It is appellant’s contention that the three-years limitation provided for in Ark. Stats. Section 37-206 is applicable in this case. Without deciding whether it is or not, we do hold that, if it does not apply, then the five-years limitation found in Ark. Stats. Section 37-213 will govern. The exception mentioned above is where the statute of a foreign State in which the cause of action arose has a built-in statute of limitations, then such statute of limitations would apply.

In the case under consideration it is admitted that the Texas statute under which this action is brought has no such built-in statute of limitations. Therefore, it must follow from what we have said above that the Arkansas statute of limitations is applicable in this case. This being true we can dismiss from further consideration the first action brought in Greene County as well as the dismissal order based thereon, because the action in Columbia County was filed within less than three years after the Nelsons were killed in the State of Texas at which time the cause of action first arose. It also follows that if the court’s action in dismissing appellant’s Complaint in its Order of February 23, 1959, was based on the ground that it was barred by the statute of limitations, the court was in error.

Two. Neither can we agree with appellee’s contention that the cause of action abated with the death of Charles Crumpler. It is agreed that under the laws of Texas the cause of action does survive, but appellee’s contention is based on the fact (conceded to be true) that under the laws of this State (as of the date of the fatal accident) it does not survive. This presents an interesting question in conflict of laws.

The question is a novel one so far as the decisions of this Court are concerned. However we find the weight of authority expressed in other jurisdictions and found in the text writers supports our conclusion that the cause of action does survive in this instance, and we feel that reason and justice support this view. We know of no law or expression of public policy of this State which forbids a survival. Since the laws of Texas which create the cause of action in the first place are conceded to be substantive laws or laws of right as opposed to procedural, then it seems that the laws of the same State which keep the cause of action alive should also be considered as substantive, and if so they would govern in this instance. In Leflar’s first work on Conflict of Laws, Section 79 at Page 191 we find this statement: “The general rule is well settled that the state which creates a cause of action can also destroy it, therefore, if by the law of the place of injury there is no survival, the death of the tortfeasor terminates the cause of action everywhere. By the same token, if by the law governing the tort the cause of action does survive the tortfeasor’s death, his death should nowhere be a ground for refusal to entertain suit”. In connection with the above statement Dr. Leflar cites and is supported by Chubbuck v. Holloway, 182 Minn. 225, 234 N. W. 314. In the cited case the Court, among other things, said: “Had plaintiff’s facts originated in Minnesota, they would not have been sufficient to constitute a cause of action, for the simple reason that such cause of action dies with the death of the wrongdoer. But, the accident having occurred in Wisconsin, the statute of that state gives the plaintiff the right to sue the representative of the estate of the wrongdoer and recover”. In Bestatement of the Law on Conflict of Laws, Page 477, Section 390, Survival of Actions, this statement is made: “Whether a claim for damages for a tort survives the death of the tortfeasor or of the injured person is determined by the law of the place of wrong”.

We are not swayed from the above view by appellee’s excellent brief and the authorities therein which we have carefully examined. Appellee appears to believe that Dr. Leflar may have receded from his position expressed above, calling attention to his recent book on Conflict of Laws, Section 114, Page 221. We have examined this section and find no substantiation for this belief. This section, among other things, states: “In terms of substantive, or vested rights, it seems that the state which creates a cause of action can also destroy it, therefore, if by the law of the place of injury there is no survival, the death of the tortfeasor would terminate the cause of action everywhere. That result has been reached in the majority of cases. By the same token, if by the law governing the tort the cause of action does survive the tortfeasor’s death, his death should nowhere be a ground for refusal to entertain suit”.

Appellee emphasizes two decisions from the State of New York which he thinks hold contrary to appellant’s position. These cases are Taynton v. Vollmer, 242 App. Div. 854, 275 N. Y. S. 284, and Herzog v. Stern, 264 N. Y. 379, 191 N. E. 23. The later case is, we think, distinguishable from the one under consideration by virtue of the special New York Statute with which the Court was there dealing. The other case was based on the decision in the Herzog case and should be likewise construed.

It is our conclusion therefore that the trial court’s Order, dismissing appellant’s Complaint, was erroneous and the same is accordingly reversed, and the cause is remanded for further proceedings consistent with this opinion.

Reversed.

Carleton Harris, C. J., and Ed. F. MoF addin, J., dissent.

Ed F. MoF addin, Associate Justice,

dissenting. I respectfully dissent from the majority opinion because I think the cause of action is governed by the 2-year Statute of Limitations both of Texas and Arkansas; and also because I think the Arkansas Nonsuit Statute does not save the plaintiff against the plea of limitations.

I. Limitations. The traffic mishap occurred in the State of Texas on July 1, 1954, and the present suit was not filed in Ouachita County, Arkansas until January 17, 1957. So there was a time lapse of two years, six months, and sixteen days from the traffic mishap until the filing of the present suit in Ouachita County, Arkansas. This fact appeared on the face of the pleadings, so a demurrer was proper to raise the plea of limitations.

It is true that the Texas Statute does not have a “built in” limitations period; yet the Texas Statute was enacted in light of the Texas general 2-year Statute. The Texas Wrongful Death Statute is Art. 4671 in Vernon’s Civil Statutes of Texas, published in 1952, and that Wrongful Death Statute was last amended by the Acts of 1921, page 212. The Texas 2-year Statute of Limitations is found in Art. 5526 of the same edition of Vernon’s Statutes, and it was last amended in the Acts of 1852, page 128. The Texas Survival of Action Statute is Art. 5525 of the same edition of Vernon’s Statutes, and it was last amended by the Acts of 1927, page 356. So both the Wrongful Death Statute and the Survival of Cause of Action Statute, were adopted in the light of the Texas 2-year Statute of Limitations; and, while the 2-year Statute is not “built into” either of the other Statutes, each is certainly based on the foundation of the Texas 2-year Statute. I think what Mr. Justice Holmes said in Davis v. Mills, 194 U. S. 451, 48 L. Ed. 1067, 24 S. Ct. 692, has application here:

“But the fact that the limitation is contained in the saíne section or the same statute is material only as bearing on construction. It is merely a ground for saying that the limitation goes to the right created, and accompanies the obligation everywhere. The same conclusion would be reached if the limitation was in a different statute, provided it was directed to the newly created liability so specifically as to warrant saying that it qualified the right. ’ ’

I cannot follow the majority in its reasoning that a cause of action arising under the Texas Statute (in which State there is a 2-year limitation period) can still be enforced in Arkansas after two years even when the Arkansas Statute at the time of the mishap -— July 1,1954 — was a 2-year Statute. If the cause of action had been prosecuted in Texas it would have been governed by the Texas 2-year Statute: if the cause of action had originated in Arkansas it would have been governed by the then existing Arkansas 2-year Statute. But, by taking a Texas cause of action and bringing it to Arkansas, the majority is allowing the plaintiff to get a longer period of limitations than would have been allowed under the law of either State. I cannot follow such reasoning, because I cannot envisage a greater period of limitation to exist than was allowed by the law of either State at the time of the mishap.

II. Nonsuit. The majority opinion did not reach the nonsuit question because the suit was filed in Ouachita County, Arkansas two years, six months, and sixteen days after the traffic mishap and, on a holding that the cause of action was governed by the 3-year Statute, the majority found it unnecessary to discuss the question of nonsuit. But under my view a discussion of the Nonsuit Statute is vital.

As heretofore stated, the cause of action occurred in Texas on July 1,1954. On June 11,1956 (within the 2-year period) Nelson, Administrator, brought action against Eckert, Administrator of the Crumpler Estate. This suit was brought in the Circuit Court of Greene County, Arkansas. The question of venue was raised because neither the defendant, Eckert, nor his deceased, Crumpler, ever lived in Greene County; and, since the cause of action arose in Texas, our Act No. 314 of 1939 had no application under the holding of Chambers v. Gray, 203 Ark. 858, 158 S. W. 2d 926. When the question of venue was raised the Greene Circuit Court dismissed the suit for want of venue on August 13, 1956. Within one year thereafter the present suit was filed in Ouachita Circuit Court. The appellants claim that the filing of the suit in Greene Circuit Court interrupted the 2-year Statute of Limitations and that the order of August 13,1956 dismissing the case in the Greene Circuit Court was the same as a voluntary nonsuit and that under our Nonsuit Statute 37-222 Ark. Stats.) the appellant had one year after the dismissal of the case in the Greene Circuit Court in which to file a new suit, even if the case were governed by the 2-year Statute.

In Wilkins v. Wortham, 62 Ark. 401, 36 S. W. 21, we held that in order to suspend the Statute of Limitations under the Nonsuit Statute the action must be properly commenced; and I am of the opinion that the action was not properly commenced when it was started in Greene County, which was entirely without venue. In Sims v. Miller, 151 Ark. 377, 236 S. W. 828, we said:

“The term ‘proper county’, used in the statute referred to above, has been defined to mean the county of defendant’s residence or where the defendant may be served with process. 6 Words & Phrases, 5689, 5690. Where such action is brought in a county other than that of defendant’s residence, if the writ is not served, its issuance and placing in the hands of an officer does not constitute the commencement of an action so as to arrest the statute of limitation. The subsequent issuance of another writ and the service thereof constitutes a new action.”

Cases to like effect are Cherry v. Falvey, 188 Ark. 827, 68 S. W. 2d 98; Goodyear v. Meyer, 209 Ark. 383, 191 S. W. 2d 826; and Burks v. Sims, 230 Ark. 170, 321 S. W. 2d 767. In view of these cases cited I am of the opinion that the action in Greene County did not interrupt the running of the 2-year Statute and, therefore, the entire cause of action was barred when it was filed in Ouachita County.

Therefore, I would affirm the judgment of the Circuit Court. The Chief Justice joins in this dissent.

       34A Words and Phrases, Proper County, p. 17.


author: Sam Robinson, Associate Justice.

text:
    Skelly Oil Co. v. Scoggins.
    5-1962
    329 S. W. 2d 424
    Opinion delivered December 7, 1959.

      C. E. Blodget, Smith & Sanderson, for appellant.

      Bert B. Larey, for appellee.
   Sam Robinson, Associate Justice.

This is a suit to cancel an oil and gas lease. In April, 1943, Winnie Smith executed an oil and gas lease on 360 acres. Subsequently in the same year, appellant, Skelly Oil Company, succeeded to the rights of the lessee. In 1945 Skelly drilled two producing wells on one 40 acre tract of the property. In 1945 a dry hole was drilled on another 40 acre tract. In 1953 Skelly drilled two more holes on the same 40 acre tract where the two producing wells had been developed in 1945 and at the instance of royalty owners can-celled the lease on the 40 acres where a dry hole had been put down in 1945. In the meantime Winnie Smith died and her heirs sought to prevail on Skelly to put down other wells on the property. In response to the demands of the heirs that the property be further developed, Skelly drilled the two wells in 1953 on property where producing wells had been developed in 1945, but refused to drill on the 280 acres. The Smith heirs then leased the 280 acres to Monroe Scoggins under an agreement that he would at his own expense take whatever steps were necessary to set aside the lease to Skelly and when this was done he would immediately drill for oil on the 280 acres. Scoggins and the Smith heirs then filed this suit to cancel the Skelly lease on the 280 acres. The chancellor entered a decree cancelling the lease on the 280 acres and Skelly has appealed.

In Ezzell v. Oil Associates, Inc., 180 Ark. 802, 22 S. W. 2d 1015, this Court said: “So it may be taken, as the well-settled rule in this State, that there is an implied covenant on the part of the lessee in oil and gas leases to proceed with a reasonable diligence in the search for oil and gas, and also to continue the search with reasonable diligence, to the end that oil and gas may be produced in paying quantities throughout the whole of the leased premises. ’ ’ This rule is sustained by the cases of Nolan v. Thomas, 228 Ark. 572, 309 S. W. 2d 727; Drummond v. Alphin, 176 Ark. 1052, 4 S. W. 2d 942; Standard Oil Co. v. Giller, 183 Ark. 776, 38 S. W. 2d 766.

The question in the case at bar is, did the lessee proceed with reasonable diligence in the search for oil and gas and also to continue the search with reasonable ■diligence throughout the whole of the leased premises. The chancellor held that the oil company did not proceed with such diligence and we cannot say the chancellor’s finding is against the preponderance of the evidence.

The original lease was executed in 1943 and although producing wells have been developed on one 40 acre tract and a dry hole was drilled on another 40 acre tract, no well has been drilled on the 280 acres on which the chancellor ordered the lease cancelled. Skelly contends that the geological structure underlying the 280 acres does not justify spending the amount of money required to drill a well thereon and therefore no well has been drilled on the 280 acres.

In Smith v. Moody, 192 Ark. 704, 94 S. W. 2d 357, the lease covered 360 acres of land. Four wells were drilled on one 40 acre tract and the lessee refused to develop any further. The chancellor cancelled the lease except as to the 40 acres on which the wells were drilled. This Court affirmed the decree, saying: “Much testimony was offered as to the necessity of drilling other wells, the contention being that the wells now producing were at the edge of the producing fields, and that new wells could not be drilled and operated except at great loss. [This is the same contention Skelly makes in the case at bar.] This contention may be disposed of by saying that, if true, the lessees have not been damaged by the cancellation of so much of the contract of lease as cannot be profitably performed.” In Sauder v. Mid-Continent Petroleum Corp., 292 U. S. 272, 78 L. Ed. 1255, 54 S. Ct. 671, 93 A. L. R. 454, the United States Supreme Court said: “The production of oil on a small portion of the leased tract cannot justify the lessee’s holding the balance indefinitely and depriving the lessor not only of the expected royalty from production pursuant to the lease, but of the privilege of making some ■other arrangement for availing himself of the mineral contents of the land.”

Up to the time of the filing of this suit in January, 1956, 13 years after obtaining the lease, Shelly had evinced no intention of drilling on the 280 acres. Now Shelly says that if given the opportunity it would drill, but this offer comes only after Scoggins has been to the expense of retaining lawyers and filing suit. Appellant also contends that even if it breached the implied covenant to properly develop the property, the lessors made no formal demand that wells be drilled on the 280 acres and that the lessors waived their right to insist on such wells being drilled. The evidence shows that over a long period of time the lessors attempted to get Shelly to drill on the property in question and the lessors did nothing to waive their rights in that respect.

Affirmed.


text:
    McKelroy v. Antrim.
    5-1985
    330 S. W. 2d 99
    Opinion delivered December 7, 1959.
    [Rehearing denied January 11, 1960]

      B. W. Thomas and Richard W. Hobbs, for appellant.

      Q. Byrum Hurst and G. A. Stanfield, for appellee.
   Jim Johnson, Associate Justice.

This case is before us for the second time on appeal. It was originally remanded in order that appellant, J. A. McKelroy, might offer proof to rebut evidence of facts which this Court held constituted a ratification of a sale to appellee, Minnie F. Antrim, at a time when appellant was capable of making such ratification. See: Antrim v. McKelroy, 229 Ark. 870, 319 S. W. 2d 209.

Upon further hearing consistent with the original opinion of this Court, the Chancellor properly treated all the evidence of the first hearing relative to ratification as if it were before him on the second hearing. That evidence, as determined by this Court, is as follows:

“It is J. A. McKelroy’s actions and conduct during the year 1956 that impel us to conclude he ratified the 1954 conveyance of his property to his son. It is noted that there were three houses on the lots conveyed by J. A. McKelroy and that McKelroy’s son and his wife lived in one of the houses. After J. A. .McKelroy was discharged from the State Hospital on October 18, 1955, he went to live with his son. The uncontradicted testimony of Conde (Minnie F. Antrim’s agent) was that he told J. A. McKelroy that McKelroy’s son Scotty and his wife had given Minnie F. Antrim a mortgage on the property for $1,800 and that J. A. McKelroy’s only reply was ‘well, those kids shouldn’t do that’. After this, on February 16, 1956, Minnie F. Antrim bought the property assuming the $1,800 mortgage and paying Scotty $3,600 in cash, and took a deed from Scotty and his wife. From that time on Scotty became a renter. Scotty’s wife paid the rent of $30 per month to Minnie F. Antrim up to April 1956. It seems that shortly after this time Scotty and his wife moved to Texas leaving J. A. McKelroy in the house. Following this, McKelroy paid the rent for May 1956; In June (same year) he paid $23 and $7 on separate occasions; then McKelroy asked to have the rent reduced and Minnie F. Antrim made a reduction of $5 per month; and after that McKelroy made rent payments on June 12, August 20, September 26, September 28, October 2, October 18, and October 30, all in 1956. J. A. McKelroy admits paying rent. Conde testified that McKelroy never said anything about being the owner or about not having to pay rent. It was not until McKelroy got behind with his rent in a sizeable amount and was threatened with eviction that he employed attorneys and filed this suit on January 11, 1957, to cancel the deeds.. "We feel that these acts on the part of J. A. McKelroy clearly amounted to a ratification of the deed to his son. ’ ’

At the hearing after the case was remanded the appellant testified substantially as he had testified in the original case. He admitted that he had paid rent on the property, admitted that appellee’s agent, Conde, told him that the rent was $30 per month, and also admitted that he had asked Conde for a reduction. The only other witness testifying at the second hearing was the attorney who referred this ease to appellant’s present attorney. His testimony is substantially to the effect that McKelroy lacked the mental capacity to know what acts he had performed or to understand the consequences of them» That, of course, is not an issue in this case since this question was settled in the original opinion of this Court where it said:

“In view of the above medical testimony and in view of other lay testimony and certain facts to be later noted, we cannot escape the conclusion that appellee had regained normalcy (to the extent of understanding ordinary business transactions) as early as October 18, 1955. . . .”

The only issue here presented is whether appellant ratified the deed at a time when he had sufficient mental capacity to ratify it.

The Chancellor’s opinion held that it had been established that appellant had been paying rent, and that the testimony was insufficient to rebut the presumption that such payments constituted a ratification of the sale to the appellee. After a careful review of the record, we cannot say that the Chancellor’s holding was against the weight of the evidence.

Affirmed.