author: CARLETON HARRIS, Chief Justice.

text:
    Charles H. JAMES et al v. James A. MEDFORD et al
    74-83
    512 S.W. 2d 545
    Opinion delivered July 22, 1974
    [Rehearing denied September 16, 1974.]

      Robert D. Smith III and Phillip I). Peters, lor appellants.

      Lighlle, Tedder & Hannah, for appellees.
   CARLETON HARRIS, Chief Justice.

Appellants, Charles H. James and Carolyn B. James, his wife, and John L. Ham-maker and Billie Hammaker, his wife, instituted suit against appellees, M. C. Medford and Bertha Medford, his wife, James A. Medford and Donna Jean Medford, his wife, and Harper Realty Company, seeking specific performance of a contract for the sale of real property, or in the alternative, damages. The contract provided for the purchase of 120 acres of land, more or less, for the sum of $28,750.00. The court refused to grant specific performance. The chief difficulties between the parties arose because of a requirement that the seller would furnish an up-to-date survey, and because the description in the abstract was changed by the abstracter at the request of appellants. The evidence reflects that the survey provision was in the Offer and Acceptance at the time it was executed by all parties, but appellee, M. G. Medford, stated that he did not observe this condition and that he would not furnish a survey. Appellants, after acquiring information that there was a question as to the actual boundaries and thus the amount of acreage owned by M. C. Medford (and his son), insisted even more on the survey but Medford would not comply; however, the testimony reflected that appellants decided to proceed with the purchase, intending to subsequently survey the lands themselves; according to James, if the survey reflected less than the 120 acres, appellants intended to sue for shortages in acreage. When appellants arrived at the office of Medford's attorney to close the transaction, Medford did not show up, and the suit for specific performance followed. The proof reflected that Med-ford’s son, who was not a party to the contract, owned one-half interest in the property; however, this son and his wife had executed a deed conveying their interest to appellants and this deed had been turned over to the father or his attorney, though the son testified that he had not and would not agree to paying for any survey. It is not necessary to discuss this phase of the litigation, nor other issues or testimony relating thereto, since the contract relied upon is unenforceable, because of the property description appearing therein. The description reads as follows:

“120 acres more or less White County El Paso, Arkansas”

We have held such a contract to be unenforceable. In Routen v. Walthour-Flake Co., 221 Ark. 354, 253 S.W. 2d 208, the land to be sold was described in the contract as “16 acres — 67 Highway East at Fairfax Crossing.” There, no serious contention was made that the description contained in the sales contract was sufficiently definite to sustain an action for specific performance, but it was strongly contended that oral testimony should be permitted for the purpose of locating and identifying the land. We disagreed, stating:

“Weare of the opinion that appellant's contention in this matter cannot be sustained. The principal reason for this conclusion is that, since the description of the land in the sales contract is admittedly not definite, there are no words or phrases in the contract itself or in any of the correspondence which furnish a key whereby the land could be definitely located and described. This is the test that has been consistently announced in many decisions of this court, a few of which are noted below.
“In the case of Fordyce Lumber Company v. Wallace, 85 Ark. 1, 107 S.W. 160, Justice McCullough, speaking for the court, said:
‘Before a court of equity is justified in requiring specific performance of a contract to convey land, the property which is the subject must be accurately described; the contract must disclose a description which in itself is definite and certain, or one which is capable of being made certain by other proof, the contract itself furnishing the key by which the property may be identified.’
Although this case has been cited many times it has never been overruled. It was distinguished in the case of Hirschman v. Forehand, 114 Ark. 436, 170 S.W. 98, where the court, in spite of an indefinite description, permitted the introduction of proof to make it more specific, but on the theory that the case was taken out of the statute of frauds because the purchaser had entered into possession and made valuable improvements. Those features, of course, are not present in the case under consideration. “Testimony was permitted to identify lands indefinitely described in a sales agreement in the case of Dollar v. Knight, 145 Ark. 522, 224 S.W. 983, but it was allowed under the rule in the Fordyce Lumber Company case, supra.
“In the case of Rawls v. Free, 184 Ark. 737. 43 S.W. 2d 540, the court again permitted testimony for the purpose of identifying the land.The contract between the buyer and the seller consisted of letters in which the property was described as ‘the property of the Ross Estate, upon which Free held a mortgage which he was then foreclosing.’ In applying the rule heretofore announced, the court used this language:
‘An accurate description of the lands might have been obtained from the mortgage or from the decree ordering its foreclosure, and the contract furnished the key by which the property might be certainly identified.’ ”

In Miller v. Dargan, 136 Ark. 237, 206 S.W. 319, cited by appellants, the lands were described in the contract as “their plantation located on Carson Lake in the Osceola District of Mississippi County, Arkansas, containing 520 acres, more or less”, and we held this to be a good description, but it will be at once noted that the description shows a definite plantation owned by the defendants and w'here it was located, and we said that the contract was not within the operation of the statute of frauds.

Though appellants did not plead that they were placed in possession, relying only upon the description heretofore mentioned, there are two fallacies to any argument that they were placed in possession of the premises, thus taking the contract out of the statute of frauds, and permitting oral evidence as to the actual location of the property. For one thing, the “possession” exercised by appellants was of a very limited nature. Medford gave appellants permission to go upon the premises to “clean it up”; however, Mr. James testified that this work only occurred on two weekends, at which time, “We trimmed the trees, the limbs were hanging down. We picked up fence posts. We rolled up barb wire and we mowed around the house.” Oí'course, when one is placed in possession, as that term is used when applied to taking a contract outside the restrictions of the statute of frauds, it means such possession as would permit the exclusion of others. Two weekends of cleaning up debris can hardly be construed as turning the possession of the land over to appellants, particularly when we consider that appellants were in the process at the time of trying to obtain the money to make the purchase and had not, at that time, advised appellee that they were ready to close the transaction. Of course, if such a loan had not been obtained, appellants could not have purchased the property and no one would contend that their entry upon the lands was of any significance.

The second fallacy is of more importance, viz-, possession was not taken of the entire parcel supposedly being purchased; in fact, Mrs. James testified that they walked around with Medford “attempting to show us the corners but actually we saw no stakes or markers except one.” On this trip to view the land, they received information from a neighbor that the fence line was not correct and that the neighbor claimed 300 feet which (according to the fence line) appeared to belong to Medford. The evidence reflected that the farm was not entirely under fence, and Mrs. James testified that Medford did not show them the corners; one of the main questions in this litigation was the location and size of the property mentioned in the contract. Of course, appellants’ reason for wanting the survey was to determine the boundaries, and if one doesn’t know his boundaries, he can hardly know what property he is taking possession of, particularly so when, according to appellants, the property offered by appellees, was 20 to 25 acres less than the amount called for in the contract. A similar situation was commented upon by the Supreme Court of New Mexico in Colcott v. Sutherland, 16 P (2d) 399, where the court said:

“If the matter were to be decided upon the original cross-complaint, the uncertainty of the description might present a serious obstacle to specific performance. But this difficulty yields completely to the amended pleading. Pursuant to the negotiations, and by his duly authorized agent, appellee measured and staked the tract in question and put appellant in possession. It is thus evident that the parties have agreed as to the description.”

There is another problem, viz-, that the abstracter, Strauther, admitted that he had changed the description in the abstract at the request of appellants, Strauther stating that he had made a mistake. This was one of the chief complaints of Medford, and his concern is understandable. While the transcript is far from clear, it appears that he had already sold 75 acres of adjoining property to other persons, 40 acres being sold along about the same time the present contract was entered into. The record does not reflect where this other acreage was located; there is no plat, map, or drawing, in the transcript, and to pinpoint how Medford could certainly have been justified in being concerned about this description, Mrs. James testified that the original description contained 160 acres, but she knew this was not correct, and sought to have the abstract corrected.

It is interesting to note that Medford testified that appellant John L. Hammaker told him “to call the whole deal off”, which testimony was not denied by Hammaker, neither the latter nor his wife testifying.

The matter of granting specific performance of a contract lies within the sound discretion of the trial court, and under the circumstances enumerated, we are unable to say that there was an abuse of this discretion.

The decree of the chancellor was not based upon an insufficient description, but we have held that on trial de novo a chancery decree will be affirmed if it appears to be correct upon the record as a whole, even thpugh the chancellor may have given the wrong reason for his conclusion. See Morgan v. Dawns, 245 Ark. 328, 432 S.W. 2d 454.

The chancellor awarded appellants the proceeds of a hay crop that had been grown by Medford, amounting to $400.00, which appears inconsistent with the decree rendered, but there is no cross-appeal.

Affirmed.

Byrd, J., dissents.

      The amended complaint alleged a shortage, but the court found that the evidence was insufficient to establish this alleged fact; the only testimony offered on this point was by A. P. Strauther, Jr. (the spelling of this name varies in the transcript), an abstracter, who testified that in his opinion the lands contained “somewhere around ninety-five to one hundred acres.’” The court held this testimony insufficient to establish a shortage.

      This was not the Medford home, the tract containing his home having already been sold to some other party, according to Medford, at about the same time the Offer and Acceptance with appellants was executed.

      See Volume 2 of Bouvier’s Law Dictionary, Third Revision:

      The contract provided that the buyers were to secure and qualify for a loan in the amount of $24,000.00, and appellant was notified about November 4, 1972, that appellants would be ready to close a week later.


source: Caselaw Access Project

author: CARLETON HARRIS, Chief Justice. CONLEY Byrd, Justice,

license: Public Domain

text:
    Ruth BURNS v. STATE of Arkansas
    CR 74-52
    512 S.W. 2d 928
    Opinion delivered July 22, 1974
    [Rehearing denied September 16, 1974.]

      John M. Fincher and Gilbert H. Deitch, for appellant.

      Jim Guy Tucker, Atty. Gen., by: 0. H. Hargraves, Dep. Atty. Gen.; Lee A. Munson, Prosecuting Atty., and John Wesley Hall Jr., Dep. Pros. Atty., for appellee.
   CARLETON HARRIS, Chief Justice.

Ruth Burns, appellant herein, was charged with selling obscene literature on July 6, 1973, in North Little Rock, said sales allegedly being in violation of Ark. Stat. Ann. § 41,-2704 (Repl. 1964). On trial by jury in the Pulaski County Circuit Court, she was convicted, and punishment fixed at a $500.00 fine. From the judgment entered in accordance with the jury verdict, appellant brings this appeal. For reversal, it is first asserted that the Court erred in refusing to grant appellant’s motion to dismiss and/or in refusing to direct a verdict in her favor.

The testimony reflected that Lieutenant William C. Lambert and Acting Lieutenant William F. Brown, both of the North Little Rock Police Department, entered “Book Store Limited No. 2” shortly after noon on July 6, 1973, observing books and magazines on the racks, and several customers in the store. Three persons made purchases while the officers were present, appellant making the sales and placing the purchases in a paper sack. Officer Lambert purchased a magazine, wrapped in cellophane, entitled “Inquiry”, for which he paid appellant the sum of $7.50 plus tax. Subsequently, the aforementioned charge was filed.

It is argued that, though the sale of obscene literature is prohibited by the statute, said statute is void for vagueness in that no criteria aré set forth that would give fair notice of the precise standards of criminality before the commission of the alleged offense. The pertinent portion of the statute involved reads as follows:

“Hereafter, the sale, circulation, or attempted circulation, or offer for sale, or keeping or exposing on a news stand or other place of sale any obscene, vulgar or indecent papers, books or periodicals of any kind in which is illustrated any indecent or vulgar pictures, shall be a misdemeanor and any person selling the same, or circulating the same or attempting to circulate the same, or offering the same for sale, or keeping or exposing the same on any news stand or other place of sale, or soliciting subscription for the same, shall upon conviction for the first offense be subject to a fine of not less than One Hundred Dollars ($100.00) and not more than Five Hundred Dollars ($500.00) or imprisonment in the County Jail for not less than thirty (30) nor more than sixty (60) days or both such fine and imprisonment and for the second offense a fine of not less than Five Hundred Dollars ($500.00) nor more than One Thousand Dollars ($1,000.00) and imprisonment in the County Jail for six (6) months. Upon conviction for a third offense of violating the provisions of this Act (§§ 41-2704 — 41-2706) such person shall be guilty of a felony and shall be subject to imprisonment in the State Penitentiary for not less than one (1) year and not more than three (3) years.”

One of the principal cases relied upon by appellant is the United States Supreme Court decision in Smith v. Goguen, 415 U.S. 566, 94 S. Ct. 1242, 39 L. Ed. 2d 605, decided March 25, 1974. Goguen had been convicted in the state courts under a Massachusetts statute of treating contemptously the flag of the United States. The statute prohibited a number of specific acts but Goguen was convicted under the phrase “or treats contemptuously”, the record reflecting that he had worn a small cloth version of the United States flag sewn to the seat of his trousers, the flag being approximately 4 inches by 6 inches and being displayed on the left rear of his blue jeans. The- Court, in declaring the statute impermissibly vague as applied to Goguen, stated:

“There are areas of human conduct where, by the nature of the problems presented, legislatures simply cannot establish standards with great precision. Control of the broad range of disorderly conduct that may inhibit a policeman in the performance of his official duties may be one such area, requiring as it does an on-the-spot assessment of the need to keep order. Cf. Colten v. Kentucky, 407 U.S. 104, 92 S. Ct. 1953, 32 L. Ed. 2d 584 (1972). But there is no comparable reason for committing broad discretion to law enforcement officials in the area of flag contempt. Indeed, because display of the flag is so common and takes so many forms, changing from one generation to another and often difficult to distinguish in principle, a legislature should define with some care the flag behavior it intends to outlaw. Certainly nothing prevents a legislature from defining with substantial specificity what constitutes forbidden treatment of United States flags. The statutory language at issue here fails to approach that goal and is void for vagueness. ”

We are unable to relate the pertinency of this holding to the case here at issue, for, as pointed out by the United States Supreme Court, the provision was vague “not in the sense that it requires a person to conform his conduct to an imprecise but comprehensible normative standard, but rather in the sense that no standard of conduct is specified at all.”

On the subject of what is obscene, appellant’s argument is contrary to what the United States Supreme Court said in Roth v. United States, 354 U.S. 476 (1957). It was there stated:

“It is argued that the statutes do not provide reasonably ascertainable standards of guilt and therefore violate the constitutional requirements of due process. Winters v. New York, 333 US 507, 92 L ed 840, 68 S Ct 665. The federal obscenity statute makes punishable the mailing of material that is ‘obscene, lewd, lascivious, or filthy .. . or other publication of an indecent character.’ The California statute makes punishable, inter alia, the keeping for sale or advertising material that is ‘obscene or indecent.’ The thrust of the argument is that these words are not sufficiently precise because they do not mean the same thing to all people, all the time, everywhere.
“Many decisions have recognized that these terms of obscenity statutes are not precise. This Court, however, has consistently held that lack of precision is not itself offensive to the requirements of due process. ‘ . . . The Constitution does not require impossible standards’; all that is required is that the language ‘conveys sufficiently definite warning as to the proscribed conduct when measured by common understanding and practices . . . ’ United States v. Petrille, 332 US 1, 7, 8, 91 L ed 1877, 1883, 67 S Ct 1538. These words, applied according to the proper standard forjudging obscenity, already discussed, give adequate warning of the conduct proscribed and mark ‘ . . . boundaries sufficiently distinct forjudges and juries fairly to administer the law . . . That there may be marginal cases in which it is difficult to determine the side of the line on which a particular fact situation falls is no sufficient reason to hold the language too ambiguous to define a criminal offense.’ (Citing cases)
“In summary, then, we hold that these statutes, applied according to the proper standard forjudging obscenity, do not offend constitutional safeguards against convictions based upon protected material, or fail to give men in acting adequate notice of what is prohibited.”

In the recent case of Hamling, et al v. United States, [1973-1974 Transfer Binder] CCH U.S. S. Ct. Bull. B3979 (1974), decided on June 24, 1974, involving the conviction of petitioners for mailing and conspiring the mailing of an obscene advertising brochure, the Court cited Roth, mentioning its finding that the , statute did not deny the due process guaranteed by the Fifth Amendment because “too vague to support conviction for crime” and reiterating that the statute did not fail to give adequate notice of what was prohibited.

The Court further said:

“The Miller cases, important as they were in enunciating a constitutional test for obscenity to which a majority of the Court subscribed for the first time in a number of years, were intended neither as legislative drafting handbooks or as manuals of jury instructions. 18 U.S.C. § 1461 had been held invulnerable to a challenge on the ground of unconstitutional vagueness in Roth; the language of Roth was repeated in Miller, along with a description of the types of material which could constitutionally be proscribed and the adjuration that such statutory proscriptions be made explicit either by their own language or by judicial construction; and United States v. 12 200-ft. Reels of Film, sufra, made clear our willingness to construe federal statutes dealing with obscenity to be limited to material such as that described in Miller. It is plain from the Court of Appeals1 description of the brochure involved here that it is a form of hard-core pornography well within the types of permissibly proscribed depictions described in Miller, and which we now hold § 1461 to cover. Whatever complaint the distributor of material which presented a more difficult question of obscenity vel non might have.as to the lack of a previous limiting construction of 18 U.S.C. § 1461, these petitioners have none. See Dennis v. United States, 341 U.S. 494, 511-515 (1951) (opinion of Vinson, C.J.)”

It would appear that the Arkansas statute is just as explicit as the federal statute just discussed, and, in fact, two of the same words, “obscene” and “indecent” are used in both statutes. As will be pointed out under the second point urged for reversal, this is not a case where a person was convicted of selling a magazine depicting only nudity or suggestive conduct; rather, the material involved undoubtedly and without question reflected “hard core” sexual conduct.

It is argued by appellant that Miller v. California, 413 U.S. 15 (1973), can only be applied prospectively, and that to apply it retroactively would have an ex post facto effect. These same arguments were presented in Herman, et al v. State, 256 Ark. 840, 512 S.W. 2d 923 (1974), and there held to be without merit, the Court stating;

“It is next argued that the constitutionality of the Arkansas statute should be determined according to the judicial standards involved at the time of the offense, i.e., at the time of the showing of the film, our statute had not been specifically upheld. The offense was committed in September, 1973, and Gibbs was decided in February, 1974. The important fact to be considered is that Miller was handed down on June 21, 1973, nearly two and one-half months before appellants allegedly violated the Arkansas obscenity statute. As pointed out by appellee, since obscenity adjudication is limited to the standards announced by the United States Supreme Court as the final arbiter of obscenity law, appellants. were certainly on notice that Miller could be applied to their actions.
“Let it be remembered that, following Miller, other obscenity cases pending were remanded to the state courts in order that those courts might review such cases in accordance with the standards set out in Miller. The cases remanded, of course, involved actions which were consummated before the Miller determination.”

Miller, a decision which received wide publicity in the press and other news media, was decided two weeks before the offense here at issue was committed, and since obscenity adjudication is limited to the standards announced by the United States Supreme Court, one should have been placed on notice that our definition of the term would be in accordance with Miller standards.

Appellant insists that no fair warning was provided as to the meaning of the statute, this Court not having passed on § 41-2704, and cites Bouie v. Columbia, 378 U.S. 347 (1964), contending that that decision requires a reversal of the conviction. This same contention was made in Ilamling, but the Court disagreed, stating:

“Nor do we find merit in petitioners’ contention that cases such as Bouie v. City of Columbia, 378 U.S. 347 (1964), require reversal of their convictions. The Court in Bouie held that since the crime for which the petitioners there stood convicted was ‘not enumerated in the statute’ at the time of their conduct, their conviction could not be sustained. Id., at 363. The Court noted that ‘ a deprivation of the right of fair warning can result not only from vague statutory language but also from an unforeseeable and retroactive judicial expansion of narrow and precise statutory language.’ 378 U.S., at 352. But the enumeration of specific categories of material in Miller which might be found obscene did not purport to make criminal, for the purpose of 18 U.S.C. § 1461, conduct which had not previously been thought criminal. That requirement instead added a ‘clarifying gloss’ to the prior construction and therefore made the meaning of the federal statute involved here ‘more definite’ in its application to federal obscenity prosecutions. Bouie v. City of Columbia, 378 U.S., at 353. Judged by both the judicial construction of § 1461 prior to Miller, and by the construction of that section which we adopt today in the light of Miller, petitioners’ claim of vagueness and lack of fair notice as to the proscription of the material which they were distributing must fail.”

It is next urged that the statute fails to require scienter by defendant and thus violates the First, Fifth, Sixth and Fourteenth Amendments to the Constitution of the United States. The case of Smith v. California, 361 U.S. 147 (1959), is relied upon by appellant, but we do not consider Smith to be controlling in the instant litigation. There, a municipal ordinance of the City of Los Angeles provided that it was unlawful for any person to have in his possession any obscene writing or book in any place of business where books are sold or kept for sale. The Act was construed by the state courts as making Smith criminally liable, even if he had no knowledge of the contents of the book, subsequently determined to be obscene. The United States Supreme Court held the ordinance unconstitutional, stating:

“By dispensing with any requirement of knowledge of the contents of the book on the part of the seller, the ordinance tends to impose a severe limitation on the public’s access to constitutionally protected matter. For if the bookseller is criminally liable without knowledge of the contents, and the ordinance fulfills its purpose, he will tend to restrict the books he sells to those he has inspected; and thus the State will have imposed a restriction upon the distribution of constitutionally protected as well as obscene literature.”

The Court added:

“Eyewitness testimony of a bookseller’s perusal of a book hardly need be a necessary element in proving his awareness of its contents. The circumstances may warrant the inference that he was aware of what a book contained, despite his denial.
“We need not and most definitely do not pass today on what sort of mental element is requisite to a constitutionally permissible prosecution of a bookseller for carrying an obscene book in stock; whether honest mistake as to whether its contents in fact constituted obscenity need be an excuse; whether there might be circumstances under which the State constitutionally might require that a bookseller investigate further, or might put on him the burden of explaining why he did not, and what such circumstances might be.”

The fact that § 41-2704 fails to mention scienter does not invalidate the statute. Our views are well expressed in the case of People v. Finkelstein, 9 N.Y. 2d 342, 174 N.E. 470 (1961), where the Court said:

“Although our statute might possibly be interpreted to exclude scienter, we feel, inter alia, guided by the strong constitutional presumption attending legislative enactments, [citing cases], that the statute was not intended to unreasonably restrict or inhibit our inalienable ‘liberty’ protected by due process (see Smith v.. People of State of California, supra). A reading of the' statute as a whole clearly indicates that only those who are in some manner aware of the character of the material they attempt to distribute should be punished. It is not innocent but calculated purveyance of filth which is exorcised, and a mere omission of the word '"scienter’ need not be construed as an attempt to eliminate that common-law element of the crime. ****’’

The Court pointed out that no statute should be declared unconstitutional if by any reasonable construction it could be given a meaning in harmony with fundamental law, and then stated:

“A conviction, therefore, cannot be upheld without proof of the element in question which we find required by section 1141. Such a holding is not extraordinary. The United States Supreme Court has pointed out that it has affirmed ‘a conviction under the stated limitation of meaning’. Winters v. People of State of New York, 333 U.S. 507, 510, 68 S. Ct. 665, 667, 92 L. Ed. 840. In the view of that court: ‘The interpretation by the Court of Appeals puts these words in the statute as definitely as if it had been so amended by the legislature.'

As in Finkelstein, a reading of § 41-2704, including the fact that the penalty is increased for successive offenses, clearly reflects that punishment is reserved for those who wilfully violate the statute. We agree that scienter is necessary, but we do not agree that the requirement must be specifically set out in the statute. It is sufficient if the statutory provision is authoritatively interpreted to require the vital element of scienter. See Hamling v. U. S., supra. This brings us to appellant’s next argument, viz-, the Court erred in instructing the jury on the element of scienter. The Court gave two instructions on scienter, one from each party. Appellant’s Requested Instruction No. 6 (as amended by the Court), and given as Court’s Instruction No. 115 reads as follows:

“The law requires that the Defendant acted knowingly. This means that the state must prove beyond a reasonable doubt, that the Defendant had guilty knowledge. In other words, the proof must show, beyond a reasonable doubt, that the Defendant knew or reasonably should have known the contents of the publication were obscene, as specifically defined, to give the Defendant fair notice of what material is prohibited.
“Unless the proof establishes such knowledge beyond a reasonable doubt, the Defendant must be acquitted.”

The State’s Requested Instruction No. 6 (amended by the Court) stated:

“You are further charged that the defendant must knowingly have sold obscene material.
“The prosecution must prove that the defendant was aware or should have been aware that the publication containfs] unlawful material. [Our emphasis]
“You may consider the following circumstances in regard as to whether or not the defendant was aware of the contents of the publication:
“(a) the nature and character of the language or illustrations on the cover.
“(b) the prices marked on the publication.”

The attack centers upon the italicized portion of State’s Instruction No. 6, appellant arguing that this portion of the instruction required her to personally check every magazine and book in the store to determine if any material was suspect, or in violation of the law, and that such a requirement inhibits free speech and press.

We do not agree with this argument. The proof does not reflect whether Book Store Limited No. 2 deals solely with the type of literature here involved, i.e., whether it is a “pornography” shop, but it would appear that appellant had ample opportunity to determine that this magazine was obscene at the time of the purchase. Appellant took the magazine, told the officer the charge was $7.50, and placed it in a paper sack. In doing so, appellant certainly could have viewed the front and back covers of the magazine before making the sale; in fact, it would have been most difficult to have made the sale without at least observing the front cover, since it is reasonable to assume that the $7.50 purchase price was affixed over the $5.00 price printed on the magazine. This front cover, aside from large type language, “SEXUAL TRIOS AND QUARTETS” features the photograph of a nude female involved in heterosexual and homosexual oral breast manipulation with two others. We consider it a patently offensive representation of ultimate sexual acts, both “normal” and “perverted”. See Miller v. California, supra, and Gibbs v. State, 255 Ark. 997, 504 S.W. 2d 719 (1974). The back cover also is informative as to the contents, the following language appearing in large print:

INQUIRY TAKES YOU INTO THE GROUP SEX REVOLUTION ON THE SCENE VIEWS OF TODAY’S SEXUALLY FREE ADULTS ENGAGED IN SEXUAL TRIOS AND QUARTETS

The contents of the magazine itself cannot be considered in any category except “hard core pornography”; the photographs depict group sex, the participants committing various sexual acts. Some portray acts between male and female, some between female and female, and no picture has less than three participants, the persons involved ranging from this number to eight.

It is interesting to note that the magazine was enclosed by a cellophane cover which was sealed. This could.have been done to prevent customers from perusing through the pages, or it could have been done in order that a defendant would be in a position to argue that he had no knowledge of the contents. Of course, a salesman could always say that he was not aware of the material within the magazine. In Hamling v. United States, supra, the United States Supreme Court said:

“The Mishkin holding was reaffirmed in Ginsberg v. New York, 390 U.S. 629 (1968). There the Court was again faced with the sufficiency of the scienter requirement of another New York statute, which proscribed the ‘knowing’ distribution of obscene materials to minors. ‘Knowingly’ was defined in the statute as ‘knowledge’ of, or ‘reason to know’ [our emphasis] of the character and content of the material. Citing Mishkin, and the New York Court of Appeals’ construction of the .other similar statutory language, the Court rejected the challenge to the scienter provision.
“We think the ‘knowingly’ language of 18 U.S.C. § 1461, and the instructions given by the District Court in this case satisfied the constitutional requirements of scienter. It is constitutionally sufficient that the prosecution show that a defendant had knowledge of the contents of the materials he distributes, and that he knew the character and nature of the materials.'" [Our emphasis].

As already pointed out in the quote from Smith v. California, supra, the court held that it was not passing on whether there might be circumstances under which the state “might require that a bookseller investigate further, or might put on him the burden of explaining why he did not and what such circumstances might be.” In the case before us, no evidence was offered by any witness that any sort of investigation by the seller was made of the magazine sold, nor why such investigation was not made; nor was there testimony as to any other circumstance that might be considered as possibly justifying the act of appellant in making the sale. We conclude that the instruction was correct.

Affirmed.

George Rose Smith and Byrd, JJ., dissent.

CONLEY Byrd, Justice,

dissenting. It looks to me that Ark. Stat. Ann. § 41-2704 (Repl. 1964), is unconstitutionally vague. That which is prohibited is the sale or circulation of “any obscene, vulgar or indecent papers. . . in which is illustrated any indecent or vulgar pictures. . .” [emphasis mine]. The criterion for determining when a criminal statute is so vague that it cannot be enforced was stated in Smith v. Goguen, 415 U.S. 566, 94 S. Ct. 1242, 39 L. Ed. 2d 605 (1974), in this language:

“We agree with the holdings of the District Court and the Court of Appeals on the due process doctrine of vagueness. The settled principles of that doctrine require no extensive restatement here. The doctrine incorporates notions of fair notice or warning. Moreover, it requires legislatures to set reasonably clear guidelines for law enforcement officials and triers of fact in order to prevent ‘arbitrary and discriminatory enforcement.’ Where a statute’s literal scope, unaided by a narrowing state court interpretation, is capable of reaching expression sheltered by the First Amendment, the doctrine demands a greater degree of specificity than in other contexts.”

In Jenkins v. Georgia, 94 S. Ct. 2750, 41 L. Ed. 2d 642 (1974), the United States Supreme Court held that nudity alone was not enough to make material legally obscene under the Miller standards. In discussing the standards set forth in Miller v. California, 413 U.S. 15, 93 S. Ct. 2607, 37 L. Ed. 2d 419 (1973), the opinion states:

.. Even though questions of appeal to the ‘prurient interest’ or of patent offensiveness are ‘essentially questions of fact,’ it would be a serious misreading of Miller to conclude that juries have unbridled discretion in determining what is ‘patently offensive.’ Not only did we there say that ‘the First Amendment values applicable to the States through the Fourteenth Amendment are adequately protected by the ultimate power of appellate courts to conduct an independent review of constitutional claims when necessary,’ 413 U.S., at 25, but we made it plain that under that holding ‘no one will be subject to prosecution for the sale or exposure of obscene materials unless these materials depict or describe patently offensive ‘hard core’ sexual conduct... .’ 413 U.S. at 27.
We also took pains in Miller to ‘give a few plain examples of what a state statute could define for regulation under part (b) of the standard announced,’ that is, the requirement of patent offensiveness, 413 U.S., at 25. These examples included ‘representations or descriptions of ultimate sexual acts, normal or perverted, actual or simulated,’ and ‘representations or descriptions of masturbation, excretory functons, and lewd exhibition of the genitals. ’ While this did not purport to be an exhaustive catalog of what juries might find patently offensive, it was certainly intended to fix substantive constitutional limitations, deriving from the First Amendment, on the type of material subject to such a determination.”

Based upon the foregoing standards we then must look to see whether the statute here involved (“. . . any obscene, vulgar or indecent papers...in which is illustrated any indecent or vulgar pictures...”), sets any reasonably clear guidelines for law enforcement officials. The term “obscene” is defined in Webster’s International Dictionary 2nd Ed. as follows:

“Offensive to chasity of mind or to modesty; expressing or presenting to the mind or view something that delicacy, purity, and decency forbid to be exposed; lewd ^indecent; as obscene language, dances, images.”

The term “vulgar” is defined in the same dictionary as follows:

“Belonging or relating to the common people as distinguished from the cultivated or educated; pertaining to common life; plebian. ‘Like the vulgar sort of market-man.-’ Shak. ‘Law and vulgar life.’ Addison."

The term “indecent” is defined in the same dictionary as follows:

“Unbecoming or unseemly; indecorous; as, indecent haste. . . uncomely ; ill-looking. Morally unfit to be seen or heard; offensive to modesty and delicacy; as indecent language.”

When the foregoing definitions are applied to the statute here involved it becomes obvious that no language therein gives a law enforcement officer any guide lines that would tell him the film “Carnal Knowledge” is not violative thereof. During my childhood the mothers of my community breastfed their babies not only at home but in the church house and other public meeting places such as political gatherings. These days breast-feeding of a baby in a public place is considered by many as being “offensive to...modesty,” vulgar and indecent. My Mother, an octogenarian, considers a bikini bathing suit as “offensive to...modesty,” vulgar and indecent not to say anything about nudity. Yet all of those examples could be classified as being prohibited by the statute here involved.

The majority, however, to get around the vagueness attack on the statute here involved, rely upon the statute involved in Hamling v. United States, 94 S. Ct. 2887, 41 L. Ed. 2d 590 (1974). The statute there involved, prohibits “Every obscene, lewd, lascivious, indecent, filthy or vile article ... . ” Needless to say the term “lascivious” is defined in Webster’s, supra as follows:

“1. Wanton; lewd; lustful.
2. Tending to produce voluptuous or lewd emotions.”

The term “lewd” is defined by the same authority as follows;

“Lustful, libidinous; lascivious; unchaste; as a lewd man

When the terms “filthy” and “vile” are added to the terms obscene, lewd, lascivous and indecent it at once becomes obvious to me that which is prohibted in Hamling, supra, is something more than mere nude pictures for after all nude pictures are not lascivious, filthy or vile.

Our statute (Ark. Stat. Ann. § 41-2704, supra) does not contain any such limiting language.

It seems abhorrent to me to say that a statute can be applied with reasonably clear guidelines by law enforcement officials when by a literal reading a law enforcing officer can logically apply it equally to a person circulating a paper illustrating the virtues of breast-feeding a baby or sun bathing in a bikini (even though such conduct is constitutionally prohibited by Jenkins, supra, ) and to a person circulating the vile and filthy sexual debauchery illustrated in the magazine before us. Such decisions on our part place the law abiding citizen so much at the mercy and comprehension of an individual law enforcement official that the same conduct may be unlawful south of the Arkansas River and considered lawful north of the river or in the next county. That kind of vagueness should not exist in our criminal law enforcement.

For the reasons stated I respectfully dissent.

       18 U.S.C. § 1461 provides in'pertinent parts:
      “Every obscene, lewd, lascivious, indecent, filthy or vile article, matter, thing, device, or substance; and ***
      “Every written or printed card, letter, circular, book, pamphlet, advertisement, or notice oi any kind giving information, directly or indirectly, where, or how, or from whom, or by what means any of such mentioned matters, articles or things may be obtained or made, ****
      “Is declared to be nonmailable matter and shall not be conveyed in the mails or delivered from any post office or by any letter carrier. ‘Whoever knowingly uses the mails for the mailing, carriage in the mails, or delivery of anything declared by this section or by section 3001 (e) of Title 39 to be nonmailable, or knowingly causes to be delivered by mail according to the direction thereon, or at the place at which it is directed to be delivered by the person to whom it is addressed, or knowingly takes any such thing from the mails for the purpose of circulating or disposing thereof, or of aiding in the'circulation or disposition thereof, shall be fined not more than $5,000 or imprisoned not more than five years, or both, for the first such offense, and shall be fined not more than $10,-000 or imprisoned not more than ten years, or both, for each such offense thereafter.***”

        Miller v. California, 413 U. S. 15 (1973).

      On June 24, 1974, the United States Supreme Court, in Jenkins v. Georgia, | 1973-1974 Transfer Binder] CCH Ü.S. S. Ct. Bull. B4047. (1974), reversed the Supreme Court of Georgia, holding that since the camera did not focus on the bodies of actors doing scenes of “ultimate sexual acts, ” nor were the genitals of actors exhibited during the scenes, the film only showing occasional nudity, the film depiction of sex conduct was not patently offensive, nudity alone not rendering material obscene under Miller v. California, supra.

        Gibbs v. State, 255 Ark. 997, 504 S.W. 2d 179 (1974). There, this Court applied Miller standards and held our statute § 41-2730 (Supp. 1973) constitutional

      There was no objection to this instruction.


author: Lyle Brown, Justice.

text:
    CITY OF NORTH LITTLE ROCK v. Gladys GARNER et al
    74-88
    511 S.W. 2d 656
    Opinion delivered July 22, 1974

      Sam Hilburn and Patrick H. Hays, for appellants.

      Matthews, Purtle, Osterloh & Weber by: John /. Partle, for appellees.
   Lyle Brown, Justice.

This is an appeal from an order of the lower court granting appellees’ motion for summary judgment in their suit challenging the validity of annexation proceedings by the City of North Little Rock. Pursuant to Act 298 of 1971 (codified as Ark. Stat. Ann. § 19-307.1 et seq. Supp. 1973), the City Council of North Little Rock passed an ordinance providing for the annexation. An election was held and a majority of the qualified electors voting in the election approved the ordinance. Appellees, who are landowners in the area to be annexed, thereafter filed their remonstrance in the circuit court objecting to the annexation upon several grounds, among them the fact that the ordinance did not contain an accurate description of the lands to be annexed; that the election was not held in the time or manner prescribed by law; and that the ordinance did not receive the approval of the qualified electors in the area affected. The lower court granted appellees’ motion for summary judgment on the basis of the inaccurate description of the lands in the ordinance but held that the motion was not well taken as to the time and manner of calling the election.

On appeal the city argues that the land description contained in the ordinance was sufficient. However, the lower court was correct in granting summary judgment for appellees on this issue. The description in the ordinance provided: “A tract of land including all or parts of Section 17, 18, 20, 21, 22, 23, 24, 25, 26, 29, 33, 34, and 35, Township 2 North, Range 11 West; and all or parts of Sections 2, '3, 4, 5, 6, 8, 9, 10, 11, 12, 14, and 15, Township 1, North, Range 11 West, more particularly described as follows: ...” Here was inserted a metes and bounds description starting at a point on the northeast city limits and ending at a point on the north bank of the Arkansas River where the southeast boundary of the city intersects the river. This description does not accurately describe the lands to be annexed since it only describes a line that does not connect to the starting point. As in Parrish v. City of Russellville, 253 Ark. 1000, 490 S.W. 2d 126 (1973), the description does not encircle any geographical area nor describe a geographical area. There is nothing in the description providing that the line follows the east boundary of the city from the ending point of the metes and bounds description back to the starting point. Since the city admitted that the description in the ordinance was the one voted upon in the annexation election, there was no geniuine issue as to any material fact, and appellees were entitled to judgment as a matter of law. Consequently, the lower court correctly granted summary judgment for appellees.

The city also contends it was error for the lower court to grant appellees’ motion for summary judgment before ruling on the city’s motion to require appellees to make their remonstrance more definite and certain. Though appellees never responded to the city’s motion, they did amend their pleadings by adding two more remonstrants who owned land in the area affected by the ordinance. The city made no request for a ruling on its motion and made no objection to the sufficiency of appellees’ pleadings after the amendment. Furthermore, there has been no prejudice to the city since the motion to make more definite and .certain requested information about issues which were not germane to a decision on appellees’ motion for summary judgment. The city’s motion would have required appellees to state specifically in what ways the annexation election failed to receive proper approval by the voters and to specify exactly which parcels of land were in classifications immune from annexation under the statute. Since the motion for summary judgment could be granted on the basis of the inaccurate land description, the issues raised in the city’s motion to make more definite and certain were irrelevant. It was therefore not necessary for the lower court to rule on the city’s motion before ruling on the motion for summary judgment.

Appellees have filed a cross-appeal from that portion of the lower court’s order holding that their motion for summary judgment was not well taken as to the time and manner of calling the election. The annexation ordinance was passed by the city council on April 23, 1973, but the election was not held until June 5. This was more than thirty days after passage of the ordinance. Ark. Stat. Ann. § 19-307.2 (Supp. 1973) provides that such an ordinance shall not become effective until the question of annexation is submitted to the qualified electors of the annexing city and of the area to be annexed at the next general election or at a special election “to be called by the governing body of the municipality within thirty (30) days after the passage of such ordinance . .

Appellees contend that the recited statute requires the election to be held within thirty days after passage of the ordinance and that merely giving notice during that time that an election is to be held later is not sufficient compliance with the statute. However, this question is not properly before us since .an order denying a motion for summary judgment is only an interlocutory order and is not appealable. Appellees cite Wilson v. McDaniel, 247 Ark. 1036, 449 S.W. 2d 944 (1970), for the proposition that an order denying a summary judgment is reviewable in conjunction with an appeal of an order granting summary judgment. However, the situation on appeal in the instant case is not the same as in Wilson v. McDaniel. There both parties had moved for summary judgment, and the lower court had granted appellees’ motion. This court reversed and in doing so we stated that it was necessary to discuss appellants’ alleged grounds for summary judgment in order to show that there were unresolved material issues which could only be disposed of after a trial. We relied on Widmer v. Fort Smith Vehicle and Machinery Corporation, 244 Ark. 971, 429 S.W. 2d 63 (1968), for the rule allowing review of certain interlocutory orders in conjunction with the appeal of a final judgment. The examples of such situations in Widmer were orders overruling motions for directed verdict and orders granting a new trial. The instant case does not come within the rule of either Widmer or Wilson v. McDaniel. Here it is not necessary to review the lower court’s denial of summary judgment on certain grounds in order to sustain the granting of summary judgment on other grounds. If appellees were correct in contending that the denial of summary judgment is always reviewable in conjunction with an appeal of the granting of summary judgment, this court would be put in the position of having to render advisory opinions on issues not properly before us. Therefore the appellees must fail in their cross-appeal.

Affirmed on appeal and cross-appeal.


author: JOHN A. Fogleman, Justice.

text:
    COMMERCIAL NATIONAL BANK EXECUTOR et al v. ARKANSAS CHILDREN’S HOSPITAL
    74-57
    511 S.W. 2d 640
    Opinion delivered July 22, 1974

      Eichenbaum, Scott, Miller, Crockett & Bryant by: Leonard L. Scott, for appellants.

      Jacoway & Sherman, for appellee."

      Ray Trammell, for University of Arkansas Board of Trustees, amicus curiae
   JOHN A. Fogleman, Justice.

This case involves the question whether, in making distribution of testamentary bequests made by Polly M. Thomas, deceased, the executor should apportion a part of the burden of the federal estate tax against a bequest to Arkansas Children’s Hospital, a public hospital not for profit. The executor contends that it should, relying on Ark. Stat. Ann. § 63-150 (Repl. 1971). On the other hand appellee and amicus curiae contend that the Children’s Hospital is relieved of any part of the burden because of the provisions of Ark. Stat. Ann. § 63-151 (a) (Repl. 1971). We find that Ark. Stat. Ann. § 63-150 applies and that the bequest to the Arkansas Children’s Hospital must bear its proportionate part of the tax burden.

A review of the legislative history of the two sections is conducive to the proper determination of the sole question raised on this appeal. Ark. Stat. Ann. § 63-150 is Act 99 of 1943, as amended by Act 122 of 1955. The amendment is not of any great significance here. Ark. Stat. Ann. § 63-151 (a) is Act 19 of 1943. Act 99 was approved by the Governor on February 24, 1943. Act 19 was approved on February 4, 1943. Both had emergency clauses which appear to have been ineffective. Act 19 was introduced in the House of Representatives before Act 99 was introduced in the same House. Its passage in the House and Senate and transmission to the Governor preceded the like action on Act 99, in each instance. In view of our construction of the acts, we need not determine, however, which took effect first.

Appellants contend that § 63-150 is our only “apportionment” statute placing the ultimate burden of federal estate taxes and that § 63-151 (a) is simply an exemption from the Arkansas tax. Appellee concedes that § 63-150 is an apportionment statute, but contends that § 63-151 (a) is not an exemption statute, but is an “allocation” statute, which we understand to mean, in appellee’s argument, the same as an “apportionment” statute. Appelleee contends that § 63-150 should be read in conjunction with § 63-151 (a). We agree with appellant.

It is interesting to note that the probate court held that “the Arkansas Children’s Hospital is exempt from any estate taxes or inheritance taxes imposed by the United States of America or the State of Arkansas in connection with the transfer to it of any real or personal property pursuant to the will ...” This may explain, in part, our disagreement with the probate judge. § 63-150 is concededly not an exemption statute and the state legislature could not “exempt” any property or transfer, otherwise taxable, from the federal estate tax. The tax, however, is not upon the right of succession, as an inheritance tax would be. Gates v. Bank of Commerce and Trust Co., 185 Ark. 502, 47 S.W. 2d 806. It is upon the entire estate, as defined in the applicable federal statute, or its transfer from the decedent or the privilege of transfer. 34 Am. Jur. 2d (1974) 797, Federal Taxation, §§ 8500, 8501. See Thompson v. Union & Mercantile Trust Co., 164 Ark. 411, 262 S.W. 324. Since the tax was upon the entire estate, the government could enforce the collection against any of the assets of the estate and even collect from a beneficiary any amount unpaid up to the amount or value received by him. 34 Am. Jur. 2d (1974) 797, Federal Taxation, § 8501. The tax is a lien on all property of the estate. See Thompson v. Union Mercantile Trust Co., supra; 34 Am. Jur. 2d (1974) 993, Federal Taxation, § 9425.

The Arkansas tax was, in substantial part, an inheritance tax, at least until 1941. See Compiler’s note, Ark. Stat. Ann. § 63-101 (Repl. 1971). By Act 136 of 1941, a change in the Arkansas taxing system was brought about. See Ark. Stat. 63-101-146 (Repl. 1971). By § 1, the act was denominated as the “Estate Tax Law of Arkansas.” Ark. Stat. § 63-101. By this act, a tax was imposed upon the transfer of the net estate of an Arkansas resident thereafter dying. The definition of net estate differed in the act, in some respects, from the definition in the federal estate tax act. It was the value of the estate after deducting from the gross estate funeral expenses, trustee’s fees, attorney’s fees, administration expenses, claims against the estate, unpaid mortgages or indebtedness in respect to property, the value of which was included in the gross estate. No other deduction was recognized or mentioned and certainly no deducton for a bequest to a nonprofit hospital. § 3, Act 136 of 1941. However, the peculiar wording of the statute imposing the tax on net estates in excess of $100,000 in an amount equal to the amount by which the credit allowable under the federal revenue act for estate taxes then in effect actually paid to the several states exceeded the aggregate amount of all such taxes actually paid to the several states (other than Arkansas) compelled this court to hold that, for those estates, the net estate necessarily must be determined according to the federal estate tax act then in effect, because both the federal tax and the credit allowable were determined on that basis. Cook v. Taylor, 210 Ark. 803, 197 S.W. 2d 738 (1946).

Between 1941 and 1945, however, the situation appeared to be different as to a net estate less than $100,000 and more than $10,000. Where the net estate was less than $10,000 it was exempt from the Arkansas estate tax. And if the net estate exceeded $10,000 but was less than $100,000, the tax amounted to 4/5 of 1% of the excess over $10,000. In determining the net estate for the purpose of this tax, or exemption therefrom the provisions of § 2 (c) and § 3 of Act 136 of 1941 would seem to have come into play. The net estate was defined by § 2 (c) as the net estate as determined under the applicable federal revenue act, except where otherwise defined. Net estate was “otherwise defined” by § 3 as herein above set out. In such an estate, there would have been no basis for any exemption from the Arkansas estate tax of the amount of a devise or bequest to the state, a municipal corporation or other political subdivision or to a public institution of learning or to a public hospital not for profit before the passage of Act 19 of 1943, now § 63-151 (a). And, in any event, permitting a deduction from the gross estate for property bequeathed to a charitable institution does not exempt property constituting the fixed dollar deduction allowed under both federal and state law. See Thompson v. Union and Mercantile Trust Co., 164 Ark. 411, 262 S.W. 324; Williamson v. Williamson, 224 Ark. 141, 272 S.W. 2d 72. Consequently until the passage of Act 19 of 1943, the statutes provided a different basis for determination of the net estate for the purpose of Arkansas estate taxes for estates subject to the normal federal estate tax (as distinguished from the surtax) and those which were not. In the first case, a bequest to an institution of the character of appellee would have constituted a deduction from the gross estate in determining the net estate, but would not have in the second case. Ark. Stat. § 63-151 (a) (Act 19 of 1943) eliminated this inconsistency as to such institutions. Not until 1945 did the General Assembly change the definition of “net estate” under the Arkansas law to conform in all cases to the definition in the federal revenue statutes. But by the same act, the Arkansas tax was imposed only on net estates in excess of $100,000, Act 294 of 1945.

In attempting to evaluate § 63-151 (a), it is significant to note that this statute uses the word “imposed” in reference to its prohibition as to estate, inheritance and transfer taxes. This word, of course, is characteristic of tax levies. It is significant that it is used in the Arkansas Estate Tax Act in this sense. See e.g. Ark. Stat. Ann. § 63-103, 104 (Repl. 1971, Act 136 of 1941.) It (or its present tense “impose”) has also been used in other taxing statutes in this sense. See Ark. Stat. Ann. §§ 84-1904 (Repl. 1960, Supp. 1973); 84-1909 (Repl. 1960); 84-2003 (Repl. 1960, Supp. 1973); 84-2005, 2020, 2502, 2529, 2604, 2613 (Repl. 1960); 48-405, 408, 608, 609 (Repl. 1964); 48-418 (Supp. 1973); 19-4502 (Repl. 1968); 75-1105, 1112, 1120, 1125, 1127, 1149, 1223, 1225, (Repl. 1957); 66-2302 (Repl. 1966). It has also been used in exemption statutes in the same sense. See Ark. Stat. § 48-403 (Repl. 1964).

The apportionment of the burden of estate taxes is not the imposition of a tax. The basis for apportionment statutes was set out in Riggs v. Del Drago, 317 U.S. 95, 63 S. Ct. 109, 87 L.Ed. 106, 142 A.L.R. 1131. The Supreme Court of the United States found the Congress intended that the federal estate tax should be paid out of the estate as a whole, but “that the applicable state law as to the devolution of property at death should govern the distribution of the remainder and the ultimate impact of the federal tax.” As we view the matter, there was no act apportioning the tax burden, until the passage of Act 99 of 1943 (§ 63-150).

It seems clear that the legislature did not have apportionment of estate taxes in mind in Act 19 when it eliminated from .the imposition of estate, inheritanc e and transfer taxes th^ succession of title to any property from any person, association, company or corporation, whether resident or nonresident. It is difficult to perceive how apportionment of tax burdens could be involved where the source of the property was either an association, company or corporation, resident or nonresident. Clearly this is an indication the legislature was considering tax exemptions, not apportionment.

Another clear manifestation that tax exemption, not apportionment, was the legislative intention in Act 19. is the fact that the act has been twice amended by enactments which clearly creaté Arkansas tax exemptions in certain instances. Ark. Stat. Ann. § 63-151 (b) (Repl. 1971); Act 25 of 1963; Act 169 of 1965. Both amendments related to adding matter to § 63-151 (a) and did not change the text of Act 19 at all. During the period intervening between the passage of Act 99 and the first amendment to Act 19, the former was amended by Act 122 of 1955, to eliminate property qualifying for the marital deduction from any burden by apportionment. The title of that act provides thai no estate taxes be apportioned against a spouse with respect to such property. The legislative construction of the purposes of the three acts is not controlling but it is certainly persuasive in ascertaining the meaning of words employed and to resolve doubts and ambiguities. 2A Sutherland, Statutory Construction, 4th Ed. 265, Sec. 49.11; 73 Am. Jur. 2d 380, Sec. 178; Crosby v. Barr, 198 So. 2d 571 (Miss. 1967); Erlenbaugh v. United States, 409 U.S. 239, 93 S. Ct. 477, 34 L.Ed 2d 446 (1972); Western Mobilehome Assn. v. County of San Diego, 16 Cal. App. 3d 941, 94 Cal. Rptr. 504 (1971). See also Anderson v. City of Seattle, 78 Wash. 2d 201, 471 P. 2d 87 (Wash. 1970); California Employment Stabilization Commission v. Payne, 31 Cal. 2d 210, 187 P. 2d 702 (1948); Board of Social Welfare v. Los Angeles County, 27 Cal. 2d 90, 162 P. 2d 635 (1945).

Although resort to the title of an act as an aid to construction should not be had if the meaning of the language of the act is clear, doubts here may be dispelled by reference to titles. The title to Act 19 does not in any wise mention apportionment. incidence of the burden or ultimate impact of the taxes paid by an estate. It was “An Act to Relieve from Estate, Transfer or Inheritance Taxes Property Passing to the State and its Sub-Divisions, Hospitals and Educational Institutions.” On the other hand Act 99 was “An Act to Determine the Incidence of State and Federal Estate Taxation.” It was not designed to exempt any property from the tax or to relieve any part of the estate from it.

Although Act 19 was not involved in Williamson v. Williamson, 224 Ark. 141, 272 S.W. 2d 72, and the language used might be classified as dictum, this court there said it was plainly the intent of our statute (Act 99) to give to the estate as a whole the benefit of concessions made in the Congressional tax computation formula. This statement is certainly consistent with both the content and the title of Act 99. It is also significant that this court in Williamson emphasized the failure of Act 99 to carry forward exemptions and deductions granted by the act imposing the tax, as did the New York statute.

Since we disagree with the probate court’s construction of the act, its judgment is reversed and the cause remanded for further proceedings consistent with this opinion.

      The will gave no4irections in this respect.

      See Trammell, The Arkansas Estate Tax, 1941-1949, 3 Ark. Law Rev. 72, 73, 75.


author: JOHN A. FOGLEMAN, Justice. George Rose Smith, Justice,

text:
    Giles H. GIBSON et al v. Nora Glasgow PICKETT et al
    74-61
    512 S.W. 2d 532
    Opinion delivered July 22, 1974
    [Rehearing denied September 9, 1974.]

      Keith, Clegg & Eckert, for appellants.

      Woodward & Kinard, Ltd., for appellees.
   JOHN A. FOGLEMAN, Justice.

In this “quiet title” action brought by appellees, there is no dispute about the facts. The lands involved are described as the SW Va of SW Va of Section 24, Township 19 South, Range 24 West in Lafayette County. The basic controversy turns upon the construction of a deed dated May 25, 1944, from Giles H. Gibson and wife to Oce S. Griffin. Appellees based their suit upon their contention that a mineral reservation therein was void because it was too indefinite and uncertain to be effective. On the other hand, appellants contended that the Gibsons reserved all the oil, gas and mineral rights they owned and that no mineral interest passed to Griffin by this deed. The chancellor held that the deed did reserve an undivided Vz interest which had not been severed from the surface but not a reversionary interest which the Gibsons owned in a Vz “term” mineral interest, expiring in 1950 in the absence of production, conveyed by a prior owner in 1935. It had been stipulated that there had been no production prior to 1950. The chancery court held that Griffin owned the reversionary interest in 1945 when he conveyed to G. B. Pickett, the deceased father of appellees, reserving Vz of any mineral interest he (Griffin) owned, so that, when the term interest expired in 1950, a Vz mineral interest was owned by Griffin and Pickett equally.

Appellants assert that the chancellor erred in holding that Gibson reserved the Vz unsevered mineral interest but not the reversionary interest in the remaining Vz interest. Appellees contend that the reservation in the Gibson-Griffin deed should have been declared void for ambiguity and that the court erred in finding that this deed did not convey all mineral rights owned by Gibson. They say that, in any event, no more than Vz of the minerals were reserved.

It is essential, to an understanding of the issues that the chain of title be set out. Insofar as pertinent, it is as follows:

J. R. Jester was the holder of the fee simple title to the W Vz SW Va of Sec. 24.
29 May 1920, mineral deed fromj. R. Jester and wife to J. W. Allen, conveying a Vz mineral interest in the NW Vs SW Vs T. 19 S., R. 24 W., filed for record on 16 April 1923.
3June 1935, warranty deed fromj. R. Jester and wife to First Congregational Church, conveying the W Vz SW Vs of Sec. 24, filed for record on Jan. 13, 1936.
11 Dec. 1935, instrument entitled “Sale of Mineral Rights” fromj. R. Jester to Harry J. Naert, conveying Vz mineral interest in SW Vs of SW Vs having the following habendum clause, “To Have and To Hold, said described property unto said purchasers their heirs and assigns for a period of Fifteen Years (15) or as long thereafter as oil or gas are produced in paying quantities,” filed for record on Dec. 20, 1935.
4 June 1943, First Congregational Church to J. E. Sear-cy conveying the W Vz SW Vs of Sec. 24, containing the following warranty clause: “And First Congregational Church hereby covenants with the said J. E. Searcy that it will forever warrant and defend the title to said lands against all claims whatever, except as to any mineral rights which the corporation has no title or claim against and except as to rights of the parties in possession.”
7 Aug. 1943, special warranty deed fromj. E. Searcy to Giles H. Gibson with warranty “against all claims or encumbrances done or suffered by us but against none other.”
25 May 1944, warranty deed from Giles H. Gibson to Oce. S. Griffin, conveying: “The West Half (W Vz) of the Southwest Quarter (SW Vs) of Section Twenty-four (24), Township Nineteen South (19S) Range Twenty-four West (24) containing in all 80 acres more or less, except a reservation of an undivided One-Half Interest in all Oil, Gas and Mineral Rights, including the Right of Ingress and Egress thereto (being One-Half of the Mineral Rights that were conveyed to the First Congregational Church in a Deed dated June 3rd 1935 and Recorded in Book C — , Page 183) which is reserved by the Grantor herein.” The habendum clause reads: “To Have and To Hold the same unto the said Oce S. Griffin and unto his heirs and assigns forever, with all appurtenances thereunto belonging except as mineral rights mentioned in Deed recorded in Book A-8 at page 205.” The warranty clause reads: “And we hereby covenant with said Oce S. Griffin that we will forever warrant and defend the title to said lands against all claims whatever, except Mineral Rights.”
16 July 1945, warranty deed from Oce S. Griffin to G. B. Pickett conveying “The Southwest Quarter (SW !4) of the Southwest Quarter (SW’4) of Section Twenty-four (24), Township Nineteen (19) South Range Twenty-four (24) West, containing forty (40) acres more or less. The Grantor hereby reserved one-half (Vi) of all Oil, Gas, and Mineral rights that is owned by him on this date; also it is understood, that there exist one or more reservations by previous grantor or grantors. It is intended that the grantee (G. B. Pickett) shall have one-half (Vi) of any and all Oil, Gas, and Mineral rights that is owned by the grantor (Oce. S. Griffin) at the time of this sale, including the right of ingress and egress.”

The basic rule to be applied in the construction of deeds, as with other contracts, is to ascertain and give effect to the real intention of the parties, particularly of the grantor, as expressed by the language used when not contrary to settled principles of law and rules of property. Jenkins v. Simmons, 241 Ark. 242, 407 S.W. 2d 105, Dent v. Industrial Oil & Gas Co., 197 Ark. 95, 122 S.W. 2d 162; Chicago, R.I. & P. R. Co. v. Olson, 222 Ark. 828, 262 S.W. 2d 882; Coffelt v. Decatur School District, 212 Ark. 743, 208 S.W. 2d 1; McBride v. Conyers, 212 Ark. 1034, 208 S.W. 2d 1006; Desha v. Erwin, 168 Ark. 555, 270 S.W. 965. The courts will resort to rules of construction, as distinguished from rules of property, only when the meaning of the deed in question or the intention of the parties is ambiguous, uncertain or doubtful. Coffelt v. Decatur School District, supra; see also Jenkins v. Ellis, 111 Ark. 220, 163 S.W. 524; Beasley v. Shinn, 201 Ark. 31, 144 S.W. 2d 710; Davis v. Collins, 219 Ark. 948, 245 S.W. 2d 571; Doe v. Porter, 3 Ark. 18.

The intention of the parties must be gathered from the four corners of the instrument itself, if that can be done, and when so done, it will control. Chicago, R.I. & P. R. Co. v. Olson, supra; McBride v. Conyers, supra; Luster v. Arnold, 249 Ark. 152, 458 S.W. 2d 414; Carter Oil Co. v. Weil, 209 Ark. 653, 192 S.W. 2d 215; Luther v. Patman, 200 Ark. 853, 141 S.W. 2d 42. See also Cannon v. Owens, 224 Ark. 614, 275 S.W. 2d 445. The intention of the parties is to be gathered, not from some particular clause, but from the whole context of the agreement. Schnitt v. McKellar, 244 Ark. 377, 427 S.W. 2d 202; Arkansas Power & Light Co. v. Murry, 231 Ark. 559, 331 S.W. 2d 98; Wilson v. Stearn, 202 Ark. 1197, 149 S.W. 2d 571; Dent v. Industrial Oil & Gas Co., supra. It is only in case of an ambiguity that a contract is construed most strongly against the party who prepared it, for the grantor in a deed. Arkansas Power & Light Co. v. Murry, supra; Jenkins v. Ellis, supra; 26 CJS 813, Deeds Sec. 82; 26 CJS 1012, Deeds Sec. 140 (2). Even then, the rule is one of last resort to be applied only when all other rules for construing an ambiguous deed fail to lead to a satisfactory clarification of the instrument and is particularly subservient to the paramount rule that the intention of the parties must be given effect, insofar as it may be ascertained, and to the rule that every part of a deed should be harmonized and reconciled so that all may stand together and none be rejected. Wynn v. Sklar & Phillips Oil Co., 254 Ark. 332, 493 S.W. 2d 439; 26 CJS 1012, Deeds Sec. 140 (2). See also Jefferson Square, Inc. v. Hart Shoes, Inc., 239 Ark. 129, 388 S.W. 2d 902.

Keeping these well-established rules in mind, we turn to the instrument in question. No difficulty is apparent upon the face of the instrument itself. Yet, we are not only permitted, we are required to examine the instruments to which reference is made in the deed in question because the terms and conditions of those deeds were made a part of the deed to be construed. Doe v. Porter, 3 Ark. 18. See also International Graphics, Inc. v. Bryant, 252 Ark. 1297, 482 S.W. 2d 820; Jackson v. Lady, 140 Ark. 512, 216 S.W. 505; Snyder v. Bridewell, 167 Ark. 8, 267 S.W. 561; Dormon Farms Co. v. Stewart, 157 Ark. 194, 247 S.W. 778. When we do, it would appear at first blush that all the mineral rights were purportedly conveyed to the First Congregational Church on June 3, 1935, there having been no exception from the warranty clause. See Maloch v. Pryor, 200 Ark. 380, 129 S.W. 2d 51; Osborn v. Texas Oil & Gas Co., 103 Ark. 175, 146 S.W. 122. But the deed was not recorded until January 13, 1936. In the meanwhile. Jester had conveyed 1/2 of the mineral interest in the SW 1/4 of the SW 1/4 to Naert for a period of 15 years. In 1920, he had conveyed 1/2 of the minerals in the NW 1/4 NW 1/4 to J. W. Allen in perpetuity. Consequently, the conveyance to the church appears to have effectively conveyed only 1/2 of all mineral rights in the NW 1/4 SW 1/4 and 1/2 of those rights together with the reversionary interest in the remaining 1/2 interest in the SW 1/4 SW 1/4. Thus, the parenthetical clause as worded, seems ambiguous itself and appears to be inconsistent with a strict interpretation of the general clause which it purportedly modifies, as it refers to more than 1/2 the mineral rights in either event. The habendum clause refers us to the deed from the church to Searcy, in which the only mention of mineral rights is the exception from the warranty of any mineral rights to which the church had no title or claim, presumably in recognition of the superiority of the conveyances to Naert and Allen.

If indeed the clause is ambiguous, as we find it to be, the courts must put themselves as nearly as possible in the position of the parties to the deed (particularly the grantor) and interpret the language in the light of attendant circumstances. Schnitt v. McKellar, 244 Ark. 337, 427 S.W. 2d 202; Wynn v. Sklar & Phillips Oil Co., supra; Schweitzer v. Crandell, 172 Ark. 667, 291 S.W. 68; Jackson v. Lady, 140 Ark. 512, 216 S.W. 505; St. Louis San Francisco Ry. Co. v. White, 199 Ark. 56, 132 S.W. 2d 807. In this case, we can only do that by viewing the instruments in the chain of title because we have no other evidence before us. In endeavoring to ascertain the intention of the parties, we look not only to the deed but to the relations of the grantor to the property. Jackson v. Lady, supra; Holmes v. Countiss, 195 Ark. 1014, 115 S.W. 2d 553. At the time of the conveyance from Gibson to Griffin, Gibson owned 1 /2 of the minerals in the W 1/2 SW 1 /4 plus a rever-sionary interest in the remaining 1/2 in the SW 1/4 SW 1/4. The warranty clause in the deed excepted mineral rights, so it cannot be presumed that there was any intention to convey all the mineral rights not reserved. The habendum clause excepted mineral rights mentioned in the deed from the church to Searcy, which had excepted from its warranty any mineral rights to which it had no claim, i.e., the 1/2 mineral interest conveyed to Allen in 1920 in the NW 1 /4 SW 1/4 and the 1 /2 interest in the SW 1/4 SW 1/4 conveyed to Naert. It might seem logical to say that the intent of Gibson was to reserve the unsevered 1/2 of the minerals in the SW 1/4 SW 1/4 and to convey to Griffin the reversionary interest, upon the premise that if he had intended to reserve all the mineral rights owned by him, he would have simply said so without resorting to all the descriptive language employed in the deed. But we cannot resolve the matter upon this simple premise, logical as it may seem.

Appellants contend that Gibson intended to reserve all the mineral rights he owned and that the explanatory parenthetical clause was added to make this intention clear. They say the description in the deed should be read as if it excepted an undivided one-half interest in all oil, gas and mineral rights, including the right of ingress and egress thereto, being 1/2 or the mineral rights that were conveyed to the First Congregational Church of 1/2 mineral interest plus the reversionary interest in the 1/2 mineral interest sold to Naert, which is reserved by the grantor herein. Their version eliminates the parentheses appearing in the deed. It also takes the parenthetical clause to refer to the interest effectively conveyed instead of that purportedly conveyed to the church. The latter possible construction of that clause would be consistent with the remainder of the exception and reservation, the first two words of the parenthetical clause itself and the chancellor’s holding. Appellants contend that any construction other than that suggested by them violates the rule that no part of a deed will be rejected except when completely irreconcilable with other clauses of the deed. See Wynn v. Sklar & Phillips Oil Co., 254 Ark. 332, 493 S.W. 2d 439. It is the duty of the courts to give effect to every word, sentence and provision of a deed, where possible to do so and give effect to the intention of the parties. Jackson v. Lady, 140 Ark. 512, 216 S.W. 505; Doe v. Porter, 3 Ark. 18. When a deed is ambiguous, however, the primary rule of construction comes into play, i.e., that all parts of the deed should be harmonized insofar as possible. Jackson v. Lady, supra; Holmes v. Countiss, 195 Ark. 1014, 115 S.W. 2d 553. The alternate construction above suggested might harmonize the parenthetical clause with the general part of the exception and reservation, but not with the habendum clause.

If we had not abandoned the rule of construction that, in case of conflict between the granting and the habendum clauses, the granting clause governs we might say that the matter was settled by construing the parenthetical clause to be consistent with a reservation of only 1 /2 of the mineral interests and not the reversionary interest. But this is no longer the rule. We must, if possible, reconcile and harmonize the two clauses, along with any other clauses of the instrument. See Weir v. Brigham, 218 Ark. 354, 236 S.W. 2d 435; Carter Oil Co. v. Weil, 209 Ark. 653, 192 S.W. 2d 215; Beasley v. Shinn, 201 Ark. 31, 144 S.W. 2d 710. And this has always been the rule unless the language of the granting clause was so plain that it could not be misunderstood and the two clauses were clearly and irreconcilably repugnant. See Jackson v. Lady, supra; Kenner v. State, 121 Ark. 95, 180 S.W. 492; McDill v. Meyer, 94 Ark. 615, 128 S.W. 364. The wording of the warranty clause is such that Gibson gave no warranty as to any mineral rights. The habendum clause clearly indicates that Griffin is to have the fee simple title to the lands except for mineral rights mentioned in the deed to the church, i.e., mineral rights to which it had no claim. It has long been recognized that where it appears from the whole conveyance and attendant circumstances that the grantor intended to enlarge, restrict or repugn the conveying clause by the haben-dum, the latter must control, as an addendum or proviso to the former. Luther v. Patman, 200 Ark. 853, 141 S.W. 2d 42. Since it is the office of the habendum clause to explain or define the extent of the grant, it is not to be rejected unless there is a clear and irreconcilable repugnance between the-estate granted and that limited in the habendum. McDill v. Meyer, supra. And the words of the habendum will prevail if they represent the true intent of the grantor as expressed by the deed as a whole. Weatherly v. Purcell, 217 Ark. 908, 234 S.W. 2d 32.

Giving the parenthetical clause the meaning ascribed to it by appellants would make it harmonious with the haben-dum clause. It would also be consistent with the warranty clause. On the other hand, the alternate construction would be in conflict with the habendum clause, but not necessarily with the warranty clause. In order to reach the conclusion reached by the trial court it would be necessary to reject either the parenthetical clause or the habendum clause, or both. This we should not do. Language of a contract as a whole, should be construed to make apparently conflicting provisions reasonable and consistent if possible to do so. Schnitt v. McKellar, 244 Ark. 377, 427 S.W. 2d 202. Accordingly, we hold that the parenthetical clause served to modify the general language of the description of the exception from the grant and, when read with the habendum clause, described a reservation by Gibson of all the mineral rights he owned.

On cross-appeal, appellees contend that the court erred in not granting a default judgment against M. M. Valerius Royalty Corporation, the grantee in a deed by J. F. Warmack (a grantee of Gibson in a 1969 mineral deed) conveying a 1/8 mineral interest in the W 1/2 SW 1 /4 of Sec. 24. In their petition to quiet title, appellees claimed ownership of W 1/2 interest in oil, gas and minerals in the SW 1/4 SW 1/4, subject to an oil and gas lease owned by M. M. Valerius Oil Royalty Corporation. This corporation was named as a defendant and served by registered letter dated July 20, 1972 and received by the corporation on July 21, 1972, apparently pursuant to Ark. Stat. Ann. § 27-340 (Repl. 1962). Appellees made a motion for default judgment on October 11, 1972, praying that the mineral deed from Warmack to Valerius be declared void. This deed and the one from Gibson to Warmack were attached to the motion. On October 12, 1972, Valerius entered its appearance, requesting 10 days within which to plead and that the motion for default be denied. Valerius alleged that due to a misunderstanding on its part, no arrangements for legal representation were made until October 4, 1972, that no prejudice would result by the delay and that allowing Valerius to plead and defend would be in the interest of justice. Appellees’ motion was overruled, as was their subsequent motion to strike the answer filed by Valerius. Mere failure to arrange for representation would not constitute unavoidable casualty, excusable neglect or other just cause for denial of a default judgment. If nothing else were involved, we should hold that there was reversible error. Kohlenberger v. Tyson’s Foods, 256 Ark. 584, 510 S.W. 2d 555 (1974). But there is more. Appellees’ original pleading did not specifically seek the cancellation of the conveyances under which Valerius claims. To the contrary they admitted that their ownership was subject to an “Oil and Gas Lease” vested in Valerius. We cannot say that Valerius should have known, without question, that appellees’ claimed their rights were superior to those of Valerius or that cancellation of the instrument under which it claimed was sought before October 11, 1972, when the motion for default judgment was filed. In effect, the motion for default judgment could be taken to constitute an amendment of appellees’ original petition in a matter of substance. As a matter of fact the mineral deed from Warmack to M. M. Valerius Royalty Corporation which appellees sought to have cancelled by the default judgment was not even mentioned in their original complaint. If the amendment was in a matter of substance Valerius was entitled to answer. Kohlenberger v. Tyson’s Foods, supra; Starks v. N.L.R. Policeman’s Pension & Relief Fund, 256 Ark. 515, 510 S.W. 2d 305 (1974). Even though the discretion of the trial judges to permit an answer after the expiration of the statutory time after service has been severely limited, we cannot say that there was an abuse of discretion here or that the neglect of Valerius was not excusable, under the circumstances.

Appellees also contend that the chancellor erred in refusing to grant their motion for summary judgment. A sufficient answer to this contention is that no appeal lies from the denial of a summary judgment. Bawcom v. Allis-Chalmers Credit Corporation, 256 Ark. 569, 508 S.W. 2d 741 (1974).

Appellees also contend that the reservation of mineral rights in the Gibson deed is so ambiguous that it is void, relying upon Parker v. Cherry, 209 Ark. 907, 193 S.W. 2d 127. Here the question is not whether the reservation was sufficiently described to be effective. It is whether the reservation was of only 1 /2 of the mineral interest or all of the mineral interest owned by grantee Gibson. A description will not be held void for uncertainty if by any reasonable construction it may be made available and if the descriptive words furnish a key to identification, nothing more is required. This principle was recognized as applicable to reservations in Parker. See also Rye v. Baumann, 231 Ark. 278, 329 S.W. 2d 161.

Nor do we find merit in appellees’ contention that this is essentially an action for reformation, and as such, is at least tardily sought. In this respect, the case is not essentially different from Stewart v. Warren, 202 Ark. 873, 153 S.W. 2d 545. There we held that a limitation on a grant of a mineral interest expressed only in the habendum clause of the deed in question should be given effect under the rule of Beasley v. Shinn, supra, that the intention of the parties should be gathered from the entire document rather than from the granting clause. We held that the doctrine of laches was inapplicable for two reasons. First, we affirmed the decree of the trial court which had actually refused reformation but had nevertheless upheld the limitation by considering the face of the deed in determining the intention of the parties. And then, we said, it was not the duty of the parties claiming the benefit of the limitation to seek reformation until the limitation upon which they relied was questioned. We may say the same about this case as to this contention of appellees.

The decree is reversed on direct appeal and affirmed on cross-appeal and the cause is remanded for entry of a decree consistent with this opinion.

George Rose Smith and Holt, JJ., dissent.

George Rose Smith, Justice,

dissenting. Although the various rules of construction relied upon by the majority are designed to give effect to the intention of the parties, it does not seem to me that they accomplish that purpose in this case. The pivotal 1944 deed from the Gibsons to Griffin was obviously not drawn by a lawyer. It is impossible to be certain what was intended by the layman who prepared that deed, but I think the chancellor’s interpretation of it is preferable to that adopted by the majority.

The Gibsons then owned half the minerals in the 80-acre tract that was conveyed. They also owned a reversionary interest in the other half of the minerals in the south forty acres, but that interest would not be of any value if oil or gas should be produced in paying quantities during the 15-year term that had been granted to Naert in 1935. In view of that doubtful situation the Gibsons would have been understandably reluctant to give a warranty deed to that mineral interest. That explains why the Gibsons excepted the mineral rights from the warranty clause in their deed to Griffin.

The clearest language in the Gibson-Griffin deed, as far as the minerals are concerned, is the following: “. . . except a reservation of an undivided One-Half Interest in all Oil, Gas and Mineral Rights . . . which is reserved by the Grantor herein.” Even for a layman it would have been a simple matter to reserve the other one-half interest in the minerals in the south forty if such a reservation had been intended. Absent such language, I am not convinced that the draftsman of the deed used the other highly ambiguous clauses as a roundabout way of accomplishing that result. Consequently I would affirm the decree in its entirety.

Holt, J., joins in this dissent.