text:
    James SIMONS, Mayor, and Willard W. TAYLOR, L. C. HENDRIX, William S. WALTERS, Melvin PIERCE, Riley BROWN, and Austin SMOTHERS, Aldermen, all of CENTRAL CITY, ARKANSAS v. Clarence DAVIS, in his own behalf and on behalf of all other signed petitioners similarly situated
    77-384
    566 S.W. 2d 730
    Opinion delivered May 30, 1978
    (In Banc)

      Batchelor & Batchelor, by: Fines F. Batchelor, Jr., for appellants.

      Hal W. Davis, of Walters & Davis, for appellees.
   George Howard, Jr., Justice.

We are to decide whether the trial court committed reversible error in holding that appellees’ petition to the mayor and councilmen of the Town of Central City requesting an immediate special election to determine whether the Town’s charter should be surrendered was proper, valid and conformed to the requirements under Act 22 of 1883; and that Act 22 of 1883 had not been repealed by Act 224 of 1957.

THE FACTS

An unverified petition purporting to contain the signatures of forty-six residents of Central City was filed with the Mayor and Council of Central City requesting an immediate special election to determine whether the corporate charter of the town should be surrendered. When the officials of Central City refused to respond affirmatively to appellees’ demand, a petition for a writ of mandamus was filed in the Circuit Court of Sebastian County, praying for an order of the court requiring the town officials to act on appellees’ petition.

Among other things, the town officials, in responding to the mandamus action, alleged that the law under which appellees-petitioners were pursuing the matter, namely, Act 22 of 1883, had been repealed by Act 224 of 1957, and consequently, petitioners were pursuing the matter illegally; and that appellees-petitioners had failed to establish that the signers of the petition were qualified electors. Inter alia, appellees-petitioners responded by asserting that it was the duty of appellants to determine to their satisfaction if the signers of the petition were qualified electors and not the duty of the petitioners; and that Act 22 of 1883 had not been repealed by Act 224 of 1957.

HOLDING OF THE TRIAL COURT

1. Act 224 of 1957 did not repeal by implication Sec. 2 of Act 22 of 1883.
2. Petitioners have presented a valid petition under Sec. 2 of Act 22 of 1883.
3. Sec. 2 of Act 22 of 1883 is constitutional.
“IT IS ORDERED AND DECREED that the Mayor and Aldermen of Central City immediately submit question of surrender of charter to qualified electors of said Municipal Corporation to be held for that purpose after notice of election is given as required by law. ”

THE DECISION

In relevant part, Act 22 of 1883 is as follows:

“Sec. 2. That whensoever one hundred qualified electors of any city of the second class, or twenty-five qualified electors of any incorporated town, shall petition the city or town council thereof asking the surrender of the charter of said municipal corporation, it shall be the duty of said city or town council, immediately to submit the question whether such surrender shall be made to the qualified electors of said municipal corporation, at an election to be held for that, purpose, after having given notice of such election ...”

Act 224 of 1957, in material part, reads as follows:

“SECTION 1. That Section 2 of Act 22 of 1883 ... is hereby amended to read as follows:
“ ‘SECTION 2. The Charter of any town that has become inactive as an incorporated place for five (5) years, or longer, shall be revoked by order of the County Court of the County in which said incorporated town is located.
When the County Court revokes the Charter of an incorporated town, the Court shall order the Clerk of said Court to make out and certify under his Official Seal a transcript of said order which said Clerk shall forward to the Secretary of State to be kept on file in his office.’ ”

We are persuaded that Act 224 of 1957 expressly repeals Sec. 2 of Act 22 of 1883, for this conclusion is inescapable from the plain meaning of the language contained in Section 1 of Act 224 of 1957, which specifies that Section 2 of the Act of 1883 “is hereby amended to read” that the charter of any town that has become inactive as an incorporated place for five years or longer, shall be revoked by order of the County Court of the county in which said incorporated town is located.

In Brockman v. Board of Directors of Jefferson County Bridge District, 188 Ark. 396, 66 S.W. 2d 619, we made the following observation:

“ ‘There are two ways of repealing a statute or part thereof; one is by express terms, the other by necessary implication. The question of repeal is one of intent, and must be solved by determining as near as may be the intent of the Legislature.’ ”

It is clear from the provisions of Act 224 of 1957, that it was the intent of the Legislature to repeal Section 2 of Act 22 of 1883. We are further persuaded that Act 224 of 1957 sets out the exclusive procedure for surrendering a town’s charter. Therefore, it goes without saying that it is our view that Amendment 7 to the Arkansas Constitution dealing with the initiative and referendum has no relevance to the surrender of a town’s charter.

Inasmuch as petitioners did not invoke the procedure under Act 224 of 1957, and there is no evidence to show applicability -ot that Act we, therefore, reverse.

Although we reverse the action of the trial court for the reason previously stated, it may be well that we point out that petitioners who seek to have a town’s charter surrendered have the burden of proof to demonstrate that the signers of a petition are qualified electors.

Reversed and dismissed.

Byrd, J., dissents.

      The record reflects that Central City was incorporated October 17, 1973, thus it is readily obvious that petitioners had no standing to invoke the provisions of Act 224 of 1957.


source: Caselaw Access Project

author: George Rose Smith, Justice.

license: Public Domain

text:
    Robert J. SMITH v. Norma Jean SMITH
    77-410
    567 S.W. 2d 88
    Opinion delivered June 5, 1978
    (Division I)
    [Rehearing denied July 17, 1978.]

      P. A. Hollingsworth, for appellant.

      Kincaid, Horms, & Trumbo, for appellee.
   George Rose Smith, Justice.

In this divorce case the court awarded the wife a divorce and custody of the couple’s four minor children. The appeal and cross appeal question only the chancellor’s awards and evaluations of four separate items of property. The husband, a physician, is engaged in the practice of medicine in partnership with another doctor. The arguments for reversal question primarily the chancellor’s evaluation (a) of the wife’s one-third life interest in the partnership office building and (b) of her one-third interest in a partnership profit-sharing plan and in the partnership assets and good will.

We do not reach the merits, because the parties’ abstracts of the record are flagrantly in violation of Rule 9. The issues presented are primarily questions of fact. The reporter’s transcript of the testimony comprises more than 250 pages in the record. The appellant presents a 5-page abstract of that testimony, the abstract mentioning only certain facts favorable to him. The appellee’s even shorter supplemental abstract is equally deficient. The chancellor, after taking the case under advisement, painstakingly explained his awards and valuations in a 6-page, double-spaced opinion, with several citations of supporting authority. The parties have ignored the chancellor’s findings of fact and his reasons for his conclusions. When questions of fact are involved, the explanatory opinion of the fact finder is especially important to this court. Manes v. M.O.V.E., Inc., 261 Ark. 793, 552 S.W. 2d 211 (1977). In the case at bar we have not been supplied with an abstract either of the chancellor’s opinion or of the greater part of the testimony upon which he relied. Consequently the case presented to this court is not the same case that was decided in the court below.

Affirmed.

We agree.

Harris, C.J., and Fogi.f.man and Hoi.t, JJ.


author: George Rose Smith, Justice. Conley Byrd, Justice,

text:
    COUNTRY GENTLEMAN, INC. v. Grettle HARKEY
    77-419
    569 S.W. 2d 649
    Opinion delivered June 5, 1978
    (Division I)
    [Rehearing denied September 25, 1978.]

      Little, Lawrence, McCollum & Mixon, by: James G. Mixon, for appellant.

      Oliver L. Adams, Jr., for appellee.
   George Rose Smith, Justice.

The appellant, as the lessee in a 10-year lease upon a restaurant in the city of Rogers, brought this suit for rescission of the lease on the ground that the mere existence of an outstanding mortgage on the leased realty constituted a breach of contract by the lessor. The complaint also sought to recover four items of damages, totaling $58,258.78. In answer to the complaint the lessor also sought a rescission of the lease and damages of $20,000. The chancellor found that the plaintiff was not entitled to rescission, because it knew or should have known of the outstanding mortgage when it entered intp the contract. The decree, however, set aside the lease, apparently because both parties sought that, relief, and awarded the plaintiff $9,-885.88 as damages for breach of contract and $1,900 as excess rent paid into the registry of the court.

For reversal the appellant argues that the decree should be reversed and the cause remanded for the entry of a $54,-417.13 judgment in its favor. We emphasize that this is an “all or nothing” argument. That is, the appellant does not even intimate, much less argue, that the damages awarded by the chancellor should be increased to some intermediate figure between the $9,885.88 allowed and the $54,417.13 requested.

The appellee argues that the decree should be affirmed, because the existence of the outstanding mortgage did not amount to a breach of contract. Alternatively, the appellee asks that the decree be reversed, because the appellant is not entitled to any damages whatever. There is, however, no cross appeal and consequently no basis for affirmative relief in favor of the appellee.

Ordinarily we would first address the question whether the decree should be affirmed on the ground that the appellant is not in any event entitled to damages. Such a discussion, however, would in one respect be futile, because even if we sustained the appellant’s argument that the chancellor was right in awarding it some damages, we could not possibly sustain the appellant’s all or nothing argument that it is absolutely entitled to a money judgment for $54,417.13. We must first explain why this is so.

The appellant arrives at the recited figure by totaling the following elements of asserted damage:

Price paid for restaurant equipment $ 35,000.00
Rent paid in advance 2,000.00
Cost of new equipment, less salvage 6,592.82
Net loss on placemats and guest checks 938.43
Expenditures allowed by decree 9,885.88
$ 54,417.13

The various items, however, are not undisputed. For instance, the appellant conceded that the appellee is entitled to a credit of $2,173.80 upon the first item, but that credit is not included in the tabulation. Furthermore, the appellee denied that the appellant is entitled to recover the entire $35,000 paid for restaurant equipment purchased from her, because she said that all but about $3,000 worth of the equipment had been removed before the restaurant was abandoned by the appellant. We need not discuss the other items. Suffice it to say that the total amount of damages is in sharp dispute and depends to some extent upon the credibility of interested witnesses.

The key question is whether this court, in trying a chancery case de novo, is required to study the appellant’s abstract of the record and to make, if justified, modifications in the decree upon grounds not argued by the appellant. Certainly no such duty rests upon this court in appeals at law. That is, if the defendant in a personal injury case argues solely that he was entitled to a directed verdict, we do not explore the abstract to be sure that each item of damages awarded by the jury is supported by substantial evidence.

As a practical matter, the same principle must necessarily apply to our de novo review in chancery appeals. Otherwise this situation might occur: The appellant, in a complicated accounting case involving hundreds or thousands of pages of testimony, could simply say in his brief: “The amount awarded to the appellant is inadequate [or the amount awarded to the appellee is excessive]. The court is requested to review the record as abstracted and to enter whatever judgment, favorable to the appellant, is appropriate.” Needless to say, such a brief would obviously be contrary to our settled rule that issues not argued by the appellant are waived. See Fancher v. Baker, 240 Ark. 288, 399 S.W. 2d 280, 16 A.L.R. 3d 1383 (1966), where, in holding that a point for reversal had been waived, we made an observation equally applicable to the case at bar: “Not one line of the brief is devoted to that point.”

The precise question was decided, not in so many words but by implication, in our opinion on rehearing in Cummings v. Boyles, 242 Ark. 923, 415 S.W. 2d 571 (1967). There in our original opinion, 242 Ark. 38, 411 S.W. 2d 665, we had modified the chancellor’s decree by awarding the appellant more relief than he had obtained in the trial court. On rehearing, however, we set aside that modification, because the appellant had not argued that theory as a basis for reversal. Justice Jones, in dissenting to the opinion on rehearing, made this significant statement of his views:

It is my position that when this court tries a case de novo on appeal from a Chancery Court it should do so on the record and not on the briefs.

The majority rejected that view in the Cummings case, and we are still of the opinion that our position was right.

Affirmed.

We agree.

Harris, C.J., and Fogleman and Holt, JJ.

Concurrence upon denial of rehearing delivered September 25, 1978

Conley Byrd, Justice,

concurring. I agree that the decision of the trial court should be affirmed but because I do not agree with the method used to affirm the trial court, I am taking the time to set forth the reasons why the trial court should be affirmed on the merits.

The record shows that the parties entered into a 10 year lease on September 1, 1974 for a going restaurant. The lease contains 30 separate numbered provisions. The provisions upon which appellant relied to rescind the contract for breach of a covenant are as follows:

“7. TITLE CERTIFICATES. A. Lessor agrees that she will furnish to the Lessee a certificate of title or a certificate of title insurance certified to by a bonded abstractor or a certified title insurance company showing that she has clear title to the real estate and appurtenances herein leased free and clear of all encumbrances and has a good right to lease said real estate and appurtenances and hereby warrants quiet and peaceful possession during the period of this lease and any extension thereof, by the Lessee upon the performance of the provisions of this lease which are to be performed by the Lessee.
13. OPTION TO PURCHASE. Not in lieu of but in addition and supplemental to the rights set forth in Paragraph 12, the Lessee shall have, and is herewith given, the following right and option to purchase all of Lessor’s right, title and interest in and to the leased premises:
Lessee may purchase the demised premises at the end of the primary term of this lease for a purchase price of One Hundred Forty Thousand Dollars (1140,000.00) payable in cash on delivery of deed.
The option herein granted may be exercised by Lessee by delivery of sixty (60) days prior written notice to the Lessor of the exercise of the option, and the deposit of ten. percent (10%) earnest money to bind the sale.
14. COVENANT OF TITLE. Lessor covenants and warrants that it has good title to the property herein leased and that it has good right to lease the premises and will warrant and defend the title thereto, and will indemnify Lessee against any enforcible lien, encumbrance or defect in the title of the property herein leased. Within thirty (30) days after notice of Lessee’s exercise of an option to purchase and depositing the earnest money, Lessor shall furnish Lessee with title insurance policy, in Standard form, guaranteeing fee simple title in Grantee. All enforcible liens, encumbrances, restrictions and other defects in title shall be cleared by Lessor promptly on notice from Lessee, except that Grantee agrees to accept title subject to subdivision and deed restrictions and reservations of record, if any, as of this date.
15. DAMAGE OR DESTRUCTION TO RESTAURANT UNIT.A. In the event between the date of this agreement and the date Lessee takes possession of said property, any portion of the restaurant is damaged or destroyed by fire or any other casualty and is not restored on or before said date Lessee receives possession, the Lessee may elect to:
1. Terminate this agreement, in which event all rights and obligations of the parties hereto shall cease and the Lessor shall return to the Lessee the $2,000.00 down payment made by the Lessee at the date of closing,
or
2. Extend the time of taking possession of said property until the same has been rebuilt and is in the same condition as at the time this agreement was executed providing such reconstruction can be. completed within a period of ninety (90) days. If said property cannot be restored and reconstructed within a ninety (90) day period, then this lease is automatically ceased and terminated.
29. As a part of the consideration of entering into the above and foregoing lease, the Lessor and Lessee are simultaneously entering into an agreement for the purchase of the restaurant equipment now owned by the Lessor and used in connection with the dining table restaurant located at 832 West Walnut Street in Rogers, Arkansas. The parties have agreed that at the time the original $2,000.00 down payment referred to in paragraph 3, a. of the agreement is paid, it will pay to the Lessor the sum of $35,000.00 and receive a warranty bill of sale to said equipment. This agreement also provides for the operation of said restaurant by the. Lessor for a period of thirty (30) days, together with a sixty (60) day remodeling and start up period for the Lessee. If Lessor refuses to comply with the terms of this lease or if the property covered by this lease is damaged or destroyed to such an extent that it is not suitable for use as a restaurant so that the basic ten (10) year lease does not come into actual operation, the Lessor shall not only refund the $2,000.00 down payment above referred to, but will also refund to the Lessee the $35,000.00 paid by the Lessee to the Lessor for said equipment. The refunding of the purchase money for the equipment shall be covered by the provisions of paragraph 15 of this lease.”

Appellant in contending that the existence of the $68,-000.00 first mortgage on the premises in favor of American Foundation Life Ins. Co., constituted a breach of the lease warranting a rescission readily admits that he learned of the mortgage in late September or early October of 1974 from his own insurance agent. The record demonstrates that notwithstanding the existence of this knowledge, appellant took possession of the premises and made substantial repairs to the premises. It was not until March 24, 1975 that appellant removed all of the new equipment purchased by him and demanded a rescission. During the meantime appellant had disposed of approximately 90% of the equipment it had purchased from appellee for $35,000.00. It is also admitted that appellant made the improvements to the property without obtaining the title certificates provided for in item #7, supra. There was also evidence that the restaurant had not prospered during the time of appellant’s operation. Based upon the evidence presented the trial court ruled that appellant had waived his right of rescission by not taking steps to rescind the lease within a reasonable time. In view of the fact that, by the time of trial, both parties wanted out of the lease, the trial court awarded appellant a judgment for improvements made in the amount of $9,885.80 on the basis that the appellee would otherwise receive an unconscionable windfall. Appellant appeals contending that it was entitled to a rescission as a matter of law under the terms of the contract and that the trial court should have awarded it additional damages in the amount of $35,000 paid for the equipment, the $2,000 down payment on the lease and $6,592.82 for losses between the purchase price and the salvage price of certain equipment it had bought.

For the reasons hereinafter stated, I agree with the trial court.

In the first place, appellant was unable to show that it had sustained any damages as a result of the existence of the mortgage — i.e. it speculated that it might not be able to rebuild the premises in the event of a fire loss.

The facts would lead one to believe that knowing all of the facts appellant elected to operate the business until it had the opportunity to determine its profitability. Such conduct on the part of a litigant amounts to a waiver of the litigant’s rights to insist upon its right to a rescission. See 17 Am. Jur. 2d Contracts § 489, where it is pointed out that the right to rescind a contract may be lost where there is a ratification or waiver. As pointed out in United States v. Haynes School Dist. No. 8, 102 F. Supp. 843 (E.D. Ark. 1951) the right to rescission and restitution is an extreme one and does not arise from every breach. The general rule is that rescission will not be permitted for a slight or casual breach of the contract, but only for such breaches as are so substantial and fundamental as to defeat the object of the parties in making the agreement.

While there is a dispute in the testimony as to whether appellant made a full tender of the $35,000 equipment it purchased from appellee, the preponderance thereof lies in favor of appellee that no such tender was made. Consequently, appellant failed to show that it was entitled to the equitable remedy of rescission. See Rhodes v. Survant, 209 Ark. 742, 192 S.W. 2d 880 (1946), where it was stated:

“It is an elementary principle of law that if one would rescind his contract, he must return or offer to return the consideration which induces its execution. Numerous authorities are cited in the note to § 451 of the chapter on Contracts, 12 Am. Jur., p. 1031, to the effect that the very idea of rescinding the contract implies that what has been parted with shall be restored on both sides, and that releasing one party from his part of the agreement and excusing him from making the other party whole is not agreeable to reason or justice, and that the general rule is therefore that if a party wishes to rescind an agreement he must place the other party in status quo.”

For the reasons herein stated, I would affirm the trial court’s judgment.

Harris, C.J., joins in this concurrence.


author: Conley Byrd, Justice. John A. Fogleman, Justice,

text:
    Nan B. SULCER v. NORTHWESTERN NATIONAL INS. CO. (of Milwaukee, Wisconsin)
    77-317
    566 S.W. 2d 397
    Opinion delivered June 5, 1978
    (In Banc)

      Killough & Ford, by: Robert M. Ford, for appellant.

      Rieves, Rieves & Shelton, for appellee.
   Conley Byrd, Justice.

Appellant Nan B. Sulcer, in her capacity as personal representative of the estate of her deceased husband, misapplied the funds belonging to the estate. Appellee Northwestern National Insurance Company of Milwaukee, Wisconsin, as the surety on appellant’s bond, Ark. Stat. Ann. § 62-2211 (Repl. 1971), after making good appellant’s defaults, obtained a judgment against her in the amount of $25,333.33. The trial court ruled that appellant’s property rights (dower rights) in a house and lot located at 941 Cherry Street in Forrest City, Arkansas, were subject to the judgment lien, notwithstanding appellant’s claim of a widow’s homestead exemption, Ark. Const. Art. 9, § 6. Appellant appeals raising the issues hereinafter discussed.

The record shows that, in a proceeding between appellant and her husband’s creditors, the probate court on January 26, 1976, upheld appellant’s homestead exemption as to the house and lot in question. In so doing the probate court stated:

“IT IS, THEREFORE, BY THE COURT CONSIDERED, ORDERED AND ADJUDGED that the house at 941 Cherry Street be, and it is hereby declared the homestead of Clyde Sulcer, and is free from the claims, executions and attachments of the creditors of Clyde Sulcer, deceased; that the Court makes no ruling as to whether any creditor may have a specific lien against any possible right, title, or interest of any heir and/or devisee in the Cherry Street property.”

The record also shows that appellee satisfied the defaults of appellant on September 13, 1976, and that appellee did not obtain its judgment against appellant until June 26, 1977.

Our cases consistently hold that the burden of proving res judicata is upon the person asserting the bar of the former judgment, Hurst v. Hurst, 255 Ark. 936, 504 S.W. 2d 360 (1974), and Southern Farmers Assn., Inc. v. Wyatt, 234 Ark. 649, 353 S.W. 2d 531 (1962). Furthermore, it was held in Randolph v. Nichol, 74 Ark. 93, 84 S.W. 1037 (1905), that questions expressly reserved by a decree are not concluded thereby. On the record before us it is at once obvious that the record does not support appellant’s contention that the probate court’s allowance of the homestead exemption against the claims of her husband’s creditors is res judicata of her homestead claim as against a personal judgment against her for defaults in her capacity as personal representative of her husband’s estate.

The homestead exemption with respect to real property is set forth in Article 9 of our Constitution, as follows:

“§ 3. Homestead exemption from legal process Exceptions. — The homestead of any resident of this State who is married or the head of a family shall not be subject to the line of any judgment, or decree of any court, or to sale under execution or other process thereon, except such as may be rendered for the purchase money or for specific liens, laborers’or mechanics’ liens for improving the same, or for taxes, or against executors, administrators, guardians, receivers, attorneys for moneys collected by them and other trustees of an express trust for moneys due from them in their fiduciary capacity.
§ 6. Rights of widow and children. — If the owners of a homestead die, leaving a widow, but no children, and said widow has no separate homestead in her own right, the same shall be exempt, and the rents and profits thereof shall vest in her during her natural life, provided that if the owner leaves children, one or more, said child or children shall share with said widow and be entitled to half the rents and profits till each of them arrives at twenty-one years of age — each child’s right to cease at twenty-one years of age — and the shares to go to the younger children, and then all to go to the widow, and provided that said widow or children may reside on the homestead or not; and in case of the death of the widow all of said homestead shall be vested in the minor children of the testator or intestate.”

We note that Article 9, § 6, supra, with respect to the rights of a widow, only provides that “the same shall be exempt” but the term “exempt” is not otherwise qualified. However, since the section is prefaced with “If the owner of a homestead die, . . . ,” the phrase that “the same shall be exempt” must refer back to the exemption set forth in Section 3, supra, which excepts judgments against executors and administrators from the homestead exemption. See Stuckey v. Horn, 132 Ark. 357, 200 S.W. 1025 (1918), which holds that the homestead right of the widow is a derivative one and that widow has the homestead which the husband could have claimed. Thus, it follows that the exemption set forth in Section 6, supra, is no greater than the exemption set forth in Section 3, supra.

The appellant argues that the homestead awarded under Section 6, supra, is the homestead of the deceased husband, not appellant, and since the husband was not indebted as an executor or administrator, the property must, be held exempt from legal process under Section 3, supra. We cannot agree with appellant that the homestead exemption runs in favor of a dead person. The homestead exemption in Section 3 applies only to a “resident of this State who is married or the head of a family.” Needless to say, the language of the Constitution speaks in the present tense in describing the persons entitled to a homestead exemption. Consequently, we find no merit in this contention.

The homestead exemption is neither an estate nor a vested interest. The homestead right is only an exemption from legal process. Consequently, the homestead right of appellant is not property upon which an execution may be levied. However, in so far as appellant has a dower right in the property, the trial court correctly held that the homestead exemption Article 9, § 6, supra, did not prevent appellee from causing a writ of execution to be levied upon the dower interest. What benefits the husband’s creditors may receive from the affirmation of the trial court’s decree is not an issue before us on this appeal.

Affirmed.

George Rose Smith and Hickman, JJ., concur.

Fogleman, J., dissents.

John A. Fogleman, Justice,

dissenting. This is a dissenting opinion largely because I simply cannot understand how a judgment can be affirmed when the end result of the opinion, as I read the last paragraph, actually sustains appellant’s argument that, as stated in her point 11 for reversal, “The exception in Article 9, § 3 of the Constitution of Arkansas does not apply to the appellant and the estate of Clyde Sulcer, deceased, is entitled to the homestead exemption. The court erred in failing to so hold.” It is also a dissenting opinion since the language leading up to the concluding paragraph seems to be either inconsistent with that paragraph or dictum, and I cannot agree with that language. One further reason it is a dissenting opinion is that I do not agree that the trial court ruled that appellant’s property rights (dower rights) were subject to the lien. The complaint contained an allegation that appellee was entitled to levy execution upon the homestead property located at 941 Cherry Street. In the answer appellant pleaded res judicata and the homestead exemption. The dower rights were never püt in issue. The memorandum findings of the chancellor were that appellee was entitled to levy execution against the homestead property.

The court’s judgment stated that it was a lien against appellant’s interest in said property and that the property was not immune from execution by reason of Art. 9, § 3 of the Constitution of Arkansas. It was adjudged that appellee was entitled to levy execution on defendant’s interest in said property “free and clear of any homestead exemption.” How the mandate of this court can be written as an affirmance of that judgment is a puzzle I can’t solve. I disagree with the quoted language in that judgment, which is the only point in issue on this appeal and I disagree with the language of the majority opinion on the subject of homestead except for the last paragraph.

I would first point out that, under our constitution, Nan B. Sulcer did not have a homestead in the property involved in her own right. Hers was a derivative right in the homestead of her deceased husband. It is quite clear that a wife may have a homestead in her own right in her own property, and that when she does, it comes within the purview of Art. 9, § 3 of the Constitution of Arkansas. Gibson v. Barnett, 75 Ark. 205, 87 S.W. 435. Art. 9, § 6 of the Constitution recognizes that a widow may have a homestead in her own right. When she does, she has no right to the husband’s homestead by the plain language of the statute, i.e., if she selects a homestead on her own property after the death of her husband. Bruce v. Bruce, 176 Ark. 442, 3 S.W. 2d 6; Wilmoth v. Gossett, 71 Ark. 594, 76 S.W. 1073; Thompson v. King, 54 Ark. 9, 14 S.W. 925. In Bruce, the difference between the homestead of the wife and the homestead of the widow is emphasized. See also, Stone v. Stone, 185 Ark. 390, 47 S.W. 2d 50, where it was held that a wife could have rights in the homesteads of two husbands who predeceased her. We clearly recognized rather recently this distinction in homestead rights under §§ 3 and 6 of Art. 9 in Monroe v. Monroe, 250 Ark. 434, 465 S.W. 2d 347, after first quoting § 3 verbatim, we said:

This section of the constitution applies to either the wife or husband when married, and to either of them, or to anyone else who is the head of a family, whether married or not. Consequently, any resident of this state of either sex, who is married, or who is the head of a family, is entitled to the exemption of a homestead under the constitution. Thompson v. King, 54 Ark. 9, 14 S.W. 925.
In addition to a married woman’s right to homestead- exemption, she has certain constitutional rights as a widow in the homestead of her deceased husband as set out in § 6 of Article 9 of the constitution, which is as follows:

We then quoted § 6 in full.

The homestead involved here is that of appellant as widow of Clyde Sulcer, deceased and not in her own right, and the fact that she stipulated that the land in question was “the homestead of the defendant” certainly does not convert the homestead into one owned in her own right, instead of her homestead as widow of Clyde Sulcer. The homestead of the widow in the lands of her deceased htisband is also “her homestead.” See Smart v. Murphy, 200 Ark. 406, 139 S.W. 2d 33; Gill v. Dunn, 196 Ark. 1178, 116 S.W. 2d 612; Murphy v. Graves, 170 Ark. 180, 279 S.W. 359. It was stipulated that the property was acquired by Clyde Sulcer and that title remained in his name until his death. The probate court had declared the property to be the homestead of Clyde Sulcer.

Appellant’s homestead in her husband’s lands was subject to the lien of such judgment or decree as might be rendered against him as an executor or administrator for moneys collected by him, but not to a judgment against appellant for moneys collected by her as a personal representative. See Art. 9, § 3. The rights of the widow are not covered, or even mentioned in that article.

The rights of the widow are derivative. Jordan v. Jordan, 217 Ark. 30, 228 S.W. 2d 636; Cole v. Sparks, 205 Ark. 937, 172 S.W. 2d 20; Stuckey v. Horn, 132 Ark. 357, 200 S.W. 1025; Spalding v. Haley, 101 Ark. 296, 142 S.W. 172. Mrs. Sulcer had the right to the homestead her husband could have claimed, subject to the same qualifications. Stuckey v. Horn, supra; Spalding v. Haley, supra; Cole v. Sparks, supra. Her own rights are governed by Art. 9, § 6, not by Art. 9, § 3. According to Art. 9, § 6, the homestead “shall be exempt.” There are no exceptions to the exemption. The widow’s rights are not described or mentioned in Art. 9, § 3 and the word “exempt” is not used anywhere in that section. It is rather difficult for me to see how one could resort to the earlier section for a definition of the word “exempt” when that word is neither used nor defined there.

The homestead laws are remedial and are to be liberally construed in favor of the widow to effect the benign and beneficent purposes for which they are intended. Colum v. Thornton, 122 Ark. 287, 183 S.W. 205; Bradley v. Humphreys, 191 Ark. 141, 83 S.W. 2d 828; Stuckey v. Horn, supra; Van Pelt v. Johnson, 222 Ark. 398, 259 S.W. 2d 519; Bunting v. Rollins, 189 Ark. 12, 70 S.W. 2d 40; Franklin Fire Ins. Co. v. Butts, 184 Ark. 263, 42 S.W. 2d 559. We reviewed earlier authorities on these purposes in Grimes v. Luster, 73 Ark. 266, 84 S.W. 223, viz:

* * * The protection of the family from dependence and want is the object of all homestead laws.” Harbison v. Vaughan, 42 Ark. 539. “One of the objects of the Constitution is to secure to the widow and orphan the family rooftree as a fixed home during the widowhood or life of the widow and minority of the children. ” Garibaldi v. Jones, 48 Ark. 230, 2 S.W. 844. “Looking to the ultimate purpose of such provisions, the protection of the debtor’s family against the vicissitudes of fortune.” Ward v. Mayfield, 41 Ark. 94. * * *

All presumptions are in favor of the preservation and retention of the homestead. City National Bank v. Johnson, 192 Ark. 945, 96 S.W. 2d 482. We must determine the meaning of the word “exempt” in the light of the pertinent rule of liberal construction. To refer this word to the clause of § 3, to which resort is made by the majority, is certainly liberal to the creditor, not the widow. This approach also requires that the clause from § 3 be tacked onto the word “exempt” in § 6 so that § 6 says that the homestead shall be exempt “from the lien of any judgment, or decree of any court, or the sale under execution or other process thereon, except such as may be rendered for purchase money or for specific liens, laborers’ or mechanics’ liens for improving the same, or for taxes, or against executors, administrators, guardians or receivers, attorneys for moneys collected by them and other trustees of an express trust for moneys due from them in their fiduciary capacity.” To do this requires that the words “not be subject to” be translated to mean “from.” They do not. We have said that under the plain provisions of Art. 9, § 6, the homestead of the husband became the wife’s for life, exempt from any debts. Butler v. Butler, 176 Ark. 126, 2 S.W. 2d 63.

We should look for the most liberal definition of the word “exempt,” i.e., the one most favorable to the widow. “Exempt” means “to release, discharge, waive, relieve from liability.” Davidow v. Jenks, 48 N.Y.S. 2d 586 (1944). It has been ascribed the following meaning: “to take out of or from,” “to free from” any service or burden to which others are subject. In the Matter of Sowers, 60 N.C. 384 (1864). The word “exemption” means the act of exempting or the state of being exempt. Webster’s New International Dictionary (2d Ed.). The provisions of Art. 9, § 6 created an exemption by declaring that the homestead “shall be exempt.” The mere fact that the land was a homestead would not have made the land exempt, in the absence of the pertinent constitutional language creating an exemption. This distinction is pointed out in In re Trammell, 5 F. 2d 326 (N.D. Ga., 1925), viz:

Let it be remembered that a “homestead” and an “exemption” are quite different things. A “homestead” is properly “the home place — the home and the adjoining land.” Bouvier, Law Diet. (3d Ed.). It is therefore realty. When established according to statutory requirements, it is commonly made exempt from forced sale, and the family is often given special rights in it. An “exemption” is “the right given by law to a debtor to retain a portion of his property without its being liable to execution at the suit of a creditor or to distress for rent. ” Bouvier, Law Diet. (3d Ed.). This right of the debtor may refer to realty, personalty, or both. ***

It behooves us then to see what the word “exemption” means. It is an immunity or privilege. State v. Smith, 158 Ind. 543, 63 N.E. 25 (1902); People v. Rawn, 90 Mich. 377, 51 N.W. 522 (1892); Green v. State, 59 Md. 123, 43 Am. Rep. 542 (1882). In Bartholomew v. City of Austin, 85 F. 359 (5 Cir., 1898), the court said:

*** “Exemption” means free from liability, from duty, from service. It is a grace, a favor, an immunity; taken out from under the general rule, not to be like others who are not exempt; to receive, and not make a return..

In Clark v. Nirenbaum, 8 F. 2d 451 (5 Cir., 1925), the same court said:

An exemption is the freedom of property of debtors from liability to seizure and sale under legal process for the payment of their debts.

A statement found in General Motors Acceptance Corp. v. Falcone, 130 N.J. Super. 517, 327 A. 2d 699 (1974) relating to personal property, but appropriate to the context of this case, is:

Exemptions as the term is used in connection with the rights of creditors seeking to secure their debts can be said to be the right of a debtor to retain a portion of his personal property free from seizure under judicial process. 31 Am. Jur. 2d, Exemptions, § 1.

A liberal construction of Art. 9, § 6 means that the homestead rights of Mrs. Sulcer were immune from seizure under judicial process subject only to the qualifications applicable to Clyde Sulcer. We should read it that way.

My position is reinforced by the fact that the widow’s right in her husband’s homestead is the kind of interest that almost defies definition. We have not always been consistent in attempting to classify it, having said at times that it was not an estate at all, but only the privilege of occupancy. See Neeley v. Martin, 126 Ark. 1, 189 S.W. 182. Our latest, and perhaps best effort, to define it was in the opinion in Maloney v. McCullough, 215 Ark. 570, 221 S.W. 2d 770, where we said:

Homestead is a valuable right, interest or estate in land which vests in the widow “during her natural life” under Art. 9, Sec. 6 of our Constitution unless and until abandoned or forfeited by the widow.

The right is purely personal to the widow. Neeley v. Martin, supra. In Henderson v. Henderson, 212 Ark. 31, 204 S.W. 2d 911, it is described as “individual and indivisible.”

I ask, if the homestead right is one which the widow can abandon or forfeit, upon what can appellee levy or what will the purchaser at a sale buy? If Mrs. Sulcer leaves this homestead and establishes one of her own on her own lands, she may be taken to have abandoned her homestead on her husband’s lands, for she cannot have two homesteads, and she, and no one else, has the right of election. Wilmoth v. Gossett, 71 Ark. 594, 76 S.W. 1073; Davenport v. Devenaux, 45 Ark. 341; Van Pelt v. Johnson, 222 Ark. 398, 259 S.W. 2d 519. Cf. Butler v. Butler, 176 Ark. 126, 2 S.W. 2d 63. See also, Grimes v. Luster, 73 Ark. 266, 84 S.W. 223. The rents and profits from the land are vested in her, but any attempt, by her to convey her rights constitutes an abandonment. Warren v. Martin, 168 Ark. 682, 272 S.W. 367; Sheppard v. Zeppa, 199 Ark. 1, 133 S.W. 2d 860. Her creditors would have no right to complain about the conveyance. Bradley v. Humphreys, 191 Ark. 141, 83 S.W. 2d 828. She would also abandon her homestead rights if the heirs sought to partition it, and she did not assert her rights. Henderson v. Henderson, supra. Since her right is personal, I do not see how either appellee, or the purchaser at an execution sale, if there could by any stretch of the imagination be one, could assert it. All that 1 can see that the judgment in this case would accomplish is the ouster of the widow.

An excellent summary of the Arkansas law in this respect which illustrates this point is found in the opinion of Chief Judge (now Circuit Judge) Henley in U.S. v. 164.51 Acres of Land, Etc., 205 F. Supp. 202 (E.D., 1962). He said:

*** In Arkansas the “homestead estate” created by the Constitution is not a conventional life estate, although it is frequently called such and, indeed, for certain purposes is such. See in this connection: Jones “Arkansas Titles,” § 893 including 1959 Annotated Supplement; Meadows v. Hardcastle, 219 Ark. 406, 242 S.W. 2d 710; Maloney v. McCullough, 215 Ark. 570, 221 S.W. 2d 770; Killeam v. Carter, 65 Ark. 68, 44 S.W. 1032; Barnett v. Meacham, 62 Ark. 313, 35 S.W. 533. It differs from the conventional life estate in that it is purely personal to the widow and minor children of the decedent. While the widow is not required to live upon the homestead premises, and while a re-marriage by her does not deprive her of homestead rights, still, her interest being personal to her is not transferable, and a sale by her of the homestead interest or of the lands affected by the homestead estate conveys nothing to the grantee but amounts to an abandonment of the homestead by the widow, which gives the heirs a right to the immediate possession of the property. Meadows v. Hardcastle, supra; Stover v. Holman, 229 Ark. 658, 317 S.W. 2d 722; Rone v. Sawrey, 197 Ark. 472, 123 S.W. 2d 524; Henry v. Dollin, 195 Ark. 607, 113 S.W. 2d 97; Clark v. Friend, 174 Ark. 26, 295 S.W. 392; Brinkley v. Taylor, 111 Ark. 305, 163 S.W. 521; Barnett v. Meacham, supra.

I would reverse the judgment, both in substance and form.


author: Conley Byrd, Justice. George Howard, Jr., Justice,

text:
    Finis Eugene TOOMER, Jr. v. STATE of Arkansas
    CR 77-242
    566 S.W. 2d 393
    Opinion delivered June 5, 1978
    (In Banc)

      David J. Potter, of Potter & Potter, for appellant.

      Bill Clinton, Atty. Gen., by: Joseph H. Purvis, Asst. Atty. Gen., for appellee.
   Conley Byrd, Justice.

Appellant Finis Eugene Toomer, Jr., was charged with rape, November 23, 1976. He was arraigned December 8, 1976, and the trial date was set for January 12, 1977. On the latter date the trial was continued at his request until April and again continued until June 1, 1977. The jury returned a verdict of guilty and fixed his punishment at 5 years in the Department of Corrections. Prior to his trial appellant had the benefit of $10,000 property bond executed by his relatives. Following his conviction appellant has remained free on a $15,000 property bond executed by his relatives. After obtaining the full 7 month extension for obtaining a transcript, appellant did not furnish the $1,500 necessary to obtain a copy of the transcribed testimony from the court reporter. Shortly before the 7 months extension expired, appellant, December 8, 1977, made application to the trial court and this court to obtain the record as an indigent. We reinvested the trial court with jurisdiction to hear the application and extended the time for appeal until the matter could be heard and determined. The trial court after hearing the testimony of appellant, his father and the court reporter denied appellant’s application to proceed as an indigent. Appellant appeals from that ruling. For the reasons hereinafter set forth, we affirm the trial court.

The record shows that appellant was represented by employed counsel from the beginning. Throughout the time following the conviction on June 3, 1977, until the application for indigency was filed the employed lawyer kept appellant informed of the necessity of obtaining the transcribed testimony and that the court reporter was demanding a deposit of $1500 to start the transcribing.

Appellant testified that he became 19 on January 10, 1978, and that following his conviction he had only earned $422.40 from Texas Steel Company, and $150.00 from his present employer, Mr. Mike Powell. He had depended on the members of his family to help him raise the appeal money, but they never did come up with the money. He did not know that he could apply to take an appeal as an indigent until shortly before his application on December 8, 1977. Appellant says that his father paid for his defense at trial. He thought it was around $3,000.00. Appellant’s mother and father are divorced. The mother is drawing disability from Social Security as a result of a sleeping disease. Appellant has lived with his father since the charges were brought and is not paying rent. He admittedly is an able bodied young man.

Appellant’s father testified that he was earning $1200 per month and that he had borrowed all the money he could get from his employer to pay the $3,000 for appellant’s trial defense. His three children, ages 20, 19 and 17 lived with him in a rented apartment. The father had tried to borrow the money to pay for appellant’s appeal but had been unable to obtain it. The father testified that appellant had lived with him following the conviction. During that time appellant had worked something like seven weeks. In response to questions from the court, the father stated that appellant’s activities during the day were not much. Appellant would go up to a service station, stay up there with the father’s brother-in-law, and appellant would visit with his mother some.

Needless to say, there is evidence from which the trial court could have found that appellant qualified as an indigent. On the other hand we see an able bodied young man, a high school graduate, who has worked only seven weeks from June 3, 1977, the date of his conviction, until January 11, 1978, while living with his father, rent free. Furthermore, the record shows that during all of this time appellant has enjoyed the advantages of remaining free on a $15,000 bond posted by his relatives. Since the trial court had the advantage of viewing the witnesses and in view of the indicia of wealth that appellant has enjoyed following his conviction, together with the tardiness of the application, we cannot say that the trial court abused his discretion in denying appellant’s application to proceed as an indigent on appeal.

Courts like Caesar’s wife must be above reproach in not only the eyes of the appellant and his family but also those of the rape victim and her family. The longer an appellant enjoys his freedom from a conviction through the luxury of that which is an indicia of wealth, the more suspect becomes a belated assertion to his peers that he is in fact an indigent.

Affirmed.

Howard, J., dissents.

George Howard, Jr., Justice,

dissenting. I am compelled to dissent from the holding of the majority in this case inasmuch as it is clear from the majority’s opinion that a new and irrelevant dimension has been considered in determining whether one is entitled to proceed in forma pauperis in a criminal proceeding.

Among other things, the appellant alleged in his motion, in order to be declared an indigent to the end that the State be required to provide the cost of a transcript and that an attorney be appointed to represent him in his appeal to this Court, the following relevant parts:

“That Finis Eugene Toomer, Jr. is 18 years of age. . . . That the Defendant was convicted of the felony offense or rape . . .
“The Court Reports, . . . has requested $1,500.00 advancement on the cost of the transcript in this cause and the Defendant has nothing to pay toward that transcript.
“That Defendant is indigent and cannot pay the cost of the appeal in this case. He is unemployed and has been for more than four months, although he has diligently sought employment. The outstanding conviction has hindered his employment opportunities and the Defendant has found it impossible to obtain employment or any other means to raise the money to pay the cost of appeal.”

The trial court in denying appellant’s request to appeal his conviction as an indigent, made the following findings:

“The Court Reporter . . . made demand on the defendant’s attorney on several occasions between June 3, 1977, and December 9, 1977, requesting permission for her to proceed with the transcript of the evidence in this case. The defendant’s attorney, at all times, advised . .. not to start the transcript until such time as his client was in a position to pay for it.
“On December 9, 1977, the defendant, through his attorney, filed a motion in this Court alleging that he was an indigent, that the State be directed to provide the cost of the transcript, and that an attorney be appointed to represent him in this appeal.
“The Court finds that the appeal for indigency was not filed for more than one (1) year after this cause was originally filed in the Little River County Circuit Court; that the appeal for indigency pertaining to the appeal was not filed for more than six (6) months after notice of appeal had been granted and only some fifteen (15) working days before the expiration of the maximum time of seven (7) months allowed for an appeal to be taken. The Court finds that the transcript could not have possibly been prepared by the Court Reporter and completed by the Clerk within the said fifteen (15) working days.”

The action of the trial court in denying appellant’s motion to appeal in forma pauperis or as an indigent gives more recognition to timing than to constitutional rights. The attitude and action of the trial court is comparable in many respects where form, in legal proceedings, is indefensibly raised to the lofty position of substance.

It is so basic and fundamental under American jurisprudence that a right of constitutional dimension can be asserted at any stage of a legal proceeding, unless it is clear and certain that a waiver of such constitutional right has been knowingly, understandingly and intelligently made, that it is proper to characterize such a principle as elementary.

In sustaining the trial court’s action, which in effect forecloses appellant from appealing his conviction, the majority makes the following observation in its opinion:

“Needless to say, there is evidence from which the trial court could have found that appellant qualified as an indigent. On the other hand we see an able bodied young man, a high school graduate, who has worked only seven weeks from June 3, 1977, the date of his conviction, until January 11, 1978, while living with his father, rent free. Furthermore, the record shows that during all of this time appellant has enjoyed the advantages of remaining free on a $15,000 bond posted by his relatives. Since the trial court‘had the advantage of viewing the witnesses and in view of the indicia of wealth that appellant has enjoyed following his conviction, together with the tardiness of the application, we cannot say that the trial court abused his discretion in denying appellant’s application to proceed as an indigent on appeal.” (Emphasis added)

It is readily apparent that the majority has now created a new and irrelevant criterion in determining whether one may or may not qualify as an indigent, namely, “able bodied young man,” but it goes without saying, indigency neither favors the old over the young, nor the weak over the strong. If ablebodiedness is a factor to be considered in determining whether one pursues an appeal in forma pauperis, very few, indeed, would meet the test. I, therefore, dissent.

      Appellant duly executed and filed his affidavit in support of his request to proceed in forma pauperis which clearly supports his claim of indigency.

      It is beyond contradiction that the record shows plainly that appellant is an indigent.

        Griffin v. Illinois, 351 U.S. 12 (1955) and Douglas v. California, 372 U.S. 353, are leading United States Supreme Court cases requiring the State to provide counsel and transcripts at the cost of the State for indigent defendants on appeal.

      The trial court found that the transcript could not have possibly been prepared by the court reporter since there were only fifteen working days remaining before the maximum time of seven months allowed for an appeal to be taken. In West v. Smith, 224 Ark. 651, 278 S.W. 2d 126, we held that this Court under its inherent constitutional power may allow a transcript to be filed after the time fixed by the statute.


author: Frank Holt, Justice.

text:
    James GREEN et al v. Clyde A. FERGUSON et al
    77-375
    567 S.W. 2d 89
    Opinion delivered June 5, 1978
    (Division I)
    [Rehearing denied July 10, 1978.]

      Mike Wilson, of Wilson, Dougherty & Mills, P.A., and Tennant & Tomlinson, for appellants.

      John T. Harmon, for appellees.
   Frank Holt, Justice.

Appellees brought an action against appellants in circuit court to recover rentals allegedly due under their lease-purchase agreement. Appellants counterclaimed for specific performance of their twenty year lease-purchase agreement alleging appellees had refused to convey the property after they had exercised their option to purchase it. The case was transferred to chancery court where it was consolidated with an action brought by Twin City Bank against appellees and appellants to foreclose its construction loan mortgage. Appellees then nonsuited their circuit court action. In chancery court, appellants filed a cross-complaint against appellees in the consolidated action seeking specific performance of their option to purchase the property or, in the alternative, damages in the event appellees were unable to convey the property. A decree of foreclosure was entered against appellees for the balance owed (approximately $80,000) on the $85,000 construction loan mortgage. In a supplemental decree, the court dismissed appellants’ cross-complaint, finding that appellants had not assumed the mortgage on the property within the meaning of the contract, because they had failed to tender the sum of the existing balance on the mortgage to TCB, the mortgagee, by May 1, 1976. On appeal it is contended that the court erred in finding that appellants did not “assume the mortgage” on the property and, therefore, they were not entitled to specific performance nor damages in lieu of specific performance.

It appears the primary dispute between these litigants is the meaning of the phrase “assume the original mortgage” which appears in their agreement written on December 18, 1973. The pertinent part of the twenty year lease-purchase agreement provides:

Lessee shall have the option to purchase the leased premises together with the building constructed thereon for the sum of the existing balance of the original mortgage with the Twin City Bank, together with any interest owing thereon at the time the option is exer-. cised; said option to purchase, however, may be exercised only between November 1, 1974, and May 1, 1976.
In exercising this option Lessee shall have the right to assume the original mortgage on the property at the balance of the mortgage at time of assumption, together with any interest which may be owing thereon, with no other costs, being assessed to Lessee.

The contract provided that “[u]pon receiving written notification of Lessee’s [appellants’] exercise of this option to purchase” the appellees were required to convey the property by warranty deed to appellants within 120 days. The mortgage did not prohibit the conveyance of the property nor, assumption of the mortgage debt.

Appellees argued and presented evidence that the intent of the parties when drafting the agreement was that, whenever the appellants exercised their option to purchase, they would become solely liable on the mortgage, and appellees would be released from any further liability. This would require that appellant either pay off the mortgage to TCB at the time the option was exercised or TCB would agree to release appellees. Therefore, appellees assert that, since appellants accomplished neither, they never properly assumed the mortgage within the meaning of their agreement.

Appellants asserted and adduced evidence that, by the plain and unambiguous terms of the contract, they merely had to notify appellees in writing of their intent to exercise the option to assume the mortgage and make the required mortgage payments directly to TCB. Appellants point out that the agreement is silent as to whether they had to secure their own financing and pay off the mortgage or secure appellees’ release from TCB. Appellants were unable to do either. Despite written demand, the appellees refused to convey the property absent their release from the mortgage. Further, appellants argue, they did in fact assume the mortgage by making lease payments, which equaled thé mortgage payments, directly to TCB after exercising the option.

In Trent v. Johnson, 185 Ark. 288, 47 S.W. 2d 12 (1932), we discussed the personal liability of the mortgagor whenever there is an assumption of that indebtedness by the grantees. We said:

It may be said, first, that it is well settled that the assumption by a grantee and the agreement by him to pay the mortgage debt does not, within itself, change the relationship of the mortgagor and mortgagee nor release the mortgagor from payment of the mortgage debt, and its collection may be enforced as long as the debt: remains unpaid or until barred by limitation or laches. .
[T]he well-settled doctrine in this State that the grantee of mortgaged lands who assumes and agrees to pay the debt secured by the mortgage becomes personally liable to the mortgagor for its payment. . . .

See also Felker v. Rice, 110 Ark. 70, 161 S.W. 162 (1913). In Kendall House Apartments, Inc. v. The Department of Revenue, 245 So. 2d 221 (Fla. 1971), it was aptly said:

This court is well aware of the distinction, urged by relator, between a grantee who assumes and agrees to pay an outstanding mortgage and a grantee who takes subject to an outstanding mortgage. The former may be held personally liable; the latter is threatened only with the loss of his equity in the property in the event of foreclosure. In the absence of clear language to the contrary on a deed conveying real property, a grantee who ‘assumes’ a mortgage encumbering real property becomes personally liable to pay same as though he is ‘assuming and agreeing to pay’ it.

It is well settled that whenever parties to a contract express their intention in clear and unambiguous language in a written instrument, it is the court’s duty to construe the writing in accordance with the plain meaning of the language employed. C&A Const. v. Benning Const., 256 Ark. 621, 509 S.W. 2d 302 (1974); and Miller v. Dyer, 243 Ark. 981, 423 S.W. 2d 275 (1968). In the case at bar, the right to exercise the option is expressed in plain and unambiguous language. Even though there was conflicting verbal evidence interpreting the intent of the parties, it cannot alter the unambiguous language of the written contract. Therefore, the appellants had the right to exercise their option to purchase by the assumption of the mortgage without refinancing and paying off the mortgage or securing appellees’ release from TCB on the mortgage. If the parties had intended either of those contingencies, the contract could have easily so provided.

Appellees argue that, even so, because of certain defaults on their lease agreement, the appellants could not exercise their option to purchase. We cannot consider this argument since it is raised for the first time on appeal. Green v. Harrington, 253 Ark. 496, 487 S.W. 2d 612 (1972).

Appellants contend they are entitled to damages for breach of contract in lieu of specific performance. The chancellor made no finding on the issue of damages since he found there was no breach of the contract. It is undisputed that appellees conveyed the land to another following the alleged breach of contract. It is well established that the measure of damages for a breach of contract to convey is based on the value of the land at the time of the breach. Kempner v. Cohn, 47 Ark. 519, 1 S.W. 869 (1886). Here appellants exercised their right to purchase as of November 1, 1974. Appellees had four months from that date to convey title and failed and refused to do so. Appellants adduced evidence from an appraisor that the fair market value of the property was $193,151 “as of 1975,” which figure, say appellants, would be reduced by the “mortgage indebtedness of $80,349 leaving an equity of [$102,803] of Appellants in the property.” This asserted equity is the amount of damages sought by them. The appraiser did not know the property was encumbered by a twenty year lease-purchase option which he said could result in the property being “worth more or it may be worth less.” Therefore, appellees argue that appellants did not sufficiently demonstrate the value of the property with respect to the date of the appraisal nor what effect the mortgage or the lease-purchase agreement had upon the value of the property. Ordinarily, we might agree with appellees. However, there is other evidence which should be considered with respect to the value of the property or damages in lieu of specific performance. It is undisputed that in March, 1975, some four months after appellants had exercised their option to purchase, appellees refused to sign appellants’ proffered deed to the property, with assumption of the mortgage, at which time it appears the mortgage balance due to TCB for the original construction loan of $85,-000 was $80,349. It appears it became unnecessary to sell the property by a foreclosure sale. Appellees acquired possession and in January, 1977, conveyed the property to a relative of one of them for $165,000. Therefore, a difference of $85,651 ($165,000 - $80,349) existed based upon appellees’ own sale of the property. In the unique circumstances, we hold appellants are entitled at least to this sum for its damages in lieu of specific performance of the contract.

Reversed and remanded with directions for proceedings not inconsistent with this opinion.

We agree: Harris, C.J., and George Rose Smith and Fogleman, JJ.


text:
    Charles HOUSTON v. STATE of Arkansas
    CR 78-2
    566 S.W. 2d 403
    Opinion delivered June 5, 1978
    (In Banc)

      John W. Achor, Public Defender, by: William R. Simpson, Jr., Dep. Public Defender, for appellant.

      Bill Clinton, Atty. Gen., by: James Smedley, Asst. Atty. Gen., for appellee.
   Frank Holt, Justice.

A jury convicted appellant of aggravated robbery and, pursuant to Ark. Stat. Ann. § 41-1001 (Repl. 1977), assessed his punishment as an habitual criminal at life imprisonment. There was no appeal. One year later appellant sought postconviction relief, as provided by Rules of Crim. Proc., Rule 37 (1976), alleging, inter alia, that he was denied effective assistance of counsel because his retained counsel did not file a notice of appeal following his conviction. After an evidentiary hearing, the trial court denied appellant’s petition to vacate his sentence. Appellant asserts, through his court appointed appellate counsel, that the court erred in denying his petition because his retained counsel had an absolute duty under Rule 36.26 to file a notice of appeal. Therefore, appellant argues that he is entitled to a new trial or a belated appeal.

Rules of Crim. Proc., Rule 36.26 (1976), provides:

Trial counsel, whether retained or court appointed, shall continue to represent a convicted defendant throughout any appeal to the Arkansas Supreme Court, unless permitted by the trial court or the Arkansas Supreme Court to withdraw in the interest of justice or for other sufficient cause.

However, we must consider Rule 36.9 also which reads in pertinent part:

Within thirty (30) days from the date of the sentence and entry of judgment by the trial judge, the person or persons desiring to appeal the judgment shall file with the trial court a notice of appeal identifying the parties taking the appeal and the judgment appealed. The notice of appeal shall include a certificate by the appealing parly or his attorney that a transcript of the trial record has been ordered from the court reporter, if for the purposes of the appeal, a transcript is deemed essential to resolve the issues on appeal .... (Italics supplied.)

Here appellant’s retained counsel, who had been paid only a small portion of the agreed fee for trial representation and none for appeal, advised appellant of his right to appeal. It appears appellant was without funds. Counsel wrote to appellant, enclosing a notice of appeal and a motion to appeal in forma pauperis which he had prepared, advising appellant to sign, have the papers notarized and returned to the trial judge prior to a designated date which would be within the appeal time. Also appellant was advised he could consult with the prison attorney for any desired assistance. There was no response from appellant. His counsel advised appellant’s mother of his right to court appointed counsel. Appellant admitted that the attorney wrote him that he was discontinuing his services and “some papers were sent” to him.

A pauper’s oath by appellant is a prerequisite to being declared an indigent. An attorney should not be required to order the transcribed record at his own expense. Since appellant himself waited almost one year from the time he timely received the necessary papers and instructions for appeal purposes before he took any affirmative action as to a decision to pursue an appeal, any delay was caused solely by appellant and without justification.

Affirmed.


author: Carleton Harris, Chief Justice. John A. Fogleman, Justice,

text:
    FORD MOTOR CREDIT COMPANY v. N. B. YARBROUGH et al
    77-412
    567 S.W. 2d 96
    Opinion delivered June 12, 1978
    (In Banc)
    [Rehearing denied July 17, 1978.]

      Griffin Smith, for appellant.

      Charles L. “Chuck” Honey, and Spencer & Spencer, by: J. V. Spencer, Jr., for appellees.
   Carleton Harris, Chief Justice.

Appellees, Raymond E. Yarbrough, N. B. Yarbrough, Jr., Walter E. Yarbrough, C. M. Yarbrough, Earl H. Yarbrough, and Roy Yarbrough, sued appellant Ford Motor Credit Company in chancery court, the various suits being filed between August 21 and August 29, 1975. The complaints alleged usury and sought a declaratory judgment declaring the contracts void, and “cancelling all balances owing thereunder.” The suits were consolidated into one proceeding, and were heard October 29, 1976. By memorandum opinion dated May 25, 1977, the chancellor held the procedures used by appellant were usurious, and “plaintiffs are entitled to recover the equipment involved or its value together with damages for loss of use and all installment payments made . . . after the filing of these suits.” Six separate decrees were rendered and from such decrees, Ford Motor Credit Company appeals.

The chancellor apparently studied this case intently and rendered a very fine written opinion, thoroughly explaining the case and giving clear and concise reasons for the result reached, and we shall liberally quote from that opinion, including the background, as follows:

“All of the above suits were brought against Ford Motor Credit Company alleging that certain contracts between the plaintiffs and Ford Motor Credit Company were void because of usury.
Plaintiffs rely on the case of Foster v. Universal C.I.T. Credit Corp., 231 Ark. 230, 330 S.W. 2d 288, wherein it was held that a provision in a financing contract providing that refunds of insurance premiums shall be applied to the last maturing installments and not to the principal balance remaining unpaid or to currently maturing installments contains the ‘seeds of usury.’ It ripens into usury upon the crediting of such refunds to the last maturing installments (provided that such application causes interest rates to exceed 10% per annum.)
The contracts involved in these cases contain provisions substantially identical to the provision contained in the Foster contracts and give to Ford Motor Credit Company the right to so credit, refunds of insurance premiums.
In fact, in the Ford Motor Credit Company contracts, it is specifically provided that such refund shall be applied to the last maturing installments.
The contracts fall into three separate categories:
1. Contracts where credit life insurance refunds and collision insurance premium refunds were applied to the contracts;
2. Cases where the collision insurance premium refunds less the cost of single interest policies were applied to the contracts;
3. Cases where the entire collision insurance premium refund was applied to the contract.
In the three contracts involving credit life insurance premium refunds which were applied to the last maturing installments, the refunds were Roy Yarbrough, KWT-3 and KWT-4, $450 in each case and Earl H. Yarbrough, LDT-8, $719.11. The evidence shows that the manner of application of these refunds without considering the collision insurance premium refund made the contracts usurious in that the interest rates exceeded 10% per annum. When the effect of the collision insurance premium refunds was considered, the contracts, of course, were usurious by a larger amount.
In the second group of cases, certain of the contracts were rendered usurious by the crediting to the last maturing installments of the difference between the collision insurance refund and the cost of single interest insurance. Three of the contracts in that category, the contract between Ford Motor Credit Company and Eddie Ray Yarbrough, KJT-6, and the contracts between Ford Motor Credit Company and Walter E. Yarbrough, KMB-8 and LFP-5, were not rendered usurious by the application of that credit. All of the other contracts in this category were usurious after the application of said credits.
In the third group of cases where single interest insurance coverage was not obtained, all of the contracts were rendered usurious by the crediting of the premium refund.
The accounts which were furnished by Ford Motor Credit Company and which were introduced in evidence show that these premiums were actually credited to the last maturing installments of the account on dates as set forth and shown on the statement of account furnished. In addition, Lyle VonFange, an official of Ford Motor Credit Company, testified to the effect that all such refunds are applied as a credit to the last maturing installment.
Since the refunds were actually credited to the last maturing installment and since such crediting was done under the provisions of the Ford Motor Credit Company contract and this rendered the contracts (except for those specified) usurious, the Court is of the opinion that this case comes squarely within the rules set forth in Foster v. Universal C.I.T. Credit Corp.”

We agree that this case is controlled by Foster v. Universal C.I.T. Credit Corp., supra. In that case, Foster had purchased an automobile and agreed to the issuance of certain insurance policies, the conditional sales contract covering the cost of the policies. Universal C.I.T. Credit Corp was the assignee of the contract, and subsequently, the insurance carrier cancelled a collision policy against the automobile, resulting in appellant’s being entitled to a pro rata return premium in the amount of $172.44. The contract allowed the company to purchase a single interest policy to protect its own interest, which was done at a cost of $41.09, leaving a net amount of $131.35 due Foster. The appellee advised appellant of this action, also informing him that the difference had been credited to the last installment of appellant’s account, but that if appellant within the next 30 days obtained another policy to protect both of their interests, the company would cancel the single interest policy and credit appellant’s account with the full return premium. Foster notified the company that he felt he was entitled to a reduction in his monthly payments, which was rejected by the company, and Foster then brought suit to cancel the contract for usury, alleging that he was overcharged by the amount of interest that would have been due on the return premium. We held that the contract was usurious in that the portion of the payments representing interest charges demanded by appellee exceeded 10% of the principal balance due after the cancellation of the insurance policy, and the company had signified the intention to take and receive more than the legal rate of interest. We said:

“The appellant shows that the contract at its inception had in it the seeds of usury, because it allowed the appellee — under the circumstances that came into existence in this case — to retain some of appellant’s money without promptly crediting such amounts on the maturing payments due on the contract.”

Subsequently, we added that “It is our opinion that the contract from its inception contained the seeds of usury which matured into usury upon the happening of the contingency, i.e., the cancellation of the insurance policy.”

Appellant offered a CPA in an effort to refute the above evidence, a Mr. John Cobb, who testified that he found no basis for application of these insurance refunds to the note during the period of time involved, and that the credits to the last installments were nothing “more than suspense accounts.” Here too, as in Foster, when the insurance company cancelled the policies on the several vehicles, the company notified appellees that if they took out additional insurance, the refunds from the cancellation would be applied to such insurance. Walter Yarbrough, when asked if he applied for a refund, replied, “All of us did.”

We do not follow the testimony that the money was placed in a “suspense account.” We find nothing in this record that indicates that a separate account was set up for these refunds; in fact, as already pointed out in our quotation from the court, the refunds were credited to the last maturing installments of the account, and Mr. VonFange of Ford Motor Credit Company, testified that all such refunds are applied as a credit to the last maturing installment. As mentioned, if no policy was obtained by the company, the entire refund was so applied, and in the instances where the company purchased single interest coverage (for its own benefit), the remainder of the refund was likewise applied. Since these refunds were so applied, it can make no difference that the company had notified appellees that refunds would be applied to any insurance obtained by appellees.

Foster was decided 19 years ago, and certainly a sophisticated company such as Ford, which has handled these types of policies for many years, is hardly in a position to defend on the basis of misunderstanding or mistake.

Affirmed.

Fogleman, J., concurs.

John A. Fogleman, Justice,

concurring. I concur because I do not think the chancellor’s finding of fact that the premium refunds were actually applied on the indebtedness is clearly against the preponderance of the evidence. I do not think the mere fact that a mechanical credit to the last maturing installment was made would prevent the credit from being held in suspense. But when the contract terms and the actions of the parties are considered, I could not say that the chancellor’s finding was against the preponderance of the evidence.

      There were eighteen different contracts.

      Apparently referring to fire, theft, and combined coverage of physical damage on the vehicles.

      No reason is ever shown for the cancellation. It is interesting that the insurance carrier, American Road Insurance Company, is a wholly owned subsidiary of Ford Motor Credit Company.

      From the record: “All of us did. Shortly after that, right after my brother testified he didn’t get the insurance, I sent a list of every serial number to each unit for Roy and each one of my brothers. We did buy a policy from the Insurance Agency at Little Rock and I had to get Roy’s serial numbers and I called T. W. Mays who is the Branch Manager of Ford Motor Credit and he did send them to my Insurance Company at Little Rock.” * * *
      “Each one of us sat down and wrote a letter to Ford Motor Credit Company’s address in Little Rock on Rodney Parham Road and we mailed them and we got a hearing that they had applied each to the tail end of the contract on each unit.”
      Mr. VonFange testified that no request was made to Ford Motor Credit for a refund of any kind.


text:
    Marvin CARTER et al v. CITY OF SHERWOOD et al
    77-387
    566 S.W. 2d 746
    Opinion delivered June 12, 1978
    (In Banc)

      James F. Lane, of Laster & Lane, for appellants.

      Purtle, Osterloh & Weber, by. John I. Purlle, for appellees.
   George Rose Smith, Justice.

At an annexation election held on August 3, 1976, the voters approved the annexation of certain territory to the City of Sherwood. The appellants then filed this proceeding in the circuit court to contest the election on several grounds. The circuit court upheld the annexation. Since we find that the contestants’ position must be sustained on one particular ground, we discuss only that one issue.

The statute requires that the ordinance calling the election “include a schedule of the services of the annexing city that will be extended to the area within three years after the date the annexation becomes final.” Ark. Stat. Ann. § 19-307.2 (Supp. 1977). Here the annexation ordinance provided that the City of Sherwood committed itself to the extension into the area to be annexed “of public services now available to the residents of Sherwood . . . and such services shall include all city services.”

The appellees, in defending the sufficiency of the ordinance, say: “To enumerate all the services provided by the City would have unduly lengthened the Ordinance and would have told the electors no more than they were told in the Ordinance as written.” We cannot agree with that position.

To begin with, the basic meaning of a schedule is a list. One purpose of the statutory requirement of a schedule is certainly to assist the voters by furnishing them with detailed information about the annexation proposal. We cannot overlook the importance of public enlightenment about the issues to be voted upon in an election. The ordinance in question, however, supplied the voters with no information. At best, it merely invited them to make their own individual investigations to find out what services were available to the city’s inhabitants. Even then, in the case of a large city (to which our decision would also apply as a precedent) areas of doubt and questions of fact might still exist in the minds of the voters. Some city services, including such matters as the furnishing of water, curbing and guttering, and sewage facilities, are sometimes furnished by improvement districts rather than by the city itself. It would be difficult for the voters to obtain accurate information of that kind.

Furthermore, an ordinance specifying at least the principal services to be supplied by the city would clarify the issues that might be raised in a contest of the annexation proceeding. Both the proponents and the opponents of the proposal would have the advantage of knowing with reasonable certainty what services the city was undertaking to supply to its new residents. By contrast, a mere reference to “all city services” now being furnished would be of little assistance to either side in pinpointing the possible issues in a contest of the annexation. We think it plain that the legislature, in requiring the ordinance to include “a schedule” of services to be provided, intended to supply the electorate with information more specific than a nebulous reference to “all services” now being furnished to municipal residents.

Reversed.

Byrd, J., dissents.


text:
    Larry WINTERS et al v. Austin BARR
    77-428
    566 S.W. 2d 745
    Opinion delivered June 12, 1978
    (Division I)

      Lohnes T. Tiner, for appellants.

      John R. Henry, for appellee.
   George Rose Smith, Justice.

The appellee, as the purchaser, brought suit against the manufacturer and the seller of a remote-control garage door, which the complaint alleged to have been worthless. The complaint alleged damages of $910, and the plaintiff so testified, without contradiction. The case was tried before the late Judge John S. Mosby, who submitted to the jury only the issue of liability. That is, the form of verdict was as follows:

We, the Jury, find for the Plaintiff.
Foreman
We, the Jury, find for the Defendants.
Foreman

Nine members of the jury signed the verdict in favor of the plaintiff. Judge Mosby accepted the verdict, stated that it was in proper form, and discharged the jury. After Judge Mosby’s death Judge Harrison, another judge of the same court, entered a nunc pro tunc judgment in favor of the plaintiff for $910. This appeal is from that judgment.

Upon the particular facts of the case Judge Harrison was right in entering judgment, although the words “nunc pro tunc” were surplusage. Ordinarily, it is true, the jury must assess the amount of the recovery. Ark. Stat. Ann. § 27-1742 (Repl. 1962). Here, however, the only inference to be drawn is that the parties at least tacitly agreed to submit the single issue of liability, the amount of damages being undisputed (except in the sense that a party’s testimony is not regarded as undisputed). The court’s instructions submitted the issue of liability only, with no reference to the amount of the plaintiff’s possible recovery. The verdict form submitted only the issue of liability. The defendants offered no additional instructions, made no objections to the instructions that were given, made no objection to the form of verdict, and made no objection to the court’s acceptance of the verdict and discharge of the jury. No reasonable conclusion is possible except that the parties agreed by their conduct, if not in so many words, that the issue of liability was the only controverted question. Judge Harrison was therefore right in entering the judgment that Judge Mosby would undoubtedly have entered if he had lived. See City of Fort Smith v. France, 250 Ark. 294, 465 S.W. 2d 315 (1971). The defendants have had a fair trial upon the only disputed issue and are not entitled to a second trial.

Affirmed.

We agree.

Harris, C.J., and Fogi eman and Hoi.t, JJ.