author: Sam Robinson, Associate Justice. George Eose Smith, J.,

text:
    Selig v. Morrison, Chancellor.
    5-1755
    321 S. W. 2d 769
    Opinion delivered March 9, 1959.
    [Rehearing denied March 30,1959]

      Carlton Currie, for petitioner.

      Henry W. Gregory, Jr. and H. Murray Claycomb, for respondents Barnett, et al. Paul B. Young, for respondents Frank Gr. Bridges, Jr. and Charlotte Mills, Trustees. Edward L. Wright, Substituted Trustee Ad Litem., for respondent.
   Sam Robinson, Associate Justice.

The Chancery Court of Jefferson County appointed Edward L. Wright trustee ad litem of a testamentary trust created under the will of Ben J. Altheimer, who was a resident of Jefferson County. Mr. Wright was appointed solely for the purpose of conducting pending litigation in which the testamentary trust was at the time involved. Charlotte Mills, Frank Gr. Bridges, Jr., and Leonard L. Selig are the trustees named by the testator. Mr. Selig objected to the appointment of Mr. Wright as trustee and petitioned this Court for a writ of certiorari seeking a review of the chancery court order appointing Mr. Wright. The cause is here on certiorari.

There is an alleged inter vivos trust set up by Ben J. Altheimer and called the Ben J. Altheimer Foundation (hereinafter called Foundation). During his lifetime Mr. Altheimer, through the ownership of stock in a corporation, had an interest in some real estate in Pulaski County that has become very valuable. Trustees of Foundation, R. S. Barnett, Jr., Frank L. "Webb, John N. Stern, and Hillsman Taylor (Charlotte Mills is also a trustee, but she did not join in the suit), filed suit in Jefferson Chancery Court contending that although the trustees of the testamentary trust held record title to the property involved, Foundation should be declared to be the owner of an interest therein under the terms of the alleged Foundation trust and the testamentary trust.

Frank G. Bridges, Jr., one of the trustees of the testamentary trust, is a beneficiary of Foundation, and Miss Mills is a beneficiary and trustee of both the testamentary trust and Foundation. Mrs. Elsie J. Selig, wife of Leonard L. Selig, one of the trustees of the testamentary trust, and Mrs. Dorothy Frankel, sister-in-law of Mr. Selig, are also beneficiaries of the testamentary trust. Miss Mills, Mr. Bridges, and Mr. Selig, the trustees of the testamentary trust, could not agree on how the defense to the action filed by Foundation should be conducted. As a defense, Mr. Selig wanted to raise the issue of whether the Foundation is a valid trust. Miss Mills and Mr. Bridges felt there was no doubt about the validity of Foundation as a trust and did not want to litigate that question. Mrs. Elsie J. Selig, wife of Leonard L. Selig, trustee of the testamentary trust, is co-guardian of Ben J. Altheimer, Jr., incompetent, a beneficiary of the testamentary trust. As such guardian she filed an intervention in which it is alleged that Foundation is not a valid trust.

As heretofore pointed out, Mr. Bridges, a trustee of the testamentary trust, is a beneficiary of Foundation, and Miss Mills is a beneficiary of both Foundation and the testamentary trust, and she is also a trustee of both. Mrs. Elsie J. Selig, Leonard L. Selig’s wife, and his sister-in-law, Mrs. Frankel, have vested interests in the testamentary trust. It is said that if Foundation can be destroyed by showing that it is not a valid trust, the assets of Foundation will revert to the testamentary trust, and in these circumstances Mrs. Selig’s and Mrs. Frankel’s interests in the testamentary trust will he increased by about $150,000 each.

In the circumstances of the trustees of the testamentary trust, Mr. Selig, Mr. Bridges and Miss Mills, not being able to agree on a defense to the suit filed by Foundation, Mr. Selig applied to the chancellor for instructions. After a hearing on the petition for instructions, the court appointed Mr. Edward L. Wright as trustee and attorney for the sole purpose of conducting the litigation growing out of the suit filed by Foundation and the intervention filed by Mrs. Selig as guardian for Ben J. Altheimer, Jr. Miss Mills and Mr. Bridges have no objection to the order of the court appointing Mr. Wright as both trustee and attorney. In fact, they, along with the trustees of Foundation, are seeking to sustain the court’s order in that respect. But Mr. Selig objects to the court’s action in appointing Mr. Wright trustee for the purpose of conducting the litigation, although he does not object to Mr. Wright as attorney. There was no abuse of discretion and the court did not commit error by appointing Mr. Wright trustee.

It is contended that Mr. Selig agreed at the hearing on the petition for instructions that Mr. Wright should be appointed trustee. The record is not clear on that point. But the record is clear that at least neither Mr. Selig nor his attorneys made any objection at the time of the hearing to the appointment of Mr. Wright, and he was in fact appointed at that time. Later, however, before the signing of the formal order of appointment, Mr. Selig did object to the appointment. In the circumstances we do not believe that Mr. Selig would be bound by failing to object to the appointment of Mr. Wright at the hearing when that matter was considered. But we cannot say that the court abused its discretion in appointing Mr. Wright trustee.

Mr. Selig contends that actually he has no personal interest in the outcome of the litigation. It can hardly he said that one has no personal interest in the results of litigation when his wife stands to gain so much. But the mere fact of interest alone is not controlling. It is the nature of the interest that counts here. Foundation is a beneficiary named in the testamentary trust, and if Mr. Selig, a testamentary trustee, can prevail in his contention that Foundation is entitled to nothing, his wife will profit to the extent of about $150,000. In 90 C. J. S. 232, it is said: “A trustee is the agent or representative of the cestui que trust, and he must administer the trust solely in the interest of the cestui. The trustee owes to beneficiaries of the trust the duty of undivided loyalty, and he must protect their respective interests without partiality or favor.” And, further (p. 235): “Where there are several beneficiaries, the trustee owes the same fiduciary duty to all of them to protect their respective interests, without partiality or favor to some beneficiaries at the expense of others. So a trustee owes the same fiduciary duty to a contingent beneficiary as to one with a vested interest in so far as necessary for the protection of the rights of the contingent beneficiary in the trust property.”

In Patterson v. Woodward, 175 Ark. 300, 299 S. W. 619, the Court said: “At the outset it may be said that it is a rule of universal application in equity that a trustee shall not deal with trust property to his own advantage against the consent of the cestui que trust.”

‘ ‘ One of the most fundamental duties of the trustee is that he must display throughout the administration of the trust complete loyalty to the interests of the cestui que trust. He must exclude all selfish interests and also all consideration of the welfare of third persons.” Bogert, Trusts and Trustees, Yol. 3, p. 375.

“Although there are exceptions to the rigid enforcement of the rule, it is generally held that a trustee cannot deal with the trust estate or property to his own advantage, or that of a member of his family, without the beneficiary’s knowledge or consent ... As a general rule, contracts or transactions involving self-dealing are invalid, . . . and the rule applies irrespective of fraud, or intent to commit an actual wrong, and regardless of whether the trustee acted in good faith or bad faith. So, also, a transaction infected with self-dealing is invalid whether or not it is fair, or is based on an adequate consideration, and irrespective of whether injury results to the beneficiary or to the trust estate.” 90 C. J. S. 254-255.

It is one thing for a disinterested trustee to resist in good faith asserted rights of a beneficiary, but an entirely different thing when such resistance comes from a trustee whose wife, a beneficiary, will gain approximately $150,000 if the trustee can defeat the interest of another beneficiary named by the settlor.

In appointing Mr. Wright, the court said: ££I will direct that Mr. Ed Wright be appointed to represent the testamentary trustees in this matter. There is a strong conflict of interests. There ought to be some way devised of handling this matter . . . The court is primarily concerned in seeing it is presented in such a way there is no conflict of interest. Each of the trustees has some conflict. The court is not going to disqualify these trustees except so far as this lawsuit is concerned. I want them to abate their action in this lawsuit only. This is not to affect their rights personally. I am appointing Mr. Ed Wright as a single trustee and attorney to act for and in lieu of each trustee for and pending final determination of this action . . . The court has no disposition to ask any of the three trustees not to take any action individually in their personal capacities they may desire. The substitute trustee appointed for the purpose of this lawsuit only, is to have the official capacity.”

It appears that it would be wholly impractical for the testamentary trustees to conduct the litigation. There is a conflict in their personal interests, and the interest of Mr. Selig conflicts with the interest of Foundation, a beneficiary named in the testamentary trust. The trustees disagree sharply on how the case should be conducted. At every step they would have to go to the court for instructions. Actually, the court would be put in the position of having to decide the case to a large extent before it was ever submitted.

Mr. Selig further complains that he had no notice that the court might appoint someone to take his place as trustee for the purpose of conducting the litigation. But even though he may have had no notice, there is no showing that he was thereby prejudiced in any manner. There is nothing to indicate that notice would have enabled him to present anything additional to sustain his view. In fact, he was the one that brought the controversy with the other trustees to a head by petitioning the court for instructions, and the chancellor gave instructions to the effect that Mr. Wright should henceforth handle the litigation.

Undoubtedly in the circumstances the chancery court has the power to appoint an additional trustee. In Scott on Trusts, 2d Ed., Yol. 1, p. 791, it is said: “The court, it would seem, may in exercise of a sound discretion appoint an additional trustee, even though there is no vacancy, where such appointment appears, to be conducive to the better administration of the trust.” And in Bogert on.Trusts and Trustees, Vol. 3, p. 310, it is stated: “And, in cases in which a trustee becomes possessed of a temporary adverse interest but is otherwise competent in every way, suspension until the termination of the adverse interest might prove extremely useful..”

- Mr. Selig contends that he is entitled to his costs, including his attorney’s fee incurred in connection with his resistance to the substitution of Mr. Wright as trustee to conduct the litigation before the court. And we are of the opinion that he should be sustained on that point. No action was actually instituted asking that an additional trustee be appointed for the purpose of conducting the pending litigation. Selig filed a request for instructions, and in the course of. that hearing the trial court reached the conclusion that it would be better to appoint a substitute trustee. It was then that Selig filed his petition for a writ of certiorari, and this Court thought there was enough merit to the petition to order that the record be sent up for review. In these circumstances we are of the opinion that Selig should not personally have to stand the expenses, including his attorney’s fee, growing out of the petition for certiorari. The trial court is therefore directed to allow Mr. Selig his actual expenses incurred in the certiorari proceeding, including a reasonable attorney’s fee, to be paid by the testamentary trust. We hasten to add, however, that neither the testamentary trust nor Foundation will be liable for any additional expense that Mr. Selig may incur in connection with the pending litigation.

The order of the court appointing Mr. Wright trustee ad litem is affirmed.

Carleton Harris, C. J., not participating. George Eose Smith and' Johnson, JJ., dissent.

George Eose Smith, J.,

dissenting. The material facts are not in dispute. Four of the five trustees of the Foundation brought suit to recover valuable property held by the testamentary trust. Selig, one of the three testamentary trustees, doubted the validity of the Foundation and consequently doubted its legal right to be recognized as a beneficiary of the testamentary trust. Selig accordingly suggested that the legal existence of the Foundation be put in issue. His two co-trustees, however, considered the Foundation to be a valid trust and refused to join in an attack upon its beneficial interest in the testamentary trust. At this stage of the proceedings there is certainly no reason to doubt the good faith of any of the three testamentary trustees.

Since private trustees, as distinguished from charitable trustees, must act unanimously, it is necessary for them to apply to the court for instructions when a disagreement creates an impasse. Eest., Trusts, § 194. Moreover, a trustee is entitled to the court’s instructions “in respect to such matters as . . . who are beneficiaries of the trust.” Eest., § 259. Thus Selig had a twofold duty to ask the court whether the validity of the Foundation should be put in issue.

When Selig’s petition for instructions came on to be heard, the court simply removed all three testamentary trustees, as far as this case is concerned, and appointed' Mr. Wriglit as trustee ad litem to conduct the litigation. No instructions were given to any one, even to Wright. He was left to handle the case as he thinks best, though the ousted trustees were given permission to participate as individuals and in that capacity to present any contentions they choose. Thus Selig’s reward for performing his duty in the matter was his temporary removal from his trusteeship.

In approving what I regard as an unprecedented and erroneous action by the trial court the majority seem to rely upon two considerations. Primarily, the opinion emphasizes certain familiar duties of every trustee, such as his duty to act impartially toward all the beneficiaries and his duty to avoid any conflict between his personal interest and his obligations as a fiduciary.

I wholly agree with these principles of law, but they are not really pertinent to this case. That Selig is a trustee and his wife a beneficiary of course creates a conflict of interest, but it is one that the law permits, and properly so. If the trustee’s relationship to a beneficiary disqualifies him from acting, then no man can serve as trustee when the beneficiaries include his wife or child and some third person. It goes without saying that the law has not heretofore taken that untenable view. As a matter of fact, it is perfectly permissible for a trustee to be also a beneficiary of the trust, even though a certain conflict of interest undeniably results. Rest., Trusts, § 99.

That the conflict exists is not in itself a basis for removing Selig. If the conflict adversely affected the rights of the other beneficiaries it would be a different matter, but that is not the case. This is a truly adversary proceeding, in which every one concerned is represented by capable counsel. The decision will ultimately be made by the court, not by an interested trustee, and the outcome does not depend upon whether the issues are raised by Selig as trustee, by Wright as trustee, by Selig as an individual, or by another party to the case.

Selig’s duty to act with impartiality toward all the beneficiaries is likewise irrelevant. If tbe Foundation is really void, as Selig contends, bis duty requires tbat be protect tbe other beneficiaries against tbe claims of this fictitious entity. Apparently Wright also intends to require tbe Foundation to prove its validity, but Wright will not be removed for demanding tbat bis adversary prove its case. To require a supposed beneficiary to show tbat be is not an impostor does not seem to me to be a violation of tbe trustee’s duty to act impartially.

Secondarily, tbe majority express a fear tbat tbe court will be unduly burdened with requests for instructions in tbe course of tbe litigation. So far tbe only question asked has been whether tbe validity of tbe Foundation should be put in issue, and tbat point is evidently going to be litigated. It seems unlikely tbat any other instructions will be necessary, but even if tbe requests should prove to be numerous it is tbe chancellor’s responsibility to provide tbe answers.

To sum up, I think tbe chancellor’s action was erroneous, whether it be regarded as essentially an order of removal or an order of appointment. Tbat Selig was related by marriage to beneficiaries of tbe testamentary trust is undoubtedly a matter tbat tbe settlor of tbe trust took into consideration and is certainly not a ground for disqualification. On tbe other band, I do not see tbat Wright’s appointment accomplishes any worthwhile purpose, for be is not in a position to raise any issues tbat would not be presented in any event by tbe ousted trustees or by tbe other parties to tbe suit. It seems to me tbat tbe litigants should be left free to conduct their own lawsuit.

Johnson, J., joins in this dissent.


source: Caselaw Access Project

author: Jim Johnson, Associate Justice.

license: Public Domain

text:
    Armstrong v. Lloyd.
    5-1746
    321 S. W. 2d 380
    Opinion delivered March 9, 1959.

      Bernard Whetstone and Joe B. Hurley, for appellant.

      Melvin E. Mayfield and Surrey E. Gilliam, for appellee.
   Jim Johnson, Associate Justice.

This is an appeal by the plaintiffs below from an order sustaining a demurrer to their complaint insofar as the allegations and prayer for double damages were concerned.

The action was for damages for the negligent burning of the plaintiffs’ dwelling, contents, shrubs, and surrounding trees.

There was a complaint filed praying for double damages to which there was a demurrer to the double damage part, which was sustained, and, plaintiffs electing to stand on the complaint, the cause was, as to double damages, dismissed with prejudice.

Plaintiffs appealed that Order praying a ruling of this Court on the double damage feature of the case in advance of the trial of the single damage feature.

The appellants urge only one ground for reversal; that the allegations of the complaint clearly bring appellants within the provisions of the Act providing for double damages.

The substance of the complaint is set out in the following 11 paragraphs:

(1) Plaintiffs are the owners of the North 80 feet of Northeast of the Southeast of the Southeast in 10-18-15, Union County, as well as a great deal of additional land adjacent thereto (however, the above described tract is all that is pertinent to the present litigation).

(2) Most all of the land surrounding the above described property for some distance in all directions is forest timbered land and is located immediately west of Highway 167 approximately a mile and one-half south of El Dorado on the Junction City Highway.

(3) Plaintiffs E. A. Armstrong and Marie Armstrong, and defendants W. M. Lloyd, W. M. Lloyd, Jr., and Mrs. "W. M. Lloyd Jr., were, up to the incident about to be described in this present complaint, next door neighbors residing in their respective houses which were situated on the edge but within the above described forest timbered land, all residences facing east with the W. M. Lloyd, Jr., home being in the middle and the Armstrong home being on the north.

(4) On March 22, 1958, at approximately 11:00 a. m., the defendants had one of their employees, Rosie Mae Jackson, burning trash in the yard in the rear between the two dwellings owned by the two Lloyds and adjacent to the Armstrong residence. There was a high wind from the south at the time, the grass was dry between the houses, and Rosie Mae Jackson built this trash fire, left it unattended, and went back into the home of the defendants. The fire moved northward across the grass to the dwelling of the plaintiffs Armstrong, the Armstrongs being away from home at the time, which fact was known to the defendants, and the home of the plaintiffs Armstrong caught fire and was completely destroyed, along with all of its contents.

(5) Any fire anywhere about the premises of either of the dwellings was a hazard to the forest and timber lands surrounding these dwellings, as well as to any or all of the dwellings located therein.

(6) This was particularly true on account of the dry grass, weeds, and underbrush, which are natural in such an environment.

(7) The fire, which was set by defendant’s agent, Rosie Mae Jackson, spread out and became a general grass and forest fire to the extent of one hundred yards or more in both directions behind the houses of the pai*ties.

(8) All of this was completely obvious to the defendants and their employees in and about their homes and yards.

(9) The defendants, through their employee, Rosie Mae Jackson, who was acting within the scope of said employment, were negligent in the following, all of which combined to be the sole proximate cause of the destruction of fire on that occasion of the Armstrong home and its contents and the damage to the trees and shrubbery of the plaintiffs:

“ (a) Setting on fire or causing or procuring to be set on fire, forest, brush or other inflammable vegetation on lands not their own.
“(b) Allowing fire to escape from the control of the person building or having charge of the fire, and more particularly, to the land and buildings of these plaintiffs.
“(c) Burning brush, rubbish, grass, stubble and debris without taking necessary precaution both before lighting the fire and at all times thereafter to prevent the escape thereof.
“(d) Building a fire upon lands, not their own, without clearing the ground immediately around it free from material which would carry fire, and leaving thereon a fire to spread thereon, and by throwing a lighted match, or in some other manner starting a fire in forest material not his own and leaving same unextinguished.
“(e) By creating a public nuisance by starting a fire on forested and grasslands and allowing it to burn uncontrolled and thereby creating a menace to life and property, and particularly to the property of these plaintiffs.
“(f) By starting or being responsible for a fire that occasioned damage to these plaintiffs.
“(g) In burning trash at that time and place under any circumstances on account of the high wind and the dry grass.
‘ ‘ (h) In allowing high grass, weeds, leaves, and trash to be placed upon and to remain and exist at, upon and adjacent to the Armstrong home, and particularly when there was a trash burner joining said existing grass, weeds, etc.”

(10) As a result of the negligence of the defendants, plaintiffs suffered the complete loss of their home and its contents. In addition, the flowers and shrubs, which were extensive, were either destroyed by the fire or so damaged as to make them of no further value whatever, and several shade trees in their yard were damaged. The damage thus suffered by plaintiffs is $15,000.00.

(11) Plaintiffs pray that judgment be rendered against the defendants in the amount of $30,000.00 (double, as provided for by Section 41-510), together with their costs and all other proper relief.

The pertinent parts of Section 41-507, Ark. Stats, (which was Act 85 of the Fiftieth General Assembly of 1935 and titled “An Act to Protect the Forest of the State,” the Act under which this action was brought) are as follows:

“The following acts shall be misdemeanors . . .
“Setting on fire or causing or procuring to be set on fire any forest, brush or other inflammable vegetation on lands not his own.
“Allowing fire to escape from the control of the person building or having charge of the fire, or to spread to the lands of any person other than the builder of the fire.
“Burning any brush, stumps, logs, rubbish, fallen timber, grass, stubble or debris of any sort, whether on his own land or that of another without taking necessary precaution both before lighting the fire and at all times thereafter to prevent the escape thereof. The escape of such fire to adjoining timber, brush, or grass lands shall be prima facie evidence that necessary precautions were not taken.
“Building a camp fire upon lands, not one’s own, without clearing the ground immediately around it free from material which will carry fire, or leaving thereon a camp fire to spread thereon or by throwing away a lighted cigar, match, cigarette, or by the use of firearms or in any other manner starting a fire in forest material not his own and leaving the same unextinguished.
“Any fire on any forested, cutover, brush lands or grasslands burning uncontrolled is hereby declared a public nuisance by reason of its menace of life or property. Any person, firm or corporation responsible for either the starting or the existence of such fire is hereby required to control or extinguish it immediately and if said person, firm or corporation shall refuse, neglect or fail to do so, any organized fire suppression force may summarily abate the nuisance thus constituted by controlling or extinguishing the fire and the cost thereof may be recovered from said responsible person, firm or corporation by civil action.”

On oral argument, both sides conceded that Act 85 was not adopted from any other jurisdiction. In the absence of precedent directly in point on the question raised here, we must look to the reasoning set out in the two prior cases wherein this Court had occasion to construe this Act.

In the first case, Missouri Pacific Railroad Company v. Lester, 219 Ark. 413, 242 S. W. 2d 714, this Court said: “Not only the title of the Act bnt the entire wording, in onr opinion, shows that it was intended to deal with damages to property and not personal injuries.”

The only other case construing this Act is Lamb v. Hibbard, 228 Ark. 270, 306 S. W. 2d 859, which was handed down in the fall of 1957. The facts in that case were that the Appellee had a blowout on the highway; his tire caught fire causing his gasoline truck to explode, throwing burning gasoline upon appellant’s land next to the highway. The fire, fanned by a strong wind, burned across a pasture, and killed some trees and destroyed a barn containing furniture and farm equipment.

Apparently no contention was made that the double damage statute did not apply.

This Court said: “Taking the statute as a whole, we find no reason to think that the legislature meant to create a new basis for liability without fault or to permit the recovery of double damages for conduct falling outside the scope of the criminal provisions of the act.”

Following the reasoning of the Court in this case, we must conclude that any conduct falling within the scope of the criminal provisions of the Act, permits recovery of double damages.

The decisive question then is: Taking the complaint in its entirety, has appellant stated a cause of action which comes within the purview of the statute above quoted? We do not think the answer to this question is clear. The reason is that the statute deals primarily with protection of the forests of the state and not primarily with doubling the damages recoverable for negligence. The title of the said act, heretofore set out, specifically so states. There are also other indications that the Act deals primarily with the protection of forests. (1) Section 9 of Act 85 of 1935 repeals Sections 2427, 2428, 2429, and 2431 of Crawford and Moses’ Digest. Reference to these sections discloses that they deal with “woods” and “marshes.” (2) The sections just referred to were taken from an act passed in 1875, approved February 3, 1875 (shown at pages 128 and 129 of Acts of 1874-6). The title of this act reads: “An Act to prevent the firing of woods, marshes, and prairies. ’ ’

From the foregoing it appears too clear for argument that not every case involving the negligent burning of a house invoices the statutory penalty of double damages. Whether a given situation comes within the purview of the questioned statute therefore becomes one of fact.

Since the question of the application of this act comes to us on a demurrer, we have concluded that the cause should be sent back for a complete development of all pertinent facts relative to the application of the statute in question.

For the above purpose, the cause is reversed.


author: Carleton Harris, Chief Justice.

text:
    Pharris v. Vanderpool.
    5-1778
    321 S. W. 2d 757
    Opinion delivered March 16, 1959.

      Rex W. Perkins and E. J. Ball, for appellant.

      W. B. Putman, for appellee.
   Carleton Harris, Chief Justice.

On March 28,1958, appellants instituted suit against appellees, alleging that on March 23, 1946, the Whorton Canning Company and appellees entered into a lease agreement for certain real estate; that on March 28, 1947, the Whorton Canning Company assigned the lease agreement to appellants, and that appellants had, from that date on, complied and performed all the terms and conditions of the lease; that notwithstanding their compliance, appellees had constructed across the roadway leading to appellants’ canning plant an obstruction, and had refused appellants the right to operate their canning plant on said lands. They further alleged no adequate remedy at law, and prayed that a temporary order be issued directing appellees to remove the obstruction from across the roadway, and to permit appellants to have access to the canning factory, and that “upon a final hearing of this cause, that the temporary order be made permanent and for all other and further relief to which in full equity said plaintiffs may be entitled.” On the same date, the chancellor entered a temporary restraining order as prayed, upon the making of bond by appellants. Appellees answered, denying the material allegations of the complaint and further alleged inter alia that the alleged lease agreement was null and void; that any rights held by appellants were barred by laches and estoppel; the terms of the agreement had been violated because the rental had not been paid; that the premises had not been used for a canning factory as agreed between the parties, and the alleged lease agreement had been abandoned by the lessees, their successors and assigns. On July 14th, the cause proceeded to trial, and at the conclusion of appellants’ testimony, appellees filed a written demurrer to the evidence. The court sustained such demurrer, and dismissed appellants’ eomplaint. From such action of the court, comes this appeal.

The hearing before the court was devoted to an attempt by appellants to establish their right to operate the canning plant under the provisions of the lease. Appellees took the view that appellants held no valid assignment, and certain documentary evidence relating to this point, offered by appellants, was excluded by the court. However, oral testimony was admitted which reflected that appellants had been operating the canning factory described in the complaint and lease. Evidence was also offered through Mr. Yanderpool, one of the appellees (placed on the stand by appellants), that Yanderpool had accepted rent from appellants for the lease of the plant. The testimony which was admitted was probably sufficient to place in issue the question of whether appellants had a legal right to operate the premises, but even so, appellants are not entitled to relief.

The gravamen of the complaint is that appellees have erected certain obstacles across the road leading to tJbe factory building, thus interfering with appellants’ access to the building, and the prayer is that appellees be enjoined from obstructing such roadway and from interfering with such access to the building. The record does not reflect one iota of evidence relating to any obstruction, nor was there any offered proof that appellants had been denied access to the building. In other words, though we should consider that all evidence offered by appellants was competent and admissible, such proof would only establish, at the most, that appellants have a lease on the canning factory plant, and the land upon which it is located. There was no proof of injury, or interference with any rights arising out of the lease. Appellants state that “denial by the court of appellants’ proof of ownership of the lease and full compliance therewith, prevented the appellants from offering proof of an obstruction to their right of ingress and egress to and from the canning factory situated upon the leased premises,” but we are unable to see that the court’s ruling, excluding certain evidence, prevented appellants from fully developing their cause of action. Had this proof been offered, the entire record relating to the ownership of the lease and the violation of appellants’ rights by appellees would be before us, but there is nothing in this record that would justify any injunctive relief.

Appellants argue that the trial court sustained the demurrer to appellants’ evidence solely upon the basis that appellants did not have an assignment of the Vanderpool lease. However, it makes little difference as to the reasoning used by the trial court, for it is settled law that though a chancellor bases his decision on erroneous grounds, his findings will not be reversed if such findings can be sustained on some other ground justified by the entire record. McCrite v. Hendrix College, 198 Ark. 1149, 133 S. W. 2d 31.

The decree is affirmed.


author: J. Seaborn Holt, Associate Justice.

text:
    Allison v. Allison.
    5-1790
    321 S. W. 2d 760
    Opinion delivered March 16, 1959.

      Amis Guthridge and L. B. Smead, for appellant.

      Spencer «& Spencer, for appellee.
   J. Seaborn Holt, Associate Justice.

The parties here are the parents of five children; a hoy 17, a girl 14, a girl 12, a boy 7 and a girl 4. Appellant left his family, and his wife sued him for support and maintenance for their children. The trial court, in July 1957, upon a hearing, ordered appellant to pay $50.00 per week. It appears that he made these payments but on the third of September, 1958, he presented his petition to the court for a reduction of these payments from $50.00 to $35.00 per week on the ground that he was unable to pay as much as $50.00 per week. The trial court denied appellant’s petition and in summation of the case said:

“In cases of this kind, there are two things to take into consideration: one is the ability of the husband to pay and the other is the need. I am sure everyone agrees $50 a week is not too much for the needs of this wife and five children. The other thing is his ability to pay. The Court took those two things into consideration when I made my order of July, 1957. That order was made and a short time after a petition was filed for contempt of court. The Court found that he was in contempt but to try to help him didn’t order any punishment for him. In open court, he made the remark he didn’t intend to pay it. I ordered the sheriff to put him in jail and hold him until bond was executed insuring payment of $50 a week until amount in arrears was paid. As I recollect he was permitted to pay the amount in default something like in $25 or $30 payments. Because of his statement in court, I had no other recourse except to order him placed in jail and held until he executed bond. Before the Court can reduce the payments there must be some showing of change of circumstances. The only change I see is a change for the worse in her circumstances inasmuch as the wife was working and today she doesn’t have that income. There is no change to justify the Court in reducing these amounts, and I will have to deny your petition.”

Our rule is well settled throughout our decisions that a chancellor has the continuing power to modify an award for maintenance and child support, but the rule is also clearly settled that this power to modify may be exercised only on a showing of changed conditions subsequent to the entry of the original award or decree as would warrant modification. Warren v. Warren, 215 Ark. 567, 221 S. W. 2d 407.

On the record presented, we hold that the court correctly held that appellant has failed to show his inabilility to pay or that his family’s needs are now any less than when the original award was made. Appellant has been working for the Worsham Wholesale Company in El Dorado for about five years as a salesman. He was furnished a truck by the company, along with oil and gas. He took a supply of groceries and merchandise in the truck and made calls on various grocery stores and cafes, delivering the sales from his truck as he sold. He was selling on a commission basis and it appears that his earnings amounted to approximately $65.00 a week, out of which he was paying his expenses of about $15.50 a week, together with $50.00 per week for the support of his family. He was allowed a $65.00 per week drawing account. He had no expense account but the company, as indicated, furnished the truck, paying all expenses connected with its operation — repairs, oil, gas, tires, battery, etc. Appellant was away from home only one night a week. Appellant admitted that he owned no automobile of his own but was operating, and had at his disposal, a car furnished to him and owned by a lady in Monticello, Arkansas and that she paid all expenses of operation.

It appears undisputed that at the time of the original award of $50.00 per week, Mrs. Allison (appellee) was then working for an ice cream plant and earning $30.00 per week but that a few months later the plant cut down on its employees and let Mrs. Allison go, so that the only change in conditions since the original award was made (as stated by the court) is that Mrs. Allison’s condition is worse now than it was then, while that of Allison appears to be unchanged. She testified that under present conditions, with the needs of the family mounting, she could barely make ends meet on $50.00 per week. We conclude therefore, as indicated, that there has been no showing of a change in conditions that would warrant modification of the original order and accordingly, the decree is affirmed.

Robinson and Johnson, JJ., dissent.


author: Ed. F. MoFaddin, Associate Justice.

text:
    Malone v. Riley.
    5-1756
    321 S. W. 2d 743
    Opinion delivered March 16, 1959.

      M. V. Moody and Joseph Brooks, for appellant.

      Wright, Harrison, Lindsey & Upton, by Ronald A. May, for appellee.
   Ed. F. MoFaddin, Associate Justice.

Malone, a pedestrian, was struck by Riley’s car at a street intersection in Little Rock. Malone filed action for damages; and from the jury verdict in favor of Riley, Malone brings this appeal, urging the points now to be discussed:

I. Malone says-. “The Court erred in revising plaintiff’s attorney the right to seek out through questioning any and all persons on the jury, insured with any mutual benefit company iohere premiums were de termined upon the sise of judgments given in personal injury actions for the previous year.”

We see no merit in this assignment. The Court allowed the attorney for Malone to interrogate the prospective jurors on their voir dire:

“Are any of the jurors working for or have yon been working for or do any of yon or any of your kins-people work for Travelers Insurance Company? Are any of the jurors employed by a liability insurance company or engaged in the insurance business? Have any of you ever been employed by a liability insurance company or do you own any stock in a liability insurance company at the present time?”

Some of our more recent cases involving the permissive extent to which counsel may go in the voir dire examination of jurors as regards insurance connections, are: Dedmon v. Thalheimer, 226 Ark. 402, 290 S. W. 2d 16; De Long v. Green, 229 Ark. 100, 313 S. W. 2d 370; and Morgan v. Daniels, 229 Ark. 811, 318 S. W. 2d 823. The naming of the Travelers Insurance Company in the voir dire examination was more than Malone’s attorneys were entitled to. The situation in the case at bar is entirely similar to that in Morgan v. Daniels, supra; and that case is ruling here.

II. Malone says: “The Court erred in allowing continual examination of plaintiff on a number of misdemeanors over the constant objection of plaintiff’s attorney that he was doing it to prejudice the jury and that some ashed about were too remote in time to be considered.”

In the voir dire examination of the jury, Malone’s attorney asked if any of the jurors would be prejudiced against Malone because he had been convicted for drunkenness. After the jury was empaneled, the trial proceeded and Malone testified as a witness in his own behalf. Riley’s attorney then asked Malone on cross-examination as to his specific convictions for law violations; and the Trial Court told the jury:

“In connection with this testimony, let me admonish you that it is admitted not for the purpose of establishing liability or going to the merits of the case that is on trial here today, but it is admitted as going to the credibility of this witness and for no other purpose, and that is the reason that it is being admitted. All right, you may proceed. You will consider it only for that purpose as only going to the credibility of this witness.”

In the light of the limitation placed on the cross-examination by the Trial Court, we find no reversible error. Section 28-605 Ark. Stats, says: “. . . evidence of his former conviction of any crime by a court of this or any other state, territory or the United States, shall be admissible for the purpose of going to Ms credibility or the weight to be given to his testimony.” See Bockman v. Rorex, 212 Ark. 948, 208 S. W. 2d 991.

III. Malone says: “The Court erred in allowing doctor who had attended plaintiff to testify with regard to hearsay evidence contained in the Medical Record and to other things which plaintiff’s doctor did not bring up when he testified.”

Malone called Dr. Logue, who had treated Malone and who testified as to the extent of his injuries, etc. Then Eiley called Dr. Eiggs; and it is about the testimony of Dr. Eiggs that Malone objects. Malone had been injured a few minutes after midnight of the New Year. The ambulance carried him to the emergency room of the University Hospital; and Dr. Eiggs was the physician on duty. The Court permitted Dr. Eiggs to testify as to his examination of Malone and his findings as to Malone’s condition. This was entirely proper because Malone had previously called Dr. Logue; and the applicable statute (§ 28-607) reads in part:

“. . . Provided, if two or more physicians or nurses are, or have been in attendance on the patient for the same ailment, the patient by waiving the privilege attaching to any of said physicians or nurses, by calling said physician or nurse to testify concerning said ailment, shall be deemed to have waived the privilege attaching to the other physicians or nurses.”

At one place in his testimony,' Dr. Eiggs said the policeman told him that Malone was struck by a car; and the Court promptly — and correctly — ruled that such remark was hearsay; but the Court correctly allowed Dr. Riggs to testify as to what he found Malone’s condition to he when Dr. Riggs examined him.

IY. Instructions. The record discloses that every phase of the case was covered by the Trial Court’s instructions, and Malone complains of only two of the number that were given. One related to the conduct of one confronted by a sudden emergency and was patterned after a somewhat similar instruction set out in our opinion in the case of Coca-Cola Bottling Co. of Blytheville v. Doud, 189 Ark. 986, 76 S. W. 2d 87. The other instruction, complained of by Malone, told the jury that Riley would not be liable unless he had been negligent. This instruction referred to the traffic mishap in which Riley had struck Malone as an “accident”; and Malone’s specific objection to the instruction was: “. . . there is no testimony in the record which would tend to show that the accident was unavoidable.” The use of the word “accident” was unfortunate, because the case was not tried on the theory of unavoidable accident; but since Malone’s attorney used the word “accident” in its popular sense of “mishap,” he cannot now claim that the Court should have corrected even his own verbiage. To set out these two instructions and discuss them in detail would serve no useful purpose. While we would not approve either as a model for clarity or verbiage, nevertheless we conclude that neither was fatally defective as against the objections offered to it.

Finding no reversible error, the judgment is affirmed.

       Black’s Law Dictionary defines voir dire: “. . . the preliminary examination which the Court may make of one presented as a witness or juror . . .”

       Here is the interrogation of Malone’s attorney on the voir dire: “Ladies and gentlemen, I have a client who has had prior convictions for being drunk, two or three or four or five convictions for being drunk. This will be brought into you as a defense in the case, that he has been drunk numerous times and has been brought in; and testimony will be presented to you about him being drunk. I want to know if you at this time from the fact he has been drunk, if that would affect your verdict in this matter or whether you would just try the case on the fact of the negligence between the man who struck my client with an automobile at the intersection of 10th and Broadway. If you would go back in the jury room and say, ‘Well, he has been drunk’ — I want to know if that would prejudice your minds in giving a fair decision according to the proof and evidence in the case. If it would, I would like to know at this time. I want to know if it would affect your verdict or would you try it on the evidence at this time. Do you think it wouldn’t prejudice you in any manner, a man being drunk, drunk previous to this? I think that is all, Judge.”

       Here are pertinent portions of the testimony of Dr. Eiggs:
      “Q. Did you make a record of the time he was admitted to the emergency room?
      A. Yes, sir, we always make a short sketch of the patient as he is admitted. The findings and the complaints and disposition when he comes in.
      Q. Eeferring to records you made when he came in, will you tell the jury what you found upon his arrival at the hospital?
      A. The patient apparently arrived at the emergency room at 1:33 A.M. That time is stamped on the emergency room sheet which is a red sheet and then the next note or the only note that is made is mine. We don’t have sufficient number of interns and you have to make the original note and I noted here on January 1, ’58, a 44-year-old colored male, drunk, ... I testified that he was drunk, 44-year-old male, drunk, ... I have here: ‘Patient is crazy drunk and/or has hallucinations, gives wild story about being in Korean War . . . Blood pressure 125 over 90. Pulse, 96. Well developed, well nourished colored male, drunk, loudly complaining, says he has been shot. Examination of the eyes, ears, nose and throat, a prosthesis on the right.’ . . . He had an artificial right eye. ‘Trachea, midline. Head and neck, no trauma . . . Heart, no significant abnormalities. Abdomen, nor marks of trauma, soft, nontender. Hyperactive bowel sound.’ . . . My next note in the chart after I had seen the X-rays, X-ray showed fractured pelvis through the acetabulum on the right with minimal deformity. Chest is clear. .Will observe through the night and not try to do further studies until he has sobered up and calm.”

       In Pinchback Planting Co. v. Cloud, 228 Ark. 31, 305 S. W. 2d 552, we discussed the difference in the meaning of the word “accident” in negligence cases, as compared to common parlance.


author: George Bose Smith, J. George Rose Smith, J., J. Seaborn Holt, J.,

text:
    McCoy v. Anthony Land Company, Inc.
    5-1754
    322 S. W. 2d 439
    Opinion delivered March 16, 1959.
    [Supplemental opinion on rehearing delivered April 20, 1959]

      J. 8. Broohs and Spencer & Spencer, for appellant.

      J. Hugh Wharton and J. R. Wilson, for appellee.
   George Bose Smith, J.

In 1957 the appellants obtained a decree quieting their title to an eighty-acre tract which we may describe merely as the west half of the northeast quarter. Neither the appellee nor its immediate predecessors in title were made parties to the suit, although they were the record owners of approximately the north 40.45 acres of the tract, their part being the north forty acres and the north fifteen feet of the south forty acres. A few months after the decree was entered the appellee filed its present complaint, asking that the decree be set aside insofar as it purported to affect the appellee’s land. After an extended hearing the chancellor granted the relief sought by the appellee. In contending for a reversal of the decree the appellants insist that they have acquired title to the entire eighty acres by adverse possession.

Many years ago these eighty acres and other adjoining lands were owned by the McCoy (or McCorvey) family. In 1930, however, the lands were divided by a partition decree which may be regarded as the present litigants’ common source of title. With respect to the eighty acres now partly in question we need only say that (a) the north 40.45 acres, now claimed by the appellee, were allotted to the appellee’s predecessors in title, (&) 20.97 acres, lying south of the tract just mentioned, were allotted to Wood and Fur low, and (c) 7 acres, also lying south of the first mentioned tract, were allotted to Jeannie McCoy, the appellants’ mother. In 1941 Jeannie McCoy executed to the appellants a deed purporting to convey the entire eighty acres, though the grantor had record title only to the seven acres referred to in (c), above.

In asserting title to the entire eighty acres the appellants make only two contentions, both involving adverse possession.

First, it is said that the proof establishes actual possession by the appellants for more than seven years before the appellee’s complaint was filed. We think the weight of the evidence to.be rather clearly against this contention. According to the testimony of the appellee’s witnesses the 40.45-acre tract now in dispute has been wild and unimproved at least since Frank Anthony bought it in 1942. The various Anthony owners, engaged in the lumber business, have treated the tract as timberland, have marked their lines by painting trees along the boundaries, and have had the land inspected frequently. Their overseers state positively that the tract has been wild and unimproved through the years, unfenced and uncultivated. It is conceded that the Anthonys have paid the taxes every year since 1942.

The appellants’ testimony falls decidedly short of rebutting the appellee’s proof. Several of the McCoys say that the family has been in continuous possession of the eighty acres since 1941, but this assertion merely reflects a state of mind unsupported by acts of physical dominion over the property. There is no indication of actual possession on their part except for statements that they cut timber anywhere on the eighty acres whenever they wanted to. The evidence does not show that the cutting of timber was ever so extensive or so continuous as to put the true owners on notice that the land was adversely occupied. Earle Imp. Co. v. Chatfield, 81 Ark. 296, 99 S. W. 84; Sanderson v. Thomas, 192 Ark. 302, 90 S. W. 2d 965. Upon a single occasion the Mc-Coys stopped the appellee’s logging operations on the 40.45 acres, but this happened only two years before the appellee filed this suit.

Secondly, the evidence, which is similar to that adduced when the court quieted the appellants’ title in 1957, shows that the McCoys have had actual possession of the 20.97-acre parcel that was allotted to Wood and Furlow by the 1930 partition decree. See Wood v. McCoy, 228 Ark. 880, 311 S. W. 2d 755. From this proof it is argued that the actual possession of part of the eighty acres gave the appellants constructive possession of the whole, since the entire eighty was described in the deed they received from Jeannie McCoy in 1941.

The rule that one’s actual possession is constructively extended to the limits of his color of title is not applicable here, for the 40.45-acre tract and the 20.97-acre tract were separately owned. The controlling distinction was well stated in Haggart v. Ranney, 73 Ark. 344, 84 S. W. 703: “If A under a deed describing a tract of 80 acres of land owned by B, but not in his actual possession, enters and holds actual possession of a part, claiming the whole, his possession will be deemed to include the entire tract to the limits of the boundaries described in his deed; but if C owns 40 acres of the land, and A has no actual possession of any of that part owned by C, his actual possession of a part of B’s land will not draw to it the constructive possession of the tract owned by C, even though it be within the limits of the boundaries described in the deed.” The rule that governs when the tracts are separately owned is both practical and just, for otherwise the owner of wild land would be compelled to seek out and examine the color of title held by every newcomer taking possession of other land in the vicinity, lest the latter’s actual possession be constructively extended to destroy the former’s title.

Affirmed.

Holt, J., dissents.

George Rose Smith, J.,

on rehearing. In a petition for rehearing the appellants insist that the rule of Haggart v. Ranney should not be applied in this case, for the reason that in 1941 and 1942 J. R. Wilson, one of the appellee’s predecessors in title, was the owner of the 40.45-acre tract and was also the owner of an undivided one-third interest in the 20.97-acre tract. It is accordingly argued that the two parcels had a common owner, so that the rule of Haggart v. Ranney is inapplicable.

Assuming that this contention may be presented for the first time on rehearing, the present petition does not sufficiently show that Wilson had any interest in the 20.97 acres, nor are we referred to such proof in the appellants’ abstract or in the record, as Rule 20 (h) requires. The record shows, as we stated in the original opinion, that in 1930 the 20.97-acre tract was allotted to Wood and Fnrlow. To show Wilson’s supposed ownership the appellants now refer us to certain tax receipts in which he is listed as an owner, along with Wood and Furlow, but a mere tax receipt does not establish ownership. We are also told that Wilson was a plaintiff in the related case of Wood v. McCoy, cited in our original opinion, but that fact alone does not prove his ownership, and we cannot explore the record in that appeal, for we do not take judicial notice of the facts in other cases in this court. Murphy v. Citizens’ Bank of Junction City, 82 Ark. 131, 100 S. W. 894, 11 L. R. A. N. S. 616, 12 Ann. Cas. 535.

The petition for rehearing is denied.

J. Seaborn Holt, J.,

dissenting. I feel very strongly that the preponderance of the testimony in this case supports appellants’ contention that they have acquired title to all of the 80 acres of land involved here by adverse possession.

The father and mother (Negroes) of the appellants here, Robert, Kine, Frank, Nettie, Jimmie and Lee McCoy, in 1941 deeded to them the W% of the NE14 of Section 35, Township 16, Range 14 West, 80 acres. This deed was recorded December 1,1941. The father and mother of these appellants had been in possession of this 80-acre tract since 1933 and their children, upon receipt of the above deed, took possession and have been on the land and in possession until the present time. The record reflects that in 1944, J. R. Wilson and others filed suit against these same appellants seeking to quiet title to a tract containing 20.97 acres, carved out of this 80-acre tract. Frank and Aubra Anthony (appellees here) were made parties to this Wilson 1944 suit and although they were never served with summons, the evidence clearly shows that they had knowledge of that suit.

In that suit these McCoy children answered, alleging title to the entire 80 acres involved here and asking that their title be quieted to all of it. Trial resulted in a decree quieting the title of appellants in the entire 80 acres and specifically in the 20.97-acre tract directly involved. That decree was based on the actual adverse possession of appellants for more than the statutory period of seven (7) years. The decree contained these recitals:

‘ ‘ From all of the above the court being now well and sufficiently advised, finds: That Jeannie McCoy (MeCorvey) and Henry McCoy (McCorvey) took possession of the W% of the NE1/^ of Section 35, Township 16 South, Range 14 "West, in 1933, and remained in open, peaceable, notorious, continuous and hostile possession of the above described lands until they conveyed said property to Robert McCoy, Kine McCoy, Frank McCoy, Nettie McCoy, Jimmie McCoy and Lee McCoy, on December 1,1941.
“That subsequent to December 1, 1941, the grantors in said deed remained in adverse possession of the W% of the NE% of Section 35, Township 16 South, Range 14 West, and have continued to remain in adverse possession of said lands until the present time.
“That at the time of the filing of this suit in 1944, title in and to the above described property had already vested in the defendants, Robert McCoy, Kine McCoy, Frank McCoy, Nettie McCoy, Jimmie McCoy and Lee McCoy on account of their adverse possession and the adverse possession of their grantor—
“That the defendants, Robert McCoy, Kine McCoy, Frank McCoy, Nettie McCoy, Jimmie McCoy and Lee McCoy, are entitled to have their title in and to the above described lands quieted and confirmed in them as against all claims of the plaintiffs. That the complaint of the plaintiffs should be dismissed for want of equity and the defendants are entitled to their costs.
“It is, therefore, by the court considered, ordered, adjudged and decreed that the complaint of the plaintiffs be and the same is hereby dismissed for want of equity and the title in and to the W% of the NE% of Section 35, Township 16 South, Range 14 West, is hereby quieted and confirmed in the defendants, Robert McCoy, Kine McCoy, Frank McCoy, Nettie McCoy, Jimmie McCoy and Lee McCoy, as against the plaintiffs, N. N. Wood, W. L. Fur-low, Aubert Martin and J. R. Wilson, which tract includes the 21-acre tract specifically claimed by the plaintiffs,

It appears that prior to the 1944 suit supra J. R. Wilson and others on November 7,1942 conveyed a portion of this 80-acre tract (approximately 40 acres) to Frank Anthony, a partner in the Anthony Land Company, appellee. It appears practically undisputed that at the time of the above 1942 conveyance to Anthony, J. A. Simmons, as Frank Anthony’s agent, handled the details of the purchase, checking the records to determine the state of the title to this 80 acres. Simmons testified: Q. “And you found the instuments that were of record affecting title before you purchased for Anthony?” A. “At the time I purchased.” Q. “Prior to that time there was a deed of record from Jeannie McCorvey and her husband to Lee McCorvey, Robert McCorvey, Kiney McCorvey, Jim McCorvey, Frank McCorvey, in other words to the defendants in this suit covering the W% of the NE14; of course you found that deed too?” A. “I did. * * *” Q. “But at that time you knew they were in possession of some part of it with a deed to the whole eighty?” A. “That’s right.” In addition, Simmons found that the taxes for the year 1941, the year immediately preceding his purchase, had been paid by Jeannie McCoy, appellants’ mother.

As a result, Simmons found the recorded deed made to these appellants by their father and mother in 1941 and further learned that appellants were in actual possession of part of the 80 acres and were claiming title to the entire 80, yet with this knowledge Frank Anthony completed the purchase and took a deed to slightly more than 40 acres as above stated. The evidence shows that there were two houses on this 80-acre tract, a garden, some of it in pasture, and the remainder was used for growth of timber. One of the appellees, Aubra Anthony, testified: Q. “Have they at any time ever asserted to you any claim of ownership to this sixty acres of land?” A. “Well, Bob McCoy has said something about they owned the land, and I told him that I didn’t know anything about it, all I knew we had a deed and was paying taxes on it.” John Daniels testified that the Anthonys never cut any timber off this land but that when they attempted to they were stopped by the appellants, the McCoys. D. L. Staples testified, in effect, that he had been familiar with the land for about 35 years, that the parents of appellants and then appellants had been in possession of the 80-acre tract during all of that period. D. L. Staples, Jr., tended to corroborate his father’s testimony and further testified that the 80-acre tract was known in the community as the 'McCoy Place’. Another witness, I. E. Adams, testified that the McCoys were in possession of the entire 80 acres and had been for approximately 60 years, and all of these appellants testified as to their actual possession, occupancy and claim of ownership of the entire 80 acres. The 1941 deed above, from the parents to appellants, constituted color of title. Appellants, it is conceded, had title by adverse possession to a part of this 80-acre tract, that is — 20.97 acres. It seems to me that the law is clear that possession of even a part of the 80-acre tract under color of title to the whole tract, constitutes possession in law of the whole tract and that title ripened by appellants adverse possession. In Hart v. Sternberg, 205 Ark. 929, 171 S. W. 2d 475, in an opinion by the late Judge Eobins, we said: “This court has often held that the actual possession of a part of a tract of land described in a deed gives the grantee possession constructively, to the whole of the tract as therein described. See Connerly v. Dickinson, 81 Ark. 258, 99 S. W. 82, and cases there cited. Wells v. Rock Island Improvement Co., 110 Ark. 534, 162 S. W. 572, 573. Adverse possession is one of the modes of acquiring title to property. It has been defined as the open and notorious possession and occupation of real property under an evident claim or color of right. It is said to be a possession in opposition to the true title and real owner — a possession which is commenced in wrong and is maintained in right. Again it has been defined as the ripening of adverse possession into title by lapse of time. A title acquired by adverse possession is a title in fee simple, and is as perfect a title as one by deed from the original owner or by patent or grant from the government. ... It is a well-established doctrine of this court that title to lands may be acquired by adverse possession, which title may be asserted as effectively as title acquired by deed.”

Accordingly, I would reverse and dismiss appellee’s complaint for want of equity.


author: Paul Ward, Associate Justice. Ed. F. McFaddin, Associate Justice

text:
    Omohundro v. Patty, Guardian.
    5-1807
    321 S. W. 2d 746
    Opinion delivered March 16, 1959.

      Charles L. Carpenter, for appellant.

      Ciaibourne W. Patty, for appellee.
   Paul Ward, Associate Justice.

This appeal challenges the order of the Probate Court approving the first annual accounting of Ciaibourne W. Patty, guardian of the person and the estate of Gladys M. Shader, incompetent. Much of the factual background leading up to this litigation will be found in the case of Omohundro v. Erhart, 228 Ark. 910, 311 S. W. 2d 309, decided March 17, 1958, and it need not be repeated here.

When appellee, the guardian submitted his first annual accounting a hearing was had before the court, at which time he submitted his records consisting of bank statements, deposit slips, cancelled checks, bills paid, income tax returns, and tax receipts. The court approved the guardian’s accounts over the objection of appellant as to certain items.

With the exception of one small item, hereafter discussed, we have concluded the trial court was right. The questioned items, together with our reasons for approving the same, are hereafter set out.

1. Appellant in a general way, without setting out specific items, objects to the nature of the “vouchers” submitted by the guardian, but no specific error is indicated. It appears from the record, as before mentioned, that the guardian submitted various forms of receipts and disbursements, and that he submitted a copy of his accounting to appellant two weeks before the hearing. It seems that the guardian kept some of the substantiating documents in his office, that appellant knew this, but that she made no effort to secure or examine them. There is no showing that the receipts presented to the court were not proper or sufficient.

2. We see no merit in the contention that the guardian did not properly account for $127.66 spent for clothes for his ward during the 14 months accounting period. Certainly this expenditure seems reasonable considering the ward’s estate amounts to over two hundred thousand dollars. Since the ward is in a St. Louis Hospital, her sister made the purchases and presented the bills to the guardian who paid them, presumably by check. The court correctly approved, we think, the payment of $57.50 to an accounting firm for preparing the ward’s 1956 State and Federal Tax Returns, and the payment of the taxes shown thereby. It is not shown in what way these items could have been better authenticated. Nor are we shown any valid objection to the court’s approval of the payment of approximately $15 per month to the hospital to be used for the ward’s personal needs pursuant to the provisions of Ark. Stats. Section 57-632.

3. It was proper, we think, for the court to allow as a charge against the ward’s estate the payment of $200 attorney fee to Glenn F. Walther in the Omohundro case, supra, and also the sum of $115.10 for brief costs in the same case. The title, Omohundro v. Erhart, in the case referred to, is somewhat misleading since, as it appears to us, Mrs. Erhart was not the real party in interest. This fact is shown by the opinion in that case. She was not only not a party in interest but she was a party against her will. Walther’s services were directed toward preserving the guardianship, as set up by the court’s order with the approval of Mrs. Erhart, which was being opposed by Mrs. Omohundro. So, we think the said payments were properly charged to the estate.

4. It seems that Mrs. Erhart owns an undivided 1/3 interest and the ward owns an undivided 2/3 interest in certain business property. Mrs. Erhart, as has been the arrangement for many years, collects the rents and looks after the renting and upkeep of the building. All expenses incurred by her were itemized and deducted from the gross receipts, and the ward’s share turned over to the guardian, with no charge for her services. Although under the court order Mrs. Erhart has no authority as a guardian, we know of no legal reason why she cannot act as an agent for the regular guardian in this instance.

5. The assets of the ward’s estate totals over $200,-000 and the yearly income exceeds $18,000. We think the court was justified in allowing the guardian a fee of $1,377.75 over a period of 14 months. The only guide the court had in fixing the fee is found in Ark. Stats. Sec. 57-641, which provides it shall be just and reasonable. We cannot say the fee allowed was unjust or unreasonable, especially in view of the guardian’s testimony that he had appeared in more than 30 hearings during the accounting period.

We do not agree with appellant’s contention that appellee should personally pay the premium on his guardianship bond. There can be no doubt that it was incumbent upon appellee to give a bond, under the provisions of Ark. Stats. Sections 57-617 and 57-618, when one was required by the court. It is not urged here that the court did not require a bond and so we must assume that it did. This being true, we think the ward’s estate should pay the premium. See 25 Am. Jur. page 109, Sec. 177, and Snyder v. Snyder, 224 Wis. 200, 272 N. W. 1, 111 A. L. R. 261.

6. It seems that in the Omohundro case supra, this court adjudged $50 for brief costs against Mrs. Omohundro, and that the trial court, in the case here being considered, ordered her to pay Mrs. Erhart that sum. We don’t understand that item to have been an issue covered by the accounting or raised in the objections, but merely a personal matter between the two parties involved. Hence, we think the court erred in making the order in question, and it should be voided on remand.

Consequently, the order of the Probate Court approving the annual accounting of the guardian is affirmed except as to the item mentioned in the preceding paragraph, and, for the purpose of making the indicated correction only, the cause is remanded.

Affirmed as modified, and remanded.

Harris, C. J., and McFaddin and Smith, JJ., dissent in part.

Ed. F. McFaddin, Associate Justice

(dissenting). My dissent is because there are two items in the Guardian’s account which should have been disallowed by the Probate Court. These two items relate to the case of Omohundro v. Erhart, and are: (1) the $200.00 attorney’s fee allowed Mr. "Walther in that case; and (2) the amount of $115.10 allowed as brief costs in that case. These items should have been paid by Mrs. Erhart personally, and not by the Guardian of the Estate of Mrs. Shader.

I have carefully examined the transcript and the briefs in the case of Omohundro v. Erhart, No. 1496 in this Court, decided March 17, 1958 and reported in 228 Ark. 910, and 311 S. W. 2d 309. I cannot see how the Guardian of Mrs. Shader’s estate should pay the fee of Mrs. Erhart’s attorney and brief costs in that case, any more than the Guardian of Mrs. Shader’s estate should pay the fee of Mrs. Omohundro’s attorney and her brief costs in the same case. In the trial in the Probate Court (from which came the appeal to this Court in said case No. 1496), the record shows that Hon. Chas. L. Carpenter appeared for Mrs. Omohundro, and Hon. Glenn Walther appeared for Mrs. Erhart; neither of the attorneys appeared for the Guardian. The case was styled in this Court, Lehte S. Omohundro v. Delphine S. Erhart. The appearances of these attorneys were for the appellant and the appellee: no one appeared for the Guardian of the estate of Mrs. Shader. By no stretch of the imagination can I see how the majority can now say that the Guardian of the estate of Mrs. Shader was a party to that litigation so as to justify the Guardian in paying the attorney’s fee and the brief costs of Mrs. Erhart. They were items that should have been paid by Mrs. Erhart personally, just as Mrs. Omohundro should pay her attorney’s fee personally. So, on these two items, I dissent. They may seem small; but we should keep the law straight.

The Chief Justice and Justice G-eorge Rose Smith join in this dissent.


author: Sam Robinson, Associate Justice.

text:
    Lee Wilson & Company v. Springfield.
    5-1841
    321 S. W. 2d 775
    Opinion delivered March 16, 1959.

      Oscar Fendler, for appellant.

      James E. Hyatt, Jr. and Marcus Evrard, for appellee;.
   Sam Robinson, Associate Justice.

This suit was filed by appellant, Lee Wilson & Company, against appellees, Baker D. Springfield, his wife, Ethel Springfield, and his sister, Jane Springfield, and Cecil Earls. The complaint alleges in substance that appellee Baker D. Springfield, hereinafter referred to as Baker, owned a 460 acre farm and approached appellant with the idea of selling the land and the farming equipment if he could realize as much as $35,000 after the payment of debts and taxes; that in consideration of appellant’s allowing its auditor, Mr. D. D. Cash, to cheek into Springfield’s affairs, including the debts owed and amount of taxes that would have to be paid, Baker agreed to give appellant the “right of refusal” to purchase the land and equipment at a figure that would net Springfield about $35,000 after the payment of debts and taxes. In addition, the complaint alleges that appellee Jane Springfield, sister of Baker, owns a 490 acre farm adjoining Baker’s property; that Baker has been renting this property from his sister and farming it and he agreed that in the event Wilson & Company exercised the alleged option to purchase Baker’s property, appellant would have the right to rent Jane’s farm for $25 per acre per year, for five years, with the right to renew the lease for an additional five years. The complaint alleges that pursuant to this agreement, Cash, appellant’s auditor, put in several days work determining the status of Baker’s financial affairs, computing the income tax that would have to be paid, and ascertaining the balance that would be left net to Baker. It is alleged that after this work had been completed by Cash, Baker entered into a deal to sell the property, both real and personal, to appellee Earls for the sum of $214,000 and to rent him Jane Springfield’s land.

It is alleged that by entering into the agreement with Earls, Baker breached his contract with appellant, or contemplated breaching the contract. The prayer of the complaint asks that a temporary restraining order be issued enjoining appellees from going through with the deal whereby the sale would be made to Earls, and that on final hearing “the Springfields be required to give plaintiff (appellant) the right of first refusal to buy the Baker Springfield property and to lease the Jane Springfield property . . . ; that the defendants be ordered to execute the necessary legal instruments.” Appellants made a $5,000 bond and the court issued the temporary restraining order. Appellees demurred to the complaint and the amendment thereto, pleading the Statute of Frauds. On final hearing the court gave appellant the option of having the case transferred to the circuit court as a suit for damages for breach, of contract, or to remain in chancery, in which case the demurrer would be sustained and the complaint dismissed. Appellant elected to keep the case in chancery court. The court sustained the demurrer and dismissed the complaint.

Appellant insists that it entered into a valid contract concerning the purchase of the land and $30,000 worth of farming equipment, and acquired the option of leasing Baker’s sister’s land, and that it has the right to enforce such contract in a court of equity, notwithstanding the Statute of Frauds. In regard to the real estate, the Statute of Frauds (Ark, Stat. § 38-101) provides: “No action shall be brought ... to charge any person upon any contract for the sale of lands, tenements, or hereditaments, or any interest in or concerning them; fifth, to charge any person upon any lease of lands, tenements, or hereditaments for a longer term than one year . . . unless the agreement, promise, or contract, upon which such action shall be brought, or some memorandum or note thereof; shall be made in writing, and signed by the party to be charged therewith, or signed by some other person by him thereunto properly authorized.” And Ark. Stat. § 68-1404, dealing with personal property, reads: “A contract to sell or a sale of any goods or choses in action of the value of thirty dollars ($30.00) or upwards shall not be enforceable by action unless the buyer shall accept part of the goods or choses in action so contracted to be sold or sold, and actually receive the same, or give something in earnest to bind the contract, or in part payment or unless some note or memorandum in writing of the contract or sale be signed by the party to be charged or his agent in that behalf.”

While conceding that oral contracts for the sale of real estate, and the sale of personalty exceeding $30 in value, cannot be enforced in some circumstances, appellant says that here there was an oral contract to make an enforceable contract and that such oral contract is not within the purview of the Statute of Frauds. Moreover, the complaint alleges that appellant let its employee, Mr. Cash, spend a few days looking into Springfield’s financial affairs to help Springfield determine whether he wanted to sell, and that Springfield was indebted to appellant for a few hundred dollars; that by agreement no pressure had been applied on Springfield for the payment of this sum during the few days involved; that such actions on the part of appellant constituted part performance that takes the contract out of the Statute of Frauds. There is no merit to this argument, and it was properly rejected by the trial court.

Since appellant elected that the chancellor dismiss the complaint rather than have the case transferred to circuit court, appellant does not rely on a possibility of recovering damages for the alleged breach of the oral contract. It is appellant’s theory that it has a right to buy the land and equipment for $214,000. It is clear from the complaint that there has been no delivery of any property whatever; that nothing was paid to bind the bargain and no memorandum in writing of any kind was made concerning the transaction. In these circumstances, if the Statute of Frauds is not applicable, then it is completely meaningless.

Appellant says there has been substantial performance of the contract on its part. This alleged substantial performance consists of a little work done by Mr. Cash to help Baker decide whether he wanted to sell, and appellant says that during these few days Baker was not pressed for the payment of a debt of a few hundred dollars he owed. Surely this cannot be said to be part performance of a contract for the sale of land and equipment in the sum of $214,000 sufficient to nullify the Statute of Frauds. By no process of the imagination can it be said that the little work done by Cash or the forbearance of the alleged debt for a few days is a part of the consideration for the purchase of land and equipment involving such a large amount of money. And there is no allegation in the complaint which would authorize the court to hold that Miss Jane Springfield was bound to execute a lease to her land for five years, with the option to renew for another five years.

According to the complaint and the amendment thereto, the most that can be said is that appellant permitted its accountant to help Baker Springfield make up his mind as to whether he wanted to sell. In its final analysis, the complaint simply alleges that appellant entered into an oral contract with Baker for the purchase from him of 420 acres and $30,000 worth of farming equipment, plus the right to rent 490 acres from Baker’s sister, although it is not claimed that Baker’s sister was ever contacted about the proposed deal. A contract for sale of land or interest therein must be in writing. Chicago Mill & Lbr. Co. v. Matthews, 163 Ark. 571, 260 S. W. 963; Miles v. Scales, 174 Ark. 412, 295 S. W. 375. A quotation from 49 Am. Jur. 368 is peculiarly applicable here: “While there are intimations to the contrary of the rule in a few scattered decisions, the general rule is that an oral agreement to reduce to writing a contract which is within the scope of the operation of the statute of frauds, or to sign an agreement which the statute of frauds requires to be in writing, is invalid and unenforceable. Neither promise is enforceable unless the statute is satisfied. In other words, a parol agreement invalid under the statute is not aided by a further parol agreement to reduce the principal agreement to writing. To allow the enforcement of such an agreement would be tantamount to taking the main contract out of the statute, and as has been said, it is absurd to say that an oral promise in relation to certain subject matter is invalid, but that a promise that the party will thereafter bind himself with respect to the subject matter is valid. Such a construction would be a palpable evasion of the statute, and let in all the evils against which it is directed.”

Since a demurrer was sustained by the trial court, no evidence was introduced to show damages sustained by reason of the granting of the temporary injunction, and the court allowed nominal damages in the sum of $100 to each of the four appellees. We are of the opinion that the amount awarded is excessive as nominal damages and that $10 to each of the appellees is ample. The decree is modified to that extent and, as modified, affirmed.


text:
    Parsley v. Freeman.
    5-1802
    321 S. W. 2d 759
    Opinion delivered March 16, 1959.

      Charles F. Cole, for appellant.

      Carmack Sullivan and Gus Causbie, for appellee.
   Jim Johnson, Associate Justice.

This is a suit by appellees to quiet their title to a strip of land lying along the boundary line between their property and that of appellant. The Chancellor granted the relief sought. It is now contended by the appellants that “Appellees have a full and complete remedy at law for the relief sought, and a court of equity will not interfere when such is the case.”

The objection now urged was not made in the trial of the ease. The first mention of this objection is contained in appellants’ brief on appeal.

The establishment of disputed boundaries has been from an early period of English jurisprudence a proper subject for the exercise of equity jurisdiction. It has been uniformly held, however, that the mere fact that boundaries are in dispute is not of itself sufficient to authorize the interference of equity; and that courts of equity will not interpose to ascertain and settle boundaries unless, in addition to the confusion and dispute over the boundaries, some peculiar equities are shown. Story Eq. Jur. (13th Ed.) Sections 620-623; 3 Pom. Eq. Jur. Sections 1348-1385; Tiedman, Eq. Jur. Section 525. Those peculiar equities are to be found in the facts of this case. Deidrich v. Simmons, 75 Ark. 400, 87 S. W. 649. Here the objection is clearly too late. Green v. Garrett, 225 Ark. 311, 280 S. W. 2d 905.

Appellants further contend that “The evidence is insufficient to establish title by adverse possession in appellee.”

A careful review of the evidence reflects: that appellees went into possession of the disputed land in December 1937 and paid taxes on it since that date, continued in peaceable, uninterrupted, and adverse possession of it until May 1957, at which time appellants tore down and destroyed a fence between the property of the parties and entered upon and built another fence encroaching upon the lands claimed by appellees; that for upwards of 30 years before the encroachment by the appellants, the division line between the lands owned by appellees and the lands of the appellants had been marked by this fence; that this fence had been placed there by agreement on a line agreed upon by appellee and the predecessors in title of the appellants; and that appellees never knew of any claim to the encroached land by appellants until shortly before the appellants tore down the division fence and moved it.

In reaching the following conclusion we are not unmindful of appellants’ contentions and their excellent brief supporting them, but a fact question is involved and we cannot say the Chancellor’s findings are not supported by the weight of the evidence.

See the adverse possession rule relative to boundaries announced by this court in: Ferguson v. Peden, 33 Ark. 150 (which was more specifically announced in Wilson v. Hunter, 59 Ark. 626, 28 S. W. 419, 43 Am. St. Rep. 63, and more recently announced in Gathings v. Johns, 216 Ark. 668, 226 S. W. 2d 978).

Affirmed.


text:
    Gill v. State.
    4929
    322 S. W. 2d 65
    Opinion delivered March 23, 1959.

      Gordon H. Sullivan, for appellant.

      Bruce Bennett, Atty. Gen., by Bill J. Davis, Asst. Atty. Gen., for appellee.
   Carleton Harris, Chief Justice.

Willie Gill was charged by Information with the crime of murder in the second degree, it being alleged that he murdered Sam Rowland, Jr., on June 8, 1957. Appellant went to trial on April 8, 1958, was convicted of voluntary manslaughter, and sentenced to two years in the penitentiary. From such judgment, comes this appeal.

The evidence reflects that a dice game was in progress on June 8, 1957, around 6 a.m., at the home of Elois Jackson. Among participants were appellant and the deceased. The deceased first became involved in an argument with Ernest Bryant, and subsequently Rowland and Gill began to argue over the dice. According to the testimony, Rowland tried to take the dice from Gill, struck appellant, and two others present, James Doris and James Jackson, got between the two, endeavoring to hold Rowland. Under the State’s evidence, Gill reached around Doris and Jackson, and struck deceased in the groin with a pocket knife. Rowland went to the front of the house, and subsequently on to the outside where he fell. Appellant ran out the back way. One of the participants in the game, James Doris, started out to take Rowland to the hospital, had a wreck, and Rowland was taken on to the hospital by ambulance, where he died from excessive loss of blood.

The evidence on the part of the State is ample to sustain a manslaughter conviction. Five people who were present during the altercation testified, and none stated that Rowland had a knife or other weapon in his hand at the time of being struck by Gill, though one of these testified that he did not know whether Rowland had a knife, and the others only testified that they did not see one; however, some of these witnesses did not even see the knife in Gill’s hand, and the altercation apparently only lasted for a moment. According to witness Doris, the “scuffle” was over in “about ten seconds.” As stated, there was evidence by the State’s witnesses to the effect that Gill reached around the two men who were endeavoring to hold Rowland, and struck him with a knife.

We are, however, of the opinion that the judgment of conviction must be reversed because of the failure of the trial court to give an instruction to the jury on self-defense. No such instruction was given, though appellant requested three different instructions (Defendant’s Requested Instructions Nos. 5, 6, and 7) relating to this defense. The Attorney General contends that the proof did not justify an instruction on self-defense, and argues that although the deceased was initially the aggressor, after the affray had been halted, appellant took the initiative and became the aggressor. The State points out that no evidence was presented to show that Gill in any manner attempted to retreat.

We are unable to agree that self-defense was not placed in issue by the testimony. In the first place, appellant’s own testimony raised the issue of self-defense. He stated that the deceased hit him on the side of the head, and “I staggered back and when I got straight, James Doris had him and he was breaking loose from James Doris. Q. Which hand did he hit you with? A. His left hand. “Did you see his right hand? A. I seen the knife in his hand. Q. In his right hand? A. That’s right. Q. What part of the knife could you see? A. The blade and a little part of the yellow. Q. Was he breaking away from that boy? A. He was about to get loose from James. Q. What did you do then? A. I hit at him. Q. Why did you hit at him? A. He was breaking at me with a pocket knife. Q. You were trying to stop him? A. That’s right. Q. Where was the door at that time? A. He was in the door. Q. You had no way to get out of there? A; That’s right.”

While, as previously pointed out, no witness saw a knife in the hand of Rowland at the time of the stabbing, three of the State’s witnesses saw a knife on the ground by Rowland after he had fallen, and two of them stated the blade was open. The evidence reflects that Rowland was the largest man in the room, had already struck another participant in the game, and according to R. T. Chatmess, a State’s witness, three men were trying to hold Rowland off of appellant during the altercation.

The court correctly refused to give appellant’s Instructions No. 6 and No. 7, as they do not properly state the law of self-defense. However, we hold that Requested Instruction No. 5 should have been given. This instruction was based on appellant’s theory that the deceased made a fierce assault on Gill with the intent to kill him (Gill) or inflict great bodily injury; that it was as dangerous for appellant to retreat as to stand, and he was accordingly justified in repelling force with force, in defense of his person. While the requested instruction could probably have been worded more clearly, we think it properly embodied the law of self-defense, and under the evidence, should have been given.

Reversed.

       From the testimony of James Jackson: “Q. What happened to Sam out there? A. He fell. Q. Was he unconscious? A. Yes, sir. Q. Did you see a knife on the ground? A. Yes, sir. Q. What kind was it? A. It had a yellow handle. Q. Was it by his body? A. Yes, sir.” From the testimony of Milo East: “Q. Did you see a knife out there? A. Yes, sir. Q. What kind of knife was it? A. Yellow. * * * Q. Was it closed? A. Yes, sir.” From the testimony of Janies Doris: “Q. Did you see a knife laying out there by the side of him? A. Yes, sir. Q. It was laying right beside him? A. Yes, sir. Q. This defendant never was out there? He went out of the house the back way? A. Yes, sir.”


text:
    Liquefied Petroleum Gas Board v. Newton.
    5-1803
    322 S. W. 2d 67
    Opinion delivered March 23, 1959.

      James L. Sloan, for appellant.
    No brief filed for appellee.
   J. Seaborn Holt, Associate Justice.

Pete Newton, doing business as Hampton Butane Company, sued the Liquefied Petroleum Gas Control Board of Arkansas and M. L. Blair, its director, in the Calhoun County Chancery Court, alleging, in effect, that he had been engaged in the butane gas business for about 11 years in Hampton, Calhoun County, Arkansas with a permit from the Gas Board; that the Board was attempting to cancel his permit in a manner not warranted by law and prayed for a temporary injunction and that upon a final hearing, that the temporary injunction be made permanent. On the same day that suit was filed, a temporary injunction was issued and on September 29, thereafter, the temporary injunction was served on each member of the Gas Board and its director Blair, in Pulaski County, Arkansas. On October 3, 1958, the Gas Board moved to quash the service of the summonses and the temporary injunction on the ground that the Calhoun County Chancery Court was without jurisdiction since the official residence of the members of the Gas Board and its director is in Pulaski County Arkansas. On a hearing on October 31, 1958, the trial court took judicial notice of the fact that the official residence of the Gas Board members is in Pulaski County and consequently that the venue of the suit in question is in Pulaski County and not Calhoun County, and granted the Gas Board’s motion, quashed the service of summonses as prayed, dismissed the complaint and vacated the temporary injunction; but later, on November 18th, the trial court amended its order of October 31st, to provide that pending the plaintiff’s appeal to this court, the temporary injunction should remain in full force and effect. The Gas Board has appealed from this latter action of the Calhoun Chancery Court to this court, as permitted under Sec. 27-2102, Ark. Stats. 1947.

Appellants (petitioners in the trial court) insist here that, “The Chancery Court of Calhoun County is devoid of jurisdiction over the petitioners, Liquefied Petroleum Gas Board and M. L. Blair, its Director.” We hold that appellants are correct in this contention. It is undisputed that the members of the Gas Board and their director, Blair, all have their official residence in Pulaski County and that the Liquefied Petroleum Gas Board is a State Board. This State Board and its director, in the circumstances here, can only be sued in Pulaski County, their official residence. Ark. Stats. 1947 Sec. 27-603 provides: “The following actions must be brought in the county in which the seat of Government is situated: * * * Third, ... all actions against the State, and all actions against State boards, State Commissioners or State officers on account of their official acts.” Ark. Stats. 1947 Sec. 34-201 provides in relevant part: “. . . all actions against such (State) board or commissioner, or state officer, for, or on account of any official act done, or omitted to be done, shall be brought and prosecuted in the county where the defendant resides.” Ark. Const. Art. I provides in relevant part: “The seat of Government of the State of Arkansas shall be and remain at Little Rock, where it is now established.”

This court takes judicial notice that the official residence of the members of this Gas Board and its director is in Pulaski County. See Downey v. Toler, Judge, 214 Ark. 334, 336, 216 S. W. 2d 60. So, as indicated, proper venue was Pulaski County and not in Calhoun County.

Accordingly, since the Calhoun Chancery Court is without jurisdiction to proceed in the above action pending in that court, the decree is reversed and the cause remanded with directions to dismiss.