author: George Rose Smith, J.

text:
    Farmer v. Smith.
    5-1202
    300 S. W. 2d 937
    Opinion delivered April 1, 1957.
    [Rehearing denied May 6, 1957]

      McCourtney, Brinton, Gibbons & Segars, for appellant.

      Gus Gausbie, for appellee.
   George Rose Smith, J.

The appellee brought suit to' recover $83 from Yerlin Farmer and attached a truck assertedly owned by the debtor. The appellant, Verlin’s sixteen-year-old son, intervened in the case and alleged that he had bought the truck from his father before the suit was filed. A jury verdict finding the appellant to be the owner was set aside by the trial court, upon the ground that the finding was contrary to the preponderance of the evidence. In appealing from this order the appellant has filed the required stipulation that judgment absolute may be rendered against him if the order is affirmed. Ark. Stats. 1947, §§ 27-2101 and 27-2150; Bush v. Barksdale, 122 Ark. 262, 183 S. W. 171, L. R. A. 1917A, 111.

In reviewing an order of this kind we do not reverse the trial judge’s ruling unless it appears that he has abused his discretion by setting aside a verdict that is supported by a clear preponderance of the evidence. Stanley v. Calico Rock Ice & Elec. Co., 212 Ark. 385, 205 S. W. 2d 841. We find no abuse of discretion in this case. The appellant testified that he paid his father $150 for the truck and produced an assignment of the certificate of title, ostensibly executed and sworn to by the elder Farmer some two and a half months before the vehicle was attached. This testimony is contradicted by that of the sheriff, who says that when he served the writ both the father and the son admitted that the boy had no documentary evidence of ownership. There is also proof that the father attempted to sell the truck to a third person after he had supposedly sold it to his minor son. The trial judge, in setting aside the verdict, doubtless took into consideration the fact that Yerlin Farmer did not testify in his son’s behalf, that the notary who signed the assignment of title was not called as a witness, and that a debtor’s transfer of property to his sixteen-year-old son is a transaction which the law views with suspicion. In these circumstances we defer without hesitation to the trial court’s firsthand opinion concerning the weight of the evidence.

Affirmed.


source: Caselaw Access Project

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

license: Public Domain

text:
    Johnson v. Dunnings, Excr.
    5-1230
    301 S. W. 2d 457
    Opinion delivered April 1, 1957.
    [Rehearing denied May 20, 1957]

      Caesar C. Latimer, Tulsa, Oída., and Thad D. Williams, for appellant.

      O. E. Westfall and Gaughan, McClellan & Laney, for appellee.
   Paul Ward, Associate Justice.

This appeal has to do with the interpretation of a will. The pertinent facts involved are not in dispute.

E. W. Dunnings, who died on October 1, 1955, executed his last will and testament on March 25, 1955 which, in all essential parts, reads as follows:

“SECOND. I give, devise and bequeath to Gwendolyn Johnson, the daughter of my son, Odis M. Dunnings, the United States Bond which was made payable to E. W. Dunnings and Odis M. Dunnings.”

“THIRD. I give, devise and bequeath to my granddaughter, Vera Richardson, a daughter of Mary Dunnings who married Charlie Richardson, the sum of Ten Dollars.”

“FOURTH. I give, devise and bequeath all the rest and residue of my estate, whether real, personal or mixed property and wheresoever located, share and share alike, to my children and to the surviving heirs of deceased children. My said children now living being named as follows: Hattie D. Sanders, a daughter; Edward Lee Dunnings, a son; Eula D. Britton, a daughter; Robert M. Dunnings, a son; Myles G. Dunnings, a son; Derrick W. Dunnings, a son; Retha D. Beck, a daughter; It is my desire that the interest which would have gone to my son, Walter Dunnings, if living, should go to his daughter, Mildred Dunnings; The interest which would have gone to my daughter, Mary D. Richardson, is to be divided among three of her children, as follows: Thelma Carmier; Woodrow D. Richardson; Mary Bresker; the interest which I have given above in this will is the amount which I desire paid to Vera Richardson, a daughter of Mary D. Richardson.”

Altogether testator had 10 children. At the time of his death 7 of these children were living, and their names are set out above in paragraph FOURTH of the will. Of the three children who were deceased at the time of the testator’s death, 2 of them, Walter Dunnings and Mary D. Richardson, are also named in the same paragraph. The tenth child, Odis M. Dunnings, a son, died approximately four months before the testator executed his will. As stated in the SECOND paragraph of the will, Odis M. Dunnings was the father of appellant, Gwendolyn Johnson, and she was his only child.

It is noted here, for emphasis, that the testator’s daughter, Mary D. Richardson, deceased, left surviving four children and that three of them took, under paragraph FOURTH, her entire share, and that the fourth child, Vera Richardson, received only $10 as is provided in paragraph THIRD.

Appellant, Gwendolyn D. Johnson, filed her petition in the Probate Court asking to have the last will and testament of the said E. W. Dunnings construed and interpreted, asking the court to declare that she was entitled to inherit a one-tenth interest in the estate of E. W. Dunnings as particularly provided in the FOURTH Paragraph. The above petition was resisted by the executor and by all of the children and grandchildren of the testator [excepting appellant]. After the introduction of certain testimony, none of which is abstracted, the trial court held that the appellant, Gwendolyn Johnson, should not be entitled to any part of the estate of the testator, E. W. Dunnings, under the provisions of paragraph FOURTH of his will. From this ruling appellant has appealed.

In urging a reversal of the trial court’s decree, appellant presents an array of arguments which indicate studious and energetic research. Much significance is attached to the first sentence in the FOURTH paragraph of the will. It is pointed out that this sentence alone contains testamentary words, and that it clearly includes appellant as being one of a designated class, that is, the heir of a deceased child. It is further argued, in this connection, that once appellant is designated as a beneficiarv, it would take positive language to remove her from the class, and that there is no such language in the will. In other words, appellant says that if the testator had wanted her eliminated, he would have specifically said so as he did in the case of Yera Richardson.

The argument is also presented that the law favors a just and equitable distribution of estates, citing, Yeates v. Yeates, 179 Ark. 543, 16 S. W. 2d 996, 65 A. L. R. 466, and Cross v. Manning, 211 Ark. 803, 202 S. W. 2d 584. Also appellant contends that the intent of the testator must be gathered from the first sentence in paragraph FOURTH, and that the rest of the paragraph merely illustrates how the property is to be divided, viz; grandchildren are to receive only the share which would have gone to their parent if living.

We recognize the force of the arguments presented above, and we also recognize the rule relative to a devise to a class, but we do not think any of these are controlling in the case here under consideration. It is our conclusion that the chancellor must be affirmed in this case under the well established rule, hereafter pointed out from our many decisions, that the intent of the testator must govern and that such intent (with a few exceptions not applicable here) must be derived from all the language in the will as opposed to isolated parts of the will. The courts generally recognize that rules of construction, as applied to wills, are merely aids to a determination of the testator’s intent. As stated in Park v. Holloman, 210 Ark. 288, 195 S. W. 2d 546, the courts cannot make a will — they can only endeavor to determine the intent of the testator.

In interpreting wills the courts will look at the entire will. See Campbell et al. v. Campbell, et al., 13 Ark. 513, and Morris v. Lynn, 201 Ark. 310, 144 S. W. 2d 472.

The rule that the intent of the testator governs in the construction of wills is so well established and has been so often repeated from the earliest cases down to the present, that only a few citations will suffice. In the Campbell case, supra, the rule was stated this way: ‘ ‘ The leading rule in the construction of wills, is to give effect to what appears to be the intention of the testator, in view of all the provisions of the will; and if this intention can be ascertained, it should be carried out, unless contrary to law or against public policy.” In the Park case, supra, this language was used: “The polestar of the court, in construing a will, should always be the intention of the testator; . . .” In Jackson v. Robinson, 195 Ark. 431, 112 S. W. 2d 417, this clear language was employed: “All of our cases are to the effect that the object in construing wills to ascertain the intention of the testator. This must be done from and language used as it appears from a consideration of the entire instrument, and when such intention is ascertained it must prevail, if not contrary to some rule of law, the court placing itself as ¿ear as may be in the position of the testator when making the will.”

Where there is language in a will indicating a devise to a class and where the devisees are named individually, generally the latter will control. This was specifically recognized in Rand v. Thweatt, Administrator, 222 Ark. 556, 261 S. W. 2d 778. There in reply to appellant’s, insistence on a devise to a class, the court said: “There is another settled general rule that is equally applicable to the case at bar, to the effect that where a bequest or devise is made to beneficiaries designated by name, they take as individuals rather than as a class, in the absence of a contrary intention appearing elsewhere from the will, or the surrounding circumstances.” In line with the above we find in 57 Am. Jur. page 835, § 1263, Wills; “Where legatees are named as individuals and also described as a class, and there is nothing more to show the testator’s intention, the construction usually is that the gift by name constitutes a gift to individuals, to which the class description is added by way of identification.” And in 97 C. J. S., page 26, Wills: “Designation by name of the beneficiaries, and terms appropriate to describe groups or classes, not only may be used separately, but may be, and frequently are, employed together; when that is done, the designation by name being preceded or followed by words expressive of some common relation or status, and there is nothing to indicate an intention to the contrary, the gift ordinarily is to the individuals and not to a class, and the class description is merely added by way of, and serves the purpose of, identification of the individual beneficiaries, or of an indication of the reason for making the provision.”

Construing the testator’s will in this case by the rules above mentioned, we cannot say the chancellor erred in holding that appellant could not take under the FOURTH paragraph. With rare exceptions not applicable here, a testator can do as he pleases with his property, and the most effective way for a testator to cut a person off from his bounty is to omit that person’s name from his will. Here the testator, in the FOURTH paragraph of his will mentioned all of his children and grandchildren except appellant. This could not possibly have been an oversight on the part of the testator because he mentioned appellant in the SECOND paragraph of his will. The only conclusion we are able to reach is that the testator intended for appellant to take the bequest mentioned in the SECOND paragraph of his will and nothing more.

Affirmed.

Justices Holt and Robinson dissent.

Sam Robinson, Associate Justice

(dissenting). It is agreed that in construing a will the courts should seek to ascertain the intention of the testator as shown by the entire will. In my opinion, the will in the case at bar shows that it was the intention of the testator that Gwendolyn Johnson, his granddaughter, should receive that part of the estate which her father, Odis M. Dunnings, would have received had he been living. The will was executed about four months after the death of Odis M. Dunnings. The second paragraph of the will provides: “I give, devise and bequeath to Gwendolyn Johnson, the daughter of my son, Odis M. Dunnings, the United States Bond which was made payable to- E. W. Dunnings and Odis M. Dunnings.” Value of the bond mentioned was about $1,800. All of the surviving sons and daughters of the testator received like bonds by virtue of survivor-ship.

The value of the estate of E. W. Dunnings involved here is about $51,000. No evidence has been called to our attention which would indicate that the deceased would have any reason for treating his granddaughter, Gwendolyn Johnson, any different than his other children and grandchildren.

The third paragraph of the will is highly significant when read in connection with the fourth paragraph in determining the testator’s intent. The third paragraph reads: “I give, devise and bequeath to my granddaughter, Vera Richardson, a daughter of Mary Dunnings who married Charlie Richardson, the sum of Ten Dollars.” Vera Richardson is insane and confined in a mental institution.

We come now to the all-important fourth paragraph of the will, which provides: “I give, devise and bequeath. all the rest and residue of my estate, whether real, personal or mixed property and wheresoever located, share and share alike to my children and to the surviving heirs of deceased children.” The foregoing quotation is the first sentence of the fourth paragraph. Certainly, down to this point, Gwendolyn Johnson would participate as a beneficiary in the residue of the estate. If she is to be denied a share of the residue, it must be found in the rest of paragraph four, which reads: “My said children now living being named as follows: Hattie D. Sanders, a daughter; Edward Lee Dunnings, a son; Eula D. Britton, a daughter; Robert M. Dunnings, a son; Myles G. Dunnings, a son; Derrick W. Dunnings, a son; Retha D. Beck, a daughter; It is my desire that the interest which would have gone to my son, Walter Dunnings, if living, should go to his daughter, Mildred Dunnings; The interest which would have gone to my daughter, Mary D. Richardson is to be divided among three of her children, as follows: Thelma Carmier; Woodrow D. Richardson; Mary Bresker; the interest which I have given above in this will is the amount ivhich I desire paid to Vera Richardson, a daughter of Mary D. Richardson.” (Emphasis supplied). It will be noticed that the fourth paragraph names the living children of the testator but does not state that all of the grandchildren are being named. The first sentence of the fourth paragraph specifically provides that the residue is to be divided share and share alike between the surviving children and the surviving heirs of deceased children. Gwendolyn Johnson is the surviving heir of a deceased child. Likewise, Vera Richardson is the surviving daughter of a deceased child. Vera is insane and the testator desired to leave her only the nominal sum of $10.00, as set out in Paragraph Three of the will; and to show that Vera was to be excluded from participating in the residue, Paragraph Pour provides: ‘ ‘ The interest which I have given above in this will is the amount which I desire paid to Vera Richardson, a daughter of Mary D. Richardson.” It is clear to me that had the testator intended that Gwendolyn Johnson should take only the bond given to her by the second paragraph of the will, and that she should not share in the residue of the estate, he would have specifically limited her part of the estate as he did in regard to Vera Eichardson, another granddaughter.

On the other hand, it could be said that if the testator had intended that Gwendolyn should share in the residue he would have specifically named her as participating, as he did Mildred Dunnings, the daughter of Walter Dunnings, a deceased son.

The will is subject to the two constructions, as indicated. In a situation of this kind, the overwhelming weight of authority is to the effect that the will should be construed so as not to exclude the issue of a deceased child. In 95 Corpus Juris Secundum 846, it is said: “It will not be presumed that the testator intended to discriminate between the natural objects of his bounty. On the contrary, in the absence of any evidence of an intention to prefer some, the presumption is against such result, and in favor of equality as between beneficiaries of the same category or standing in the same relation to the testator, and a construction will be favored effecting equality between the natural objects of the testator’s bounty, especially between those who are equally natural objects of the testator’s bounty.”

Law favors equality of benefits to descendants of testator’s children. In re Milhau’s Estate, 271 N. Y. S. 214.

A discrimination against descendants of one child in favor of other of testator’s children should not be permitted unless testator’s intention to do so is manifest. In re Jerge’s Will, 40 N. Y. S. 2d 743.

Those who have equal claim in law, or in affection upon testator, should be placed in equal positions, where such can be done without doing violence to the written words of the will. Curtis v. Safe Deposit & Trust Company of Baltimore, 178 Md. 360, 13 A. 2d 546.

In re Jerge’s Will, supra, the court quoted from Soper v. Brown, 136 N. Y. 244, 32 N. E. 768, as follows: “Even if the construction given may he doubtful, it is % settled rule that, where a will, capable of two constructions, one of which would exclude the issue of a deceased child, and the other permit such issue to participate in a remainder . . . , the latter should be adopted. ’ ’

Of course, it is possible to construe the will as has been done by the majority, but the least that can be said is that the construction which should be given is doubtful, and, in these circumstances, the weight of authority is that the doubt should be resolved in favor of the issue of the deceased child. For the reason indicated, I respectfully dissent, and I am authorized to say that Mr. Justice Holt joins in this dissent.


author: Sam Robinson, Associate Justice.

text:
    Thompson v. Dildy.
    5-1204
    300 S. W. 2d 270
    Opinion delivered April 1, 1957.

      W. J. Dungan, for appellant.

      A. L. Burford and Yingling & Yingling, for appellee.
   Sam Robinson, Associate Justice.

On February-15, 1951, for the consideration of $1,600 plus delay rentals of $320.00 per year, appellant, Vance Thompson, executed to appellee, S. Gr. Dildy, a lease on one half section of land in Miller County, giving Dildy the right to drill and mine thereon for gas, oil, sulphur and other minerals for a period of ten years. The lease contains a warranty of title.

On May 12,1956, Dildy filed this suit against Thompson in Woodruff County, seeking to recover the rent paid under the lease, totaling $2,880. As a basis for the cause of action Dildy alleges that the title has failed; that Thompson has permitted the land to be sold for delinquent assessments in the McKinney Bayou Drainage District; that Thompson had filed a suit in Miller County to set aside the Improvement District sale but that the suit had been dismissed March 28, 1955, for want of prosecution. The complaint does not allege that another suit had not been filed or that the time had expired in which such a suit could be filed to set aside the sale; nor does the complaint allege that Dildy or Thompson is not in possession of the land, and does not allege that either of them had been evicted; and the complaint makes no allegation that the land is wild and unimproved.

Thompson failed to answer within twenty days, and the trial court held that under Act 49 of 1955 no answer could be filed subsequent to the 20-day period, and entered a default judgment for Dildy. We do not reach the question of whether the court erred in ruling that an answer could not be filed, because we have arrived at the conclusion that the complaint does not state a cause of action; hence the court was in error in entering a judgment on the complaint. The rendition of a judgment by default upon a complaint which fails to state facts sufficient to constitute a cause of action is reversible error. Chaffin et al. v. McFadden, 41 Ark. 42, and Thompson v. Hickman, 164 Ark. 469, 262 S. W. 20.

Appellant contends that the complaint does not state a cause of action because it is not alleged that there has been an eviction. When this cause came on for a hearing, and the court ruled that the 1955 Act prohibited the' filing of an answer at that time, the plaintiff, appellee, proceeded to introduce evidence on which to base a default judgment. The lease agreement was introduced in evidence. Paragraph 14 thereof provides: “Lessor hereby warrants and agrees to defend the title to said land and to the minerals in and under the same. In the event Lessor’s title or Lessee’s rights under this lease should be disputed by suit or otherwise Lessee shall, during the pendency of such suit or dispute, be relieved from all obligations hereunder whether express or implied and may withhold the payment of royalties. If such suit or dispute be pending at the end of the primary term hereinabove mentioned, Lessee may extend such primary term for one or more successive years by payment of rental as above provided; in no event, however, shall the primary term be extended beyond the end of the year during which such suit or dispute shall have been settled. For the purposes hereof, it shall be considered that such suit or dispute is pending until thirty days after Lessor shall have furnished Lessee satisfactory evidence that such suit or dispute has been settled favorably to Lessee. Lessee shall have the right to acquire or lease the interest of any party in said land and minerals which any such party claims is not covered by this instrument.” Paragraph 1 of the lease provides: “The ‘primary term’ of this lease shall extend from the date of its execution to the close of the last period for which rental, as hereinafter provided, can be paid. ’ ’

As aforesaid, Paragraph 14 of the lease contains this provision: “In the event Lessor’s title or Lessee’s rights under this lease should be disputed by suit or otherwise Lessee shall, during the pendency of such suit or dispute, be relieved from all obligations hereunder whether express or implied and may withhold the payment of royalties.” It appears that perhaps the parties anticipated that the very thing might happen which did happen — that is, there might arise a dispute as to Thompson’s title, and the lease set out the rights of the parties in the event such a dispute should occur. But, bypassing that point, we come to the issue of whether the complaint states a cause of action.

With some exceptions, the rule is that an action for damages on a covenant of warranty cannot be maintained where there has been no eviction. Thompson v. Brazile, 65 Ark. 495, 47 S. W. 299; Dennis v. Long, 128 Ark. 420, 194 S. W. 237; Belleville Land & Lumber Company v. Griffith, 177 Ark. 170, 6 S. W. 2d 36; Hamilton v. Farmer, 173 Ark. 341, 292 S. W. 683; Smiley v. Thomas, 220 Ark. 116, 246 S. W. 2d 419.

One of the exceptions to the rule requiring an eviction is where paramount title is in the Government or State. Belleville Land & Lumber Company v. Griffith, 177 Ark. 170, 6 S. W. 2d 36; Abbott v. Rowan, 33 Ark. 593; Seldon v. Dudley E. Jones Company, 74 Ark. 348; 85 S. W. 778; Smiley v. Thomas, 220 Ark. 116, 246 S. W. 2d 419. In the case at bar, the complaint does not allege that the State or Government owned the title. True, the complaint alleges that the taxes were delinquent to McKinney Bayou Drainage District for the years 1947 and 1948, and that Thompson permitted the property to be sold to O. P. Leonard for such taxes. But the complaint does not allege the lands are not redeemable, in fact it appears that it was recognized that the property is subject to redemption. Paragraph 4 of the complaint alleges: “That relying on defendant’s promise to redeem said premises from said sale and to prosecute suit filed by him against said Leonard on July 6, 1953 in the Miller County, Arkansas, Chancery Court to invalidate said sale, . . .” Apparently it was recognized that the sale to Leonard was perhaps void and lessee accepted lessor’s promise to take proper procedure to set the sale aside. There is no allegation in the-complaint in the case at bar that the sale to Leonard could not be set aside at the time Dildy filed this suit.

Another exception to the rule is that eviction is not necessary where the land is wild and unimproved, but in the case at bar there is no allegation in the complaint that the land is wild and unimproved. In wild lands, possession follows the legal title. Seldon v. Dudley E. Jones Company, 74 Ark. 348, 85 S. W. 778; Jerome Hardwood Lumber Company v. Munsell, 169 Ark. 201, 275 S. W. 709.

It appears that the case of Thompson v. Brazile, 65 Ark. 495, 47 S. W. 299, is directly in point. There, one Walker sued Mrs. Brazile, claiming the property by virtue of a tax deed. Walker won the case in Circuit Court; but the litigation between Thompson and Mrs. Brazile on a warranty of title was transferred to equity, and there it was held that Mrs. Brazile’s complaint against Thompson was not good because eviction was not alleged. In Van Bibber v. Hardy, 215 Ark. 111, 219 S. W. 2d 435, the situation is entirely different than in the case at bar. In that case, there was an outstanding lease with the lessee in possession. This amounted to an eviction, enabling the purchaser to file suit immediately. And in some cases it has been held that a judgment amounts to an eviction. Brawley v. Copelin, 106 Ark. 256, 153 S. W. 101, Beach v. Nordman, 90 Ark. 59, 117 S. W. 785; Cox v. Bradford, 101 Ark. 302, 142 S. W. 170; Collier v. Cowger, 52 Ark. 322, 12 S. W. 702, 6 L. R. A. 107.

The complaint in this case does not allege an eviction. It does not allege the title is in the State or the Government. It does not allege the lands are wild and unimproved. It does not allege that Thompson’s suit against Leonard was dismissed with prejudice, and does not allege a final judgment that would bar Thompson or Dildy from successfully prosecuting a suit to redeem the property. The complaint therefore does not allege a cause of action for damages on a covenant of warranty.

Reversed.


author: Carleton Harris, Chief Justice.

text:
    General Missionary Baptist State Convention of Ark. v. Smith.
    5-1220
    300 S. W. 2d 939
    Opinion delivered April 8, 1957.

      Spitzberg, Bonner, Mitchell & Hays, for appellant.

      John B. Thompson and Gerald T. Bidgeway, for appellee.
   Carleton Harris, Chief Justice.

This action was instituted as a suit in foreclosure by appellee, Frank C. Smith, M. D., seeking to foreclose a mortgage on various tracts of real property in Pulaski County, Arkansas, owned by appellant. General Missionary Baptist State Convention of Arkansas, appellant herein, filed an answer and cross complaint, alleging that the indebtedness, evidenced by the note and secured by the mortgage, was actually an advance from appellee to appellant representing a part payment of the purchase price under a prior agreement, wherein Dr. Smith was to purchase the lands from the Convention. Appellant stated that it was willing and able to fulfill its part of the agreement by conveying the property in question to appellee in accordance with their agreement, and asked that appellee be required to specifically perform his part of the contract calling for his purchase of the property. Appellee, in answering the cross cómplaint, admitted that an advance was made under the terms of the agreement between the parties, but alleged that General Missionary Baptist State Convention of Arkansas was unable to convey clear title to said property as required by tbeir agreement, and that the indebtedness, heretofore referred to, was accordingly due and payable. Appellant admitted that Bolton T. Harris and Floy R. Harris owned jointly an undivided one-fourth mineral interest in the land in question,* but contended that it was only required under the terms of the agreement to convey the property now under litigation, subject to, and not free of, the outstanding one-fourth interest in the minerals. Upon a trial of the issues, the Chancery Court ruled that appellant was required to convey title to the property free of any mineral rights retained by others, foreclosed the mortgage, ordered the property in question sold to satisfy the indebtedness, and dismissed the cross complaint of appellant. From such decree appellant brings this appeal.

The sole question before the Court is whether the Chancellor was correct in determining that the contract called for merchantable title to a portion of the land, and that the sellers were unable to convey such merchantable title. The first instrument executed by both parties in point of time was the Offer and Acceptance Agreement (executed by appellee on July 26, 1954, and on August 21, 1954, by appellant). This instrument is relied upon entirely by appellee to sustain the decree of the Chancery Court, and is relied on only to a slightly lesser degree by appellant. The pertinent portions argued by the parties are as follows:

“ * * * It is understood that seller is in arrears of maturities of principal and interest due Bolton T. Harris and Floy Harris on the above note. Purchaser will advance to seller any required amount not in excess of .Ten Thousand Dollars ($10,000) for payment of arrearages on said note, upon demand after purchaser shall have examined and approved abstracts of title certified to date, showing merchantable title to .the lands to be conveyed by seller under its warranty (but not as to those portions conveyed by quitclaim deed to seller by Bolton T. Harris and Floy B. Harris, for which lands so conveyed by quitclaim deed seller shall not be obligated to furnish abstract or abstracts of title); provided any advances for said purpose by purchaser shall be a loan to seller, bearing no interest to date of warranty and quitclaim deed by seller to purchaser, and to bear interest from date of advance at the rate of five per cent if the seller fails to convey said lands to purchaser. * * *”

“ * * * Seller shall also deliver to purchaser abstracts of title to lands to be warranted by it, certified to date at seller’s expense. * * *”

“* * * Purchaser will promptly examine said abstracts, or cause same to be examined, and should he unduly cause or suffer delay in the examination of same, or should he decline to make the advance for payment to Bolton T. Harris or Floy B. Harris, then seller shall be relieved of all its obligations hereunder, and purchaser shall be entitled to receive and retain the earnest money hereinafter mentioned, unless the refusal of purchaser is justified by one or more real defects in title to the lands to be warranted by seller and which defects seller cannot cure within a reasonable time. Seller shall have reasonable time and opportunity to cure any defects in title to lands which it shall be required to warrant hereunder, but it shall not be obliged to cure any defects in title to lands which it shall quitclaim to purchaser. * #

The agreement further provides:

“* * * Contemporaneously, with the making of said advance by purchaser, seller shall execute its note payable to the purchaser on or before 90 days from date and shall execute to purchaser mortgage upon said lands, subject to lien of Bolton T. Harris and Floy B. Harris to secure payment of said note. * * *”

Further,

“* * * Seller shall warrant the title to all of said lands (subject to existing easements and rights of way) only to the extent that the same were included in the warranty deed of Bolton T. Harris and Floy B. Harris executed to seller, and it shall convey the remainder of said lands by quitclaim deed. * * *”

In compliance with the agreement, appellant executed its mortgage on August 24, 1954, said mortgage containing the following language:

* * And for the consideration aforesaid, the grantors herein do hereby further grant, sell and quitclaim unto the said Dr. Frank C. Smith, and unto his heirs and assigns forever, subject, however, to the vendors lien retained in that certain deed dated July 30, 1947, executed by Bolton T. Harris and Floy B. Harris, his wife, to C. D. Pettaway, S. P. Long, W. B. Yaughan, J. B. Barnes, W. S. Thomas, J. B. Thomas, C. E. Canady, W. Marcus Taylor, Mrs. Annie Brown, Mrs. Emma Pratcher, and B. J. Whitfield, as Trustees for General Missionary Baptist Convention of Arkansas, as the same appears of record in Deed Becord Book 351, pages 303, et seq, in the office of the Becorder of Pulaski County, Arkansas, and subject, also, to the reservation to the said Bolton T. Harris and Floy R. Harris, his wife, one-fourth (1/4) of all the minerals upon or beneath the surface of the lands hereinafter described, as reserved in the above-mentioned deed. * * (emphasis supplied)

Let it first be said that we agree with appellant’s contention that the language in the Offer and Acceptance Agreement, quoted above, vis, “* * * Seller shall warrant the title to all of said lands (subject to existing easements and rights of way) only to the extent that the same were included in the warranty deed of Bolton T. Harris and Floy R. Harris executed to seller, * * *” is cogent evidence sustaining appellant’s position that the warranty of absolute mineral rights was not included in the agreement. This position is further strengthened by the provision (above italicized) in the mortgage, which instrument we hold may properly be considered in construing the agreement. The requirement of a mortgage was mentioned, and the execution of same was a part of the Offer and Acceptance Agreement. This mortgage contains two references to the reservation by the Harrises of one-fourth of all minerals upon or beneath the surface of the lands, as reserved in their deed. The mortgage also incorporates the applicable provisions of the Offer and Acceptance Agreement as a part of the instrument.

In The W. T. Raleigh Co. v. Wilkes, 197 Ark. 6, 121 S. W. 2d 886, Mr. Justice Mehaeey, speaking for the Court, quoted from R. C. L. as follows: “The principal rule in the interpretation of contracts is to ascertain the intention of the parties and to give effect to that intention if it can be done consistently with legal principles.” In Gowen v. Sullins, 212 Ark. 824, 208 S. W. 2d 450, (1948) this Court, in determining the intent of the parties, read and construed together a sales contract and an escrow agreement. The mortgage presently under discussion was accepted by appellee, and this litigation was instituted by the filing of a complaint to foreclose same. We deem it established that the Offer and Acceptance Agreement, and mortgage and note, were; all a part of the same contract, and together, they clearly express the intention of the parties.

The litigation is thus disposed of, and it therefore becomes unnecessary for us to consider the admissibility of the testimony of one Morris High (whose evidence was excluded by the trial court) who testified to the effect that appellee was aware at the time of the agreement he would only receive three-fourths of the mineral rights.

For the reasons herein set out, the decree of the trial court is reversed and remanded, with directions to enter decree for appellant, requiring appellee to specifically perform his part of the agreement.

       Retained by the Harrises in their Deed to Appellant.

       Provisions pointed out by appellee and appellant as sustaining their contentions are italicized.

       Amount actually advanced was $12,000.00.

       Emphasis in the sentences heretofore italicized supplied by appellee.

       Emphasis in the sentences italicized following footnote 3 sttpplied by appellant.


author: J. Seaborn Holt, Associate Justice.

text:
    Smith v. State.
    4865
    300 S. W. 2d 596
    Opinion delivered April 8, 1957.

      John F. Gibson, for appellant.

      Bruce Bennett, Atty. General; Thorp Thomas, Asst. Atty. General, for appellee.
   J. Seaborn Holt, Associate Justice.

A jury on August 28, 1956, found appellant guilty of the crime of carnal abuse, and fixed his punishment at a term of one year in the state penitentiary. From the judgment is this appeal.

For reversal appellant first questions the sufficiency of the evidence. The charge against appellant, by information, was filed March 8, 1956 — and based on § 41-3406 Ark. Stats. 1947, which provides: “Carnal abuse- — Penalty.—Every person convicted of carnally knowing, or abusing unlawfully, any female person under the age of sixteen (16) years, shall he imprisoned in the penitentiary for a period of not less than one (1) year nor more than twenty-one (21) years.” We hold that the evidence was ample to support the verdict.

The girl involved testified that she became 16 years of age June 3, 1956, and that she had intercourse with appellant October 5, 1955, at Watson, Arkansas, when she was 15, and became pregnant as a result of this intercourse. The father of the girl testified that she was born June 3, 1940, and was 16 on June 3, 1956. Appellant admitted that he had had intercourse with this girl seven or eight times over a period of some two or three months. Although the testimony of the girl, as to intercourse with appellant, is corroborated by him, corroboration is not necessary if her testimony was believed, since she was not an accomplice. See Clack v. State, 213 Ark. 652, 212 S. W. 2d 20.

Appellant’s contention that the court, at the close of the State’s ease, erred in refusing his request to direct a verdict of not guilty, is wholly without merit. Where the evidence, as here, was sufficient to sustain a conviction, refusal to direct a verdict of not guilty was not error. See Graham and Seaman v. State, 197 Ark. 50, 121 S. W. 2d 892.

Finally appellant stoutly argues that: “The court erred in overruling defendant’s objections in permitting the prosecuting witness and her father to testify as to her age, Avhen the father admitted that he had her birth certificate at his home, and the court did not require the father to produce the birth certificate.” We do not agree. As indicated, the girl testified that she had had intercourse with appellant on October 5, 1955, and that she was not 16 until June 3, 1956. Appellant objected to this testimony on the ground that her birth certificate, which her father had testified he had at home, was the best evidence. In Tugg v. State, 206 Ark. 161, 174 S. W. 2d 374, a similar situation was presented, and the same contention made there as here, and we there said: “ It is insisted that there was not sufficient proof as to the girl’s age, which should have been shown by her birth certificate, or by the records of the Bureau of Vital Statistics. These records would have been competent to prove the girl’s age; but the testimony offered on that subject was also competent. The girl’s mother testified as to the age of her daughter; and this was competent testimony. It was objected that it was error to permit the girl herself to testify as to her age; but not so. In Wharton’s Criminal Evidence, 11th Ed., Vol. 1, § 470, it is said that the general rule, from which there seems to be but little dissent, recognizes the competency of a witness to give testimony as to his or her own age . . .”

Other assignments of alleged errors have been considered by us, and are without merit. Affirmed.


author: Ed. F. McFaddin, Associate Justice.

text:
    Ark. State Highway Comm. v. City of Little Rock.
    5-1227; 5-1228
    300 S. W. 2d 929
    Opinion delivered April 8, 1957.

      W. R. Thrasher and Dowell Anders, for appellant.

      Martin, Dodds & Kidd and Longstreth, Brooks & Kemp, for appellee.
   Ed. F. McFaddin, Associate Justice.

The appellee, City of Little Rock, in its brief, states the question here presented in this language: “The only question before this Court is whether or not the (State Highway) Commission has authority to prohibit parking on State Highway truck routes within the City of Little Rock.” We answer the question in the affirmative; and such answer requires a reversal of the decrees in these two cases.

In September, 1953 the Arkansas State Highway Commission (acting under authority of Act 323 of 1953) designated certain streets in Little Rock as a truck route and undertook to erect on said truck route signs reading, “No Parking At Any Time.” Thereupon, the City of Little Rock filed its suit in the Chancery Court to enjoin the members of the Arkansas Highway Commission from erecting the said signs. Likewise, certain property owners, on the route involved, filed their suit to enjoin the Director and Chief Engineer of the Highway Department from proceeding to erect said signs. In each case the defendants demurred to the complaint. When the demurrers were overruled the defendants stood on the demurrers, and from a final decree in each case granting the injunction the defendants filed their appeals to this Court. The cases were consolidated here because the question is the same in each ease.

Act 323 of 1953 authorizes the State Highway Commission to designate truck routes through cities and towns. Section 1 of the Act reads:

“The State Highway Commission is hereby authorized to designate and establish truck routes through cities and towns, which routes shall be properly marked by said Commission. Any truck route so established shall become a part of the State Highway System and the State Highway Department shall construct, repair and maintain the Truck Route. ’ ’

The Legislature had the power to enact such a Statute. Merchants Transfer & Warehouse Co. v. Gates, 180 Ark. 96, 21 S. W. 2d 406; Adkins v. Harring ton, 164 Ark. 280, 261 S. W. 626. In the last cited case in an opinion by Honorable E. B. Kinsworthy, Special Justice, this Court said:

“The State, in its sovereignty over all public highways, has full power over streets as well as over public roads, and, unless prohibited by the Constitution, the Legislature may confer on such agency as it may deem best the power of supervision and control over streets. ’ ’

In the light of the foregoing there can be no doubt that the Legislature has authorized the Highway Commission to designate a truck route through Little Rock, and that the truck route so designated is a part of the State Highway System. So the question is whether the State Highway Commission has power to erect “no parking” signs on a part of the State Highway System that is in the City limits.

Act No. 300 of 1937 is a general highway traffic act. It is not limited to the State Highway System, but applies to all highways, roads, and streets in the State of Arkansas, and, therefore, applies to streets in municipalities. Section 30 of the Act 300 of 1937 (§ 75-503 Ark. Stats.) allows local authorities in their respective jurisdictions to place and maintain traffic control devices on highways “under their jurisdiction”; but the same Section 30 concludes with this language: “Local authorities in exercising those functions referred to in the preceding paragraph shall be subject to the direction and control of the State Highway Commission.” Likewise, Section 26 of the Act No. 300 (A 75-426 Ark. Stats.) allows local authorities certain regulatory power over traffic; but that section also limits the local authorities to “streets and highways under their jurisdiction. ’ ’

Section 29 of the Act 300 of 1937 (§ 75-502 Ark. Stats.) reads:

“(a) .The State Highway Commission, shall place and maintain such traffic-control devices, conforming to its manual and specifications, upon all State highways as it shall deem necessary to indicate and to carry out the provisions of this act or to regulate, warn, or guide traffic.

“(h) No local authority shall place or maintain any traffic-control device upon any highway under the jurisdiction of the State Highway Commission except by the latter’s permission.”

Therefore, we conclude: (1) that the truck route designated through Little Rock is a part of the State Highway System by Act No. 323 of 1953; (2) that the State Highway Commission was vested with exclusive control of the State Highway System; and (3) that the decree of the Chancery Court in each of these cases, enjoining the officers and employees of the State Highway Commission from erecting no parking signs, should he and is hereby reversed.

       This Act is in § 76-549 of the 1955 Cumulative Pocket Supplement of Ark. Stats.

       See § 75-402 Ark. Stats.

       “Traffic-control devices” are defined in Section 17 of the Act No. 300 (§ 75-417 Ark. Stats.) as being: “All signs, signals, markings, and devices not inconsistent with this act placed or erected by authority of a public body or official having jurisdiction, for the purpose of regulating, warning, or guiding traffic.”


author: Minor W. Millwee, Associate Justice.

text:
    Findley v. Tyler.
    5-1229
    300 S. W. 2d 598
    Opinion delivered April 8, 1957.

      Fietg and McAdams, for appellant.

      Douglas Bradley, for appellee.
   Minor W. Millwee, Associate Justice.

This is a suit to partition 20 acres of land originally brought by appellee, Anna Tyler. The widow and four children of Lee Findley, deceased, other than Anna Tyler either intervened or were joined as party defendants along with the appellant, Vernon Findley. The chancellor found that appellees, Anna Tyler, Lucille Storey and William L. Findley each owned an undivided one-fifth interest in fee in the tract and partition was ordered. Vernon Findley, who procured a deed from the other two heirs of his deceased brother, Lee Findley, and a tax deed from the State, has appealed.

According to the proof adduced by appellees the 20 acres in controversy was a part of an 80-acre tract owned by T. L. Findley at the time of his death intestate in 1934. His four surviving adult sons exchanged deeds in 1935 under which each took title to 20 acres with the tract in controversy going to Lee Findley, the eldest son, and the appellant, Vernon Findley, receiving an adjoining 20 acres and with each making his home on his tract. The 80 acres remained undivided for general tax assessment purposes but Lee Findley paid drainage taxes on his 20 acres in January, 1936. Lee Findley died April 2, 1936, survived by his widow Naomi (now Naomi Lam-berth), Anna Tyler, a daughter by a former marriage, and four children born to the marriage to Naomi whose names are Louise Daugherty, Lucille Storey, William L. Findley and James Lee Findley and who lived with the widow on the property when their father died. The youngest of the five children was 5 years old and the eldest 18 years old at that time. Shortly thereafter the widow and her four minor children moved off the land to the home of Naomi Findley’s mother. Naomi married Quilly Lamberth in February 1937.

When Lee Findley died in 1936 appellant was the nearest neighbor and offered advice and assistance to the widow. Acting on his advice she paid an unsecured debt of $350.00 owed by her deceased husband for repairs to the homestead out of the proceeds of a small insurance policy on his life. When the widow and children moved off the land appellant agreed to take care of the place and look after it for them. The testimony relative to the possession and renting of the place for the years 1937, 1938 and 1939 is in dispute and understandably vague. Naomi Lamberth stoutly denied receiving any rents and stated she assumed that appellant was looking after renting of the place under his agreement to do so. While two witnesses stated they were tenants on the place about that time and paid a small rental to Quilly Lamberth one of them admitted that Naomi Lamberth then told him she had turned the place over to appellant. While appellant admitted telling Mrs. Lamberth he would look after the place and first stated that he had no recollection as to just when he started collecting rents, he later testified that he first collected the rents in the summer or fall of 1940 and had continued to do so since that time.

The taxes on the entire 80-acre tract were unpaid for the years 1935 to 1939. The land sold to the state for the 1935 taxes which became delinquent in October, 1936, and ivas certified to the State in 1939. On February 23, 1940, appellant paid $41.00 for a state deed to his 20-acre tract and the 20 acres in controversy. Naomi Lamberth later learned of the purchase by appellant who told her she had lost the place and she stated she would not have discharged the $350.00 debt owed by her deceased husband if she had known she was going to lose the property in that manner. Appellant then agreed to and did pay Mrs. Lamberth $350.00 at the rate of $10.00 per month, which payments she assumed came from the rents. In 1944 appellant secured a quitclaim deed to the 40 acres from the drainage district. In 1951 Anna Lee Tyler, the oldest child of Lee Findley, deceased, approached appellant about her interest in the land and he promised to pay her something. These promises were subsequently repeated up to tbe time the instant suit was filed in 1955. Appellant then tried to secure from all the children of Lee Findley a deed which two of them signed but the three appellees declined to execute. There is no proof that appellant ever brought any adverse claim of ownership on his part directly to the attention of these appellees prior to institution of this suit.

In holding that each of the three appellees owned an undivided one-fifth interest in the 20 acres and ordering partition, the chancellor found: “It is the considered opinion of this court that Yernon Findley was in permissive possession of this property and had been since his brother’s death in 1936 and .was supposedly protecting the interest of the widow and minor children when he purchased the State Deed in 1940. That Yer-non Findley’s purchase had the effect of an equitable redemption of the property for the benefit of the widow, Naomi Lamberth, and the heirs at law of Lee Findley — the four minor children of Naomi Lamberth and Anna Tyler.

“That Naomi Lamberth being an adult person in 1940 and having actual notice from Yernon Findley of his State Deed soon thereafter, and having delayed 16 years to assert a claim, is now barred by laches from dower and homestead. That none of the five children of Lee Findley had notice prior to the filing of this suit which would put the statute of limitations in motion, and did not abandon their homestead rights during minority. That Louise Daugherty and • James L. Findley deeded their interest in these lands to Yernon Findley and have prayed for no relief in this action.”

Naomi Lamberth has not appealed. In urging a reversal appellant earnestly contends the evidence is not of that clear, cogent and convincing character required to establish a constructive or resulting trust in favor of the appellees. The pleadings did not present the issue of a resulting trust and the chancellor did not decide the case on that point. The gist of the decree is that the purchase of the land from the State by appellant in 1940 while he was enjoying the rents and profits amounted to a redemption for the benefit of the widow and heirs of his deceased brother. It is well settled, that one in possession of land enjoying the rents and profits cannot acquire title thereto by permitting it to sell for the taxes and buying it at the tax sale, or by purchasing from one who has purchased at such sale; and that such purchase will be regarded in equity as a mere redemption. Guynn v. McCauley, 32 Ark. 97; Wade v. Goza, 99 Ark. 543, 139 S. W. 639; Galloway v. Battaglia, 133 Ark. 441, 202 S. W. 836; Roberts v. Miller, 173 Ark. 38, 291 S. W. 814; Zimmerman v. Franklin County Savings Bank & Trust Co., 194 Ark. 554, 108 S. W. 2d 1074; Smith v. Smith, 210 Ark. 251, 195 S. W. 2d 45. See also Jones, Arkansas Titles, Sec. 1299. Where a person bound to pay taxes on land permits a forfeiture, his subsequent purchase from the State will be treated as a redemption. If Naomi Lamberth had remained in possession of the homestead following her husband’s death the duty would have rested upon her to keep down the taxes and she could not have acquired title to appellees’ interest in the land by permitting a forfeiture and purchase from the State. If the testimony adduced by appellees is credible, the appellant stood in the same relation toward appellees as did the widow insofar as the 20 acres in controversy is concerned. The chancellor’s findings to this effect, and that the possession of appellant was permissive and not adverse to appellees, are not against the preponderance of the evidence.

Affirmed.


text:
    Security Bank v. McEntire.
    5-1237
    300 S. W. 2d 588
    Opinion delivered April 8, 1957.

      Garvin Fitton and Arnold M. Adams, for appellant.
    No brief for appellee.
   George Rose Smith, J.

This is an action by the appellant bank to enforce a promissory note for $385.88, executed by the appellee in connection with tbe purchase of a car. By his answer the appellee sought a rescission of the contract on the ground that he was only twenty years and four months old when the contract was made. At the first hearing in the case the trial court upheld the defendant’s right to rescind, found that the car was worth $200 at the time of the sale, and allowed the defendant thirty days in which to make restitution in accordance with Act 337 of 1953. Ark. Stats. 1947, § 68-1601. At a second hearing the minor surrendered the car, which the court found to be then worth $175, and paid into court the $25 difference between the value of the car at the time of the sale and its value when surrendered. The trial judge held that since restitution had been made the bank was entitled to no other relief. In appealing from the judgment-the bank assigns several asserted errors.

Basically, the bank contends that it did not sell the car to young McEntire but merely lent him the money to buy the vehicle from its previous owner, Harvey Myers. Upon this premise the hank argues that, as far as it is concerned, McBntire is entitled to rescind the loan agreement only and that to do so he must make restitution by repaying the money.

The trial court rightly rejected this argument. McEntire did not borrow $385.88 for general purposes and later spend the money in a separate transaction with Myers. To the contrary, it does not appear that the bank actually advanced any money to McEntire or to any one else. Legal title to the car may have been in Myers, but he had mortgaged the vehicle to the bank and had apparently abandoned the car by leaving it with a garageman named Eisley. Risley testified that the car belonged to the bank, as far as he knew, and that he acted as the bank’s agent in selling the automobile to young McEntire. As far as the record discloses, McEntire merely signed a note for the purchase price and in return received title to and possession of the car, which was equitably owned by the bank. Thus there was but a single transaction, which the minor is entitled to avoid by giving back the only thing he received, the car in question.

It is next contended that the trial court acted prematurely in ascertaining the value of the car at the time of the sale without first requiring its surrender to the bank. We see no practical objection to this procedure, for the car’s market value at a given prior date can certainly be proved without regard to who happens to have possession of the vehicle at the time of the hearing. Nor does the statute, cited above, support the appellant’s argument. Among other things the statute provides in substance that if the infant no longer has the property he must repay its fair market value at the time of the sale. Hence the act itself contemplates that the market value may be determined without restitution having been made in kind. Nor is there merit in the suggestion that the court below erred in allowing McEntire thirty days in which to return the automobile, which was being held in Texas for nonpayment of a repair bill. This is not a question of substantive law but is merely a procedural matter that rests within the sound discretion of the trial court.

Finally, the bank contends that the proof does not support the court’s finding that the car was worth $200 at the time of its sale and $175 when surrendered. Young McEntire’s testimony as to the $200 value of his own property was competent, Phillips v. Graves, 219 Ark. 806, 245 S. W. 2d 394, as was that of his father, who had owned more than a dozen automobiles. Chunn v. London, etc., Co., 124 Ark. 327, 187 S. W. 307. The other valuation is supported by the testimony of two dealers called by the bank, both of whom said that they would expect to resell the car for $175.

Affirmed.


author: Paul Ward, Associate Justice. George Rose Smith, J.

text:
    Ark. Farmers Assn., Inc. v. Yohe.
    5-1236
    300 S. W. 2d 589
    Opinion delivered April 8, 1957.

      John R. Thompson, for appellant.

      John M. Lofton, Jr., and Owens, McHaney, Lofton & McHaney, for appellee.
   Paul Ward, Associate Justice.

The only issue presented by this appeal is a legal question. It is: Do the undisputed facts, concerning an attempted settlement between appellant and appellee, constitute an accord and satisfaction?

Appellee, Carl Yohe, a substantial farmer, raised a special type of seed oats in 1953 and 1954. In 1953 he secured and used a type of oats, designated as “Ark-win, ’ ’ which had been developed by the University of Arkansas. Appellee also planted a crop of the same type of oats in 1954, which he sold to appellant, Arkansas Farmers Association, Inc. A dispute over the terms of this sale germinated this litigation.

It is admitted by both sides that seed oats are graded as to quality, and that the sales price depends on the grade. In this case, it is also admitted, that if the oats were certified by the State Plant Board they would bring a higher price. Apparently there are, at least, two different grades of certified oats. One grade is known as “Blue Tag” and brings a higher price, and the other is known as “Red Tag.”

In the Spring of 1954 Mr. Ben Isgrig, head of the seed department of appellant, entered into an agreement with appellee to buy his oat crop for that year. Mr. Isgrig and Mr. Yohe differ as to the terms of that agreement, and that turns out to be the cause of this litigation. For the purpose of this opinion it is only necessary to set out the main point of • disagreement. Mr. Isgrig says he agreed to pay appellee 85 cents per bushel for the oats if they graded “Blue Tag,” otherwise the price was to be 75 cents per bushel. Mr. Yohe says he was to receive 85 cents per bushel for his oats if they were certified by the Plant Board. It turned out that the oats were certified but not as “Blue Tag.”

After appellee harvested his 1954 oat crop, amounting to 16,332 bushels, he made delivery to appellant. When appellee called at appellant’s office in the absence of Isgrig, for his pay, one of the clerks gave him a check, computed at 85 cents per bushel, after appellee assured him the oats were certified as per agreement with Isgrig.

A short time later, when he learned of the settlement, Isgrig wrote appellee to the effect that a mistake had been made, and demanded a refund of 10 cents per bushel, or $1,633.20.

Some months later Yohe went to appellant’s office and discussed the matter with Mr. Isgrig. For some time Mr. Isgrig and Mr. Yohe both stood firm on their own understanding of the sales agreement. Finally, after Mr. Isgrig threatened suit, Yohe agreed to pay $1,600 and gave his cheek to appellant for that amount. However, upon returning home, Yohe stopped payment on the check.

The original complaint filed by appellant was on the $1,600 check given by Mr. Yohe, but after appellee asked to have the complaint made more definite and certain, an amendment was filed setting out the facts much as we have detailed them heretofore. The last' sentence in the complaint reads as follows: “A full and complete understanding having been reached and the check having been issued by Defendant in settlement of said account, this suit is brought by the Plaintiff and based upon the settlement compromise and agreement, and the check given in payment of the balance due by Defendant thereon.”

In his answer appellee denied that any agreement was reached whereby he would make a refund to appellant but stated; that he was induced to issue his refund check by misrepresentations on the part of appellant and that when he discovered such misrepresentations he stopped payment on the check, and; further answering, appellee stated “that he delivered to the plaintiff oats that had been graded by the State Plant Board and met. the grade that he had contracted to deliver to the plaintiff. That he was paid by the plaintiff for said oats at the rate of 85 cents per bushel in accordance with their understanding and agreement. ’ ’

After the introduction of testimony regarding the original purchase agreement between appellant and appellee and regarding the subsequent settlement agreement, the matter was submitted to a jury under two instructions given by the court, one of which was requested by appellant and the other was requested by appellee. Appellant’s requested instruction submitted the theory of accord and satisfaction. Appellee’s requested instruction was based on the original agreement. The jury returned a verdict in favor of appellee.

After careful consideration of the able briefs presented by both sides we have reached the conclusion that appellant had no right to maintain his suit on the check for $1,600 upon which payment had been stopped. This being true appellant cannot take advantage of any error on the part of the trial court in giving the first instruction. It was given at the request of appellant and it presented appellant’s side of the case more favorably than it was entitled to under the law.

At the close of all of the testimony appellant requested a directed verdict which was refused by the trial court. It was and is the contention of appellant that the undisputed facts in this case show that the settlement reached between appellant and appellee and the giving of the check for $1,600 by appellee constituted an accord and satisfaction.

We agree with appellant that there is no dispute concerning the essential facts of the alleged agreement, but we have reached the conclusion that appellant cannot prevail for the reason that there was no satisfaction. If the check for $1,600 had been cashed by appellant we would agree that an accord and satisfaction had been reached, but such is not the situation. This court has many times held that the giving of a check upon which payment has been stopped does not constitute payment. In the case of Sharp v. Fleming, 75 Ark. 556, 88 S. W. 305, this court said: ‘ ‘ Giving the check, which was never paid, was not an extinguishment of the original debt, unless shown to have been accepted absolutely in payment.” In this case there is no testimony to show that appellee’s check was so accepted. The Sharp case, supra, was cited with approval in Churchill v. Yeatman-Gray Grocer Co., 111 Ark. 529, 164 S. W. 283, where the court, at page 536 of the Arkansas Reports, said: “The taking by a creditor of a note, bill or check of a debtor for an antecedent indebtedness is not a payment or satisfaction of the debt unless it is agreed by the parties that it should have that effect.”

Williston On Contracts, Revised Edition, Vol. 6, § 1847, has this pertinent statement relative to accord and satisfaction:

“It is often extremely difficult to determine as a matter of fact whether the parties agreed that the new promise should be itself the satisfaction of the original cause of action, or whether they contemplated the performance of the accord as the satisfaction. Unless there is clear evidence that the former was intended, the latter kind of agreement must be presumed, . . .”

Courts and textwriters generally recognize that there are two essential components in every accord and satisfaction, and that both, considered separately, are essential. In 1 C. J. S., page 462, under the title “Accord and Satisfaction,” we find:

“An ‘accord’ is an agreement whereby one of the parties undertakes to give or perform, and the other to accept, -in satisfaction of a claim, liquidated or in dispute, and arising either from contract or from tort, something other than or different from Avhat he is, or considers himself, entitled to; and a ‘satisfaction’ is the execution, or performance, of such an agreement.”

The same citation emphasizes “satisfaction” this way:

“An ‘accord and satisfaction,’ therefore, consists of the two elements expressed in the phrase, and designates the completed transaction; it is the agreement and its performance, . . .”

The same rule is expressed in 1 Am. Jur., page 252, this way:

“Ordinarily, in the absence of an express or implied agreement to take a check or note in satisfaction of a debt, there is no extinguishment of the claim on the theory of accord and satisfaction until the instrument is paid, since, by the taking of the note, there is merely an accord executory, and not a satisfaction.”

Restatement of Contracts, § 417, under topic “Discharge by Accord and Satisfaction,” Comment a, says: “Satisfaction takes place when the accord is performed. ’ ’

Applying the rules announced above to the undisputed facts in the case under consideration, the conclusion is inescapable that appellant cannot maintain this suit on the ground of an accord and satisfaction, because there was no satisfaction.

Since the cause was properly tried on both sides’ version of the terms of the original sales agreement, the judgment of the trial court must be sustained.

Affirmed.

Justice George Rose Smith concurs.

George Rose Smith, J.

(concurring). In the usual ease an accord and satisfaction is pleaded by the debtor as a defense to the creditor’s suit upon the original obligation. In that situation it is familiar law that the debtor’s original obligation is not discharged unless the subsequent agreement of accord has been fully executed, or, in other words, has been satisfied. Here, however, it is the creditor who is suing upon the agreement of accord, and I think the majority are in error in holding that in this situation a satisfaction of the accord must be proved.

The fallacy is readily apparent from the majority opinion itself. It is said that “we have reached the conclusion that appellant cannot prevail for the reason that there was no satisfaction. If the check for $1,600 had been cashed by appellant we would agree that an accord and satisfaction had been reached, but snch is not the situation.” Thus the appellant is being told that the reason it cannot sue upon the check is that it failed to cash the check and collect its money. Needless to say, had the appellant succeeded in collecting its claim it would not have brought the present action.

Despite my disagreement with the majority’s reasoning I think the judgment should be affirmed. An agreement of accord is a contract and, like any other contract, must be supported by a consideration. Levy v. Very, 12 Ark. 148; DeSoto Life Ins. Co. v. Jeffett, 210 Ark. 371, 196 S. W. 2d 243; Rest., Contracts, § 417. If the accord is a valid contract the creditor may, as the Restatement points out, sue upon the accord rather than upon the debtor’s original obligation. That is what the appellant did in the case at bar, basing its complaint upon the check rather than upon the original transaction by which the appellee was assertedly overpaid for his crop of oats.

The jury’s verdict for the defendant necessarily means that the jury accepted Yohe’s version of the original agreement, for under the court’s instructions there is no other basis on which the jury could have found for Yohe. Hence the jury found that Yohe was entitled to receive eighty-five cents a bushel for certified oats, regardless of the exact grade of certification. This being true, Yohe owed the appellant absolutely nothing when he delivered the check now sued upon, for he was justly entitled to every cent that he had received. There was therefore no consideration whatever for the agreement of accord, and since the check has not passed into the hands of a holder in due course the absence of consideration is a complete defense to the plaintiff’s claim.


text:
    Lucas v. Meek.
    5-1176
    300 S. W. 2d 593
    Opinion delivered April 8, 1957.

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

      Dickson <& Putman and Susanne C. Lighton, for appellee.
   Sam Robinson, Associate Justice.

This case grows out of a contract whereby appellants, Robert O. Lucas, Della M. Lucas and Murray C. Lucas, agreed to purchase, and Mrs. L. Ruth Meek agreed to sell, certain lands in Madison County, Arkansas. The Chancellor rendered a decree in favor of Mrs. Meek, the seller, and the purchasers, the Lucases, have appealed.

The Lucases lived in Kansas and through an advertisement of the United Farm Agency they became interested in purchasing the property involved in this litigation. It appears that the United Farm Agency had described the property as consisting of 447 acres. Mr. George W. Reeves, a local real estate agent in Madison County, was handling the sale of the property, and in talking to the Lucases he explained to them that instead of there being 447 acres there were only 346 acres offered for sale; that this acreage was all he could find that was owned by Mrs. Meek. The Lucases looked at the property and one of them stated that the 346 acres were sufficient to meet their requirements. The parties entered into a contract whereby Mrs. Meek agreed to sell 346 acres for a consideration of $9,500. The Lucases paid $3,000 in cash and agreed to pay $500 a year for two years, and the balance to be paid in four equal annual payments, with 6% interest. The deed and abstract were to be held in escrow at the First National Bank of Huntsville until the purchase price was paid in full. The contract further provides that, should the purchasers fail to make the payments as required when due, they were to forfeit all claims to said property and the monies paid would be considered as rent. As agreed, the $3,000 was paid by the Lucases, a deed was executed by Mrs. Meek warranting good title, and the deed and abstract were deposited with the escrow agent. Later, the Lucases took up with Mr. Beeves, the real estate agent, the proposition that they were to get 447 acres instead of 346, which their contract called for. Mr. Beeves again stated that he could not find where Mrs. Meek had title to more than 346 acres, and if the Lu-cases were not satisfied with the deal it would be called off and the $3,000 refunded. But Mr. Beeves’ offer to refund was not accepted. Later, on February 18, 1954, when the first $500 payment became due, the Lucases paid that amount, plus $390 interest, to the escrow agent; but it was paid on condition that it was not to be turned over to Mrs. Meek until a good abstract of title was furnished to the 101 acres of land not included in the original deed and contract.

The contract of sale was entered into on February 20,1953, but the Lucases did not obtain the abstract from the escrow agent for examination by an attorney until February 15, 1954. The Lucases contend that they made several efforts to obtain the abstract, but the bank would not turn it over to them to have it examined. On the other hand, Mrs. Edith Nichols, an employee of the bank in charge of the escrow files for 13 or 14 years, testified that she does not recall anybody asking for the abstract until about eleven months after it was placed in escrow. She testified that she would have permitted any lawyer to take it for the purpose of examination or ■would have let any one of the Lucases take it to a lawyer. The Lucases finally submitted the abstract to an attorney for his examination. The description is very long, requiring almost three pages of the abstract to set it out. Mr. Fowler, the examining attorney, would not approve the title for the principal reason that he stated there were defects in the description.

Subsequently, Mrs. Meek filed this suit to quiet her title and alleged that the Lucases had breached their contract. Mrs. Meek also asked that the purchasers’ rights under the contract be forfeited; but, in the alternative, asked for a judgment for the balance of the purchase price under the contract. The Lucases filed a cross complaint in which they alleged breach of warranty of title, and also alleged false representations in connection with the number of acres of land they purchased, and asked that for these reasons the contract be rescinded and they have judgment for the money they had paid on the contract. The Chancellor rendered a decree quieting the title in Mrs. Meek, subject to the deed to the Lucases; made a finding that only 346 acres were involved in the contract of purchase and rendered a judgment against the Lucases for $6,500, the balance owed on the contract, plus interest and taxes paid by Mrs. Meek, and ordered the property sold to satisfy the judgment if not paid within sixty days. On appeal, the Lu-cases contend that the title was defective, and that such defect constituted a breach of contract entitling them to the return of the money paid, plus the value of improvements they placed on the land.

Assuming that, by reason of the defective descriptions, Mrs. Meek’s record title was not perfect, bud that a decree has now been rendered quieting title in her on the theory of adverse possession, does she have a title that she can convey which will be in accordance with her contract, and such a title as the Lucases are entitled to receive under the contract? The contract provides: “And the said first party on receiving such payment at the time and in the manner above mentioned shall at their own proper cost and expense, execute, acknowledge, and deliver, to said second party or to their heirs or assigns a proper deed containing a general warranty and the usual full covenants for the conveying and assuring to them good title to said premises, free from all encumbrances except those mentioned herein, etc. ’ ’ Appellant contends that under the foregoing provision of the contract nothing will suffice except a perfect record title; saying, in effect, that regardless of how good Mrs. Meek’s title may be by adverse possession the law will not compel the acceptance by appellants of anything less than a perfect record title. And such is the holding of this court in the cases of Mays v. Blair, 120 Ark. 69, 179 S. W. 331, and Shelton v. Ratterree, 121 Ark. 482, 181 S. W. 288.

But both of those cases were overruled in Hinton v. Martin, 151 Ark. 343, 236 S. W. 267. See also Dalton v. Lybarger, 152 Ark. 192, 237 S. W. 694; Meek v. Green, 166 Ark. 436, 266 S. W. 451; Lone Rock Bank v. Pipkin, 169 Ark. 491, 276 S. W. 588; Landers v. Peoples Building & Loan Association, 190 Ark. 1072, 81 S. W. 2d 917; McWilliams v. Toups, 202 Ark. 159, 150 S. W. 2d 34; Hart v. Sternberg, 205 Ark. 929, 171 S. W. 2d 475; Bride v. Walker, 206 Ark. 498, 176 S. W. 2d 148.

In the case at bar, Mrs. Meek contracted to deliver a warranty deed assuring the grantees a good title. She did not contract to furnish an abstract showing a good title of record. In Hinton v. Martin, supra, the court said: “In the case of Freeman v. Funk, 117 Pac. 1024, 85 Kan. 473, annotated in 46 L. R. A. (N. S.) 487, there is a very extended annotation of a note on the ‘use of possessory title as a weapon of offense.’ A sub-note deals with suits for specific performance, and the law is stated by the annotator (p. 515) as follows: ‘Title by adverse possession is generally held sufficient to enable the vendor to maintain an action for specific performance against a purchaser, in the absence of a contract for a perfect record title.’ ” And the court further said: “A title by adverse possession may be so clear and free from doubt as to be a ‘marketable’ title, and may therefore be the basis of a suit for specific performance of a contract to convey land.” Here, it is not argued that there is anything wrong with Mrs. Meek’s title except there may be a defective description. The Chancellor quieted title in Mrs. Meek. In these circumstances, a delivery of her warranty deed to the escrow agent constituted performance of the contract on her part, and the Chancellor was correct in so holding.

The decree should be modified in one respect. In the circumstances shown here, the Lucases were justified in withholding payments on the contract until such time that Mrs. Meek perfected her title. This was not done until the decree herein was rendered. Therefore, there was no forfeiture, and the Lucases should be permitted to make the payments now in arrears on the contract and make future payments in accordance with the terms of the contract.

Modified and remanded, with directions to enter a decree not inconsistent herewith.


author: Carleton Harris, Chief Justice. Paul Ward, Associate Justice

text:
    Craig v. O’Bryan.
    5-1189
    301 S. W. 2d 18
    Opinion delivered April 15, 1957.
    [Rehearing denied May 13, 1957]

      Sherrill, Gentry db Bowner, for appellant.

      Talley & Owen, Dale Price and William L. Blair, for appellee.
   Carleton Harris, Chief Justice.

Appellees filed their complaint stating that they were owners of property on the north side of Old River Lake adjoining -the property of the appellants, and alleging that a road leading through appellants’ property to that owned by appellees was a way of necessity to appellees; that said road was a public road, and that the roadway had been adversely used by appellees and the general public for a period of forty years. They further alleged that appellants were damaging the road and drainage ditches by using said road to turn their tractors, cultivators and plows, and by refusing to permit appellees to maintain the road. It was further alleged that appellants were estopped to deny appellees access to use of the road because they had stood by, knowing that appellees were investing thousands of dollars in improving their property, and knowing that their only access to same was over the road in controversy. Appellants filed answer and cross complaint admitting that the roadway in question crossed a portion of their lands and had been used by appellees from time to time. They denied the adverse nse by appellees and the general public, and stated that any use of the roadway upon their lands was permissive only. The pleading further set out that appellants and their predecessors in title had habitually used said roadway for the hauling, dragging, and transportation of all kinds of heavy farm equipment; that they habitually used the road as a turnrow for cultivating and harvesting equipment, and that in order to use said road in this manner, it was necessary that the area between appellants’ cultivated fields and the roadway be free of ditches in order to permit the equipment to pass over and onto the road; that such acts had been under a claim of right and adverse to any rights or easements claimed by appellees. Appellants further alleged that appellees had caused to be constructed, ditches along the roadway which had trapped and accumulated water from appellants’ integrated draining system, had caused the water to flood portions of appellants’ fields at planting time, and that such flooding would continue unless appellees were enjoined from maintaining such ditches along the roadway. Appellees denied the allegations of the cross complaint and subsequent thereto, the cause proceeded to trial. On May 16, 1956, the court entered its decree, in which it found that the road in question was a public road by reason of the adverse use of the general public and appellees for a period greater than seven years. The court further found that appellants were estopped to deny appellees the use of said road, or to deny them the right to maintain the road. In conformity with said findings, the court entered its order dismissing the cross complaint of appellants, and making permanent a temporary injunction (which had been granted on July 15, 1955) restraining appellants from damaging the road, from interfering with the use and maintenance of same, and declaring it to be a public road. From such decree comes this appeal.

In reviewing the testimony of appellees’ witnesses, we do not feel that the evidence establishes the roadway in question to be a public road. The people testifying (Linda Biggs, lone Black, Sherman Abraham, Lillie Garrett) as to this being a public road, had lived in the area at one time and traveled the road to reach their homes. Tenants on the farms, and people visiting both the owners and tenants, used the road. None of these witnesses (except Sherman Abraham) testified as to personal knowledge of seven years consecutive use by the general public. Abraham’s testimony was to the effect that he saw people traveling the road who did not live in the area — “going in there to fish and different things.” He testified that he had been familiar with the road for 25 or 30 years and formerly lived down on Old River, but it is not made known as to the particular years his testimony covers, or that he had occasion to observe daily the use of the road for a consecutive number of years. Certainly we cannot find that his testimony establishes same to be a public road. Joe Price, a county employee, testified that the road had been worked occasionally by the county since 1935, but he did not know whether this was done because of the requests of property owners. The evidence does not reflect any order of the county court establishing this as a public road, and the mere fact that the roadway was occasionally worked by the county would not, of course, make it a county road. The rest of the testimony on behalf of appellees as to use of the road came from appellees themselves.

To establish their easement by prescription, it is necessary that appellees establish their use of the roadway for more than seven consecutive years, under a claim of right, adverse, and hostile to appellants. Quoting from Yol. 14, page 98, of Words and Phrases: “Easement by prescription may be created only by adverse use of privilege with knowledge of person against whom easement is claimed, or by use so open, notorious, and uninterrupted, that knowledge will be presumed, and exercised under claim of right adverse to owner and acquiesced in by him.” Several of the appellees testified that they talked with Craig about whether they had a right to use the road, and the majority have not owned their respective properties for a sufficient period of time to establish adverse rights.

Under the evidence, it would seem that this road “started out” as a turnrow, and has been used in connection with general farming operations on the Craig farm by appellants and their predecessors in title for a long number of years. Alfred Craig, Jr., testified that he had so used the road for 21 years. This is not disputed; there is no claim by appellees that appellants have been deprived of the use of the road, nor can we find any testimony in the record which would tend to show the commission of acts by appellees that would serve as notice to appellants they were claiming adversely. The fact that they finally did commit such acts which were hostile to the purpose for which appellants used the road, and to which they strenuously objected, occasioned this litigation. These seem to have been the first instances in which appellees asserted rights contrary and hostile to those of appellants and such acts occurred a comparatively short time before the filing of the lawsuit. In short, the prior use of the road by appellees had not been inconsistent with the use of same by appellants. One might well make the observation that if appellees felt they had an absolute right to the use of the road, there was no reason for any of them to talk with Craig about the matter at all. In LeCroy v. Sigman, 209 Ark. 469, 191 S. W. 2d 461, American Jurisprudence is quoted as follows: “The prevailing principle seems to be that while a way may be acquired by user or prescription by one person over the uninclosed land of another, mere use of the way for the required time is not, as a general rule, sufficient to give rise to the presumption of a grant. Hence, generally some circumstance or act, in addition to, or in connection with, the use of the way, tending to indicate that the use of the way was not merely permissive, is required to establish a right by prescription.” Viewing the evidence and the circumstances in their entirety, we conclude that appellees have failed to establish their right to use of the road by prescription, and that such use has been permissive only.

The court further found that appellants were estopped to prevent appellees from using and maintaining the road, because of statements of appellant Alfred Craig, Sr., made prior to appellees’ purchase of properties on Old Biver, to the effect that they could use same. The evidence shows that Craig made such statements to several of the appellees and knowingly suffered the others to purchase and expend money on their properties. "We think the Chancellor was correct in holding that appellants are estopped to deny appellees use of the road. We are also of the opinion that they have the right to maintain said road so long as the manner of maintenance does not place an additional burden upon the servient estate. Actually, it may well be immaterial whether the right of appellees was acquired by prescription or permission. Quoting from Thompson on Beal Property, Yol. 2, Sec. 681, page 352: “Where a right is acquired by use or prescription, the nature of the use cannot be changed so as to render it more burdensome upon the servient tenement.” Prom A. L. R., Vol. 112, page 1303: “It is a general rule that the owner of an easement of way may prepare, maintain, improve or repair the way in a manner and to an extent reasonably calculated to promote the purposes for which it was created or acquired, causing neither an undue burden upon the servient estate nor an unwarranted interference with the rights of common owners or the independent rights of others.” (emphasis supplied). In Doan v. Allgood, (1923) 310 Ill. 381, 141 N. E. 779, the court said: “Whoever has an easement in or over the land of another has the right to do everything necessary to preserve the easement, and the right to repair a way is fully established . . . The question of what acts of repair are reasonable in the use and enjoyment of an easement is one of fact in each particular case, and depends on the extent and character of the lawful use of the easement. The owner of the easement may make such grades or fills and lay such tiles or construct such ditches as may be necessary to enable him to make use of the way in. accordance with the grant, provided in doing so he does not injure the servient estate. He may not construct a grade or fill a ditch in such a manner as to affect injuriously the adjoining land of the servient estate.” From Am. Jur., Yol. 17, Sec. 112, page 1006: “Asa general rule, when the character of an easement is once fixed, no material alterations can be made in physical conditions which are essential to the proper enjoyment of the easement except by agreement.”

At the time appellees acquired this easement by permission of Craig, the road in question was not graveled, nor were ditches existing to provide drainage of the road. There were “bad spots”, almost impassable in winter, at that time. Appellees complain that the road has become much worse and more difficult to travel in the last two years; this would seem logical, since there is apparently much more motor traffic over the road than in the past. Appellees do have a right to maintain such road, but only to the extent that acts of maintenance do not render same useless for purposes of appellants. They may grade the road or gravel any bad spots. They may even dig ditches, if such are constructed in a manner as will not interfere with appellants’ use of the road as a turnrow, or cause the fields to be flooded.

While appellees do not argue the point, the record is replete with references to the fact that appellees have no other way to reach their properties except by use of this road. It is well settled that a “Way of necessity” only arises where the lands of all parties were at one time owned by a common grantor. Boullioun v. Constantine, 186 Ark. 625, 54 S. W. 2d 986; Mettetal v. Stane, 216 Ark. 836, 227 S. W. 2d 636. There is no evidence that such is true in the instant litigation.

It would appear that there is no reason why appellants and appellees should not both enjoy the use of this road. Appellants should operate their machinery, while using the road, in a manner that will limit any damage to that which must necessarily come from the mere use of the road, and consistent with the rights of appellees to their use of the roadway. The parties may well agree on the stretches to be graveled, and take proper steps for drainage that would not prove injurious to either. An amiable and cooperative attitude on the part of all' concerned should result in a satisfactory and harmonious solution.

The decree is therefore modified to the following extent. The finding that the road is a public road is held erroneous. The injunction restraining appellants from damaging the road and interfering with the use and maintenance of same by appellees is upheld, though modified to the extent as to apply only to unnecessary damage, and the term "maintenance” is modified as herein indicated.

The case is remanded to the trial court for any further orders which may be necessary to insure the rights of the parties as have been set out.

Justice Ward dissents.

Paul Ward, Associate Justice

(dissenting). I do not agree with the majority opinion in the following particulars :

One. The chancellor held that appellees had acquired a road by prescription. I would affirm that holding. Where the public uses a road across unoccupied and unenclosed land, there is a presumption the usage was permissive. See Nelms v. Steelhammer, 225 Ark. 429, 283 S. W. 2d 118. There is a good reason for such a presumption, because the owner of the land might not know of the usage. Such presumption does not arise where the land is occupied or cultivated, as here. The majority, in reversing the chancellor on this point, feel that no continuous usage for seven consecutive years was shown by the testimony. But as I view the testimony, the chancellor was justified in finding that the public, and appellees in particular, had used the road continuously for more than 50 years. Since the undisputed proof shows that appellees had no other road to and from their farms, and since appellants themselves admit the road has been in use for some 30 years, it would be preposterous to presume that the road ivas not used for a period of seven consecutive years. Joe Price, employed hy the Pulaski County Road and Bridge Department, testified that he had been familiar with the road since 1935 and that the County had been working the road occasionally since that time. Sherman Abraham had been familiar with the road for 25 years, and knew the general public used it. Lillie Garrett knew the road was old in 1930 and that the general public used it. Witness Dortch stated that the road had been in existence within a few feet of where it is now for a period of at least 50 years. One of the appellants testified that the road had been there for 100 years. It seems to me that the above testimony (and there is much more) is ample to sustain the chancellor’s finding on the period of usage. This is especially true since there is no testimony that there was any 7 year gap in the usage. If appellants thought there was any such gap they should have brought it oui on cross examination or by direct testimony.

Under the above factual situation, it is my considered opinion that the trial judge in this case correctly followed the rule laid down by this court in the case of Fullenwider v. Kitchens, 223 Ark. 442, 266 S. W. 2d 281, 46 A. L. R. 2d 1135, where, in dealing with a similar state of facts, we said: ‘ ‘. . . the road has been used by appellee and the public openly and adversely for more than 7 years and (that) the constant usage of said road for some 40 years under the circumstances of this case overcomes the presumption that said usage was permissive.” In the cited case the road was over unenclosed land and therefore the presumption of permissive use attached, but in the case under consideration of course no such presumption attached. See also Stoker v. Gross, 216 Ark. 939, 228 S. W. 2d 638.

Two. In my opinion the majority have announced the wrong rule by which appellants and appellees must hereafter settle their differences. As I understand the majority opinion it lays down this rule: Appellees can maintain the road as long as they do not increase the hnrden on appellants. It is not necessary to enter into a discussion of what constitutes a “burden”, because I am concerned here only with a rule or principle.

The rule which I think this court should apply, and which I think is approved by the decisions cited by the majority, can be stated, in effect, as follows: Appellees have a right to make such repairs, and only such repairs, on the road as are reasonably necessary to insure its use. In other words I would make the use. of the road, and not the burden on appellants, the criterion. The difference in the two rules may seem slight, but I think it is fundamental, and that it could lead to quite different results. For example: If digging a one foot side ditch along a portion of the road was found to be necessary in order to make the road usable, it would not be allowed, under the majority rule, if it was found to be an extra burden on appellants. This could, in effect, deny appellees the use of the road entirely.

       Appellees had constructed drainage ditches and placed gravel upon the road, and appellants filled up the ditches.

       Actually, the right of appellees to merely travel the road does not seem to be in dispute. Their right to maintain same is the pertinent issue.