author: George Rose Smith, J. Ed. F. McFaddin, Associate Justice,

text:
    Johnson v. Ford.
    5-2315
    345 S. W. 2d 604
    Opinion delivered April 24, 1961.
    [Rehearing denied May 22, 1961.]

      Spencer & Spencer, for appellant.

      Wayne Jewell, for appellee.
   George Rose Smith, J.

In 1951 Willie Johnson and the appellee Ernest Ford voluntarily partitioned a 38-acre tract by an exchange of warranty deeds. Two years later the appellant, C. G. Johnson, purchased from Willie the part that had been set aside to him. In 1959 the appellant brought this suit for a reformation of the partition deeds, asserting that the parties had intended to divide only the surface interest but that by mistake the minerals had also been conveyed. The chancellor dismissed the complaint for want of equity, holding that the proof of mutual mistake was not sufficiently clear and convincing and that the plaintiff was barred by laches. Although the appellant insists that the chancellor erred in denying reformation we do not reach that issue, for in our opinion the deeds actually conveyed only the surface interest and had no effect upon the mineral ownership.

The 38-acre tract was formerly owned by A. H. Hadley, whose title passed at his death to his three children. One of the Hadley heirs conveyed his undivided one-third interest to Willie Johnson in fee simple. The other two Hadley heirs conveyed their undivided two-thirds interest to Ernest Ford, but in that deed the grantors reserved a five-twelfths interest in the minerals.

There is no real conflict in the testimony of Willie Johnson and Ernest Ford with respect to the facts leading to their division of the property. Willie had built a house upon the land and wanted his one third set apart to him. To that end the two men exchanged warranty deeds on June 30, 1951, with Ford purportedly conveying the north one third of the tract to Johnson and with Johnson purportedly conveying the south two thirds to Ford. Both men agree that no money or other collateral consideration was paid by either party.

In bringing suit to reform the deeds the appellant was under the impression that the voluntary partition had fairly divided the surface interest, because it was owned outright by the contracting parties. It was thought, however, that Willie Johnson had been treated unfairly in the exchange of minerals, since the title that he received from Ford was subject to the outstanding-mineral reservation in favor of Ford’s grantors. The appellant, anticipating a favorable decree in this case, has obtained from Willie Johnson a conveyance of Willie’s mineral ownership in the entire 38 acres.

The appellant’s construction of the 1951 conveyances overlooks a principle which, as we said in Hutchison v. Sheppard, 225 Ark. 14, 279 S. W. 2d 33, applies uniquely to partition deeds. This rule is that “a partition deed conveys or creates no title, but merely severs the unity of possession.” Tiffany, Real Property (3d Ed.), § 470. It has been correctly declared with reference to such a deed that “neither party lost anything by the deed except the right to hold the property in common, and neither gained anything except to hold the interest claimed by him in severalty.” Townsend v. Outten, 95 Va. 536, 28 S. E. 958. Another clear statement of the principle may be found in Edwards v. Bates, 79 Ind. App. 578, 139 N. E. 192: “It is well settled that a mere partition of land among cotenants by the exchange of partition deeds, without any consideration other than the mutual agreement to divide their interests, does not vest in the grantee of such deeds any additional title or estate in the land partitioned. . . . The fact that the deeds exchanged by cotenants in effectuating an agreed partition are deeds of general warranty does not change the rule.”

Other cases applying the principle to partitions involving warranty deeds include Lang v. Coil, 104 Neb. 15, 175 N. W. 657; Elledge v. Welch, 238 N. C. 61, 76 S. E. 2d 340; and Chace v. Gregg, 88 Tex. 552, 32 S. W. 520. In this case we are not called upon to decide to what extent a bona fide purchaser might be bound by the rule in question if a warranty deed in his chain of title should contain no indication that it was executed as part of a partition agreement. Here no one claiming to hold under Ernest Ford has met the burden of proving himself to be an innocent purchaser; so that issue does not arise.

This case is controlled by our decision in Hutchison v. Sheppard, supra. There we held that where the parties to a partition deed owned two estates in the land, one in common and in the same ratio as the division and the other not in common and therefore not in that ratio, the deed should be construed as a conveyance only of the estate held in common. And that conclusion was reached even though the deed purported to convey, all the grantor’s “right, title, interest and claim” in and to the land. The governing rule is obviously both sensible and just, for it prevents either party from gaining an advantage at the other’s expense. It follows that the Johnson-Ford partition deeds must be construed as having conveyed only the surface interest, since that was the only estate which the parties owned in common in the same proportion that they sought to achieve by partition.

A decree of reformation is unnecessary, but the case does present a genuine controversy that can appropriately be ended once and for all by the entry of a declaratory judgment. A complaint for some other form of relief may, in the interest of justice, be treated as one for a declaratory judgment. Culp v. Scurlock, 225 Ark. 749, 284 S. W. 2d 851. That course will be followed here, and since the title to land is involved the cause will be remanded so that a declaratory decree favorable to the appellant may be placed of record.

Reversed.

McFaddin, J., dissents.

Ed. F. McFaddin, Associate Justice,

dissenting. As background to my dissent I think it appropriate to briefly sketch the history of the litigation. C. G. Johnson, as grantee of Willie Johnson, brought this suit against Ernest Ford to reform the deeds between Ford and Willie Johnson, “. . . to include a full mineral reservation in accordance with the understanding, agreement, and intention of ...” Willie Johnson and Ernest Ford, “. . . at the time of the conveyance.” In deciding against the plaintiff the Chancellor rendered a well considered written opinion of three typewritten pages; and I quote his conclusions:

“Thus we see that no action was ever brought by Willie Johnson against Ernest Ford, and no action was brought by C. G. Johnson, grantee of Willie Johnson, for several years, and until the payments for oil began to be distributed.

“The court, after giving full consideration to all of the evidence and matters presented, is of the opinion that Plaintiff cannot prevail in this cause because:

“I. In order to reform a. deed, the evidence on the part of the party seeking the reformation must be ‘Clear, convincing, unequivocal, decisive and beyond a reasonable doubt.’ (168 Ark. 842.)'

“In this case the plaintiff did not know and could not testify with reference to any understanding or agreement between Willie Jolmson and Ernest Ford, back eight years ago, when they divided the property and exchanged deeds. It is admitted that nothing was said about any mineral reservations by the parties or to the scrivener (or attorney) who prepared the deeds.

“II. ‘Equity aids the vigilant.’ In this, cause, as stated before, eight years had elapsed since Ford and Willie Johnson exchanged deeds and six years since Willie Johnson executed his Mineral Deed to Plaintiff. During this time Plaintiff took no action to have the Deeds reformed, and no action was ever taken between the original parties to the exchange of deeds or has ever been taken until the discovery of oil on the property.

‘ ‘ The Court therefore finds that Plaintiff’s complaint should be dismissed for want of equity.”

On appeal, C. Gr. Johnson has urged only two points:

“I. The intention of the parties was that mineral ownership should not be disturbed and appellant is entitled to reformation.

“II. The doctrine of laches does not apply to the facts in this case. ’ ’

The majority opinion is reversing the Chancery decree on some theory of partition that I do not find discussed in the briefs. I regard the majority opinion as an extremely dangerous holding because it will tend to disturb titles in every instance when the property may be found to possess value for oil and gas. The majority opinion says of the deeds between Willie Johnson and Ernest Ford: “. . . in our opinion the deeds actually conveyed only the surface interest and had no effect upon the mineral ownership. ’ ’ I certainly cannot agree with the foregoing quotation. Willie Johnson received a deed from. Hadley which conveyed an undivided one-third interest in the thirty-eight acres of land. It was a general warranty deed, with no reservation of mineral rights. Ernest Ford received a deed from the Hadleys to the remaining undivided two-thirds interest in the thirty-eight acres of land, but that deed contained this specific mineral reservation : “The grantors do not sell but reserve to themselves, their heirs and assigns, an undivided 5/12 of the oil, gas and other minerals in, under and upon the above described land.”

Thus, when Willie Johnson and Ernest Ford met to effect their partition, Willie Johnson owned an undivided four-twelfths interest in both the land and minerals; and Ernest Ford owned an undivided eight-twelfths interest in the surface and an undivided three-twelfths interest in the minerals. By general warranty deed, with no reservation of minerals, Ernest Ford conveyed to Willie Johnson the north 12.8 acres of the thirty-eight acres. At the same time, Willie Johnson, by general warranty deed and with no reservation of minerals, conveyed to Ernest Ford the south 25.2 acres of the thirty-eight acre tract. There is not one word in either of the deeds that shows it was a partition deed, or that there was any reservation of minerals.

We have a long line of cases in Arkansas which hold that a deed accurately describing the land and without reservation includes the minerals as well as the surface. In Long Prairie Levee Dist. v. Wall, 227 Ark. 305, 298 S. W. 2d 52, we said: ‘ ‘ The land, as we have said, was accurately described, and such an unqualified description includes the minerals as well as the surface. Osborne v. Ark. Ter. O. & G. Co., 103 Ark. 175, 146 S. W. 122; Maloch v. Pryor, 200 Ark. 380, 139 S. W. 2d 51.” So I insist that these deeds between Willie Johnson and Ernest Ford by law carried the minerals as well as the surface. To hold otherwise is to cast a doubt on our holdings in the three cases just mentioned, and also will tend to disturb titles in every instance when the property is found to possess value for oil and gas. For this reason alone, I think the majority should find some other reason for reversing the Chancellor, rather than the one assigned in the opinion.

The majority bases its holding on some language in Hutchison v. Shepherd, 225 Ark. 14, 279 S. W. 2d 33, wherein each tenant owned an undivided life interest and also each had a possibility of inheriting an unvested remainder. In that case the Court held that the partition deeds merely partitioned the vested life estate and had no application to the possibility of unvested remainder. The Court said, inter alia: ‘ ‘ The law sensibly holds that when co-tenants simply agree upon a division of the common property with no independent consideration being paid, their purpose is taken to be the severance of the unity of possession rather than the creation of a new estate in either party. ’ ’ That holding was correct in that case, because the parties then had only vested life estates.

I maintain that the holding in Hutchison v. Shepherd, supra, has no application to the case at bar because, here, Willie Johnson and Ernest Ford were tenants in common, both to the surface and to the minerals. When Willie Johnson and Ernest Ford exchanged the general warranty deeds between themselves, they were tenants in common both as to surface and minerals; and the general warranty deeds conveyed all the interest that each had. I think it is an unreasonable and undue extension of the holding in Hutchison v. Shepherd to apply it to the case at bar.

It has been said that, “Hard cases make bad law”; and the case at bar is a splendid example of that statement. Here, the net result of the transaction was for Ernest Ford to get a considerable portion of the minerals that Willie Johnson owned. Willie Johnson and his grantee could have sued for breach of warranty within the proper time, or they could have proceeded to offer more evidence of fraud or mistake. But, in the absence of such, the majority opinion in the case at bar, in order to keep Ernest Ford from getting too much of Willie Johnson’s minerals, is applying a theory that does violence to our holdings on unqualified deeds conveying minerals. It would be far better for the majority to find some other theory on which to reverse the case, rather than to do violence to the rules on conveyancing.

I respectfully dissent from the majority holding.

       Of course, the Hadleys were also tenants in common with them regarding the minerals.


source: Caselaw Access Project

author: Paul Ward, Associate Justice.

license: Public Domain

text:
    Mazander v. Reed.
    5-2387
    345 S. W. 2d 469
    Opinion delivered April 24, 1961.

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

      McMillan <& McMillan, for appellee.
   Paul Ward, Associate Justice.

Appellants filed suit in Chancery Court to cancel, on the alleged ground of fraud, a deed executed by them to appellees. From an adverse decision they now prosecute this appeal.

On October 2, 1952, appellants, Charlie A. Mazander and Mildred L. Mazander, executed a warranty deed conveying to Thomas E. Reed and Ida Lee Reed, his wife, lots 11, 12, 13, 14,15 and 16 of Mazander’s Subdivision, being a part of Section 10, Township 3 South, Range 19 West. In consideration for the execution of said deed appellee, Thomas E. Reed, executed an assignment of an undivided 1/32 working interest in and to an oil and gas lease located in Dubois County, Indiana, on which lease an oil well was being drilled. Mrs. Mazander, who negotiated the transaction with Reed, testified that she' knew nothing about the oil and gas business and therefore relied on what Reed told her. She also testified that Reed told her his company had already drilled a well to the depth of about 1,100 feet; that the prospects for oil were good, and the the company intended to drill the well to a depth of 1,800 feet. She admits that about 3 weeks after she and her husband executed the said deed Reed told her that they had finished the well and that it was dry. Apparently this settled the whole matter in Mrs. Mazander’s mind for the time being, but some 5 or 6 years later her son wrote a letter to the Indiana Oil and Gas Commission seeking information relative to the oil well in question. In response to this letter appellants came into possession of two documents which, to their minds, indicated that Reed had fraudulently given them incorrect information. As a result of such information they filed this suit on May 19, 1958.

Mrs. Mazander testified that if Mr. Reed deepened the well after October 8, 1952 to 1,800' feet, then he did what he told them he was going to do, and she also stated that she thought Mr. Reed would have fulfilled his agreement if he drilled on the well after he executed the assignment.

In substance Mr. Reed testified: At the time of the execution of the assignment to appellants we had drilled down to approximately 1,100 or 1,200 feet and on August 28, 1952, easing was set and we began to pump the well; in 3 or 4 weeks we had pumped 12 barrels of oil; when I talked with Mrs. Mazander on about October 1, 1952, I told her we would go down to 1,800 feet because the well was not then producing satisfactorily. Reed further testified: After I gave Mrs. Mazander the assignment we did drill the well to 1,800 feet to test the Devonian formation but did not get a producing well; after I gave Mrs. Mazander the assignment I went back to Indiana and stayed at the Ideal Hotel in Huntingburg, which was about 12 miles from the oil well until October 27th, during which time the well was drilled from about 1,200 feet to about 1,800 feet; after I found out the well was dry I returned to Hot Springs where I saw Mrs. Mazander and told her we had a “dry” hole. Reed introduced receipts purporting to show that he had stayed at the Ideal Hotel from October 13th to October 26th, and he also exhibited invoices of the Standard Oil Company dated October 17 and October 21 showing delivery of furnace oil, gasoline, etc., at the well during that period of time.

The essence of appellants’ contention appears to be that the well was dry when they traded their property for the assignment that the well had been finished and abandoned at that time, and that no further work was done on the well thereafter. Mrs. Mazander stated that if Mr. Reed deepened the well after October 8th to 1,800 feet then he did what he said he would do and in that event Mr. Reed would have fulfilled his agreement.

Appellants contend however that the information received from the Indiana Oil and G-as Commission refutes Mr. Reed’s testimony and shows that no work was done on the well as testified to by him. We are unable to agree with this contention. One of the documents relied on by appellants is designated “Well Plugging Affidavit.” It was signed by T. E. Reed on August 12, 1955, and shows that drilling on the oil well began on June 18, 1952; that it was drilled to a depth of 1,800 feet; and that it was completed on August 28, 1952. The affidavit consists of two pages and contains many items of information. Mr. Reed testified that when he signed the affidavit in 1955 he was not concerned with the date of completion and was not aware that it showed the completion date to be August 28, 1952. He further testified that said date was incorrect. (It is noted that the casing was set on August 28, 1952.) The other document received and relied on by appellants to discredit Reed’s testimony is designated “Indiana Geological Survey.” It contains some 20 lines of dates and figures, the last of which is “2-25-53 complete.” After careful examination of the entire document we find nothing that positively discredits Reed’s testimony. Appellees’ interpretation of a portion of the document is as follows:

“ ‘9-25 S.D. 1350

‘ ‘ Which means that on September 25 the well was shut down at 1,350 feet,

‘10-2 check’

‘10-9 check’

‘10-16 fsh 1382’

“Which means that on October 16 they were ‘fishing’ for lost tools at 1,382 feet,

10-23 G D R 1550’

“Which means on October 23 they were drilling' at 1,550 feet,

‘10-30 D& A’

“Which means on October 30 — dry and abandoned.”

The law applicable to this case is well settled. “Fraud is never presumed, but must be proved, and the burden of proving it is upon the party alleging it,” is the rule approved in Stuttgart Rice Mill Co. v. Lockridge, 185 Ark. 340 (at page 349), 47 S. W. 2d 596. In Welch v. Farber, 188 Ark. 693 (at page 697), 67 S. W. 2d 588 we said: “The burden is upon him who alleges fraud to prove the same by clear and satisfactory evidence.” In Arkansas Valley Compress & Warehouse Co. v. Morgan, 217 Ark. 161 (at page 165), 229 S. W. 2d 133 the comí approved this statement: “Actual or positive fraud includes cases of the intentional and successful employment of any cunning, deception, or artifice, used to circumvent, cheat, or deceive another.”

The contention of fraud in this case narrows down to a single question of fact; had the oil well in question been completed down to 1,800 feet and found to be “dry” on October 2, 1952, when Reed represented the facts to be otherwise?

The chancellor held against appellants’ contention, and we think such holding is supported by the weight of the evidence.

Affirmed.


author: Sam Robinson, Associate Justice.

text:
    Adair v. Frisby.
    5-2380
    345 S. W. 2d 468
    Opinion delivered April 24, 1961.

      Broiun & Compton, for appellant.

      Spencer <& Spencer, for appellee.
   Sam Robinson, Associate Justice.

This action grows out of damages caused by appellants in discharging salt water into a creek which flows through appellee’s property. Appellee was awarded damages in the sum of $2,375 and the only issue involved in this appeal is whether the judgment is excessive.

Appellants argue that according to the evidence the maximum amount that appellee has been damaged is $900. Appellee Frisby testified that he owned a tract of 177 acres, a part of which was damaged by the salt water; that before the damage occurred the whole tract was worth $17,000; that after the damage was done, the land was worth $10,000. Appellee also introduced evidence to the effect that the salt water had killed timber, causing it to fall and cjog a creek which flows across his land, thereby overflowing 54% acres of the property, reducing such acreage in value from $100 per acre down to $25 or $30 per acre. This claimed damage alone would amount to around $4,000, and moreover there is convincing evidence that it would cost more than $4,000 to clear the creek of the fallen timber. If this testimony is accepted as true, the damages amount to more than the amount of the judgment, on any theory of arriving at the damages recoverable.

On the other hand, there is evidence to the effect that the damages do not total more than the amount claimed by appellants, but the witnesses were before the trial court, and that court was in a much better position to determine the weight that should be given to the testimony of the witnesses than is this Court.

Affirmed.


author: Jim Johnson, Associate Justice.

text:
    Block v. Ark. Bar Association.
    5-2389
    345 S. W. 2d 471
    Opinion delivered April 24, 1961

      Warren d Bullion, for appellant.

      U. A. Gentry, for appellee.
   Jim Johnson, Associate Justice.

Following our decision in Arkansas Bar Association v. Block, 230 Ark. 430, 323 S. W. 2d 912, the trial court, in accordance with the mandate of this Court, entered an order enjoining Sam Block and other members of the Arkansas Real Estate Association from filling in the blank spaces on standardized forms such as deeds, loan applications, mortgages, etc., in connection with real estate transactions on the theory that the same constituted the unauthorized practice of law. The phase of the litigation here on appeal arose when the trial court ruled that it had no jurisdiction to consider the verified application of appellants, Sam Block, et al, to modify the aforesaid injunction with respect to loan applications.

The appellants, Sam Block, et al, have appealed and raise but one point, which is aptly stated in their brief as follows:

“There is but one question involved in this appeal and that is solely a question of law. Whether the Chancery Court properly should modify its decree of injunction is not now presented, and, indeed, should not be considered, since the petitioners have had no opportunity to present their reasons to the Court for the modification or for the change of circumstance which would warrant the modification. The sole question is whether the Chancery Court has the power to modify the injunction once it has been entered.”

The appellees, while admitting that in ordinary cases an injunction may be revoked or modified, take the position that since the injunction here was entered on a mandate of this Court, any modification thereof would not be in conformity to the mandate and that therefore the trial court was without jurisdiction. The fact that the injunction was issued on a mandate of this Court goes only to the question of whether the trial court properly should modify the decree and not to its jurisdiction.

In Stane v. Mettetal, 213 Ark. 404, 210 S. W. 2d 804, this Court held that the rules with respect to the vacation or modification of judgments or decrees have no application to the power of the chancery courts to vacate, set aside or dissolve an injunction previously granted provided no vested rights of the parties are abrogated. To the same effect, see: Local Union No. 656, et al. v. Mo. Pac. Rd. Co., Thompson, Trustee, 221 Ark. 509, 254 S. W. 2d 62. Thus the trial court was in error in holding that it had no jurisdiction to consider the petition to modify the injunction decree.

Reversed and remanded for trial on the merits.

Robinson, J., concurs.


author: Carleton Harris, Chief Justice.-

text:
    Reagan v. Rivers.
    5-2397
    345 S. W. 2d 601
    Opinion delivered May 1, 1961.

      Chas. P. Cole, for appellant.

      Ous Causbie, for appellee.
   Carleton Harris, Chief Justice.-

Appellee and appellants owned, as tenants in' common, a tract of approximately 800 acres of land in the southern district of Sharp County, Arkansas. Appellee sought a partition of the lands, the complaint alleging that the lands “are not susceptible to equitable division in kind because of the very considerable variation in the character and value of the several tracts of said land and also due to the fact that a portion of the land is cleared and in cultivation while a greater portion of same is -covered with a large amount of valuable marketable timber and that it would be to the best interest of the parties hereto to have the timber sold separately from the land.” The prayer was that the lands be partitioned according to the respective rights of the parties, or if same could not be partitioned without material injury to the rights of such party, that the timber and lands be sold and divided, after payment of costs. Appellants answered, admitting that they were the owners of an undivided ll/14ths interest in said lands, and appellee was the owner of an undivided 3/14ths interest. They denied that the lands were not susceptible to division in kind, and further stated “that said lands have been held by them for a number of years as an investment and for investment purposes, and that to compel them to sell their interests in said lands would work a hardship on them at this time; that it would force them to dispose of property held for investment purposes, and would require them to pay a substantial income tax on the monies received by them for their interests in said lands.” On May 3, 1960, the court made a finding as to the interest held by each party j that the appellants were asking that the ll/14ths interest belonging to them be set off undivided, according to their interests, and that the 3/14th p interest of appellee be set off to her separately. The court appointed commissioners to make an examination of the lands, and directed that if it should be found that the lands were susceptible of division in kind, the commissioners should set off ll/14ths to appellants, and 3/14tha to appellee. In September, the commissioners made their report, wherein the lands had been partitioned to the parties as directed. In November, the Chancery Court entered its order confirming the partition of the commissioners, and directed that the costs be paid jointly, and in proportion to the several interests of the parties, including a fee of $100 to each of the three commissioners, and a fee in the amount of $1,000 to appellee’s attorney, who had instituted the suit. Appellants vigorously object to the granting of the attorney’s fee, and have appealed to this Court.

The attorney’s fee was granted under the provisions of § 34-1825, Ark. Stats. (1947) Anno., and as indicated, the sole question in this case is whether the •court acted properly in allowing such fee. Under our Foldings, this question is resolved by a determination of whether the instant litigation was an adversary proceeding. See Warren v. Klappenbach, 213 Ark. 227, 209 S. W. 2d 468. In Lewis v. Crawford, 175 Ark. 1012, 1 S. W. 2d 26, this Court, quoting from an earlier case, stated:

“It was also there said that the weight of authority appeared to be against the taxation of attorney’s fees, even in amicable partition suits, unless the partition resulted solely from the services of the solicitors for one of the parties, and such services were accepted by the other parties; and ‘in adversary suits there is no ground for taxing the fees of the solicitor of one of the parties against the other parties, and the doctrine of allowance of attorney’s fees in amicable suits of this character should, we think, be limited to those cases where the services of the plaintiff’s solicitor not only result in benefit to the whole subject-matter of the litigation, but are accepted and acquiesced in by the other parties. The rule does not apply where all of the parties appear by their respective solicitors and the proceedings are conducted through their joint efforts.’ ”

Further:

“Certainly it would not be just or equitable to require the appellants, who owned the seven-eighths interest in the land partitioned, who recognized the necessity for employment of, or preferred to be represented by, an attorney of their own selection, in the suit which may be regarded adversary instead of amicable, to pay the fee of plaintiff’s attorney and also their own. ’ ’

The trial court, which had awarded an attorney’s fee, was reversed. Appellee relies upon Ramey v. Bass, 210 Ark. 1097, 198 S. W. 2d 835, wherein the Chancery Court was reversed for not allowing such an attorney’s fee, this Court holding that the fee was proper under the facts in that litigation; i.e., the proceeding was not actually an adversary one.

We have concluded that, in the case at Bar, the court erred in awarding the fee to appellee’s attorney, for we are of the opinion, from the record before us, that this was an adversary proceeding from its inception.

Appellee, in her complaint, alleges that the lands are not susceptible to division in kind because of the variation in the character and value of the several tracts, and asserts that it would be to the best interests of the parties to have the timber sold separately from the land; it is only in her prayer that the partition of the lands and timber is mentioned, and, of course, our statute requires that a suit for partition contain a prayer for the division of the property, and for a sale if it shall appear that partition cannot be made without prejudice to the owners. See § 34-1801, Ark. Stats. (1959 Supplement). In other words, it appears from the complaint, that appellee was primarily concerned with obtaining a sale of the property. In their answer, appellants denied that the lands were not susceptible of division in kind, and requested that appellee’s share be set off to her individually, i.e., they were genuinely opposed to the sale of the lands and timber. There is a substantial factual difference in this case and the Ramey case, relied upon by appellee. There, counsel instituted a suit for certain heirs, directed against certain other heirs, who were nonresidents of the state. An attorney acl litem was appointed for the non-resident defendants. This attorney was apparently later retained to represent the defendants, and filed an “Entry of Appearance and Answer ’ ’. In the answer, he noted certain errors relating to the interests of some of the parties, and then stated, “The defendants are not willing that the court tax as part of the court costs any attorney fee for attorney for the plaintiffs, in this action, and if motion is filed for said fee, defendants at this time ask that appropriate time be given for the response of the defendants to that motion.” It definitely appears from the transcript of that case, that the Bass attorney was cooperating fully with the Ramey attorney in determining the proper interest of each heir (and it was in a sense of cooperation that the errors were noted in the answer filed). Quite a bit of correspondence appears in the record, and in one letter, the Bass attorney stated to counsel for Ramey. “I will be glad to cooperate with you in every way possible.” There was even a stipulation, as cited in the opinion:

“It is agreed that Myrtle Weigart, one of the •plaintiffs, if called as a witness, would testify that in a ■conversation in Batesville, about December 10, 1945, ■defendant Robert Ella Case told her that ‘we (meaning herself and other defendants) can’t keep the property from selling, but we have hired a lawyer to file answer and keep your attorney from getting a fee out of our part of the money the property brings.’ ”

In deciding that the attorney’s fee was proper, this Court said:

“In the present case which comes here for trial de novo, defendants made no defense whatever to the partition suit, in fact, the effect of their actions was to admit a partition of the property involved was necessary and proper. The partition suit was in no sense an adversary proceeding but purely amicable. The answer of appellees, defendants below, was in effect but formal and set up no defense to the suit. Its primary purpose and effect was to contest the right of plaintiffs’ attorney to have a fee taxed as costs.”

It was then pointed out in the Opinion that the issue of an attorney’s fee, standing alone, does not make the partition action an adversary one.

There is no indication of any cooperation between the attorneys in the case at Bar. The transcript definitely reflects this to be an adversary proceeding. The objections raised were not to an attorney’s fee — but to the land and timber being sold. In fact, appellee states that nothing in the record raises the question of the propriety of allowing an attorney’s fee, and where an issue is not made by the pleadings, the question cannot be raised on appeal for the first time. We find no merit in this contention, since no specific request was made for an attorney’s fee in the initial pleadings; in.fact, there is no mention of an attorney’s fee anywhere in the record until the final order of the court confirming the partition by the commissioners. The matter was therefore not placed in issue until the final decree was entered.

In accordance with the views expressed in this Opinion, that portion of the decree allowing the attorney’s fee is reversed, and the cause is remanded with directions to modify the “Order Confirming Partition by Commissioners” as herein set out.

       Fannie Reagan, a 5/14 undivided interest; Allie Holman, a 3/14 undivided interest; Pauline Lambeth, a 3/14 undivided interest, and Aileen Kirby Rivers, a 3/14 undivided interest.

       The statute reads as follows: “Hereafter in all suits in any of the courts of this State for partition of lands when a judgment is rendered for partition, it shall be lawful for the court rendering^ such judgment or decree to allow a reasonable fee to the attorney bringing such [suit], which attorney’s fee shall be taxed as part of the costs in said cause, and shall be paid pro rata as the other costs are paid according to the respective interests of the parties to said suit in said lands so partitioned.”


author: J. Seaborn Holt, Associate Justice.

text:
    Lemmer v. Chicopee Mfg. Co.
    5-2310
    345 S. W. 2d 629
    Opinion delivered May 1, 1961.

      Edward H. Herrod, for appellant.

      Gannaway & Gannaway, for appellee.
   J. Seaborn Holt, Associate Justice.

This is a workmen’s compensation case under the provisions of §§ 81-1301 — 81-1349, Ark. Stats. 1947. Daniel Lemmer worked for the Chicopee Manufacturing Company as a card operator. His duty, as a card operator, was to feed raw materials into a large machine for the purpose of making blankefs. The raw materials are rolled upon a lap that is held in place by a rod which protrudes slightly on either side of the machine. On or about the 6th or 7th of January, 1959, a belt slipped off the machine and fell to the floor. Lemmer jumped down from the machine and claimed that in so doing, he hit his eye against the protruding lap rod. Soon thereafter he noticed a loss of vision. An examination revealed that Lemmer had dendritic keratitis, a virus infection of the eye. A claim for workmen’s compensation benefits was filed and a hearing held. The referee denied benefits and the full commission and the circuit court affirmed this denial.

The only point for reversal relied upon by the claimant is that there was no substantial evidence to support the finding of the commission. After reading the record, we hold there was substantial evidence to support the action of the commission and that of the circuit court.

Dr. James Dorsey testified that the type problem the claimant had with his eye probably was not related to any blow he might have received. Dr. Forrest Henry testified that dendritic keratitis is a virus infection commonly found without any history of trauma. Dr. Henry further testified that it would be rather hard to conceive of a patient having an abrasion sufficient to provide entry of dendritic keratitis and not be aware of the injury at the time and that an abrasion of this degree should give pain sufficient to cause the patient to seek medical care at the time. It is undisputed that the claimant sought no medical care until some weeks later, and the claimant himself stated the reason he didn’t report the injury was that his eye was no longer hurting when he returned to work. Dr. Henry further stated in a letter made a part of the record that the condition of the claimant was the result of a virus infection and would not be related to his occupation.

In Moore v. Long-Bell Lumber Company, 228 Ark. 345, 307 S. W. 2d 533, we said: “* * * Under our Workmen’s Compensation Law the commission acts as a trier of the facts — i.e., a jury — in drawing the inferences and reaching the conclusions from the facts. We have repeatedly held that the findings of the Commission is entitled to the same force and effect as a jury verdict. ’ ’

Affirmed.


author: Ed. F. McFaddin, Associate Justice.

text:
    Narisi v. Narisi.
    5-2361
    345 S. W. 2d 620
    Opinion delivered May 1, 1961.

      Heilbron, Shaw é Beasley, for appellant.

      Wright, Lindsey, Jennings, Lester & Shults, for appellee.
   Ed. F. McFaddin, Associate Justice.

This is the second time these parties have presented their marital difficulties to this Court. The first case was Narisi v. Narisi, 229 Ark. 1059, 320 S. W. 2d 757. There, each party sought a divorce on the ground of indignities (the fifth ground for divorce stated in § 34-1202, Ark. Stats.); and we denied a divorce, saying that each was “equally at fault.” The second (present) case was initiated on May 31, 1960, when Mr. Narisi filed suit for divorce on the seventh ground stated in § 34-1202, Ark. Stats., i. e., that the parties had lived separate and apart for three years. Mrs. Narisi cross-complained and likewise sought a divorce on the same ground, i. e., three years separation. The Chancery Court, in the decree from which comes this appeal, granted each party a divorce on the ground alleged. The Court also awarded Mrs. Narisi the custody of the children and made provisions for residence in the home, alimony, and child support, as to all of which there are no objections by either party. .But the Trial Court refused to award Mrs. Narisi any dower interest in the property of Mr. Narisi; and from such refusal Mrs. Narisi prosecutes this appeal. Her right to dower is the sole issue on this appeal.

I. Res Judicata. The Trial Court refused Mrs. Narisi’s claim to dower on the basis that the holding 'of this Court in the first ease was res judicata in the finding that she was “equally at fault.” In support of the ruling of the Trial Court, Mr. Narisi’s attorneys point out in their brief: (a) that the seventh ground for divorce stated in § 34-1202, Ark. Stats, says: “And the question of who is the injured party shall be considered only in cases wherein by the pleadings the wife seeks either alimony . . . or a division of property . . . or both”; (b) that § 34-1203, Ark. Stats, says: “The injured party in all such cases may apply for such decree of divorce . . .”; (c) that § 34-1214, Ark. Stats. says: “. . . and the wife so granted a divorce against the husband . . . shall be entitled to one-third (1/3) of the hus'band’s personal property absolutely and one-third (1/3) of all the lands . . . for her life . . .”; (d) that in the first Narisi case we refused Mrs. Narisi a divorce and held that she was “equally at fault”; and (e) that if Mrs. Narisi was equally at fault in the first case, she is not the “injured, party” in the present case.

From these recited matters the appellee stoutly insists that our holding in the,first case is res judicata of Mrs. Narisi’s claim for dower in the present case; and appellee cites: Ray v. Ray, 192 Ark. 660, 93 S. W. 2d 665; Carty v. Carty, 217 Ark. 610, 232 S. W. 2d 446; Edwards v. Edwards, 222 Ark. 626, 262 S. W. 2d 130; Martin v. Martin, 225 Ark. 677, 284 S. W. 2d 647; White v. White, 228 Ark. 732, 310 S. W. 2d 216. We disagree with the ruling of the Trial Court on the matter of res judicata and also with the reasoning of the appellee as above set forth; and we hold that the rule of res judicata is not applicable to the present case. That the rule of res judicata may apply in divorce cases has been recognized repeatedly. McKay v. McKay, 172 Ark. 918, 290 S. W. 951; Woodcock v. Woodcock, 202 Ark. 809, 152 S. W. 2d 1013; Ball v. Ball, 189 Ark. 975, 76 S. W. 2d 71. But in McKay v. McKay, supra, we said: “We think the present suit of appellant is not barred by the decree in the first suit, for the reason that she alleges a different cause of action for divorce, one which could not have existed when she filed her first suit — that of desertion — as the parties had not been separated a year when the first suit was commenced.” In 17 Am. Jur. 638, Divorce and Separation, § 543, the rule as to res judicata in divorce cases is stated: “As a general rule, a final judgment rendered by a court of competent jurisdiction on the merits is conclnsive of the rights of the parties and their privies, and as to them constitutes a bar to a subsequent action involving the same claim, demand, and cause of action.” (Emphasis supplied.) And in § 546 of the same article, in discussing when causes of action are different, the holdings are summarized: <£In determining whether the causes of action involved in two cases are the same, the determining factor is whether the evidence necessary to sustain the second case is essentially the same as was required to sustain the first.”

In McKay v. McKay, supra, we recognized that the various grounds for divorce constitute separate causes of action. So, here, the rule of res judicata cannot be applicable because the cause of action is not the same in the two cases. In the first suit, the cause of action was because of indignities, and in the present suit the cause of action is because of three years separation. The Narisis separated on May 30, 1957, and shortly thereafter Mrs. Narisi filed the suit for divorce on the ground of indignities (the fifth ground in § 34-1202, Ark. Stats.); and Mr. Narisi, in his cross-complaint, also claimed indignities. The opinion of this Court in the first case was delivered on February 2, 1959, and at that time the Narisis had not lived separate and apart for three years. So neither of them had a cause of action under the seventh ground for divorce as listed in § 34-1202, Ark. Stats., which is the ground for divorce here relied upon. It was not until May 30, 1960, that either of the parties had a cause of action under the three-year separation statute, which is an entirely different cause of action from indignities. The rule of res judicata in divorce suits applies only when the second suit is on the same cause of action as the first suit; and, as we have demonstrated, that situation does not exist in the case at bar. So we hold that the rule of res judicata does not apply in the present case.

II. Disposition Of The Present Case. Having decided that the plea of res judicata should not have been sustained by the Trial Court, we are confronted with the problem of what disposition should now be made of the case by this Court. In the oral argument, this matter was propounded to appellant’s counsel; and we learned that as far as Mrs. Narisi is concerned, we have before us now all of the evidence that could be presented: we have all of the record in the present case, as well as Mrs. Narisi’s “offer to prove”; and we have also the entire transcript of the proceedings and evidence in the first case, which, in itself, consists of 1,146 typewritten pages. The general rule in equity cases is that, with all of the record fully developed, we should finally decide the ease instead of remanding it to the Chancery Court for a new trial. In Pickett v. Ferguson, 45 Ark. 177, Mr. Justice W. W. Smith said: “And it is our invariable practice not to remand chancery eases for further proceedings and proofs, where we can plainly see what the rights and equities of the parties are, but to render such decree here as should have been rendered below.” In Crease v. Lawrence, 48 Ark. 312, 3 S. W. 196, Mr. Justice Battle said: “As the cause was ready for hearing, we proceed to consider the merits and to render such decree as should have been entered below.” And in Wilborn v. Elston, 209 Ark. 670, 191 S. W. 2d 961, Mr. Justice Mill-wee said. “We try chancery cases de novo, and the usual practice on appeal is to end the controversy here by final judgment, or by direction of the Trial Court to enter a final decree.”

We therefore proceed to determine on all the records before ns whether Mrs. Narisi is entitled to dower in addition to the alimony and allowances she received. It must be borne in mind that we are here concerned with a divorce granted under the seventh subdivision of $ 34-1202, Ark. Stats., the germane portion of which reads: “. . . and the question of who is the injured party shall be considered only in cases wherein by the pleadings the wife seeks either alimony under section 34-1211, Ark. Stats., 1947, or a division of property under Section 34-1214, Ark. Stats., 1947, as hereby amended, or both. ’ ’

The determination of who is the “injured party”, as those words are used in the quoted language above, opens ■wide the door for the Court to consider matters and events extending beyond the five-year period which limits evidence of recrimination in other divorce actions. Alexander v. Alexander, 227 Ark. 938, 302 S. W. 2d 781. The Alexander case is also authority for the holding that, in considering who is the injured party under the seventh subdivision of § 34-1202, Ark. Stats., the Court is not required to make a full award of dower but may reduce the dower in keeping with the equities of the case. There, Ave reduced the Avife’s doAver to one-half of Avhat the statute provides under § 34-1214, Ark. Stats.

When the diimrce is aAvarded under the seventh subdivision (i. e., three years separation), the determination of property rights is much different from the aAvards made under any of the first six subdivisions of § 34-1202, Ark. Stats. The legislative axxd judicial history of the seventh subdivision of § 34-1202 points unerringly to the conclusioxx that the Trial Court in the first instance, and this Court on appeal, has a broad discretion in determining property rights and alimoxiy rights when the divorce is granted under the seventh subdivision, i. e., three years separation. By Act No. 167 of 1937, the Legislature attempted to make three years separation a ground for divorce. This Act was considered in White v. White, 196 Ark. 29, 116 S. W. 2d 616; and because of that opinion the Legislature of 1939 passed Act No. 20 and, for the first time, there appeared the language, “. . . the question of who is the injured party shall be considered only in the settlement of the property rights of the parties and the question of alimony.” All of this was clearly pointed out in the opinion of Mr. Justice Frank Gr. Smith in Jones v. Jones, 199 Ark. 1000, 137 S. W. 2d 238, wherein, in speaking for a unanimous Court, he said: “Upon the authority of Act No. 20, we must affirm the decree for divorce; but the Act does not affect our jurisdiction to settle the property rights of the parties and to award alimony; indeed, for those purposes — but for those'purposes only — we may consider which spouse is the injured party. ’ ’

It was by Act No. 348 of 1953 that the Legislature amended the seventh ground to specifically add reference to alimony and property rights, thus, clearly showing that it was the intention of the Legislature that the courts would have broad discretion in determining both property rights and alimony rights when divorce was granted under the seventh ground. And in Alexander v. Alexander, 227 Ark. 938, 302 S. W. 2d 781, the divorce was uxider the three-year statute; and we said:

“In view of this situation the next question is whether the appellant is entitled to one-third of appellee’s personalty absolutely under Ark. Stats., Sees. 34-1202 (7) and 34-1214, supra. Tbe latter statute provides that the wife shall be entitled to such interest in the husband’s property where she is granted a divorce. It is also true that the wife would ordinarily be entitled to such an award under the three-year separation statute where she is found less at fault, or the injured party, in the marital debacle. But there are other factors to be considered here which would render it inequitable to award her as much as one-third of his wealth. This three-year separation statute is unusual in several respects as we indicated in Young v. Young, supra, where we held recrimination was no defense to a divorce action brought under it. In making a property division here we have an unusual situation when we consider the respective incomes and financial condition of the parties. Appellant is about three times as wealthy as the appellee and her income from properties worth approximately $3,000,000 is far in excess of that earned by appellee. Under all the circumstances, we conclude the decree should be modified so as to allow appellant one-sixth of appellee’s personal property not already disposed of by agreement.”

In view of all of the foregoing, there can be no doubt that the Trial Court in the first instance, and this Court on appeal, possesses broad powers, not only as to alimony, but as to property rights, when the divorce is granted to either party under the seventh subdivision of § 34-1202, Ark. Stats. We have gone into this matter in considerable detail, to thoroughly establish the power of the Court to determine the proper award of dower and alimony when the divorce is granted under the seventh subdivision of § 34-1202, Ark. Stats, because, in the case at bar, we are exercising our broad powers to determine the correct award that Mrs. Narisi should receive.'

As heretofore stated, we have reviewed the entire record in this case, along with Mrs. Narisi’s offer to prove, and also the entire record in the first Narisi case. We have concluded that the allowances made by the Chancery Court for Mrs. Narisi are fair and just under all of the circumstances existing. In the decree from which comes this appeal, the Court directed Mr. Narisi to pay Mrs. Narisi as alimony the sum of $37.50 per week, which is somewhat in excess of $150.00 per month. The Court also directed Mr. Narisi to deliver to Mrs. Narisi the title to the Buick automobile now in her possession; and in addition awarded Mrs. Narisi, for the benefit of herself and the children, the use and possession of the premises at 4400 North “O” Street in Fort Smith, with Mr. Narisi to pay all mortgage payments and all taxes and insurance on the property. Mr. Narisi was ordered to pay $641.41 on the accumulated indebtedness of Mrs. Narisi and to pay a total of $350.00 attorneys’ fee for Mrs. Narisi’s attorneys. All of these items were in addition to the amount the Court awarded Mrs. Narisi for the benefit of the minor children, amounting to $44.50 per week, and which we have previously stated the Court is free to change at any time upon the showing of changed circumstances.

In view of all of the record as previously mentioned, we think Mrs. Narisi received a fair and just allowance for herself by the decree of the Chancery Court. We do add the sum of $350.00 as additional attorneys ’ fee to be paid to her attorneys for their services in this Court, which amount is to be paid by Mr. Narisi, along with all of the costs in all the courts. With, these additional amounts to be paid as just specified, we affirm the decree of the Chancery Court.

       The decree recites, “. . . that the parties be granted an absolute divorce.”

       The defense of res judicata is one that normally must be set up in the answer. Here the claim of res judicata was made in some plead’ng prior to Mr. Narisi’s answer to the cross-complaint; but res judicata was discussed in the trial, and appellant’s attorney, with becoming candor, has stated in the brief that on this appeal it should be considered as though res judicata had been presented in the proper way, i.e., by answer. We do so consider it in this case.

       In Mo. Pac. R. R. Co. v. McGuire, 205 Ark. 658, 169 S. W. 2d 872, we quoted the rule of res judicata from 30 Am. Jur. 908: “‘Briefly stated, the doctrine of res judicata is that an existing final judgment rendered upon the merits, without fraud or collusion, by a court of competent jurisdiction, is conclusive of rights, questions and facts in issue, as to the parties and their privies, in all other actions in the same or any other judicial tribunal of concurrent jurisdiction.’ ”

       In 4 A. L. R. 2d 107, there is a* annotation involving some phases of res judicata in divorce cases.

       For a discussion of res judicata in divorce cases see C. J. S. Vol. 27-A, page 729, “Divorce” § 174(1) et seq. It is there stated that'res judicata “... is generally held inapplicable where the subsequent action is based upon a different cause which could not have been presented in the earlier proceeding.” See also 17 Am. Jur. 638, “Divorce and Separation” § 543 et seq., wherein it is stated: “In order that a prior decree in a divorce action may be invoked as a bar, the two actions must be based upon the same cause of action; otherwise, the decree operates only by way of estoppel.” The doctrine of collateral estoppel has not been invoked in the case at bar; so there is no need for us to consider it in view of the disposition that we finally make of this ease. In 13 Ark. Law Rev. 314, 'there is an enlightening article entitled, “Defenses to Divorce Actions”; and in it there is a discussion of res judicata. In McKay v. McKay, supra, we recognized that the different grounds for divorce are separate causes of action. See also Buck v. Buck, 207 Ark. 1067, 184 S. W. 2d 68.

       This is shown on Pages 191 and 192 of the transcript.

       The record in the first case was brought in by stipulation between the parties as shown on Page 31 of the transcript in the present case.

       Of course, as to child support, the Chancery Court may, at any time, change the present order upon a proper showing. Lively v. Lively, 222 Ark. 501, 261 S. W. 2d 409; Reiter v. Reiter, 225 Ark. 157, 278 S. W. 2d 644.

       The first six grounds for divorce as contained in § 34-1202, Ark. Stats, are a verbatim copy of Chapter 51, Section 1 of the Revised Statutes of 1837, and have come down through the succeeding digests unchanged to § 3500 of Crawford & Moses’ Digest of 1921. In the first six subdivisions recrimination is a complete defense against a divorce, whereas, under the subdivision seven, recrimination is no defense; and also the doctrine of clean hands is not applicable to divorces granted under the seventh subdivision. Young v. Young, 207 Ark. 36, 178 S. W. 2d 994; Larsen v. Larsen, 207 Ark. 543, 181 S. W. 2d 683.

       In Clarke v. Clarke, 201 Ark. 10, 143 S. W. 2d 540, it was recognized that the said Act 20 of 1939 gave the courts broad discretion in the matter of alimony; and in Brooks v. Brooks, 201 Ark. 14, 143 S. W. 2d 1098, there is a review of the earlier acts and decisions leading up to Act No. 20 of 1939. In the Brooks ease, the Court exercised its judicial discretion both as to property rights and alimony.

       See Martin v. Martin, 225 Ark. 677, 284 S. W. 2d 647; Grytbak v. Grytbak, 216 Ark. 674, 227 S. W. 2d 633; and Carty v. Carty, 222 Ark. 183, 258 S. W. 2d 43, in each of which cases reference was made to the broad powers of the Court in settling property rights and alimony when' the divorce was granted under the seventh subdivision of § 34-1202, Ark. Stats.


author: George Bose Smith, J.

text:
    Ark. State Highway Comm. v. Cook.
    5-2381
    345 S. W. 2d 632
    Opinion delivered May 1, 1961.

      Dowell Anders and H. Clay Robinson, for appellant.

      DuVal L. Purlcins, for appellee.
   George Bose Smith, J.

In 1940 the state highway department constructed a paved highway across the appellee’s land, leading to the Greenville bridge. The acquisition of the right of way was evidenced by a county court condemnation order, which described the public easement and required that any aggrieved landowner present his claim for compensation within one year. Ark. Stats. 1947, § 76-917. The easement condemned across the appellee’s land was in part 100 feet wide and in part 110 feet wide. The appellee was paid $600 for her crop damage, hut she did not ask to be paid for the easement that was taken.

In 1958 the Highway Commission decided to reconstruct the highway in question and to that end brought this action to condemn enough land to enlarge its easement to a uniform width of 120 feet. "With respect to the appellee’s land the Commission took the position that it already had the easement described in the 1940 county court order, varying from 100 to 110 feet in width, and that an additional 2.435 acres would be needed to widen the right of way to 120 feet. The appellee at first contended that the public had no easement at all across her lands, but that contention was rejected upon the first appeal. Ark. State Highway Comm. v. Cook, 231 Ark. 401, 329 S. W. 2d 526.

Upon remand the appellee amended her answer to allege that the state’s easement was limited to the 80-foot strip actually used for the highway and its shoulders. As a basis for this allegation it was asserted alternatively (a) that the Commission originally acquired only an 80-foot easement under the county court order, or (5) that if a greater easement was acquired the Commission had abandoned all except the 80 feet in actual use. Upon these theories the appellee insisted that the Commission would have to take an additional 4.02 acres to widen its 80-foot easement to 120 feet. Over the Commission’s objection the appellee’s theory of the case was submitted to the jury, which awarded compensation of $10,000 upon a finding that the taking amounted to 4.02 acres.

The court erred in submitting to the jury the issues raised by the appellee’s answer, for there is no evidence to support the view that the existing public easement is only 80 feet wide. The 1940 county court order is shown by undisputed evidence to have been valid, and its effect was to create a public right of way that varied from 100 to 110 feet in width.

In contending that the county court order was effective only as to an 80-foot strip the appellee relies upon testimony showing that the Highway Commission has actually used only that amount of her land. "We are referred to a number of cases which hold that the taking under a county court order such as this one is not complete until there has been an actual entry upon the land. It is accordingly argued that in this instance only an 80-foot easement was taken, because only an 80-foot strip was entered.

This argument misconceives the nature and purpose of the rule relied upon. The statute that authorizes condemnation by the county court is ostensibly defective, in that it makes no provision for the giving of notice to the landowner whose property is being taken. Ark. Stats., § 76-917. Notice is essential, however, for the landowner is entitled to a hearing upon the issue of compensation. The cases cited by the appellee have simply saved the act from invalidity by holding that the actual entry upon the land supplies the required notice to the landowner.

The holding in Greene County v. Hayden, 175 Ark. 1067, 1 S. W. 2d 803, is typical. There the county authorities did not actually enter the land until more than a year after the rendition of the order condemning the right of way. We held that the one year allowed for the filing of claims did not begin to run until the entry upon the land, for that was the landowner’s first notice of the condemnation. It was pointed out that formal notice (as by the service of a summons) might have been given, “but, in the absence of formal notice, the landowners were not charged with notice of the order of the court condemning their property until the county, in some way, took the property thereunder.”

We need not discuss every one of the cases cited; they are all in harmony. In State Highway Comm. v. Holden, 217 Ark. 466, 231 S. W. 2d 113, the rule was restated, with the additional holding that the driving of stakes upon the land did not amount to an entry. Similarly, it was held in Ark. State Highway Comm. v. Dobbs, 232 Ark. 541, 340 S. W. 2d 283, that the landowner was not put on notice of the county court order when the highway department merely repaved an existing street without making a new entry upon private property. On the other hand, the right to compensation is lost if the owner fails to file his claim within a year after the entry. Hot Spring County v. Fowler, 229 Ark. 1050, 320 S. W. 2d 269.

The appellee is mistaken in arguing that the highway department’s entry upon the land is notice to the landowner of the extent to which his property is being taken. This is not the case, nor should it be. Such a rule would mean that the validity of the public easement would rest in the uncertainties of oral evidence; for the highway department, even after having paid for the easement in full, might have to prove many years later that it had in fact entered upon every foot of the land condemned.

Here it is shown by undisputed proof that the department actually entered the appellee’s land in 1940 and built a road. To put the matter beyond any possibility of doubt it also appears by the appellee’s own admission that she filed a claim for crop damage. Thus she had actual notice of the proceeding in the county court and is as fully bound by the order as if she had been served with a summons or had entered her appearance. Her right to compensation was lost by her failure to file a claim within the one year allowed by the statute.

Upon the alternative issue of abandonment the only proof is that the highway department had not actually used the entire right of way, which has been encroached upon by the appellee’s fences and improvements. It is quite generally held that the public’s failure to occupy its entire easement does not constitute an abandonment of the unused portion. Graham v. Ballard, 157 Calif. 96, 106 P. 215; Wolfe v. Sullivan, 133 Ind. 331, 32 N. E. 1017; Olwell v. Travis, 140 Wis. 547, 123 N. W. 111. And of course the appellee’s encroachments are without significance, the public highways not being subject to adverse possession. Ark. Stats., § 37-109.

In the course of two trials this case has been fully developed. There is only one issue for the jury, the appellee’s right to compensation and consequential damages for the taking of 2.435 acres. The cause will therefore be remanded for a new trial upon that issue only.

Reversed.


text:
    Karoley v. Reed, Chancellor.
    5-2407
    345 S. W. 2d 626
    Opinion delivered May 1, 1961.

      B. W. Thomas and Richard W. Ilobbs., for petitioner.

      U. A. Gentry, for respondent.
   Paul Ward, Associate Justice.

Mary E. Karoley (the petitioner herein) filed a complaint on November 17, 1960, in Chancery Court to force payment of certain definite amounts provided for in a written “Agreement” executed by her and John D. Reid on November 13, 1951. The provisions of the Agreement are fully set out in Karoley v. Reid, 223 Ark. 737, 269 S. W. 2d 322, to which case reference is made for the factual background leading up to this litigation.

To the above mentioned complaint Reid filed a Motion to have the cause transferred to the Circuit Court. Among other things the Motion stated that “the complaint shows on its face that it is a suit to recover payments alleged to be due under a written contract which is cognizable in a Court of Law.”

In response to the above Motion the complainant contended that Chancery Court had “power to decree specific performance of a personal obligation to pay a sum of money due under a contract . . . based upon . . . future support and maintenance of an individual.” (Taken from the record.)

The Chancellor, after presentation of briefs, sustained Reid’s Motion, and ordered the cause transferred to Circuit Court.

On February 3, 1961, Mary E. Karoley petitioned this court to issue a Writ of Mandamus to the Chancellor (the respondent here) “compelling and directing him to set aside his order of transfer . . . and compelling him to assume jurisdiction of this cause.”

Petitioner apparently admits, and correctly so, that if, in refusing jurisdiction, the Chancellor acted within his discretion the writ should be denied. She says, however, that the Chancellor had no discretion since only a question of law was presented to him.

We have concluded that the writ must be denied for the reasons set out hereafter.

In the first place the petitioner has not set out in full or abstracted the pleadings and so we are in no position to determine whether the Motion to Transfer presented to the Chancellor purely a question of law, or whether it presented a question based on both law and fact. The importance of this information was emphasized in Gilbert v. Shaver, 91 Ark. 231, 120 S. W. 833. There, in considering a similar question, the court said: “In the case before us the determination of the jurisdiction of the court did not depend upon the finding of facts . . . The jurisdiction of the court was purely a question of law,” as set forth in the pleadings. This court has frequently refused to explore the .record in the absence of an abstract.

If the Chancellor, in transferring to the Circuit Court, acted within his discretion, mandamus will not lie. This well established rule is succinctly stated in Arkansas General Utilities Company v. Smith, 188 Ark. 413, 66 S. W. 2d 297, where it is stated: “Either the chancery court or the circuit court may, within its judicial discretion, determine whether it has jurisdiction, and this judicial discretion will not be controlled by mandamus.”

Moreover, and in addition to what we have heretofore said, the writ must be denied because the petitioner has not exhausted her remedy at law. She could have pursued her cause in the Circuit Court, saving her objections to the transfer. If the Circuit Court, had refused jurisdiction, then mandamus to this court would lie. Following the above quote in the Smith case the court said: “Of course, if neither the chancery court nor the circuit court would assume jurisdiction,' then the writ will be issued to compel either the chancery court or the circuit court to assume jurisdiction, . . .’” On the other hand, if the Circuit Court accepts jurisdiction and the petitioner is aggrieved by the result of a trial therein, she has her remedy by appeal. This remedy was clearly set forth in the case of Automatic Weighing Company v. Carter, 95 Ark. 118, 128 S. W. 557. There, the cause of action was transferred by the Circuit Court to the Chancery Court, and petitioner sought, as in this case, a Writ of Mandamus. In denying the writ, the court said: “The chancery court may, within its judicial discretion, determine that it should entertain jurisdiction of this case. If it does so, and shall make an order or judgment therein which is appealable, then the petitioner has the remedy of appeal or writ of error, if it shall believe that it is aggrieved by such decision, and upon such appeal to have the order of transfer reviewed.”

It is our conclusion therefore from what we have heretofore said the writ must be, and it is hereby, denied.

Denied.


text:
    Boling v. Donaldson.
    5-2401
    345 S. W. 2d 628
    Opinion delivered May 1, 1961.

      Bon McCourtney and Claude B. Brinton, for appellant. }

      John States, for appellee.
   Sam Robinson, Associate Justice.

Title to a tract of land containing about 3 acres located in the Frl. NW1/!, Sec. 15, Twp. 15 N., R. 6 E., and title to another tract of a little over one acre located in the Frl. E% of the NEi/4 NEV4, Sec. 16, Twp. 15 N., R. 6 E., are involved in this action. Appellant, Elmer Boling, who was plaintiff in the chancery court, claims title to both tracts under a tax deed he obtained from the State in 1959. Appellees claim title by mesne conveyances under valid descriptions. The descriptions under which the lands claimed by appellant, forfeited for nonpayment of taxes, are as follows: Pt. NW Frl. NW 15.15.6 and Pt. Frl. NEy4 16.15.6.

In a memorandum opinion the chancellor said: “Briefs in the above entitled cause have been studied by the court and the following findings are made: The lands involved here were assessed in 1915 and 1948 as an unidentified ‘part’ of certain sections. These ‘part’ descriptions were carried also in the Notice of Sale of Delinquent Lands and in the List of Delinquent Lands Sold to the State. Taxes on the lands in question were actually paid by the then owners in 1915 and 1948. The State of Arkansas took no valid title to the disputed lands and could, therefore, convey no valid title to Mr. Elmer Boling. It is the judgment and decree of the court that the State tax deeds introduced and relied upon by the plaintiff are void and of no effect and that they should be cancelled as a cloud upon the title of the defendants.”

The trial court was correct. In Sturgis v. Nunn, 203 Ark. 693, 158 S. W. 2d 673, this Court quoted from Northern Road Impr. Dist. v. Zimmerman, 188 Ark. 627, 67 S. W. 2d 197, as follows: “It has been frequently and definitely decided that a deed to a tract of land described as ‘Pt.’ or ‘Part of’ has a void description, being void because of its indefiniteness. ... So therefore, if the tract of land here in question was described, either in the original warning order, or in the notice of sale, as ‘Part Northeast Quarter,’ etc., the sale was void, and no confirmation thereof would operate to cure this invalidity. ’ ’

Affirmed.


author: Carlbton Harris, Chief Justice.

text:
    Lee Rubber & Tire Corporation v. Camfield.
    5-2362
    345 S. W. 2d 931
    Opinion delivered May 8, 1961.

      Lovell & Evans, by James E. Evans, for appellant.

      Rex W. Perkins and Charles Bass Trumbo, for appellee.
   Carlbton Harris, Chief Justice.

Appellant, Lee Rubber & Tire Corporation, instituted suit against G-. E. Camfield, d/b/a Camfield Tire & Tread Company, in the amount of $2,037.70, representing merchandise purchased from appellant by appellee. The merchandise was camel back rubber, which appellee, a tire dealer of Springdale, used in recapping tires. Appellee answered, and filed a cross-complaint, alleging that the rubber sold to him by appellant company was unfit for the purpose for which it was intended, and that, as a result, Camfield had been damaged in the sum of $48,500. The cause was tried on June 6, 1960, and at the conclusion of all the evidence, both sides moved for directed verdicts. The motions were denied, and the case submitted to the jury, which found for appellant on its complaint in the full amount sought ($2,037.70), but also found for appellee on the cross-complaint in the amount of $3,122.91. The court entered its judgment in these respective amounts for each party, and then found “that the excess of the set-off, or counterclaim, amounts to $1,085.21, for which judgment is given the defendant on his cross-complaint.” From the judgment so entered, appellant- brings this appeal. There is no cross-appeal. Several points are alleged by appellant for reversal, but a discussion of each contention is deemed unnecessary, since we are of the opinion that the judgment must be reversed because of certain incompetent evidence which the court allowed to go to the jury.

Appellant first asserts that since each of the parties requested a directed verdict, there was, in effect, a waiver of the jury by each party, and the court erred in submitting the issues to the jury. This argument is unsound. The same question was raised in Holloway v. Parker, 197 Ark. 209, 122 S. W. 2d 563, and in an opinion by Judge Frank Smith, this Court said:

“The practice of withdrawing a case from the jury upon request for a directed verdict was announced in the case of St. Louis S. W. Ry. Co. v. Mulkey, 100 Ark. 71, 139 S. W. 653, Ann. Cas. 1913C, 1339, and was amplified in the case of Webber v. Rodgers, 128 Ark. 25, 193 S. W. 87, both of which cases have since been frequently cited and followed.

“The effect of these cases is that where both parties have offered their testimony, and each requests the court for a directed verdict and requests no other instruction, the trial court may treat the case as having been withdrawn from the jury and submitted to the court sitting as a jury, and the judgment of the court, pronounced under the circumstances, has the same effect as if the jury itself had decided the case. * * * However, we think that while in cases where both parties have offered all their testimony and each has asked the court for a directed verdict, and neither has asked any other instruction, the trial judge may then withdraw the case from the jury; but he is not required to do so. It is even then within his discretion to submit the case to the jury, rather than to take the case from the jury and decide it himself.”

It follows that this contention is without merit. See also Gill v. Burks, 207 Ark. 329, 180 S. W. 2d 578.

Appellant’s case consisted of the testimony of Mrs. Mary D. Goodwin, credit manager at the Memphis branch of Lee Rubber & Tire Corporation, R. W. Anstey, present Memphis branch manager of the company, and R. W. Rinehart, branch manager in New Orleans, Louisiana. Appellee’s case consisted solely of the testimony of Camfield. Camfield’s alleged damages were based on the contention that he had made numerous adjustments in recap jobs, in order to satisfy customers, and had lost the business of eight good customers because of the unsatisfactory tire recapping, resulting, according to appellee, because of the defective camel back rubber sold Mm by appellant. Camfield testified that the method he used in recapping tires had been checked and approved by the company from whom he purchased the equipment. He stated that Milton Cook, Sr., was branch manager for appellant at the time, and that after trouble developed in the recap jobs, Mr. Cook talked to him about it; that the latter indicated that an adjustment would be made by the home office, and Cook further stated that in his opinion, the tread came off the tires because the camel back was defective. This was likewise the opinion of the witness. This alleged statement by Cook was made with reference to a recapping job for Ted Saum & Company. It is not clear from the record whether Cook examined other recapped tires for which adjustments were made. Appellant objected to Cam-field testifying relative to what Cook had said, asserting that it was hearsay evidence, his contention being* that the declaration or statement of an employee is not admissible at a subsequent time against an employer. Two cases are cited, both of which involved personal injury suits against an employer, but in those, cases, the declarant was an ordinary employee, not clothed with the authority to speak for the principal. It was established by all the testimony that Cook was branch manager at the time referred to by appellee. Dr. Robert A. Leflar, Distinguished Professor of Law, in an article found in 2 Arkansas Law Review, page 43, states:

“Likewise, the admissions of an agent, made within the scope of his authority to speak, for his principal, are admissible against the principal, even though they are not declarations against the personal interest of the declarant himself.”

Dr. Leflar, in a footnote, then states that “if an agent is not employed to talk, but only do certain acts, then his statements about the acts done are not admissible against his principal.” It would appear that the branch manager was possessed of authority to make adjustments on tires, i. e., lie was authorized to “talk”, or contract with customers. In fact, Mr. Anstey testified that he had this authority, and that Cook possessed the same authority. We conclude that this evidence was admissible. See also Stewart-McGehee Const. Co. v. Brewster, 176 Ark. 430, 3 S. W. 2d 42.

Appellant testified that he had made a large number of adjustments to customers because of defective recapping, and as heretofore mentioned, stated that eight customers of the preceding year had been lost because of the defective jobs. Camfield offered a memorandum of two pages which, according to his testimony, had been prepared in part by him and partly by his wife, under his supervision. This memorandum reflected sixty-seven adjustments given customers by Camfield, and his loss was totaled as $1,047.91. The memorandum then sets out the eight customers allegedly lost, and the estimated volume of business done with each during the preceding year. This sum is totaled at $41,500. Appellant vigorously objected to the introduction of this exhibit.

We think the court erred in two respects in permitting this evidence to go to the jury. Section 28-928, Ark. Stats. (Supplement) provides as follows:

“In any court of record of the State, any writing or record, whether in the form of an entry in a book or otherwise, made as a memorandum or record of any act, transaction, occurrence, or event shall be admissible as evidence of such act, transaction, occurrence, or event, if made in regular course of any business, and if it was the regular course of such business to make such memorandum or record at the time of such act, transaction, occurrence or event or within a reasonable time thereafter. All other circumstances of the making of such writing or record, including lack of personal knowledge by the entrant or maker, may be shown to afféct its weight, but such circumstances shall not affect its admissibility. ’ ’ It definitely appears from the testimony that this memorandum was not prepared in the regular course of business, hut rather, was apparently made in preparation for the lawsuit. While the testimony reflects that it was taken from the records, no reason was offered for not placing in evidence the original records. It is not clear from the transcript whether the original records consisted solely of invoices, or a card file, or a set of books. Counsel for appellant offered to accept the business records, hut the court held, that since the exhibit was prepared from the original records, the evidence was admissible. We do not agree. One of the purposes of requiring a party to bring in the business records is to permit an inspection of those records by the opposing side, and a reason for admitting business records is that they are prepared at a time when litigation is not anticipated. Certain exceptions exist, i. e., there ■ are times when memoranda, not prepared during the regular course of business may be offered, hut the memorandum here offered cannot he placed in that category. No proper foundation was laid for its introduction. In the first place, appellant apparently had no opportunity to examine the originals,' — nor is any reason given for not offering the records themselves. It is not shown that such were lost or destroyed, — voluminous,'—or not readily available. We think the original records should have been offered rather than the memorandum, in the absence of further showing.

Likewise, the introduction of the memorandum requires a reversal for yet another reason; viz., the inclusion of the estimate of business lost from the eight customers. Round figures were used, and purportedly represent the amount of business done by Camfield with the companies named during the preceding year. None of these people testified, but Camfield stated:

“I lost these accounts on their say-so, and I found I was not getting any business from them. I would ask them why, and they said . . . Attorney for appellant: Your Honor, that’s hearsay, and highly irrelevant. Counsel for appellee: I admit that.”

The court rendered no ruling. Immediately thereafter, Camfield was again asked if he had investigated to ascertain why he had lost the accounts. He answered, “Because the tread came off,” and then proceeded to list the firms that had ceased doing business with him. This was likewise objected to, as well as the memorandum which bore the list and amounts. The court overruled objections to this testimony and evidence, and we think this was clearly error. In the first place, the information testified about was hearsay, for Camfield’s testimony relative to the reason for losing the customers, was based on their alleged statements to him. An equally compelling reason is that the designated amounts were all estimates and the exact amount of business done by each firm with Camfield, during the prior year could have been easily ascertained from his records. In other words, more specific proof was easily available. Appellee cites our recent case of Dun & Bradstreet, et al v. Robinson, 233 Ark. 168, 345 S. W. 2d 34, in support of the evidence offered. There, we held that a loss of customers, and credit, as well as a loss of business, are elements of damage, but the testimony in that case was far different from the testimony in the one at Bar. For instance, relative to loss of customers and business in the Dun & Bradstreet case, appellee Robinson testified that business with one company the year before he was libeled was $30,860.42. Another witness, who had been doing business with Robinson, testified that he gave Robinson less profitable business because “there was a definite question in our mind as to his operation after we received the reports.” It was shown that the people (through their testimony) who had quit doing business with Robinson, or who had ceased affording him credit, had received the reports which were the basis of the litigation. Of course, in the case before us, it was competent for Camfield to testify that he had lost certain customers, but his testimony for the reason of the loss was inadmissible since it was hearsay, and his estimate as to the amount of business lost the prior year was incompetent for the reason that the exact information ■could have been offered.

Appellant argues that certain instructions given the .jury were erroneous, but we do not consider this argument since no objections were made, at the time, to the instructions complained of; of course, our holding that certain evidence was inadmissible, may change some instructions. Other errors are alleged, but we find, either, that such contentions are without merit, or that such errors are not likely to occur in another trial.

Because of error, hereinbefore pointed out, the judgment entered on the cross-complaint is reversed, and that cause remanded.

       In the case before us, an instruction was requested by appellant following the court’s denial of the motion for directed verdict.

       At the time of the trial, Cook was no longer employed by appellant company.


text:
    Brigham v. Locke.
    5-2386
    345 S. W. 2d 935.
    Opinion delivered May 8, 1961.

      Thompson db Thompson, for appellant.

      Hoiuell, Price db Worsham, by F. J. Howell, Jr., for appellee.
   J. Seaborn Holt, Associate Justice.

This is a suit to set aside a deed because of the alleged lack of mental capacity on the part of the grantor. Stephen Breyel, an 81-year-old bachelor, has accumulated considerable property. One piece of this property is located near the corner of Markham and University Avenue in the City of Little Rock and is the parcel here involved. During the period between 1957 and 1959, a number of real estate agents and private individuals negotiated with Mr. Breyel trying to purchase the parcel from him. Among this group was a committee from the Woodlawn Baptist Church. On February 27, 1959, after extended negotiations, Mr. Breyel conveyed the property in question to the trustees of the Woodlawn Baptist Church. Two down payments of $1,000 each were made and a balance of $39,000 was to be accumulated through a mutual stock fund over a period of ten years. It is contended that the purpose of such an arrangement was to comply with a request of Mr. Breyel so that any tax on the sale of the property might be deferred. Shortly after the transaction had taken place, a guardian was appointed for Mr. Stephen Breyel at the request of his brother, Joe Breyel. The guardian filed suit to set the deed aside on the ground that the ward was incompetent at the time the deed was given. The lower court, after a hearing in the matter, found that the consideration was grossly inadequate and that Stephen Breyel was in fact incompetent on the day the deed was given and canceled the deed on these grounds. The trustees of the Woodlawn Baptist Church have appealed.

After a review of the evidence presented in the lower court, we are unable to say that the finding of the chancellor was against the preponderance of the evidence and conclude that the judgment must be affirmed. The evidence is overwhelming to the effect that the property was worth over $100,000* so there was gross inadequacy of consideration. It is a well settled rule in Arkansas that a deed may be set aside for mental incompetence on the part of the grantor, Kelly’s Heirs v. McGuire, 15 Ark. 555.

In order not to nndnly lengthen this opinion we summarize portions of the evidence which we think supports the finding of the chancellor as to mental incompetence. There was Mr. Breyel’s lack of interest, carelessness and untidy habits about his person and property. Several witnesses testified that Mr. Breyel’s house was littered with magazines and newspapers and in the estimation of one witness, there was more than a truckload scattered on the floors of his living and bedrooms. The bathroom and kitchen were filthy. The house itself was in a state of general disrepair. The toilet did not work, there was no hot water, the shingles and eaves of the house were rotting away, the paint was peeling, despite the fact Mr. Breyel was an excellent carpenter and a man of means. The personal appearance of Mr. Breyel was that of an unshaven, unkept person and his clothes were dirty. Also, there is Mr. Breyel’s withdrawal from his family, friends and relatives and social life generally. A nephew frequently invited Mr. Breyel to Sunday dinner and on other occasions and although Mr. Breyel usually accepted, he seldom came. Once when invited to a Christmas dinner by some friends, he accepted but when they arrived to pick him up, he had forgotten to dress and when they did arrive at the dinner, Mr. Breyel took his plate and ate alone on a sunporch and left after about thirty minutes. He seldom visited neighbors or relatives though the evidence was that in the past he had been a man of much social intercourse.

There was also evidence of ¡Mr. Breyel’s loss of memory. The record is replete throughout with examples of the ward’s chronic memory lapses. Checks sent to him were lost in the house and not cashed! One witness stated that Mr. Breyel did spme work for him in 1952 in putting up some ceiling joists but forgot to nail them down and the next day they fell. Mr. Breyel resigned from the job stating: “When a man thinks he has got a ceiling joist nailed and he don’t, then that is time to quit.” On another occasion he listed eight lots for sale, two of which he did not own. A month after the deed to the property in question was signed, Mr. Breyel could not describe to his guardian what property he had sold. On two occasions he paid his real estate taxes twice. Once when reminded that he had already paid his taxes on the same day, he denied ever having done so. The collector testified that he always forgot to bring his tax slips and could not tell him where his property was located. Mr. Breyel forgot money which he had in savings accounts and on one occasion when he could not find the pass book to one of the accounts, he wrongfully accused a trusted friend of having the book.

The evidence also discloses Mr. Breyel’s inability to make decisions and exercise reasonable judgment which a man of his previous business experience ordinarily would have been capable of. Prior to June of 1958, Mr. Breyel refused an offer of $1,000 for a six-month option to sell this property for $100,000. On another occasion he was offered $21,000 for another small parcel but refused, saying he wanted $40,000; later he sold the property for $14,000. He sold a truck which he owned to two boys, whose names and addresses he never secured and subsequently never received payment. He told the present appellants that he was going to sell them the property but the day after the deed was signed he was at the door of the pastor of the congregation and told the pastor he had decided not to sell, the property after all. There is evidence that Mr. Breyel did not know the meaning of earnest money and its significance although he had made a number of real estate transactions previously.

Although this is only a partial abstract of the testimony presented, we think it sufficient to sustain the chancellor’s finding as to lack of mental capacity. The appellants claim the trial court committed error in refusing to continue the case to allow appellants time to obtain medical testimony to rebut that offered by appellee. We find no error. The case was set and regularly tried so appellants could and should have been .able to present their medical testimony at the trial.

We wish to point out that there is no evidence of ■overreaching, undue influence, or otherwise bad faith •on the part of the church trustees. This is simply a case of the guardian setting aside a voidable transaction on the part of his ward.

The judgment is affirmed.

Ward, J., not participating.