author: George Rose Smith, J. Sam Bobinson, Associate Justice

text:
    Cupp, Adm’r v. Frazier’s Heirs.
    5-3439
    387 S. W. 2d 328
    Opinion delivered March 1, 1965.

      Hide S Hide, Otis Turner and J. E. Still, for appellants.

      John W. Simmons, for appellee.
   George Rose Smith, J.

This proceeding to determine the heirs of Clara McFadden Frazier presents two questions — to some extent novel ones — about the devolution of ancestral property under our statutes of descent and distribution.

The facts are stipulated. Clara’s mother, Mamie McFadden, a widow, owned the land in question, as a new acquisition, at her death intestate in 1933. The property was inherited in equal undivided half interests by Mamie’s two daughters, Clara and Algerina. Later on Algerina died intestate, without issue, and her half interest passed to Clara. In 1961 Clara died intestate, without issue. She was survived by cousins on her father’s side, but the most diligent search has failed to produce any collateral kindred on her mother’s side. In this situation the trial court held that all the property passed to the appellees, the heirs of Clara’s husband, Sam Frazier, who died intestate in about 1934.

We consider first the half interest that Clara inherited directly from her mother in 1933. Here the question is this: In the complete absence of collateral heirs on the decedent’s maternal side of the family, does property held by the decedent as a maternal ancestral estate cross over to her keirs on tke paternal side of tke family or does it pass to tke keirs of her deceased husband under Ark. Stat. Ann. § 61-107 (Supp. 1963) ¶ We have not previously considered a case involving a total failure of the favored ancestral line, but the statutes and the ■ decisions are so clear that we have no serious doubt about the accuracy of the trial court’s decision to award the half interest now in question to the heirs of the deceased spouse.

The statute provides that in the absence of descendants “if the estate come by the father, then it shall ascend to the father and his heirs; if by the mother, the estate shall ascend to the mother and her heirs.” Ark. Stat. Ann. § 61-110 (1947). Of course it is settled that the search is not really for the heirs of the father or mother; it is for the decedent’s heirs on the paternal or maternal side of the family. Oliver v. Vance, 34 Ark. 564.

Our entire scheme of descent and distribution was painstakingly analyzed in Kelly’s Heirs v. McGuire, 15 Ark. 555. The conclusions announced in that opinion have become rules of property to such an extent that no provision in the statutes can be interpreted by itself; it must be read along with what the court had to say in the Kelly case.

The court stated unequivocally in the Kelly opinion that an ancestral estate cannot cross over to the opposite side of the family. We first observed, at page 586, that at common law the paternal heirs “shall never inherit” maternal ancestral property, and vice versa. We then went on to declare, at page 591, that under our own statutes ail ancestral estate goes to the line from which it came, ‘ ‘ not in postponement but in exclusion ’ ’ of the opposite line. These words cannot be misunderstood.

The statute itself confirms the court’s holding. Two sections indicate the legislative intent. Section 61-111 provides that in certain cases if either line be extinct tke entire estate goes to tke opposite line; but, significantly, this provision “does not apply to ancestral estates.”

The other pertinent provision, § 61-107, is even more persuasive in that it refers to kindred who are not ‘ ‘ capable of inheriting. ’' This section originally provided that if there were no descendants, parents, “or any paternal or maternal kindred capable of inheriting,” the estate should go to the surviving spouse, if any; otherwise it would escheat to the State. In 1959 this section was amended to narrow the possibility of an escheat by providing that in the absence of a surviving spouse the property would go to the heirs of the decedent’s deceased spouse. This is the section relied upon by the court below.

This reference to kindred who are “not capable of inheriting” provides a clear indication of the legislative intent. “Kindred” must refer to blood kin, not only because that is the ordinary meaning of the term but .also because the original statute dealt exclusively with blood kin, there being no provision for inheritance by the decedent’s in-laws. Yet in most instances blood kin, no matter how distantly related, are capable of inheriting. § 61-101. It is only in the simple instance- of ancestral property that blood kin might be incapable of inheriting. Thus the reference to kindred who are not capable of inheriting must refer to an absence of heirs capable of taking ancestral property, for otherwise the words are meaningless surplusage. It is our duty to. give effect to every word in the statute if possible.

The appellants’ only real argument against the trial court’s holding upon this first point is that it would be inequitable for Clara’s property to pass to the heirs of her deceased husband rather than to her blood relatives ■on the paternal side. There is a quick answer to this argument. For more than 120 years — -from the enactment of the Revised Statutes in 1838 until the amendment of § 61-107 in 1959, by which the heirs of a deceased spouse were permitted to inherit — a surviving spouse would take ancestral property if the favored line proved to be extinct. It cannot be seriously contended that a man’s surviving widow is demonstrably less deserving ■of his estate than persons who might be extremely remote blood relatives oil the non-ancestral side of the family. Thus the inequity of which the appellants complain comes not from .the original statute but from the 1959 amendment. We cannot refuse to give effect to the plain language of the 1959 amendment merely because we think it brings about an inequitable result in this particular ease.

The second question in the ease concerns the half interest that Clara inherited from her sister Algerina. This second issue differs from the first one in that it involves two intestacies instead of one. That is, Clara received half the property directly from her mother; so the maternal ancestral kindred were necessarily those of Clara’s heirs who were related by blood to Clara’s mother. The second half interest, however, passed successively from Mamie to Algerina and from Algerina to Clara. The question is this: Is Clara’s mother still the stock of descent for the favored line or may the class be enlarged to include Algerina’s blood kin as well? In the latter case the appellants would be capable of inheriting.

At common law, as modified by our statutes and by our earlier decisions construing those statutes, the inheriting class would be limited to the blood kin of Mamie McFadden. This is because in the search for that ancestor who would be regarded as the stock of descent the rule was to disregard those who had received the property by descent, as Algerina did in the case at bar. The search continued up the ancestral line until it reached the first person who had acquired the property in any way other than by descent. That person, referred to as the first purchaser (or the last purchaser, if all prior purchasers be considered in chronological order), became the stock of descent, to whom the decedent’s heirs had to be related by blood in order for them to inherit ancestral property. This rule of the first purchaser was fully explained in West v. Williams, 15 Ark. 682; see also Meek, A Memorandum on the Law of Descent and Distribution, par. 20, reprinted in the Arkansas Bar Association Desk Book (1961).

In Johnson v. Phillips, 85 Ark. 86, 107 S. W. 170, the court actually reached the right result, in that the decedent’s grandfather, who appears to have been the first purchaser, was held to be the stock of descent. The opinion, however, did not discuss the rule of the first purchaser.

Some uncertainty in the law was created by our holding in Carter v. Carter, 129 Ark. 7, 195 S. W. 10. There the court referred briefly to the last purchasing ancestor, but the opinion actually ignored the rule by finding the stock of descent to be Fannie Murphey, who had received the property by descent rather than by purchase. On rehearing- (129 Ark. 573, 195 S. W. 1184) the court adhered to its position and, with no mention of the rule of the first purchaser, overruled Johnson v. Phillips, supra.

We consider the Carter decision to be unsound. Despite the passing reference to the last purchasing- ancestor we think it clear that the court overlooked the requirement that the stock of descent be a purchaser. Such an oversight is indicated by the court’s failure to state the substance of the rule and by its failure to express any dissatisfaction whatever with the rule. We are not overruling the Carter case retroactively, as it involved a rule of property, but the case will not be followed with respect to estates that may vest in the future.

The appellants insist that, under the Carter decision, Algerina must be treated as the stock of descent with respect to the half interest that she inherited. The holding in the Carter case did not in fact go that far, and we are unwilling to extend beyond its own facts a ruling that we consider to be erroneous.

Carter v. Carter dealt with a child’s inheritance from its mother; so the maternal line, as distinguished from the paternal line, was actually involved. The flaw in the opinion was simply that the court selected the wrong- person in the maternal line to be the stock of descent. In the case at bar, however, Algerina and Clara were sisters of the whole blood. If we should hold that Algerina was the transmitting- ancestor whose blood is to determine the course of descent, the fundamental conception of ancestral property is disregarded. This is true because full sisters have exactly the same blood, which makes it impossible to say that property which one inherits from the other comes from one side of the family rather than from the other. We realize that the relationship between sisters may be said to be ancestral within the meaning of onr curtesy statute, as in George v. Alexander, 229 Ark. 593, 317 S. W. 2d 124, but we think it clear that the statutes of descent and distribution did not contemplate the possibility that an ancestral estate might arise from a transfer of property from one full sister to another.

We conclude that, with respect to the half interest that Clara inherited from Algerina, the stock of descent was Mamie McFadden. In this view there is no distinction between the two moieties, and the trial court was right in treating them both in the same way.

Affirmed.

Bobinson, J., dissents.

Sam Bobinson, Associate Justice

(dissenting). There is no rule of property established by Kelly’s Heirs v. McGuire, 15 Ark. 555, that keeps the cousins of the intestate from inheriting in the case at bar. Sections 10 and 12 of the 49th Chapter of the Bevised Statutes of 1838, Ark. Stat. Ann. §§ 61-110 and 61-112 (1947) were applicable to the facts, and controlling, in Kelly’s Heirs v. McGuire on the point under consideration. Neither of the aforesaid sections of the statute are applicable to the facts in the case now before the court.

In Kelly’s Heirs v. McGuire, Clinton Kelly had two half sisters, Elizabeth and Emeline. They had the same mother as Clinton, but Clinton’s father, Charles Kelly, was not the father of the girls. Clinton inherited real property from his father and then died at age 17 without issue and intestate. One of the questions before the court was whether the half sisters inherited from Clinton the ancestral property he had inherited from his father, or did the property go to Greenberry Kelly, the grandfather of Clinton. Revised Statutes, Chapter 49, Section 10,'Ark. Stat. Ann. § 61-110 provides that if the estate came by the father it shall ascend to the father and his heirs. There were heirs of the father, therefore the statute was applicable. Hence the estate ascended to grandfather Greenberry Kelly and descendants of his daughter, Mrs. Elkelburner, the aunt of Clinton.

The other statute which had to be considered in reaching a decision was Section 12 of Chapter 49 of the Revised Statutes, Ark. Stat. Ann. § 61-112. It provides that relations of the half blood inherit equally with those of the whole blood. But this provision did not help Elizabeth and Emeline because the same section provides that it does not apply to ancestral property.

The decision in Kelly’s Heirs v. McGuire, on the point involved here, was based squarely on the two aforesaid statutes. Neither statute applies here. In the first place, no heirs of the half blood are involved. In the second place, Section 10, Ark. Stat. Ann. § 61-110, does not apply because here there are no heirs in the mother’s line whence came the estate. Of course the estate cannot descend or ascend to nonexisting heirs; therefore, Section 10 is not applicable. The phrase used by the court in Kelly, the heirs took “not in postponement, but in exclusion” was applicable to the facts in that case but is not applicable to the facts in the case at bar.

The law of descent and distribution is regulated by statute in this state and, of course, as pointed out by the majority, statutes must be read in the light of judicial construction. With this concept of the law in mind I am firmly of the opinion that in the ease at bar the blood kin of Clara — her cousins on her father’s side — should inherit the property Clara owned in fee simple at the time of her death; and that the remote relatives of her deceased husband (he died more than thirty years ago) should not inherit from Clara under the provisions of our statutes.

Our statutes constitute the controlling law. The statutes governing descent and distribution were adopted in 1838, Revised Statutes of Arkansas, Chapter 49, Sections 1-22 inclusive. There have been no amendments affecting the principle involved in the case at bar, although a 1959 amendment mentioned by the majority added heirs of a deceased spouse to those who might inherit to prevent an escheat to the state. The amendment does not affect the right of the blood kin of the intestate to inherit. If the cousins of the intestate could inherit under the provisions of our statutes as they existed prior to the 1959 amendment, the amendment did not cut out that right.

It necessarily follows that we must look to the statutes to determine who inherits the property owned by Clara in fee simple. Do her blood kin — her cousins on her father’s side — inherit it? Or do distant unknown relatives of her deceased husband inherit it? The answer is supplied by Section 1 of Chapter 49 of the Revised Statutes, Ark. Stat. Ann. § 61-101. The applicable part of this statute provides:

“When any person shall die, having title to any real estate of inheritance, . .• . and shall be intestate as to such estate, it shall descend and be distributed, . . . Second: If there be no children, then to the father and mother in equal parts, or, if one parent be dead, then the whole to the surviving parent; if no father or mother, then to the brothers and sisters [or their descendants], in equal parts.” It will be noticed that the above statute applies to “real estate of inheritance.”

There can be no question about the property owned by Clara being “real estate of inheritance” within the meaning of the statute. It is said in Kelly’s Heirs v. McGuire:

“. . . And every estate, interest and right, legal and equitable, in lands and tenements and hereditaments, excepting only leases for years, and estates for the life of another person, are thus inheritable and descendable; or, as the 1st section expresses it [§ 61-101] ‘having title to any real estate of inheritance,’ constitutes an inheritable estate, ...”

Clearly, under this statute, the cousins inherit the property if there is no other statute preventing such inheritance. I respectfully submit there is no such statute.

The majority bases its decision that paternal heirs cannot inherit from the intestate on Ark. Stat. Ann. § 61-110 (Eevised Statutes of 1838, Chapter 49, § 10), the pertinent part of which provides:

“In cases where the intestate shall die without descendants, if the estate come by the father, then it shall ascend to the father, and his heirs; if by the mother, the estate shall ascend to the mother and her heirs; . . . ”

Section 10, Chapter 49, Eevised Statutes, Ark. Stat. Ann. § 61-110, does not limit Section 1, Chapter 49, Eevised Statutes, Ark. Stat. Ann. § 61-101 in the case at bar, because although the estate came by the mother, she is dead and there are no heirs of the mother, hence the estate cannot go to the mother or her heirs. Therefore, Section 10'has no application whatever to the facts in the case at bar. The statute could only apply if there was a living mother.or living heirs of the mother. Here, neither exist.

- The majority holds that under Ark. Stat. Ann. § 61-107 — the escheat section of the descent and distribution statutes — the property goes to heirs of the deceased husband of the intestate. In referring to this section the majority say:

“. . . This section originally provided that if there were no descendants, parents, ‘or any paternal or maternal kindred capable of inheriting,’ the estate should go to the surviving spouse, if any; otherwise it would escheat to the State.”

It appears that due consideration was not given to a part of Ark. Stat. Ann. § 61-107 (Supp. 1963) not appearing in the majority opinion. The statute in full is as follows:

“Descent in absence of kin — Escheat.—‘If there be no children, or their descendants, father, mother, nor their descendants, or any paternal or maternal kindred capable of inheriting, the whole shall go to the wife or husband of the intestate. If there be no such wife or husband, then the estate shall go to the heirs of such wife or husband, and if there be no such heirs of either wife or husband, then the estate shall go to the State. ’ ’ ’ [Emphasis supplied.]

Section 61-107 is clearly an escheat statute. The property would go to the husband’s heirs only as a last resort and then only to prevent an escheat to the State, But before the heirs of the husband can inherit the property there must be no descendants of the father of the intestate. Here, there are descendants of the father. The majority appears to attach considerable importance to the inclusive words of the statute “or any paternal or maternal kindred capable of inheriting, ’ ’ as if this phrase prevented the father of the intestate or his heirs from inheriting, but the phrase does not do away with the right of anyone to inherit. It merely emphasizes that before the heirs of the husband can inherit there must be no one else that could inherit under Section 1. In no way does the majority explain just how the quoted language limits the preceding language giving the father’s descendants the right of inheriting. Certainly, under Section 1, cousins are capable of inheriting, and here the intestate had cousins.

No doubt, the only reason the escheat statute was enlarged to include heirs of a deceased spouse was because it was thought that before the amendment the statutes gave collateral heirs, if any, the right to inherit in a case of this kind. But if there were no collateral heirs and no surviving spouse of the intestate, the estate would escheat to the State. Hence, the amendment to prevent an escheat where there are no collateral heirs and no surviving spouse.

The majority say that it is not an inequitable construction of the statute to hold that a total stranger to the intestate can inherit in preference to his blood kin— his cousins — because for 120 years the surviving spouse was allowed to take in a situation of this kind. In no case has this court ever held that in a situation of.this kind a surviving spouse was permitted to inherit where there were blood relatives — first cousins — of the intestate.

In Kelly’s Heirs v. McGuire, the court said that it is the universal rule that the sense of an act must be collected from the whole act. I thoroughly agree and respectfully submit that it was never the intention of the General Assembly to permit total strangers to inherit from an intestate in preference to his first cousins where, in many instances, the cousins would be actually as close to the intestate as a brother or sister.

The intestate in the case at bar had an estate of inheritance, Ark. Stat. Ann. § 61-101. There is no doubt that this section gives the estate to the collateral heirs unless it is superseded by some other statute; it is so stated in Kelly’s Heirs v. McGuire. There, the court said:

“The 1st section [Ark. Stat. Ann. § 61-101] is general and comprehensive, embracing all lands, whether ancestral or newly acquired, subject to certain exceptions and qualifications hereafter more particularly noticed, and these exceptions refer to real estate alone. This section also constitutes the table, by which real estate is to descend and personal property be distributed. As, by its express language, it relates to both real and personal property, it was manifestly the design of the Legislature, when there were descendants of the intestate, to send down both to them per capita, if in equal degree, and per stirpes, if in unequal degree, without any regard to the fact as to how the property had been acquired.”

There is no statute applicable to the facts in the case at bar that supersedes Ark. tSat. Ann. § 61-101. Under our statutes, where the property came by the mother it should go to the heirs of the mother, if any. But where there are no such heirs, as in the case at bar, it cannot be said that § 61-110 supersedes § 61-101. In these circumstances, § 61-101 applies and heirs of the intestate should inherit regardless of whether they are kin on the mother’s side or on the father’s side.

Under our statutes the blood ldn of the intestate should inherit. Therefore, I respectfully dissent.


source: Caselaw Access Project

author: Paul Ward, Associate Justice.

license: Public Domain

text:
    Dunbar v. Dunbar.
    5-3471
    387 S. W. 2d 340
    Opinion delivered March 1, 1965.

      Gardner <£ Steinsieli, for appellant.

      Elbert S. Johnson, for appellee.
   Paul Ward, Associate Justice.

This is an appeal by appellant, Marie P. Dunbar, to set aside a decree of divorce on the ground that the trial court had no jurisdictiqn. There is no dispute about the essential facts which are hereafter summarized.

Appellant and appellees, Donald P. Dunbar, being residents of Scotland, were married July 27, 1957 and lived together until April 30, 1960. To the union two children were born, a son four years old and a daughter one year old. On March 28, 1962 appellee filed a complaint for divorce alleging, in addition to the above facts, that appellant willfully abandoned and deserted him and remained away from him one entire year without cause and against his will and consent; that said children are in the care and custody of appellant who is a fit and proper person to have their custody; and appellee is supporting and will continue to support said children. It was further alleged by appellee that there are no property rights to be adjudicated and that for more than sixty days prior to filing of the complaint he has been a resident of the Chickasawba District of Mississippi County, Arkansas.

The cause was submitted on the pleadings by both sides and on the depositions and oral testimony presented by the plaintiff, from all of which the court found: the plaintiff appeared in person and by his attorney but the defendant appeared not either in person or by her attorney, Ed B. Cook; the answer of the defendant was filed on May 4, 1962 by her attorney, Ed B. Cook; on the same day the defendant by her attorney requested expense money and attorney’s fees; on June 1, 1962 plaintiff was ordered and directed to pay $200 to Ed B. Cook as' attorney’s fee for the defendant. Thereupon the court, on November 26, 1962 granted appellee an absolute divorce from the defendant on the ground of willful desertion for a period of more than one year without just cause; by decree entered December 4, 1962 the care and custody of the two children were given to the defendant provided the plaintiff will have the right of visitation at all reasonable and proper times; and, the plaintiff was ordered to pay the sum of $60 per month for their support and maintenance, same to be paid in the form of a government allotment by reason of plaintiff’s being in the military service of the United States.

On May 4, 1964 appellant, through the services of the attorneys presently representing her, filed a petition to set aside the divorce decree. Among other things it was said that at all times herein mentioned appellant has been a resident of Scotland “and that by the time notice had been received by her and arrangements made for local counsel the thirty (30) days had expired for answer and that an appropriate pleading was filed and that thereafter, this matter proceeded to trial without her attorney being present or notice to him of its being-called up and' her pleadings were erroneously struck by the court”; that said matter proceeded to final decree with her pleadings being ignored; that the decree should set aside for the further reason that no report of the attorney ad litem was filed, which is jurisdictional; that because of the above mentioned facts and circumstances the decree should be set aside and the cause heard upon its merits.

To the above petition appellee filed a response which in essence stated: the defendant employed legal counsel who filed an answer on her behalf on May 4, 1962; on June 1, 1962 the defendant was awarded $200 attorney’s fees; thereafter the defendant neither in. person or through her attorney appeared or offered any further defense to the cause of action; and, on November 26, 1962 a decree of divorce was properly granted by the court. On June 19,1964 appellee’s response was amended to state: immediately upon the rendition of the divorce decree on November 26, 1962, appellee served a certified copy of the decree upon appellant by certified mail and delivered a copy of same to her attorney of record, Ed Cook of Blytheville, Arkansas; that at no time following the date of the decree did the defendant make any attempt to appeal the decree rendered on November 26, 1962 or to have the same set aside until her petition was filed on May 4, 1964. The prayer was that defendant’s petition be denied.

After a hearing on the above petition and response the following order was entered:

“Now on the 19th day of June, 1964, comes on for hearing the Petition of Marie F. Dunbar to vacate this Court’s Decree of November 26, 1962, and same is submitted upon said Petition, with amendment thereto; Response of plaintiff . . . '; Amendment to Response; evidence introduced; argument of counsel for both parties, from all of which the Court doth find:
“That the Petition of Marie F. Dunbar to vacate this Court’s Decree of November 26, 1962, should be denied.
IT IS THEREFORE BY THE COURT CONSIDERED, ORDERED AND DECREED that the Petition of Marie F. Dunbar to vacate this Court’s Decree of November 26, 1962, be and the same is denied and said Petition dismissed. ’ ’

From the above order appellant presents this appeal and for a reversal relies upon two points: One. The decree of divorce is void for lack of jurisdiction. Ttoo. The doctrine of laches and estoppel (based on appellant’s delay in filing her petition) does not apply in this case. After careful consideration we conclude that the order of the trial court must be affirmed on the first point. Hence it will be unnecessary- to discuss the second point.

It is undisputed that appellant’s attorney, on May 4, , 1962, filed a motion for attorney’s fees and expenses and also filed an answer. The motion and answer, as indicated by the record, were filed by the attorney, not as an attorney ad litem, but as a hired attorney for appellant. The record indicates that appellant’s attorney was paid a fee as attorney for the defendant and not as attorney ad litem and this fact is further corroborated by an exhibit introduced into the record. This éxhibit shows that on December 17, 1962, an air mail letter in regard to the case of Dunbar v. Dunbar, addressed to Ed B. Cook, Attorney, Blytheville, was written by A. B. and A. Matthews, Solicitors, with offices in the British Linen Bank Buildings, Newton Stewart, Scotland. In this letter they acknowledge receipt of the letter from Attorney Cook dated December 12, 1962, notifying them that the decree of divorce had been rendered. In the letter they refer to Attorney Cook as representing the defendant’s interest. The letter concludes with this para- ■ graph:

“We do not have sufficient - inf onnation as yet to ' make representations to the judge in this case and we look to you to do so meanwhile bearing in mind what we have already stated regarding the question of fees.” (Emphasis supplied.)

It is true that the divorce decree recites that appellant’s . answer was stricken. However, the court in its “opin- ■ ion” [June 19, 1964] states that this was an error on the part of the scrivener. We think there are certain facts and circumstances which strongly indicate that the trial court never in fact struck the answer. In the first place, on the same day that the answer .was filed the trial court acted upon a motion filed by appellant and allowed an attorney’s fee. Nowhere in the record does it appear that appellant’s attorney attempted to offer any pleading or evidence which was refused by the trial court.

In, view of the above we are led to conclude that appellant was represented by an attorney of her own selection; that he was paid for his services; that he filed appropriate pleadings in her behalf; that the court accordingly had jurisdiction to render the decree it did on November 26, 1962; and that appellant’s only remedy thereafter was to prosecute an appeal to this court within the time allowed by law which she failed to do.

Affirmed.


author: Sam Robinson, Associate Justice.

text:
    Cabot Industrial Development Corp. v. Shearman Concrete Pipe Co.
    5-3444
    387 S. W. 2d 336
    Opinion delivered March 1, 1965.

      Smith, Williams, Friday & Bowen, By Ilerschel H. Friday and John G. Echols, for appellant.

      Griffin Smith, for appellee.
   Sam Robinson, Associate Justice.

Appellee, Shear-man Concrete Pipe Company, sold and delivered to Harold W. Smith, 2,883 feet of sewer pipe valued at $2,400.35. Smith used the pipe to lay a sewer line in the City of Cabot, but he failed to pay for the pipe. Shearman filed suit against the City of Cabot, Cabot Industrial Development Corporation, and Aire-Line Mobile Homes Corporation, alleging that the pipe was bought and used by Smith for their use and benefit. Sherman also asked for a lien on property owned by the City of Cabot or the Cabot Industrial Development Corporation and leased by AireLine Mobile Homes. The Chancellor held in favor of Sherman, rendered a judgment against appellants, and imposed a lien in favor of appellee on the property occupied by Aire-Line.

It is clear from the record that Smith entered into a contract with the City of Cabot whereby the parties agreed that Smith would furnish the material and labor and lay an extension to the sewer line in the City for a stipulated price of $6,842.00. It is also clear that Smith was an independent contractor in connection with putting-in the sewer line. Since Smith was an independent contractor, there is no liability on the part of the City to Shearman for the pipe purchased by Smith. Marion Machine, Foundry & Supply Co. v. Colcord, 174 Ark. 90, 294 S. W. 361.

But Shearman contends that the pipe was used to improve certain property owned by the City or Cabot Industrial Development Corporation and leased to AireLine Mobile Homes; that the property in question is, therefore, subject to a materialmen’s lien under the provisions of Ark. Stat. Ann. § 51-601 (1947).

There appears to be some controversy about who owned the property in question at the time the sewer line was constructed. None of the line was laid on the property. It makes no difference as to who owned the property because of the preponderance of the evidence shows that the sewer line was not put in as an appurtenance to the property in question. It was simply an extension of the sewer system in the City of Cabot. True, the line was laid to a point that would make it accessible to the property in question, but it was not constructed as an appurtenance to that property. The sewer line constitutes a public service, available to all property owners who wish to connect therewith.

Appellee relies largely on Speer Hardware Co. v. Bruce Bros., 105 Ark. 146, 150 S. W. 403, but the Speer case is distinguishable from the case at bar. In that case, the pipe was appurtenant to the property involved. Here, the sewer line is not appurtenant to the property on which Shearman seeks a lien. The owner of the property has no control over the sewer line and has no more rig-ht to use it than any other property owners whose property is so located that a connection can be made with it. In fact, at the time of trial of this case, five other property owners had connected their property with the sewer line.

Reversed and dismissed.


author: Jim Johnson, Associate Justice.

text:
    Martin v. Aetna Casualty & Surety Co.
    5-3464
    387 S. W. 2d 334
    Opinion delivered March 1, 1965.

      Fuller Ilighsmith, Smith, Williams, Friday & Bowen, Robert V. Light, for appellant.

      Gentry & Gentry, Clayton Freeman, for appellee.
   Jim Johnson, Associate Justice.

This is a suit against a hospital and its employee for injuries to a patient sustained while in the hospital.

Appellant Clay E. Martin was admitted to St. Vincent Infirmary on November 3, 1961, after suffering a fractured femur when his horse fell on him. The broken leg was set surgically and instead of a cast, a steel plate or bar was attached to the bone to hold the fracture site rigid. Thereafter, while appellant was in the hospital, this metal bar was broken and the leg re-injured.

On March 14, 1963, appellant filed suit in Pulaski Circuit Court, Third Division, against appellees Aetna Casualty & Surety Company, the hopsital’s insurer, under the provisions of Ark. State. Ann. § 66-3240 (Supp. 1963), and Evelyn 'Willis, a hospital employee. The complaint alleged two separate re-injuries, the first on November 22, 1961, when the leg rest of a wheel chair in which appellant was seated collapsed, throwing his leg to the floor, resulting in displacement of the bone fragments and a breaking of the metal plate attached to the femur. The second injury occurred ten days later while appellant was in traction when allegedly appellee Willis, the admitted agent of St. Vincent Infirmary, handled his broken leg so roughly or carelessly a further re-injury and displacement of the bone fragaments was caused.

The case was tried to a jury on February 10, 1964. The jury returned a verdict signed by nine jurors, which found for appellee Aetna Casualty & Surety Company. Appellant brings this appeal from judgment on the verdict dismissing his complaint.

For reversal appellant contends that the trial court erred in refusing to give his offered Instruction No. 9 which would have submitted the case to the jury on the theory of res ipsa loquitur.

The doctrine of res ipsa loquitur is a rule of evidence that comes into play when:

“And where the defendant owes a duty to plaintiff to use care, and an accident happens causing injury, and the accident is caused by the thing or instrumentality that is under the control or management of the defendant, and the accident is such that in the ordinary course of things it would not occur if those who have control and management use proper care, then, in the absence of evidence to the contrary, this would be evidence that the accident occurred from the lack of that proper care. In such case the happening of the accident from which the injury results is prima facie evidence of negligence, and shifts to the defendant the burden of proving that it was not caused through any lack of care on its part.” Southwestern Tel. & Tel. Co. v. Bruce, 89 Ark. 581, 117 S. W. 564.

Appellant’s testimony about the first re-injury was that he was placed in a hospital wheel chair, taken to the physiotherapy department where he underwent the prescribed physiotherapy, was returned to the wheel chair and taken back to his room by an orderly. The orderly left the room and before other hospital personnel came to put him back into bed, the leg rest which was extended straight out to hold up his leg suddenly dropped, causing Ms leg to fall violently to the floor. The patient sharing the room then called the nurse. Appellant testified that he did not make any attempt to release the mechanism that held up the leg rest and had no idea, even at time of trial, how the mechanism was operated.

In harmony with this and other testimony, appellant offered his Instruction No. 9, as follows:

“If you find from a preponderance of the evidence in the case that Clay E. Martin sustained injuries as a result of collapse of the leg rest of a wheel chair occupied by him, and which was the property of St. Vincent Infirmary and maintained at the hospital for the purpose of furnishing it for use of its patients, and if you further find that the mechanism controlling and supporting the leg rest was located at a place on the chair making it concealed from the view of Clay E. Martin and if you further find that Clay E. Martin did not inspect or tamper in any way with this mechanism or any other part of the chair which control or affect the function of the leg rest, then you are instructed that this mechanism remained in the practical exclusive control of St. Vincent Infirmary during the times pertinent to this suit. You are further instructed that if you find that injury was caused to Clay E. Martin by a thing or instrumentality that was under the control or management of St. Vincent Infirmary, and the injury is such that, in the ordinary course of things, would not occur if those who had such control or management used proper care, the happening of the injury is prima facie evidence of negligence, and shifts to the defendant Aetna Casualty & Surety Company the burden of going forward with evidence that it was not caused through lack of care on the part of St. Vincent Infirmary.”

Tested by the guide-lines laid down in Southwestern Tel. & Tel. Co. v. Bruce, supra, the evidence in the case at bar clearly contains every element necessary to entitle him to the benefit of the doctrine of res ipsa loquitur.

The summary of the court in Pierce v. Goodling Amusement Co., 55 Abs. 556, 90 N. E. 2d 585 (Ohio App., 1949), involving injury sustained on a merry-go-round, is particularly apt:

“All of the elements of the doctrine appear in this record. The instrumentality which produced the injury was under the sole control and management of the defendant. The means of explaining the accident, if it occurred as testified by the plaintiff, was within the knowledge of the defendant and the extent, sufficiency and timeliness of inspections of the device obviously could be known only to the defendant. Upon the facts adduced the accident is one which the jury could have found would not have occurred had the defendant used ordinary care to maintain the merry-go-round in a safe condition. The plaintiff, therefore, was entitled to' the benefit of the inference of the negligence of defendant which the jury may have drawn by the showing of the happening of the accident and the manner in which it occurred.”

It follows, therefore, the trial court erred in refusing to give appellant’s Instruction No. 9, and for that error it is necessary that the entire case be reversed and the cause remanded for new trial.


author: Frank Holt, Associate Justice.

text:
    Hoffman v. Davis.
    5-3466
    387 S. W. 2d 338
    Opinion delivered March 1, 1965.

      Cockrill, Laser, McGehee é Sharp, for appellant.

      Francis T. Donovan, for appellee.
   Frank Holt, Associate Justice.

The appellee brought this action against the appellant to recover damages for personal injuries sustained by her as a result of an accident while riding as a passenger in a car being driven by appellant. When the case was submitted to the jury the court ruled there was no evidence of the alleged wilful and wanton negligence. However, the court submitted to the jury the fact question as to whether the appellee occupied the status of a passenger or a guest and gave the proper instructions. The jury returned a verdict for the appellee in the amount of $8,360.00 and from a judgment on that verdict appellant brings this appeal.

For reversal appellant contends only that there is no substantial evidence that appellee occupied any other status than that of a guest in appellant’s vehicle at the time of the accident and, therefore, she was not entitled to recovery upon proof of only ordinary negligence. Ark. Stat. Ann. § 75-913 — 915 (Repl. 1957) precludes recovery from the owner or operator of an automobile for personal injuries received by a guest except for wilful and wanton misconduct or unless there has been “payment” for the transportation by the passenger. Appellant does not challenge the sufficiency of the evidence as to ordinary negligence but argues that as a matter of law appellee was a guest and no fact question existed for the jury as to whether appellee was a guest or a passenger.

The appellant and his six passengers, including the appellee, are college students at Conway, Arkansas. Appellant and each of the other occupants lived in or near St. Louis and were returning to their respective homes for the Christmas holidays. These students left Conway about 4:30 A.M. with appellant driving his father’s automobile. A few hours later appellant lost control of the automobile and ran into a bridge near Alicia, Arkansas resulting in injuries to appellee. There was evidence that appellant dozed or went to sleep, thus causing the accident. It appears undisputed that the six passengers understood and expected to pay- appellant $5.00 which would be a total of $30.00 for this round trip. In fact, appellant admits that, although he would not have refused them a ride, it was the custom and he expected to be remunerated to this extent for his car expenses. None of the passengers ever made any payment for this trip. The previous month, during the Thanksgiving holidays, appellant had transported a load of fellow oollege students on a similar trip to St. Louis, receiving remuneration from them to defray his car expenses. On that occasion appellee was a passenger and had actually paid appellant $5.00.

Ordinarily, whether or not a passenger is a guest is a question of fact for the jury. Corruthers v. Mason, 224 Ark. 929, 277 S. W. 2d 60; Whittecar v. Cheatham, 226 Ark. 31, 287 S. W. 2d 578; Brand v. Rorke, 225 Ark. 309, 280 S. W. 2d 906; Simms v. Tingle, 232 Ark. 239, 335 S. W. 2d 449. The guest statute is in derogation of the common law and we must construe it strictly. Ward v. George, 195 Ark. 216, 112 S. W. 2d 30. There we said that if a passenger’s “carriage tends to the promotion of mutual interests of both himself and the driver and operator for their common benefit * * * he is not a guest within the meaning of such enactments”.. Certainly the carriage of six passengers who expected to contribute and from whom appellant expected to receive a total of $30.00 on a round trip of 400 miles, coupled with the fact that appellee had previously paid $5.00 on such a trip presented, at least, a question -of fact for the jury to determine whether the appellee was a guest or a fare-paying passenger within the meaning of our guest statute.

In Hartsell v. Hickman, 148 F. Supp. 782, the court held that a triable issue was raised as to whether the passenger paid the driver for expenses on a fishing trip and whether the payments were of such a character as to constitute him a fare-paying passenger. The court said:

“[2] .Whatever may be the law in other jurisdictions, see Annotation, 10 A. L. R. 2d 1351, it seems to be well settled in Arkansas that payments by a passenger to the driver raise a fact issue for the jury (or for the Court in an action tried without a jury) as to whether the passenger is a guest under the Arkansas Guest Statute, Ark. Stats. §§ 75-913 to 75-915, or is a fare-paying passenger. ’ ’

The evil sought to be corrected by this statute is to prevent collusive litigation. Ward v. George, supra; Whittecar v. Cheatham, supra; 1 Ark. L. Rev. 50 and 3 Ark. L. Rev. 101. In the case at bar we think the court was correct in submitting to the jury ás a factual issue the status of appellee as a guest or a fare-paying passenger within the meaning of our statute.

Affirmed.


author: Per Curiam.

text:
    Jones, Securities Comm. v. Hill.
    5-3610
    387 S. W. 2d 342
    Opinion delivered March 1, 1965.

      Bruce Bennett, Atty. General, By Berl Anthony, Asst. Atty. Gen., for appellant.

      Warner, Warner, Bagon <& Smith, for appellee.
   Per Curiam.

The Sebastian Chancery Court has ordered Clint Jones, Securities Commissioner of the State of Arkansas, to deliver into the registry of the Sebastian Chancery Court fifteen (15) stock certificates evidencing 5506 shares of stock of the American Foundation Life Insurance Company, which certificates are in his custody and possession; and from that order the said Clint Jones, Securities Commissioner of the State of Arkansas, has appealed to this Court and filled herein a motion for stay of said Chancery Court order pending-final determination of this appeal.

As a condition for granting said stay, this Court does hereby enjoin and restrain the said Clint Jones, Securities Commissioner of the State of Arkansas, from surrendering or releasing from his custody and possession in any way, until the further orders of this Court, the said fifteen (15) stock certificates evidencing- 5506 shares of stock of the American Foundation Life Insurance Company; and because of this injunction we do hereby stay any further proceedings against the said Clint Jones, Securities Commissione of the State of Arkansas, in the Sebastian Chancery Court, regarding the said certificates.


author: Carleton Harris, Chief Justice.

text:
    Cline v. Miller.
    5-3465
    387 S. W. 2d 609
    Opinion delivered March 8, 1965.

      Edgar E. Belhell and William M. Stocks, J. Marvin Holman, for appellant.

      David J. Burleson, for appellee.
   Carleton Harris, Chief Justice.

John J. Cline was a resident of Clarksville, Arkansas, and, during his lifetime, owned substantial timber acreage in Madison County. This acreage included approximately 760 acres, which is the subject of the present litigation. On July 25, 1961, a suit was filed in the Madison County Chancery Court in behalf of Cline to quiet title to approximately 2,040 acres of land in that county. The pleading was amended on August 8 of the same year to allege that a warranty deed appeared of record, purportedly executed by Richard B. Morris, a real estate broker of Huntsville, conveying the 760 acres of land (heretofore mentioned) to Tom M. Miller, a.resident of Graham, Texas. This deed-was dated November 19, 1960, and had'been filed for record on December 8,1960. Cline prayed that Morris and Miller be made parties to the suit, and he sought cancellation of the deed as a cloud on his title. Miller and Morris were summoned by constructive service.

Richad B. Morris filed no answer, and was completely in default. On June 29,1962, a demurrer to Cline’s petition was filed by Tom M., Miller. On March 22, 1963, a general denial was filed by Miller. On August 7, 1963, John J. Cline departed this life. An order of revivor was thereafter entered on December 30. On January 30, 1964, Miller amended his answer to allege that Richard B. Morris was a real estate broker, and that John J. Cline had lisled his lands for .sale with Morris; that Morris acted as Cline’s agent, and that Cline knew of the deed from Morris to Miller, and had acquiesced therein; that accordingly, Cline, and those claiming through him, were estopped to deny the validity of the sale of the lands to Miller by Morris.

It appears from the evidence that Miller’s negotiations and transactions were probably entered into with P. TV. Morris, father of Richard B. Morris, though Miller testified that he never had any reason to think that he was dealing with anyone other than Richard B. Morris, until after the acquisition of the lands. At any rate, Morris (P. TV. or Richard) signed the name of the son to the deed, and delivered the deed to Miller at his home in Texas on November 22, 1960, where appellee gave Morris a check in the amount of $7,965.00. According to Miller, Morris was not to cash the check until “he got the abstract and title opinion to me.” A few days later, according to Miller, Morris called him, and told appellee that he (Morris) had deposited the check in the bank, first stating that he had done so “yesterday,” and subsequently stating that it might have been ‘ ‘ two or three days ago.” On December 8, the deed was placed of record, and on the same date, payment on the check given by Miller was refused by the First National Bank in Graham, Texas. Miller thereafter covered the check, which was paid on December 12. According to Miller, he made a trip to Huntsville, apparently some time between November 19 and December 12. “I demanded of Mr. Morris again to get me those abstracts, and my title opinion, or else refund me my check, or if he had cashed it, to refund my money; and I wanted to get something done on it then, because I didn’t appreciate being done that way.” With Miller was a friend from Bryson, Texas, by the name of M. H. Williams. Miller testified that he met with Morris and John Cline; that he told Morris that he had talked with the District Attorney in Graham, and the United States District Attorney at Fort Worth, “because I got my money and paid him my money in Graham, Texas, that’s where Morris got my money, * * *. And I was going to start proceedings immediately unless they dug up my money or dug me up those abstracts that that check had paid for. ’ ’ Miller was not permitted to testify to any conversations with Cline (dead man statute), but Williams testified that the man introduced as Cline stated to Miller, “You have no reason to worry about the title to this land. I own that land and know the title is good.” This testimony (of Miller and Williams) was apparently decisive, for the court found in favor of Miller, the decree reciting:

“that the defendants Miller paid to defendant Morris the full agreed price for said conveyance in the amount of $7,695.00.
“The Court further finds that John J. Cline had knowledge of the said sale of the said lands to defendants Miller by his agent Morris, and that John J. Cline acquiesced in the said sale of the lands owned by him which were included in the conveyance from defendant Morris to defendants Miller; and that those claiming- said lands through John J. Cline are estopped from denying- the validity of the said sale.”

The decree quieted and confirmed title in Miller and wife, as against the John J. Cline estate. In April, appellant filed a motion for a new trial, asserting that no meeting ever took place between Miller, and Cline in the presence of Morris and Williams, and that Cline did not-ratify or acquiesce in the execution of the deed by Morris to the Millers. Affidavits of P. W. Morris and Fred O. Callaway were presented in support of the motion. The latter formerly served as manager of the Callaway Lumber Company, of Clarksville, a company of which John Cline was president. Affidavits of Jack M. Cline and J. Marvin Holman were also attached. It was asserted that the new evidence was not, and could not have been, known to appellant at the time of trial, though he had acted with diligence. The court rendered a lengthy opinion denying the motion. Appellant appeals from the decree entered, and also from the order over-ruling the motion for new trial.

The record in this case is rather large, and is very confusing. This is partly occasioned by the fact that two Morrises are involved, though only Eichard B. Morris was made a party to the litigation. Though it appears, from the overall evidence, that the man with whom Miller was dealing was P. W. Morris, rather than Eichard B. Morris, and even though his own testimony indicates that he learned this to be true after the filing of the law suit, Miller, throughout his testimony, continued to refer to the party that he was dealing with as Eichard Morris. For instance, Miller was asked:

‘‘ Q. Did you have any discussion with him (Morris) about how the deed was made out! In other words, if he owned the land or anything about who owned the title to it.
A. Yes Sir.
MR. HOLMAN’: Now, I object to any statement made by Mr. Morris at that time; it would be hearsay.
MR. BURLESON: Tour Honor, he is a party to this law suit.
THE COURT: Overruled. You may answer.
A. Now, state your question.
Q. Did you have any discussion with Mr. Morris about the condition of the title, about who owned the land at the time he brought this deed to yóu?
A. Yes, Sir, I did.
Q. As I understand it, the deed purports to convey title from Richard B. Morris and his wife to you and your wife?
A. That’s correct.
Q. It covers all of the land which is involved in this lawsuit, some 760 acres, plus some other parcels?
A. That’s correct.
Q. What discussion did you have about the title?
A. About the price?
Q. About the title?
A. He told me—
MR. HOLMAN: I want to object again, Your Honor, to anything Mr. Morris told him; Mr. Morris is not a party to this lawsuit.
THE COURT: Yes, he is. He was served by publication, warning order, and attorney ad litem appointed.
MR. HOLMAN: Which Morris is he talking about?
A. Richard B. Morris is the one I’m talking about. The only Morris I knew. The man that sold me this land, the United Farm Agency.”

Likewise, appellee, in his brief, treats the matter as though Richard B. Morris is the man that Miller dealt ■with. Of course, if Miller’s transaction was with P. W. Morris, evidence of what that individual said to appellee is inadmissible, P. W. Morris not being a party to the law suit. A large part of Miller’s testimony dealt with conversations and various transactions with Morris, and if these conversations and transactions were inadmissible, appellee’s case is considerably weakened. It is difficult to understand why the proper identities of P. W. Morris, and son, Richard B. Morris, cannot be clearly and firmly established when it appears that they lived in Huntsville for some time, and operated a real estate agency there. Logic compels the conclusion that both should have been known to numerous persons in Madison County.

There is also confusion in Miller’s testimony, relative to whether he made the check given to Morris (which had been turned down because of insufficient funds) good before or after the meeting allegedly attended by John J. Cline, Morris, Miller,, and Williams. Miller testified that this meeting occurred in Huntsville some time between November 22, 1960, when the check was given, and December 12, 1960, when the check was paid. It would seem that evidence could be offered which would' more accurately fix this date. At any rate, Miller’s testimony indicates that Cline approved the transaction before paying the check; however, he testified, as previously mentioned, that he went to Huntsville for the purpose of either obtaining his title opinion and abstracts, or to gót Morris “to refund my money.”

Several other facets of the case are likewise confusing, and we have concluded that, because of the state of the record, justice would be better served by remanding this ease for additional testimony. While the general practice is to make a final determination of chancery cases that come before this court on appeal, we have on numerous occasions, directed the trial court to reopen a cause for the purpose of taking additional evidence. In Wilborn v. Elston, 209 Ark. 670, 191 S. W. 2d 961, this court said:

“We try chancery cases ele novo, and the usual practice .on appeal is to end the controversy here by final judgment, or by direction to the trial court to enter a final decree. There are, however, exceptions to this practice, and it rests in the discretion of this court to determine whether, upon reversal of a cause, the same should be opened for a new trial. If the cause is heard and determined by the chancellor on an erroneous theory, or if it is not sufficiently developed in the trial court, this court may remand for further hearing on the whole case, or on certain issues. Carmack v. Lovett, 44 Ark. 180; Long v. Chas. T. Abeles & Company, 77 Ark. 156, 93 S. W. 67; Gaither v. Gage, 82 Ark. 51, 100 S. W. 80; Carlisle v. Corrigan, 83 Ark. 136, 103 S. W. 620.”

In Wear v, Boydstone, 230 Ark. 580, 324 S. W. 2d 337, we said:

‘1 While ordinarily, Chancery cases are decided upon the record before us, we have on several occasions, remanded where it appeared that in the interest of justice, the cause should be more fully developed. Carlile v. Corrigan, 83 Ark. 136, 103 S. W. 620. The record leaves unanswered possible pertinent questions, * *

See also General Box Co. v. Scurlock, Comm. of Rev., 224 Ark. 266, 272 S. W. 2d 678; and Ark. State Highway Comm. v. Elliott, 234 Ark. 619, 353 S. W. 2d 526.

Evidence was offered, but refused, which might be most pertinent in determining the controversy. For instance, counsel for appellee offered into evidence several letters, one of which, according to counsel, dealt specifically with this transaction. The court held that the letters were inadmissible, under the “dead man’s statute,” and refused to permit their introduction. This ruling constituted error. In Josephs, Executor, v. Briant, 115 Ark. 538, 172 S. W. 1002, Justice Hart quoted the Wisconsin Supreme Court, which had passed upon this same point. The court said:

í < sc sc # The statute forbids the examination of a party, in his own behalf, in respect to any transaction or communication had personally by such party with a deceased person, against parties who are executors, administrators, etc., of the deceased. [Citing Wisconsin statute] The case does not seem to come within the letter of the statute, and yet the communication was in some sense personal. But the personal transaction or communication of the statute, no doubt, means a transaction or communication face to face, or by the parties in the actual presence and hearing of each other. In every such case the statute excludes the testimony of the living party, upon the obviously wise and just ground that his adversary,whose cause of action or defense survives, and who was possessed of equal knowledge, and was equally capable of testifying to what the transaction or communication really was, has been removed by death, and so can not confront the survivor, or give his version of the affair, or expose the omissions, mistakes or perhaps falsehoods of such survivor. The temptation to falsehood and concealment, in such eases, is considered too great to allow the surviving party to testify in his own behalf. The law has, therefore, wisely excluded him. But this reason for the exclusion is not applicable to the present case, at least not fully applicable. Could we know that Mr. Fox, if living, would testify that he never wrote the letter in question — that it was a forgery — then indeed there would seem to be strong reason for excluding the testimony. But we do not and can not know this, and it is only by assuming the suppositious character of the letter, and that Mr. Fox would have so testified, that any appearance of hardship exists. ’ ’

See also Green v. Green, 231 Ark. 218, 329 S. W. 2d 411. Of course, whether the letter (letters) was actually written by Cline is a matter that would be resolved by the proof.

This litigation has another unusual aspect in that two of appellant’s attorneys withdrew after the trial had started, because of the fact that they deemed it necessary to tesify in the case. Attorney Hall withdrew on the first day, before any testimony was taken, and Attorney Stewart withdrew after appellee had completed his case, this attorney testifying on rebuttal.

As stated, because of the confusing state of the record, we reverse the decree, and remand the case with directions that it be reopened for further proceedings. Let it be understood that, in making this order reversing the decree, we are not indicating that appellee should not prevail. Our intention is only to place the parties in equal status, unprejudiced by prior findings of the trial court. The present record remains a part of the proceedings, but the Chancellor should permit appellant and appellee to offer any additional competent evidence, either in the form of additional evidence from witnesses who have already testified, or evidence by new witnesses; also, the litigants should be permitted to join as parties plaintiff or defendant any person who should properly be made a party. In such event, of course, any additional party should be given the opportunity to object to any evidence taken at the last trial, and presently constituting a part of the record, which he feels is not admissible as to him.

It is so ordered.

       Miller’s wife, Vinnie Miller, was likewise a grantee in the deed, and a party to the litigation. For convenience, since she did not testify we shall refer to appellees in the singular.

       Arkansas Constitution, Schedule, Section 2.


author: Ed. P. McFaddin, Associate Justice.

text:
    Boyd v. Matthews.
    5-3484
    388 S. W. 2d 102
    Opinion delivered March 8, 1965.
    [Rehearing denied April 12, 1965.]

      John G. Moore, for appellant.

      Ike Allen Latvs, Jr., for appellee.
   Ed. P. McFaddin, Associate Justice.

This appeal involves rulings of the Probate Court arising in the administration of the estate of Wilson R. Sproles, who died intestate,.a resident of Pope County, Arkansas, on July 1, 1961.

Mr. Sproles was survived by two living sisters and a number of nieces and nephews and one grand-nephew, being the descendants of five deceased brothers and/or sisters who had predeceased Mr. Sproles. Thus, the estate is to be divided into seven principal shares, five of which are subdivided among the descendants of the deceased brothers and/or sisters.

On proper petition the Probate Court of Pope County on July 7, 1961, issued letters of administration to E. C. Bradley (husband of Mrs. Ethel Bradley, a living sister of the deceased), and to A. O. Matthews (husband of Mrs. Esther Matthews, a living sister of the deceased). The inventory of the estate was filed on January 18,1962, and showed, after payment of all claims except the one of Ada Boyd here involved:

‘ ‘ Land per inventory not needed for payment of debts vested in heirs per stirpes $15,200.00'
Cash and personal property 10,444.05.”

Prom the cash on hand the Probate Court directed the payment of administrators’ fees, attorneys’ fees, and court costs (all totalling approximately $1,600.00), and on June 1, 1962, the administrators distributed to the heirs in cash an amount in excess of $8,300.00 and prayed that the estate be closed.

There was pending the claim of Ada Boyd for $2,-638.47; and on September 7, 1962, the Probate Court disallowed this claim as not having been presented in due time; and the Probate Court ordered the estate closed and that the administrators distribute the remaining balón hand of $160.00. This said order closing the estate was made by the Honorable W. W. Bean, the Probate Judge. His term expired and he was succeeded by Honorable Richard Mobley as regularly elected Probate Judge. The administrators thought the probate estate was closed; but Mary Boyd and Ada Boyd subsequently filed a motion that the order of September 7, 1962 be set aside and that the estate be reopened.

Even though the said motion remained pending the heirs took charge of the real estate and proceeded to have a partition suit; and in,that partition suit (appealed to this Court in Case No. 3486 this day decided by us) the Chancellor on exchange (Honorable Paul X. Williams) ordered the administrators to go back to the Probate Court and dispose of the motion of Ada Boyd pending therein before the Chancery Court would complete the partition proceedings. The Chancellor on exchange then presided over the Probate ’ Court, and on June 10, 1964, heard and - denied the motion and execeptions. E. C. Bradley had departed this life and A. O. Matthews, really in his capacity as trustee for the owners of the real estate, had received since the closing order of 1962 an amount of $200.00 as oil and gas lease rentals on the land. The Probate Judge directed that this amount be paid by A. O. Matthews to the Clerk of the Chancery Court to go with the proceeds of the sale of the land to be distributed to the heirs in the partition suit.

From the said order of June 10, 1964, Ada Boyd, alone, brings this appeal and urges six points:

I. The Court erred in holding the several accounts filed by the Administrators to be correct and in approving them especially the order of September 7, 1962 shows that administration.of the estate had not been completed.

“I. The Court erred in directing the Administrator, or Trustee A. O. Matthews, to turn over to the Chancery Clerk the oil lease rental received by him for the estate.
“III. The Court erred in approving the sale of the jewelry to the wives of the Administrators, when a like amount had been bid by someone else.
“IV. The Court ordered that the $160.00 be distributed to the various distributees in the estate, and then dismissed the co-administrators and their bondsmen in the same order. This was error.
“V. The Court erred in approving the disallowance of the claim of Ada Boyd for the sum of $2,638.47 without hearing testimony as to the validity thereof.
“VI. All orders made by Judge Paul X. Williams in the Probate Court are void for want of jurisdiction or authority to act, no exchange agreement having been executed and recorded as provided by law.”

First we will discuss appellant’s sixth point, which relates to the absence from the transcript of an exchange agreement between the regular Probate Judge, Honorable Richard Mobley, and the presiding Probate Judge, Honorable Paul X. Williams, who made the order of June 10, 1964, here challenged. The record before us does not contain any exchange agreement between the Honorable Richard Mobley, the regular Probate Judge, and Honorable Paul X. Williams, the presiding Judge. Because of the absence of such agreement from the record, the appellant insists that all of the proceedings of June 10, 1964, are void, but the record before us does not show that any such contention was made in the Probate Court on June 10, 1964, or at any other time. In designating the record the appellant, Ada Boyd, listed seven points on which she claimed error; and this absence of the exchange agreement was not one of those points. In short, the point is raised in this Court for the first time. Our holding in Gordon v. Reeves, 166 Ark. 601, 267 S. W. 133, is directly in point and is ruling’ here. We there said:

“There was no question raised below as to the regularity of the agreement for exchange of circuits between Chancellor LeCroy and Chancellor Martineau, and the authority of the latter to hold the court cannot be questioned here for the first time, the presumption being indulged conclusively that the exchange was regular and in compliance with the statute. ’ ’'

Gordon v. Reeves has been cited with approval in subsequent cases on this point, some of which are: Strahan v. Atlanta Bank, 206 Ark. 522, 176 S. W. 2d 237; and Harris v. Byers, 212 Ark. 1026, 208 S. W. 2d 990. We find no merit in appellant’s sixth point.

Appellant’s fifth point relates to the disallowance of the claim of Ada Boyd. She was one of the distributees of the estate (being a niece of the decedent), and had also filed a claim of $2,638.47 claimed to be due her for rent of an apartment by decedent. The claim was resisted by the administrators as not having been filed within the time and manner required by statute (Ark. Stat. Ann. §§ 62-2601 and 62-2604 [Supp. 1963]). Evidence was heard by the Probate Court on this resistance on April 9, 1962, and resulted in an order of that date disallowing the claim. The only evidence in the record now before us is the evidence given at that hearing on April 9, 1962. Ada Boyd prayed an appeal to the Supreme Court from the 1962 order, but never perfected the appeal. She contented herself with a motion to set aside the order disallowing her claim. When the Court, in September 1964, refused to set aside the order disallowing her claim, she now appeals from that order as well as the one of 1962. Of course, ■ she is too late to appeal from the order of April. 9, 1962, because an order disallowing a claim is a final and appealable order. Southern Furn. Co. v. Morgan, 214 Ark. 182, 214 S. W. 2d 905. Her time for appeal has long since expired. Furthermore, Ada Boyd has not shown that the Probate Court committed error in its 1964 order wherein the Court refused to set aside the 1962 order; so we find no merit in appellant’s fifth point.

We now consider appellant’s Points 1 to 4, inclusive. As aforesaid, appellant is a distributee of the estate of Wilson Sproles. The record shows that she is entitled to one-third of one-seventh of the estate. As such distributee she urges these four points which relate to the orders of the Probate Court in regard to the administration of the estate. We find that Ada Boyd has failed to establish any error committed by the Probate Court adverse to her rights in any of these matters.

(a) - In the order of .September 7, 1962, the Court closed the estate and directed the administrators to distribute the balance on hand. Of course, the balance on hand should have been distributed and so reported before the estate was closed; but the error in this regard was cured by the order of June 1964 which showed full disposal of all assets.

(b) After the order of September 7,1962 closing the estate, Mr. E. C. Bradley died. Mr. Matthews, who had been the other administrator, continued as a sort of trustee for the heirs to receive delay rental money from an oil and gas lease on the land. The Court had never directed the administrators to take charge of the land. Since the administrators’ inventory of July 27, 1961, showed the lands had been delivered to the heirs, this delay rental money belonged to the heirs as co-tenants of the land. In July 1964, when Mr. Matthews informed the Probate Court that he had some delay rental money, the Probate Court ordered him to pay it into the Registry of the Chancery Court wherein the partition suit was pending. Certainly no prejudice resulted to Ada Boyd in this order. Mr. Matthews was a trustee for the co-tenants in receiving the money and the partition suit was the proper place for such trust money.

(c) Appellant’s third point has given us considerable concern. The decedent, Mr. Sproles, had two rings ■and a stickpin. On August 16, 1962, the Court entered the following order regarding these items :

“Now on this 16th day of August, 1962, comes on for hearing the petition of E. C. Bradley and A. O. Matthews, co-administrators of the estate of Wilson R. Sproles, deceased, asking that they be allowed to sell the following property of the estate:
“Diamond stickpin — to Mrs. Esther Matthews for $50.00.
Diamond Solitaire ring — -to Mrs. Ethel Bradley for $50.00.
Diamond wedding ring — to Mrs. Ethel Bradley for $25.00.
“The court being well and sufficiently advised in-the premises doth order:
“That the co-administrators give notice by copy of this order to the persons interested in the estate of Wilson R. Sproles, deceased, by ordinary mail. That if no objection is filed in this cause to the sales accompanied by a deposit of cash for a greater amount than those set forth above within fifteen (15) days from this date, that petitioners sell the articles and take credit therefor upon their accounting.”

No higher bid was received by the administrators, although Ada Boyd says she later offered the same amount for the three items. She now complains that her aunts purchased these family keepsakes instead of allowing her to purchase them. Even though the entire matter was handled with full knowledge of the Probate Court, nevertheless this point has given us serious concern. We have held an executor or administrator cannot buy at his own sale, and the spouse of such person cannot buy. In some jurisdictions there are exceptions to this, as where (a) only personal property is concerned; or (b) where the executor or administrator is himself an heir and the sale is not to pay debts but to make a distribution. Regardless of all these exceptions, we prefer to adhere to our well recognized rule that an executor or administrator cannot purchase at his own sale and his spouse cannot purchase either.

However, it will be noticed, here, that the sale was made and approved on August 16, 1962; and this appeal was not filed in this Court until October 6, 1964. If Ada Boyd had appealed within due time from the 1962 order we probably would have ordered a resale; but, as previously stated, Ada Boyd has waited too late to raise this point. The proceeds of the sale have been distributed by order of the Probate Court and, for all that this record shows, Ada Boyd has accepted her part of the proceeds of the sale; so, all things considered, we find no merit in this point at this late date.

(d) Appellant’s fourth point is likewise without merit. In September 1962 the Court closed the estate and at the same time ordered the administrators to distribute the $160.00 on hand. As previously stated, whatever error might have been in this order was cured by the order of 1964, and appellant in continually reiterating the point is only raking over old ashes.

Affirmed.

       In this connection we call attention to Ark. Stat. Ann. § 22-342 (Eepl. 1962).

       See Ark. Stat. Ann. § 62-2401 (1947); Cranna v. Long, 225 Ark. 153, 279 S. W. 2d 828; and Calmese v. Weinstein, 234 Ark. 242, 351 S. W. 2d 437.

        Gibson v. Herriott, 55 Ark. 85, 17 S. W. 589; Crider v. Simmons, 192 Ark. 1075, 96 S. W. 2d 471. § 62-2708 Ark. Stats, does not apply here.

       See 21 Am. Jur. p. 733, “Executors and Administrators” § 625; 34 C.J.S. p. 563, “Executors and Administrators” § 599; and 24 C.J. p. 219, “Executors and Administrators” § 738.

       We express no opinion as to whether a suit might have been brought in equity, as was done in Crider v. Simmons, 192 Ark. 1075, 96 S. W. 2d 471.


author: Ed. F. McFaddin, Associate Justice.

text:
    Boyd v. Bradley.
    5-3486
    388 S. W. 2d 107
    Opinion delivered March 8, 1965.
    [Rehearing denied April 12, 1965.]

      John G. Moore, for appellant.

      Ike Allen Laws, Jr., for appellee. ■
   Ed. F. McFaddin, Associate Justice.

This appeal stems from a partition suit between the heirs of Wilson it. Sproles, who died intestate, a citizen and. resident of Pope County, Arkansas, the admitted owner of the real estate herein involved; and this appeal from the Chancery Court is a companion case to Boy v. Matthews, No. 3485, this day decided, which is an appeal from the Probate Court.

On October 10, 1963, Ethel Bradley and Esther Matthews filed this partition suit, alleging, inter alia:

“1. That the Plaintiffs and Defendants are the owners as tenants-in-cominon of the following described lands located in Pope County, Arkansas, to-wit:
“Tract No. 1: The >S % of the 8 %. of the NW %, containing 40 acres and the North 19.87 acres of the NE % of the SW % all in Section 5, Township 7 North, Range 18 West, containing in all 59 acres, more or less.
“Tract No. 2: The N % of the SW %= of Section 9, Township 7 North, Range 18 West, containing 80 acres more or less.
“Tract No. 3: The E % of the NW i/4 of Section 11, Township 7 North, Range 18 West, containing 80 acres more or less. : . .”

The complaint stated the interest of each of the parties, plaintiff and defendant, in the lands, and also that no person, other than the plaintiffs and defendants, was interested in the lands. -Some fifteen parties were named defendants as co-tenants with the plaintiffs. Three of the defendants (Mary Boyd, Ada Boyd, and Steve Etheridge) filed an answer resisting the partition suit until there was a final settlement in the Prohate Court of the estate of Wilson Sproles. This administrtaion angle of the case is settled by our Opinion in Boyd v. Mattheios, No. 3485, this day decided.

On June 13, 1964, after hearing the evidence, the Chancery Court entered a decree which (a) stated that all the heirs of Wilson Sproles were present or duly summoned in the cause; and (b) that the lands could not be divided in kind and the Commissioner should sell the lands after due notice, and then report his actions to the Court. On July 9, 1964, Ada Boyd gave notice of appeal from the said decree; but such appeal was never perfected within the time allowed (Ark. Stat. Ann. § 27-2127.1 [Repl. 1962]) and no extension is shown in the record; so there is no valid appeal from the decree ordering partition and it is too late now for the appellants to attack that portion of the decree of June 13, 1964 which found that all of the heirs of Wilson Sproles were present or duly summoned.

The reference to Tract No. 1 as first appeared herein shows that there was a typographical error in that it said the S V2 of the S % of the NWJ4. On July 10, 1964, the Chancery Court entered an order correcting the description of Tract No. 1 to be S % of S % of NW %.

On July 15, 1964, the Commissioner filed his report of sale which showed that on the 13th day of July, 1964, the sale had been conducted and that Mary Boyd became the purchaser of the three tracts as follows:

Tract No. 1 $ 5,000.00
Tract No. 2 7,600.00
Tract No. 3 2,000.00
'Total • $14,600.00

Ada Boyd filed exceptions to the report of sale, and on August 6,1964, the Court heard the report and the exceptions and denied the exceptions and approved the report of sale and ordered the deed delivered to Mary Boyd upon payment by her of her bid of $14,600.00. Prom this order denying her exceptions and approving 'the report of sale, Ada Boyd gave notice of appeal on September 4, 1964. The record was filed in this Court on October 6, 1964, so Ada Boyd’s appeal from the order denying her exceptions and approving the report of sale is duly before us.

On August 18, 1964, Ethel Bradley et al. filed “Motion for Judgment” wherein it was stated: (a) that Mary Boyd refused to pay the $14,600.00 for the lands purchased and had stopped payment on her check; and (b) that the land should be resold and judgment rendered against Mary Boyd for all expenses and losses on resale and such judgment should be a lien on Mary Body’s interest in the partition. On September 2, -1964, the Court granted the motion for judgment and ordered a resale, after hearing testimony. Although the record attorney for Ada Boyd and the present attorney for Mary Boyd was present at the hearing and cross-examined the witnesses, there was no notice of appeal from the order of September 2, 1964; and that is a most siginicant fact in this case.

On October 22, 1964, the Commissioner filed his report of sale, stating that in pursuance to the court order of September 2, 1964, the lands had been again offered for sale and that the highest and best bidder at such resale for all of the lands was Reece Allewine at a bid of $10,000.00. On October 30, 1964, Mary Boyd and Ada Boyd filed exceptions to that report of sale. These exceptions are:

“1. This cause is now pending on appeal in the Supreme Court, and no action thereon should be taken by this court.
“2. They formally object to the order of sale as made September 2, 1964 for the same reason as given in No. 1 above.
“3. Not all the heirs of the said Wilson B. Sproles, deceased, are made parties to this suit.
“4. Not all claims against the estate of the said Wilson B. Sproles, deceased, have been determined by the Probate Court of Pope County.
“5. Baymond Webb, one of the parties hereto and an heir of the said Wilson B. Sproles, deceased, died during the process of this litigation, and neither the suggestion of his death filed herein, nor the order of revival suggests whether the said Baymond Webb died testate or intestate. If he died testate, the beneficiaries of his will would be necessary parties.
“6. These defendants are informed and believe,- and upon such information and belief allege that nothing has been paid on the purchase price of said lands.”

On November 16,1964, the Chancery Court overruled the exceptions to the report of sale and confirmed the deed to Beece Allewine, which deed was exhibited, acknowledged, approved, and delivered, and to the order of November 16, 1964, Mary Boyd and Ada Boyd gave notice of appeal; and a supplemental transcript was filed in this same cause in this Court by stipulation of the parties in December 1964. So the exceptions of October 30, 1964, as above copied, are before us on this appeal by supplemental record, as also are the exceptions filed by Mary Boyd and Ada Boyd on August 6, 1964. The appellants, Ada Boyd and Mary Boyd, have listed four points on this appeal, which are: .

“1. The first and main point to be relied upon on this appeal is the fact that the complaint does not properly describe the lands, and the lands were never advertised for sale by correct description in. partition proceedings.
“2. Not all of the alleged and known heirs of 'Wilson IÍ. Sproles were served with any kind of process in this action.
“3. This action was never properly revived in the lower court as to the heirs of Raymond Webb, who is shown to have died while the partition proceedings were in process.
“4. The probation of the estate of Wilson R. Sproles has never been properly completed.”

I.

The matter of the description regarding a portion of Tract No. 1 is entitled to first consideration. This is not a collateral attack, but is a direct attack. The complaint, and also the notice of the first sale described the tract as “S % 8 % NW % • • • ”; but on July 10, 1964 (three days before the first sale of the property) the Court entered an order correcting the description to be “S % 8 % NW % • • •” The evidence before us shows that the mistake in the description was called to the attention of all the bidders before the Commissioner conducted the sale. There were a number of bidders at the sale: the Commissioner testified that there fifty-eight bids. In possession of full notice of the correction of the description before the sale, Mary Boyd bid $5,000.00 for Tract No. 1 and filed no exceptions to the Commissioner’s report of sale to be approved and confirmed. It is true that Ada Boyd filed exceptions to the report of sale because of the matter of the description, but she did not show that she or any other person was misled or hurt, or that the price was affected in any way. In short, Ada Boyd did not show that her rights were adversely affected; and since.the description was corrected three days before the sale, we hold that the Court committed no error in the order approving the sale to Mary Boyd. See Cooper v. Ryan, 73 Ark. 37, 83 S. W. 328; Knight v. Equitable Life Society, 186 Ark. 150, 52 S. W. 2d 977; and 169 R.C.L. p. 134, “Judicial Sales” § 97. In 35 C.J. p. 23, “Judicial Sales” § 32, the holdings are summarized in this language: “. . . but in some cases the court has refused to set aside a sale for irregularities in the notice, where such irregularities were in no way prejudicial to either the parties or the purchaser, especially where the price realized was adequate . . .”

II. and III.

We have already disposed of appellants’ second point in calling attention to the fact that the decree of June 13, 1964 stated that all of the heirs of Wilson Sproles were before the Court; and there has been no timely appeal from that decree. See Cooper v. Ryan, supra.

Appellants ’ third point relates to the death of Raymond Webb. This point is not presented in time because the decree of June 13th found that the widow and heirs of Raymond Webb were before the Court and there was no timely appeal from that decree. But even if the point had been presented in a timely appeal, still there is no merit to it. On June 10, 1964, Mrs. Raymond Webb filed a sworn pleading stating the death of her husband, Raymond Webb, and stating that he was survived by a wife, Mrs. Raymond Webb (also named Willard Webb), and three children, being Mary Saver, Katie Murdock, and Rita House.. In the said pleading, it was asked that the cause be revived; Mrs. Willard Webb entered her appearance as. special administrator; she and the three named children on the same day filed their appearances; and an order was made that day accomplishing the revivor; so there is no merit to the appellants’ third point.

The appellants’ fourth point is the claim that the estate was still pending in the Probate Court and therefore there should be no partition suit. There is no merit to this point, even if it had been raised in due time. The lands were released to the heirs early in the probate proceedings and there was no claim that the lands-were ever needed for the payment of debts. See Ark. Stat. Ann. § 62-2401 (Supp. 1963); Cranna v. Long, 225 Ark. 153, 279 S. W. 2d 828; and Calmese v. Weinstein, 234 Ark. 237, 351 S. W. 2d 437.

Finding no error, the decree is affirmed.

       Attention is called to our emphasis in Tract No. 1. The other real estate of Wilson Sproles consisted of mineral rights which were vested in the parties in their respective interests and were not sold in the partition suit.

       “Now on this 10th day of July, 1964, comes on to be heard the Motion of the Plaintiffs to correct the description of Tract No. 1 as it appears throughout the pleadings in this cause and the court being well and sufficiently advised, doth find:
      “That the correct description of Tract No. 1 should read as follows:
      “The South (S Vz) of the South Half (S Vz) of the Northwest Quarter (NW %), containing 40 acres, and the North 19.87 acres of the Northeast Quarter (NE Vz) of the Southwest Quarter (SW V,), all in Section 5, Township 7 North, Range 18 West, containing in all 59 acres, more or less.
      “IT IS THEREFORE CONSIDERED ORDERED AND DECREED BY THIS COURT that all pleadings in this cause should be changed to reflect the correct description.”

       Ada Boyd’s exceptions were as follows:
      “1. Not all the owners of said lands are parties to this suit, either by personal service, entry of appearance or by warning .order; and hence a conveyance by the Commissioner of this Court would not convey good title.
      “2. Said lands were wrongfully and erroneously described in all the original pleadings, the original decree of this Court and the publication of notice of sale in the newspaper. No order of this Court could change the publication of notice.
      “3. No order of this Court can change the complaint of plaintiffs filed on the 10th day of October, 1963.
      “4. The only method of which good title could be conveyed to any purchaser is by the filing of pleadings properly describing said lands and procuring an order of sale thereof according to law, and the advertisement of said lands for sale by proper notice as required by law.
      “5. Mary Boyd, the purported purchaser of said lands at said sale, is a party to this suit only by publication of warning order and cannot be reached for personal judgment, hence, a resale of said lands is the only remedy.”
      Exception No. 1 is an attack on the decree of June 13, 1964; and since there was no timely appeal from the said decree, its findings, as to all parties being before the Court, are final.
      Exceptions 2 to 5, inclusive, will be discussed in Topic I, infra.

       Before entering a formal decree the Court said: “There will he a judgment against Mary Boyd for $14,600.00, with 6% interest from the — 8/13—that would be 30 days after date of sale, so interest will start running on the 13th, so 30 days will 8-13-64. We will give her ten days in which to satisfy that with interest. If she does not do so, it will be readvertised and sold by the commissioner under exactly the same terms and conditions as the previous sale and the net proceeds of the second sale, after the payment of all costs incident to the sale, including an additional commissioner’s fee on it, will be applied to the satisfaction of this judgment . . .”

       On the second sale the tract was correctly described.


author: George Rose Smith, J.

text:
    Toll, Adm’x v. Jackson.
    5-3500
    387 S. W. 2d 605
    Opinion delivered March 8, 1965.

      David Solomon, for appellant.

      Dinning é Dinning, for appellee.
   George Rose Smith, J.

In 1960 litigation was concluded by which the appellants, as the personal representatives of the estate of Richard F. Toll, obtained a judgment against Phillips Cooperative Gin Company for Toll’s wrongful death. Phillips Cooperative Gin Co. v. Toll, 232 Ark. 236, 335 S. W. 2d 303. A writ of execution was issued under the judgment. At the execution sale the appellants bought in the 1.6-acre tract to which the gin company had record title.

It was then discovered that the gin company had been occupying and using a slightly larger tract of land than that described in its deed. The appellants brought this suit to quiet their title to the larger tract, asserting that the gin company had acquired title to the excess by adverse possession. This appeal is from a decree dismissing the complaint for want of equity and confirming the record title of the appellees, C. J. and Ella Jackson.

The key question is whether the gin company’s possession of the overage now in dispute was adverse or permissive. Upon this issue we do not find the decree to be against the weight of the evidence.

There is actually not,a great deal of conflict in the testimony. The appellee C. J. Jackson formerly owned a cotton gin that burned down. In 1948 he took the lead in organizing the Phillips cooperative gin. Out of a 5-acre tract that Jackson owned he sold the co-op the 1.6-acre gin site, for $400 cash. There is testimony that the co-op intended to buy two acres, but if so there is neither any indication of what the boundaries of the larger tract would have been nor any contention that the gin company ever had an enforceable claim to more land .than it received.

Jackson served as president of the co-op from its organization in 1948 until it went out of business in 1959. C. H. Martin, who died before the trial, managed the company’s business. The main gin building was constructed upon the land described in the co-op’s deed from Jackson. During the years of its active life the co-op expanded its possession beyond the limits of its record ownership. Its encroachments, which are not all shown to have existed for more than seven years, included the construction of a concrete loading dock next to the gin itself, the erection of a pump house that was jointly used by Jackson and the gin company, the construction of a building for burning hulls at a safe distance from the gin, and the use of somewhat vaguely defined areas as roadways for the convenience of the co-op’s patrons.

We think the appellants failed to sustain their burden of proving adverse possession. Their principal witnesses were men who had helped organize the co-op and had served on its board of directors. They testified — and the appellees concede that the gin company physically occupied the property we have mentioned. But these witnesses were not actively managing the business from day to day. They had no particular reason to know the circumstances that attended the co-op’s use of land that it did not own. Their testimony fails to establish the essential element of hostile possession.

Jackson’s statements that he allowed the cooperative to use his property in furtherance of its business are, in our judgment, reasonable and worthy of belief. Certainly the president of the concern did not intend to exercise hostile dominion over his own land. There is not much proof to indicate that Martin, the manager, had such an attitude either. We think it a fair conclusion that the co-op’s possession was merely permissive and thus not of such a nature as to ripen into title by adverse possession. Britt v. Berry, 133 Ark. 589, 202 S. W. 830; Fry v. Grismore-Hyman Co., 151 Ark. 44, 235 S. W. 373. While it is true, as the appellants point out, that Jackson owed a fiduciary duty to the co-op, we do not perceive that this duty was violated by his simply allowing the company to occupy part of his property in the course of its business. Upon the whole record we conclude that the chancellor reached the right decision.

Affirmed.