author: Ed. F. McFaddxN, Associate Justice.

text:
    Monroe v. Monroe.
    5-1033
    294 S. W. 2d 338
    Opinion delivered October 22, 1956.

      Denman & Denman, for appellant.

      F. G. Crow, for appellee.
   Ed. F. McFaddxN, Associate Justice.

This appeal necessitates a study of § 34-1801 Ark. Stats. The question is whether, under the said Statute, the exclusive owner of a life estate may, against the resistance of the remainderman, obtain an order from the Chancery Court for the sale of the entire title of the land and a partition of the proceeds.

The facts are stipulated: William Edward Monroe died intestate, seized and possessed of certain lands in Hempstead County. He was survived only by (a) his widow, the appellee, Mrs. Sleetie S. Monroe, and (b) his son, Bryan Monroe. The estate of William Edward Monroe was duly administered by the Hempstead Probate Court; and a tract of fifty-eight acres of land was set aside to Mrs. Sleetie S. Monroe as her dower. Later Mrs. Monroe filed the present petition in the Hempstead Chancery Court alleging: that she was the life tenant (by virtue of her dower) of the fifty-eight acre tract; that Bryan Monroe was the sole remainderman; that the land was not producing any appreciable amount; that Mrs. Monroe desired the fifty-eight acres sold and the proceeds divided. The Chancery Court held that the life tenant was entitled to such a partition; and this appeal challenges that decree.

We reach the conclusion that § 34-1801 Ark. Stats, does not support the decree of the Chancery Court. Mrs. Monroe, as the life tenant under dower, is in exclusive possession of the fifty-eight acres, and Bryan Monroe owns the remainder. He has no right to any possession during the life of Mrs. Monroe. Our partition statute envisages that two or more persons are at the same time entitled to possession. The present statute (that is § 34-1801 Ark. Stats.) has an interesting history. With slight changes in verbiage, it existed from the Bevised Statutes of 1838 down to the first amendment of it, which was Act 92 of 1941. In 1929, in the case of Phillips v. First National Bank, 179 Ark. 605, 17 S. W. 2d 298, we said of this partition statute as it then existed:

“Our statute, § 8091, C. & M. Digest, provides: ‘Any person desiring a division of land lield in joint tenancy, in common or in coparceny, shall file in the circuit court a written petition,’ etc. Appellee did not claim to hold in joint tenancy, in common, or in coparceny. The complaint did not state a cause of action for partition, as it failed to allege such an interest in the land as would justify partition.”

Since Mrs. Monroe was neither a co-tenant nor joint tenant with her son, Bryan Monroe, she could not have obtained partition under the law as it existed in 1929. Again, in Krickerberg v. Hoff, 201 Ark. 63, 143 S. W. 2d 560, we said in 1940: “While it is true that there can he no partition where one holds the life estate in property with sole right to its possession, and the remainder in another, this is not the situation here.” The quoted language shows that at the time of the decision in that case (October, 1940), the holder of the life estate could not obtain partition against the remainderman.

Since 1940 there have been two amendments to our partition statute, and the original statute and the amendments are contained in § 34-1801 Ark. Stats. The first of these amendments was Act 92'of 1941, and it amended the statute to allow partition among the remaindermen, subject to the life estate of another. We will later discuss this amendment in detail. The second amendment was Act 161 of 1947; and was to allow, in certain instances, the partition of estates held by entirety. Appellant says that the effect of the words “or otherwise” in the said Act 92 of 1941 was to allow partition in a ease such as the one at bar. In ordinary type we show below, the statute as it existed prior to the 1941 amendment; and in italicized type, we show the amendatory language:

“Any person having any interest in and desiring a division of land held in joint tenancy, in common or in coparceny, absolutely or subject to the life estate of another or otherwise, shall file in the circuit or chancery court a written petition . . .” etc., etc.

We hold that the addition of the underscored words was to allow the partition of property by remaindermen, subject to the life estate of another; and we hold that the'words “or otherwise” modified and referred to the life estate of another and did not refer to “in joint tenancy, in common or coparceny.” Our present holding follows the case of Goodlett v. Goodlett, 209 Ark. 297, 190 S. W. 2d 14, decided in 1945, which was after the 1941 amendment. In that case, Mr. Justice Robins, in affirming a partition decree, used this language:

“The lower court granted her, not the entire property for her life but, only an undivided one-third interest for her life therein, and the remaining share was vested in appellant, thus creating such a tenancy’in common between her and appellee as would authorize partition. 40 Am. Jur. p. 90, § 107.”

Thus we recognized, after the 1941 amendment, that there could be partition only when two or more persons were entitled to possession, and that the exclusive possession of the life tenant would not support partition against the remainderman. We made reference to 40' Am. Jur. p. 90; and that text, on p. 92, cites many cases to support this rule:

“The decided weight of authority is to the effect that statutes authorizing chancery to partition property between coparcenors, joint tenants, or tenants in common, do not permit one who has a life tenancy only, so that there is no relation of co-tenancy between himself and his remaindermen, to compel partition as against such remaindermen, since such a statute in no way eliminates the element of cotenancy, which, in the absence of statutory elimination, is indispensable to an action for partition.”

It is well to remember that under § 62-717 Ark. Stats., where dower is about to be allotted in the probate court and it is found that the dower cannot be allotted out of the real estate without great prejudice to the widow and heirs, then the probate court may, upon proper showing, sell the real estate free from the dower and pay the widow her proper part of the proceeds in lieu of dower. But, in the case at bar, Mrs. Monroe alleged that the dower had been allotted to her by the probate court. We, therefore, hold that the widow, having taken dower in the probate court, cannot later go in the chancery court and obtain sale of the fee against the remainder-man.

It therefore follows that the decree of the Chancery Court is reversed and the cause is remanded, with directions to dismiss the complaint for partition.

       Under Act 122 of 1951 of the Arkansas Legislature, it is easy to establish the value of a life estate.

       These changes are shown in the Annotator’s note following the section in the present volume of Ark. Stats. Annotated of 1947.

       The caption of that Act reads: “AN ACT to Amend Section 10509 of Pope’s Digest of the Statutes of Arkansas, As Amended by Act 92 of the Acts of the General Assembly of 1941, by Including Therein Persons Holding Real Estate Under An Estate by the Entirety, Where Such Persons Have Been Divorced, and for Other Purposes.”

       In the case of McGee v. Hatcher, 217 Ark. 402, 230 S. W. 2d 41, we reiterated that the right of present possession between parties is essential to maintain partition. The fact that a remainderman may be entitled to partition where the life tenant is committing waste (see Smith v. Smith, 219 Ark. 304, 241 S. W. 2d 113) does not lead to a holding that the life tenant can force a partition against the will of the remainderman, who is certainly not injuring the property. Where the land is being sold and the entire proceeds reinvested by court order or in trust, then a different factual situation is presented. See Wing v. Wing, 212 Ark. 960, 208 S. W. 2d 776. . Partition was not sought in that case.


source: Caselaw Access Project

author: MiNor W. Millwee, Associate Justice.

license: Public Domain

text:
    Mixon v. Barton Lumber & Brick Company.
    5-1032
    295 S. W. 2d 325
    Opinion delivered October 22, 1956.
    [Rehearing denied December 3, 1956.]

      Max B. Reid and Davis & Davis, for appellant.

      Barrett, Wheatley, Smith & Deacon and William B. Howard, for appellee.
   MiNor W. Millwee, Associate Justice.

The question presented is whether a judgment rendered in a prior action in federal court was res judicata in appellant’s instant suit in the Craighead Chancery Court for dissolution of a corporation and distribution of its assets.

The Barton Lumber & Brick Company of Jonesboro, Arkansas, was organized for the purpose of conducting a lumber and brick business. P. C. Barton was organizer and principal stockholder of the corporation which eventually acquired valuable farm lands and other properties now valued at approximately $500,000. Prior to Ms death, in 1940 P. C. Barton had acquired and transferred all the stock in the corporation to Ms six daughters and two sons who became the principal stockholders. Three of the stockholders, Mrs. Alma B. Mixon, who is the appellant here, Mrs. Arabella B. Bobinson and Mrs. Anme B. Henderson became dissatisfied with the manner in wMch the affairs of the corporation were conducted. In June, 1952 they employed by letter contract the law firm of Davis & Davis of MempMs, Tennessee, for the purpose of taking steps to effect a dissolution of the corporation and distribution of its properties to the stockholders. Subsequently Mrs. Mixon and Mrs. Robinson, who lived at Jonesboro, employed the law firm of Reid & Roy of Blytheville, Arkansas, to join the Davis firm in representing their interests in the undertaking.

On December 21,1952, the two firms employed by the three stockholders filed an action in the U. S. District Court, Jonesboro Division, by Mrs. Annie B. Henderson, who resided in Louisiana, against the Barton Lumber and Brick Company and W. F. Barton, a principal stockholder, to dissolve the corporation and distribute its assets among the stockholders. After setting out the respective interests of the several stockholders, the complaint alleged that the corporation had been engaged for many years in certain ultra vires activities wMch were detrimental to plaintiff and other stockholders; that a minority of the stockholders felt they were being deprived of their legal rights; that there was great dissension between the majority and minority stockholders and the latter were of the opinion that such dissension would continue in the future. It was further alleged that the corporation should be dissolved, its debts and costs of dissolution paid and the remaining assets distributed among the stockholders in proportion to their respective interests ; and that W. F. Barton should be required to account for monies received for the use of lands leased by him for several years from the corporation. There was a prayer for an accounting for the use and benefit of the corporation and that the corporation be dissolved and its (.ateséis distributed among the stockholders as their interests might appear. ...

- ' After continuous negotiations over a period of several ttionths between counsel representing the respective patties-'and their clients, a compromise settlement was Worked out and agreed' to by all the parties in the latter páit of 1953 based upon a partial liquidation of the corporation and distribution of certain of its assets to Mrs. Henderson, Mrs. Robinson and Mrs. Mixon. Mrs. Henderson furnished counsel her proxy to represent her at a stockholders meeting to effect the partial liquidation. At this meeting it was found to be necessary to also hold á meeting of the board of directors of the corporation to Consummate the settlement, but Mrs. Henderson, who was a.board member, refused to waive notice of a called meeting or to further participate in the consummation of the settlement. She also refused to further prosecute the suit filed by her in the U. S. district court. At a pretrial conference in that case on January 26,1954, the court announced his intention to try the case during the week beginning February 8, 195.4 unless it was dismissed in the meantime. Counsel then filed a motion on behalf of Mrs. Henderson to permit her to take a voluntary nonsuit without prejudice. The court, acting in the exercise of its discretion in such matters, refused to entertain such motion unless Mrs." Henderson paid fees in the sum of $1,250 to defendants’ attorneys. Mrs. Henderson refused to make such payment whereupon counsel, acting on her behalf, moved that the action be dismissed with prejudice and this was done.

On July 31, 1954, Mrs. Alma B. Mixon, the present appellant, filed the instant suit in the Craighead Chancery'.Court against the Barton Lumber & Brick Company and the other seven stockholders of the corporation. The complaint, with minor exceptions, embraced essentially the same allegations and prayer for relief as that filed by Mrs. Henderson in the U. S. district court. All the defendants except Mrs. Robinson and Mrs. Henderson’ joined in a separate answer on September 9, 1954, making'Certain admissions and denials and pleading es-toppel, limitations, laches and res judicata on account of the prior action by Mrs. Henderson in federal court. On January 31, 1955, said defendants, who are the appellees here, filed a motion to dismiss the complaint, alleging:, “At the time of the filing of the Henderson suit in Federal Court this plaintiff, Alma B. Mixon, was represented by the same counsel under joint contract of em-: ployment with Mrs. Henderson and that the Henderson suit was brought as a class action for the benefit not only of Mrs. Henderson but of this plaintiff, Alma B. Mixon, by reason of the disposition of the Henderson suit in Federal Court the issues raised by plaintiff’s pleading in this court are res adjudicata.

“These defendants move for dismissal of the complaint herein for the further reason that this plaintiff Alma B. Mixon is estopped to maintain this action by virtue of her participation and by the action of her counsel in the class action brought by Annie B. Henderson in the United States District Court as above set out.”

The chancellor took the motion under advisement after a hearing and on February 11, 1956, entered a decree dismissing the complaint and finding that the decision in the Henderson suit in federal court was res judicata as to appellant who was estopped to maintain the instant suit.

The issue is the correctness of the able chancellor’s determination that the judgment of the U. S. district court in the suit by Mrs. Henderson was res judicata as to appellant’s right to maintain the present suit. In several cases we have approved the following definition from 30 Am. Jur., Judgments, Sec. 161: “Briefly stated, the doctrine of res judicata is that an existing final judgment rendered upon the merits, without fraud or collusion, by a court of competent jurisdiction, is conclusive of rights, questions, and facts in issue, as to the parties and their privies, in all other actions in the same or any other judicial tribunal of concurrent jurisdiction.” In reference to the doctrine in Sec. 162 of the same work, the author says: “It is not, however, to be applied so' rigidly as to defeat the ends of justice; there are exceptions to it based upon important' reasons of policy.” Since appellant was neither a party to the former suit nor technically in privity with her sister in that action, she would not he barred from maintaining the instant suit unless her actions and conduct, and that of her attorneys, have placed her within a recognized, exception to, or expansion of, the foregoing general rule.

In support of the chancellor’s action appellees earnestly contend the facts here are such as to bar the appellant under the rules applicable either to persons participating in litigation or persons virtually represented as a class by a party or parties of record. Appellees particularly rely on Carrigan v. Carrigan, 218 Ark. 398, 236 S. W. 2d 579, where we approved the following statement from 30 Am. Jur., Judgments, Sec. 227: “The strict rule that a judgment is operative, under the doctrine of res judicata, only in regard to parties and privies is sometimes expanded to include as parties, or privies, a person who is not technically a party to a judgment, or in .privity with him, but who is, nevertheless, connected with it by his interest in the prior litigation and by his right to participate therein, at least where such right is actively exercised by the employment of counsel, control of the. defense, filing of an answer, payment of expenses or costs of the action, or doing of such other acts as are generally done by parties.” In the 1956 Cumulative Supp. to the foregoing section, p. 116, there is the following addendum: “An essential condition recognized expressly by most of the cases for the application of the rule is that the prosecution of the action or the defense by the nonpa'rty, or his assistance or co-operation with the party, must have been for the promotion or protection of some interest of his own which would otherwise be prejudicially affected. And another condition frequently, but not always, attached to the application of the rule is that such person had the control or a right of control over the litigation, with the privilege of exercising all the rights of a party of record, such as the right to introduce evidence, examine and cross-examine witnesses, and appeal from the decision of the court, etc. . . . ” Numerous cases are collected in an exhaustive annotation on the question in 139 A. L. R. 10.

The doctrine of virtual or class representation is set forth in 30 Am. Jur., Judgments, Sec. 228, as follows: “There are cases in which such a number of persons in interest may be made plaintiffs or defendants as will fairly represent the interests of all standing in like character and responsibility. "While the general rule is that no person is bound by a judgment except those who are parties or stand in privity with others who are parties, there is an exception to the rule, of equal authority with the rule itself, in the case of persons who are virtually represented by persons on the record as parties. In such case, a judgment in favor of the parties representing the general class is operative under the doctrine of res judicata in favor of all who are thus represented, and a judgment against the parties representing the general class is operative against those represented. This doctrine does not depend upon statutory provisions; it is a rule of common law, f ounded on convenience and necessity. It is based upon the theory that the persons joined and not joined have a common interest, that the parties joined may be depended upon to bring forward the entire merits of the controversy as a protection to their own interests, and that the persons not joined as parties are sufficiently represented by those who are joined. It should be noted that where the reason for the rule does' not exist, the rule itself will not be enforced, and if, under the actual facts of a case, the interests of those not joined are antagonistic to those of the parties who would represent them, the former will not be concluded by a judgment against the latter. The same rule has also been applied where the interests of persons not joined were not considered or protected by the court in rendering judgment. ’ ’

The general rule applicable to suits by stockholders is stated in 50 C. J. S., Judgments, Sec. 794, as follows:

■ " v:“A judgment in a representative stockholder’s suit brought on behalf of the corporation or of all other stockholders similarly situated is a binding adjudication of the corporation’s rights, and concludes other stockholders who had an opportunity to, but did not, join or intervene,.unless it is.sho.wn that the judgment was obtained through fraud or collusion. However, a judgment or decree in a minority stockholder’s suit, not shown to :be a representative or class suit on behalf of all other stockholders similarly situated, is not res judicata of the right of other stockholders to sue for similar relief, especially where different questions are raised by the two 'suits; and a recovery by a stockholder for an individual loss does not estop him subsequently to sue in a representative capacity . .' .” As the annotator points out in 129 A. L. R. 1042: “Although there are a large number of cases in which it has been held that a particular judgment or decree rendered in an action by or against a corporation was res judicata in a subsequent action by or against a stockholder or stockholders of the corporation, the broad conclusion that under all circumstances a corporation so represents its stockholders in litigation in which it is involved that they are privy thereto and the judgment or decree rendered therein is res judicata in subsequent litigation involving them, is not justified.”

In Crow Creek Gravel & Sand Co. v. Dooley, 182 Ark. 1009, 33 S. W. 2d 369, this court recognized the rule to the effect that the doctrine of virtual representation, by which parties may be bound by a judgment although not parties to the suit, is based on the theory that they are sufficiently represented by those who are parties on the record, and that the latter will fairly represent the interests of all standing in like character and responsibility. Also in Lightle v. Kirby, 194 Ark. 535, 108 S. W. 2d 896, we followed the equally well settled rule that a judgment or decree in a purported class suit is not res judicata or a bar as against persons who are not actual parties thereto, where the parties named to represent them asserted rights or had interests in the subject matter that were adverse or hostile to them. See also Connor v. Thornton, 207 Ark. 1113, 184 S. W. 2d 589, and cases from other jurisdictions to the same effect cited in 132 A. L. R. 753.

The parties to the suit by Mrs. Henderson in federal ■court were neither numerous nor unknown. The diversity of citizenship arising by virtue of her Louisiana residence was the' only basis for federal jurisdiction, all other parties and this appellant being residents of Arkansas. While appellant was not a party and filed no pleadings in that action, it was filed for her benefit and she and her attorneys admittedly participated in negotiations calculated to effect a disposition of the case favorable to the rights and interests of the minority stockholders.

An application of the foregoing legal and equitable principles leaves no doubt but that the termination of the former action would have barred appellant’s maintenance of the instant suit if the dismissal had taken place after a trial on the merits. It is also true that as to Mrs. Henderson the dismissal with prejudice amounted to an adjudication on the merits sufficient to support the plea of res judicata. This would also be true as to appellant if Mrs. Henderson had not suddenly changed her mind and assumed a position antagonistic and hostile to appellant and the other minority stockholder. In other words, the Henderson suit was instituted and conducted as a class action down to the point where the plaintiff suddenly and without explanation rejected the compromise settlement previously agreed to, abandoned her suit and, in effect, joined her adversaries. In doing so she asserted interests in the subject matter adverse and antagonistic to the class she purported to represent. In these circumstances it would be manifestly inequitable and unjust to say that appellant has had her day in court.

But appellees say it was incumbent on appellant to intervene in the Henderson suit if she wished to save her rights. Ordinarily the right to intervene in an action does not, in the absence of its exercise, subject one possessing it to the risk of being bound by the result of the litigation, under the doctrine of res judicata. 30 Am. Jur., Judgments, Sec. 220. Nor is it by any means certain that the federal court would have permitted either an intervention or the substitution of the appellant as party plaintiff where the only ground for federal jurisdiction was eliminated by a dismissal that appellant was powerless to prevent. In none of the cases cited by ap-pellees in support of this argument do we find a sudden change of position by the party who purported to represent the particular class.

The decree is accordingly reversed and the cause remanded with directions to overrule the motion to dismiss the complaint.


author: George Rose Smith, J.

text:
    McIlwain v. State.
    4851
    294 S. W. 2d 350
    Opinion delivered October 22, 1956.

      Claude F. Cooper, Harry E. McDermott, Jr., and Spitzberg, Mitchell & Hays, for appellant.

      Tom Gentry, Attorney General and Ben J. Harrison, Asst. Atty. General, for appellee.
   George Rose Smith, J.

The appellant was charged by information with having, unlawfully possessed marijuana on November 9, .1954. The information also invoked the habitual criminal statute by asserting that the accused bad been convicted in Texas of assault with intent to rob and had been convicted by a federal court in Tennessee of having been an unlawful transferee of marijuana. The court instructed the jury in the language of Act 258 of 1937, which provided that the unlawful possession of marijuana should be a felony. The jury returned a verdict of guilty and fixed the punishment at seven years imprisonment.

In his motion for a new trial the accused correctly pointed out that Act 258 of 1937, which made the offense a felony, had been expressly repealed by Act 62 of 1953. He further asserted in this motion that the prosecution was barred by the one-year statute of limitations applicable to misdemeanors. Ark. Stats. 1947, § 43-1603. After a hearing upon the motion the court reduced the sentence to one year in the penitentiary, apparently on the theory that the accused could be considered as having been convicted of a second offense either under the habitual criminal statute or under the Uniform Narcotic Drug Act. This appeal followed.

Inasmuch as the information was not filed until about fifteen months after the commission of the offense, the plea of limitations, if well founded, is decisive. It is settled that the one-year period allowed for the prosecution of misdemeanors is more than an ordinary statute of limitations; it goes to the court’s power to try the case and may be raised for the first time in the motion for a new trial. Williams v. City of Malvern, 222 Ark. 432, 261 S. W. 2d 6. Hence the question is whether the appellant’s offense constitutes a misdemeanor or a felony.

In view of the repeal of the 1937 act pertaining to marijuana the only pertinent statute is the Uniform Narcotic Drug Act. It provides that any person “violating any provision of this act” shall be punishable for the first offense by confinement in jail for not exceeding six months and for a subsequent offense by imprisonment in the State prison for not exceeding one year. Ark. Stats. § 82-1020. The appellant has not previously been convicted under the Arkansas statute and is therefore a first offender under the language- quoted above. Since an offense punishable by not more than, six months, in jail is only a misdemeanor, Ark. Stats., §§ 41-103, 41-104, it follows that a first offense under the Uniform Narcotic Drug Act is not a felony.

Nor does the habitual criminal statute have the effect of converting a misdemeanor into a felony. That statute, being Act 228 of 1953, appears as Ark. Stats., §§ 43-2328 to 43-2330. Although it encompasses prior convictions in the federal courts and in other state courts, it is clear that the statute is applicable only when both the prior and present convictions are for felonies. Throughout the act the references are to offenses “punishable by imprisonment in the penitentiary,” which is the statutory definition of a felony. Ark. Stats., § 41-103. In the emergency clause the legislature declared that “a number of persons who commit felonies have previously been convicted of felonies, ’ ’ etc. The habitual criminal statute increases the maximum penalty for a second felony conviction, but it does not purport to raise the grade of a second offense by transforming a mere misdemeanor into a felony. Thus the appellant’s crime remains a misdemeanor, and the plea of limitations is a complete defense.

Reversed and dismissed.


author: Paul Ward, Associate Justice.

text:
    Lancaster v. State.
    4854
    294 S. W. 2d 348
    Opinion delivered October 22, 1956.

      Gordon H. Sullivan, for appellant.

      Tom Gentry, Attorney General and Paul C. Rawl-ings, Asst. Atty. General, for appellee.
   Paul Ward, Associate Justice.

Appellant, Clayton Yernon Lancaster, was charged with first degree murder, .and after a two-day trial the jury returned a ver-clict of guilty of voluntary manslaughter and fixed the punishment at five years imprisonment in the penitentiary. He was sentenced by the court in accordance with the verdict of the jury.

Appellant prosecutes this appeal on the ground that the trial court failed to admonish the jury [as required by Ark. Stats.’ § 43-2122] “Not to permit anyone to speak or communicate with them on any subject connected with the trial . . .” before the court announced a recess. The record on which this appeal is based contains no testimony that was taken at the trial, but contains the. Motion For New Trial and the objections and exceptions made by appellant’s attorney.

The record discloses that appellant objected on three different occasions that the trial court had allowed the jury to recess on three different occasions without instructing the jury in accordance with the statute above mentioned. We will concern ourselves only with the facts and circumstances surrounding the first recess since it presents the strongest case in favor of appellant’s contention.

Eleven jurors were in the jury box when the available jury panel was exhausted, and thereupon additional jurors were summoned to appear in court. For this reason the court took a recess. Immediately after the trial was resumed the following proceedings occurred:

“Mr. Krobinson: Let the record show that upon the panel being exhausted, a recess was called by the Court to allow the summonsing of additional jurors and that at the time eleven persons had been accepted by both the State and the defendant; that these eleven jurors were allowed to separate and were not admonished by the Court not to discuss the matter among themselves or allow anyone to discuss the case with them, as required by statute. I think it is necessary to call it to the Court’s attention and I object to this at this time and ask that a mistrial be declared.

The Court: Overruled.

The defendant objected to the above ruling of the Court and at the time asked that his exceptions be noted of record, which was accordingly done.

Mr. Holt: Let the record show that this was a recess of approximately thirty minutes and not an adjournment.”

The same contention was made in appellant’s motion for a new trial, but no testimony was taken on the motion.

In asking this court to reverse the trial court, appellant relies on Ark. Stats. § 43-2122 and on Johnson v. State, 68 Ark. 401, 59 S. W. 34, taking the position that the statute is mandatory, and that when the jury was allowed to separate it placed the burden on the State to show, by testimony, no juror was subjected to the opportunity for influence to be exerted on him. We agree with appellant in the above contention provided it is confined to a situation where the-jury is allowed to separate after an “adjournment” as specified in the last line of the statute, above mentioned, which reads:

‘ ‘ The jury, whether permitted to separate or kept in charge of officers, must be admonished by the court that it is their duty not to permit anyone to speak to or communicate with them on any subject connected with the trial, and that all attempts to do so should be immediately reported by them to the court, and that they should not converse among themselves on any subject connected with the trial, or form or express any opinion thereon until the cause is finally submitted to them. This admonition must be given or referred to by tbe court at each adjournment.”

On tbe other band it is tbe contention of tbe State that, in tbe case of a “ recess, ’ ’ tbe burden is on tbe appellant [in tbis case] to show, by testimony, sucb an opportunity for influence was presented, and that [as conceded] no sucb testimony was offered by appellant.

After careful consideration we bave concluded that tbe State’s position is sound and reasonable, and tbat it is supported by precedent.

In tbe case of an “adjournment,” as tbe statute specifies, where tbe jurors are allowed to go to their respective homes or places of business for extended periods, it is presumed [without further proof] tbat ample opportunity is afforded for tbe exercise of influence on them. Thus, it is logical and reasonable tbat tbe State [in tbis case] should bear tbe burden of overcoming sucb presumption. But, in tbe case of a ‘‘recess,” tbe situation is different, and tbe presumption is and should be just tbe reverse. It is common practice, especially in lengthy trials, for tbe court to recess for short periods. In tbis event tbe jurors are not expected to go to their homes or places of business, but they are expected to remain in tbe vicinity of tbe court and under tbe scrutiny of tbe court and its officers, and, if there is any departure from tbis expectancy, tbe burden should be on tbe complaining party to show it by testimony.

Tbe decisions of tbis and other courts bave sustained tbe view we bave expressed above. In Ince v. State, 77 Ark. 418, 88 S. W. 818, we said:

‘ ‘ One of tbe jurors is shown to bave left tbe jury box during tbe progress of selecting tbe jury (after be bad been accepted as a juror) and occupied for a short while a seat among tbe audience. Tbis was before tbe completion of tbe jury and presentation of tbe case, and it is not shown that this juror was subjected to any improper influence.”

We find tbe same view expressed in Carlton v. State, 109 Ark. 516, 161 S. W. 145, in these words:

‘ ‘ The separation of the juror from Ms fellows wMle the trial was temporarily suspended during the thunder storm is not shown to have been prejudicial to the rights of the appellant .. . . No testimony was offered to show that the juror, while absent from his fellows, was guilty of any conduct prejudicial to appellant.”

In People v. Witt, 170 Cal. 104, 148 P. 928, the court said:

“The only possible error here was the failure of the court to admonish the jurors when one was allowed to retire for a moment, in the manner prescribed for each adjournment by section 1122, Penal Code, as to not talking about the case or allowing any one else to talk to them about it, etc. Under the circumstances, no one probably thought of the necessity of such an admonition for this brief retirement of one of the jurors into another room. If error was committed here, it must be said of it, as was said in People v. Coyne, supra, of the failure of the court to admonish the jury upon an adjournment, that the error is technical, and not of the importance to demand a reversal of the judgment and a new trial.”

We fully recognize it is important that courts adhere to the provisions of Ark. Stats. § 43-2122. We also realize that appellant’s contention here [if it had been substantiated by testimony] presents a border line case, and we do not recommend the action of the court in this instance as standard procedure in the future. The important thing is that the jury should not be subjected to outside influence. It is not important whether the influence is exerted during an “adjournment” or a “recess.” The only distinctive difference between the two is a matter of procedure as above indicated.

Affirmed.

Justice RobinsoN not participating.


author:
Sam RobiNsoN, Associate Justice. Ed. F. McFaddin, Associate Justice
      J. Seaborn Holt, Associate Justice

text:
    Pfeiffer v. State.
    4847
    295 S. W. 2d 365
    Opinion delivered October 22, 1956
    [Rehearing denied November 26, 1956.]

      Martin, Dodds & Kidd, for appellant.

      Tom Gentry, Attorney General and Boy Finch, Jr., Asst. Atty. General, for appellee.
   Sam RobiNsoN, Associate Justice.

Appellant appeals from a conviction of violating Section 17 of Act 416 of the Acts of the General Assembly of the State of Arkansas for the year 1941, Ark. Stats. § 84-2317, which provides: “Except as herein provided, it shall be unlawful for any person to receive or have in his possession, for sale, consumption, or any other purpose, any cigarettes upon which the tax prescribed by this act [§§ 84-2301-84-2331] has not been paid, and to the package containing which proper stamps prescribed by this act have not been affixed. The absence of the proper stamps from any container of any cigarettes shall be notice to all persons that the tax has not been paid and shall be prima facie evidence of the nonpayment of such tax. Provided, that the provisions of this section shall not be construed to apply to distributors and common carriers as herein-before defined.” It is conceded that no Arkansas tax has been paid on the cigarettes and that appellant is not a distributor or a common carrier.

The appellant is a resident of Hills Corner, Wisconsin, and owns a 1 1/2 or 2 ton Ford Truck. During the summer of 1955, he went into the trucking business and transported a load of candy from St. Louis to Texas; on his return trip he hauled watermelons. In August 1955, he purchased in St. Louis 173 cases of cigarettes for the price of $16,429.47. He transported these cigarettes in his truck from St. Louis to a point on Highway 67 at Newport, Arkansas, where he was arrested and charged with violation of the above mentioned statute. He was fined $200, and the 173 cases of cigarettes he had in his truck were confiscated and sold to the highest bidder for $15,628.68. The proceeds of the sale of the cigarettes are being held in the registry of the court pending this appeal.

First, appellant contends that Act 416 provides no penalty for the violation of Section 17 thereof. However, Section 17 clearly states that it is unlawful to do the thing appellant is charged with doing, and § 41-105, Ark. Stats., provides: “Where the performance of any act is prohibited, or the performance of any act is required, by any statute, and no penalty for the violation of such statute is imposed, either in the same section containing such prohibition, or requiring such act or duty, or in any other section or statute, the doing of such prohibited act, or the neglect of such required act or duty, shall be deemed a misdemeanor.” And § 41-106 provides.: “Every person who shall be convicted of any misdemeanor, the punishment of which is not defined in this or some other statute, shall be punished by imprisonment, not exceeding one [1] year, or by fine not exceeding two hundred and fifty dollars [$250] or by fine .and imprisonment both.” When all three sections are read together it is clear that the appellant, if guilty at all, is guilty of a misdemeanor and subject to the penalty as set out in § 41-106,* and § 84-2327, Ark. Stats., provides for the confiscation and sale of the cigarettes upon conviction of any defendant charged with the violation of any of the provisions of Act 416 of 1941.

Next, appellant says that he was transporting cigarettes in interstate commerce; that cigarettes are legitimate articles of commerce, and that the State has no power to punish him for his act. Article 1, Section 8, Clause 3 of the Constitution of the United States provides: “The Congress of the United States shall have power [Cl. 3] to regulate commerce with foreign nations, and among the several states, and with the Indian tribes.” Appellant is correct in his contention that cigarettes are legitimate articles of commerce. Austin v. Tennessee, 21 S. Ct. Reporter 132. And, the evidence is overwhelming to the effect that the cigarettes were being transported in interstate commerce; in fact, there is no substantial evidence to the contrary. The appellant bought the cigarettes in St. Louis, Missouri. He entered the State of Arkansas on U. S. Highway 67, near Corning, Arkansas, and there is no evidence that he stopped any place in Arkansas except at the revenue station at the port of entry. There he paid taxes on the gasoline that he would use in traveling through this State to the State of Texas, and he made full disclosure of the fact that his cargo consisted of cigarettes. While still traveling on Highway 67, in Newport, Arkansas, he was stopped by a State Policeman, and arrested. He had reached no destination; he was traveling on a highway that goes from Missouri on the north to Texas on the south.

The State contends that the appellant had reached his destination because he stated, on cross-examination, that he would have sold the cigarettes in Arkansas if he could have made, a 3% profit. Appellant’s .intention- is not controlling. The test to be applied in determining the gnilt or innocence of the accused is whether the cigarettes had actually reached a destination in the State, of Arkansas. There was no break in the continuity of transit. In Missouri Pacific Railroad Company v. Schnipper, 51 F. 2d 749, the court said: “It is well established that the question as to whether the continuity in transit of a movement in interstate or foreign commerce is broken by an interruption at an intermediate point is not controlled by the character or method of the billing of the shipment nor by the fact that the exact ultimate destination in another state or country may or may not be known at the time of shipment . . . Nor does the mere fact that the goods may be under the control of the owner at the point of interruption with power in the owner there to withdraw or divert the goods from the interstate or foreign movement take the goods out of interstate or foreign commerce ... . ”

The States “may not tax property in transit in interstate commerce.” Minnesota v. Blasius, 290 U. S. 1, 54 S. Ct. 34, 78 L. Ed. 131. The early case of Brown, et al. v. State of Maryland, 12 Wheat 419, 25 U. S. 419, 6 L. Ed. 678, appears to hold that no tax can be levied on an interstate shipment as long as the articles remain in the original packages; that imported articles can be held in the original packages, without being mingled with other property, and then sold without the payment of any license or tax, but later cases hold that the imported property is subject to a tax after it reaches a destination. Sonneborn Brothers v. Cureton, 262 U. S. 506, 43 S. Ct. 643, 67 L. Ed. 1095; American Steel & Wire Company v. Speed, 192 U. S. 500, 24 S. Ct. 365, 48 L. Ed. 538; Brown v. Houston, 114 U. S. 622, 5 S. Ct. 1091, 29 L. Ed. 257; Woodruff v. Parham, 8 Wall. 123, 19 L. Ed. 382.

It appears that all of the cases upholding the levy of a tax by a state, where an interstate commerce question is involved, base the constitutionality of the tax on the fact that the transported property had come to rest at a destination. The State cites Wiloil Corporation v. Com monwealth of Pennsylvania, 294 U. S. 169, 55 S. Ct. 358, 79 L. Ed. 838, as sustaining the proposition that the State has the right to tax the cigarettes involved here. In that case, the court said: “Our decisions show that, if goods carried from one State have reached destination in another where they are held in original packages for sale, the latter has power without discrimination to tax them as it does other property within its jurisdiction. ’ ’ It will he noticed that the State’s right to tax is contingent upon the property having reached a destination.

We quote from some of the cases:

“We are decidedly of the opinion that even though plaintiff Klugsberg was engaged in interstate commerce, • yet when the cigarettes were finally delivered by the salesmen to the respective purchasers and the purchase money was paid to the salesmen, they ceased to he in interstate commerce and became a proper subject for taxation under the provisions of the Cigarette Law. ’ ’ Sheppard v. Musser, 127 Tex. 193, 92 S. W. 2d 219. In the case at bar, the cigarettes had not been delivered to any one; the owner had just brought them into the State of Arkansas from the State of Missouri; they were in transit in a truck traveling on a public highway.
“Surely when the tobacco company in Kansas sent cigarettes by C. O. D. mail to Brooks in Oklahoma and he paid the C. O. D. charges and took them to his place of business, the delivery was complete.” Ex Parte Winn., 61 Okla. Cr. 1, 64 Pac. 2d 927.
“Where property has come to rest within a State, being held there at the pleasure of the owner, for disposal or use, so that he may dispose of it either within the State, or for shipment elsewhere, as his interest dictates, it is deemed to be a part of the general mass of the property within the State and is thus subject to its taxing power.” Minnesota v. Blasius, 290 U. S. 1, 54 S. Ct. 34, 78 L. Ed. 131.
“Furthermore, the tobacco in suit was not seized while being transported in interstate commerce. The interstate shipment had come to an end. The property had come to rest within the State and was held at the warehouse of the carrier subject to the pleasure of the owner.” Supervisor of Public Accounts v. Twelve Cases of S. T., La. App., 172 So. 364.

The cigarettes involved in the case at bar were, without a doubt, being transported in interstate commerce at the time they were seized by an officer of the State of Arkansas. The defendant was convicted of possessing cigarettes on which the State tax had not been paid. The State has no authority to levy a tax on property while it is being transported in interstate commerce. Therefore, the cause is reversed, with directions that it be dismissed.

Justices Holt and Millwee dissent. Mr. Justice McFaddin concurs.

Ed. F. McFaddin, Associate Justice

(concurring). I agree with the majority that this case should be reversed; but I submit that it should not be reversed on the issue of interstate commerce. Bather, the reversal should be because of the entire absence of any evidence that any offense was committed by the appellant.

I. Interstate Commerce. The majority opinion says that the cigarettes were moving in interstate commerce and, therefore could not be taxed. In the matter of tax exemption because of interstate commerce, the test is not merely whether there was interstate commerce, but the test is whether the tax is a burden on interstate commerce. In the case of McLeod v. Memphis Natural Gas Co., 207 Ark. 879, 183 S. W. 2d 927, the natural gas was certainly moving in interstate commerce, and yet the tax was sustained. There are many other cases involving interstate commerce in which the tax was sustained; so I thoroughly agree with the dissenting opinion that the reversal should not be on the basis of interstate commerce. In short, I see no need to rest the opinion on the complex issue of interstate commerce, when the case could be decided on the simple issue of no evidence of law violation.

II. Absence of Evidence of Any Offense. My reason for reversing this case is because a careful reading of the record discloses no evidence of an offense committed by the appellant. He openly and frankly stopped his truck and disclosed its contents at the entry port and stated his destination to be Texas. Then he proceeded along U. S. Highway No. 67 toward Texas, and when he was arrested, he was still on U. S. Highway No. 67 headed toward Texas. He had committed no offense: The statute here involved (§ 84-2317 Ark. Stats.) makes the offense: . . it shall be unlawful for any person to . . . have in his possession for sale . . . any cigarettes upon which the tax prescribed by this Act has not been paid”. The appellant had the cigarettes in his possession. Did he have them in his possession for sale ? Where is the evidence that he ever intended to sell the cigarettes in Arkansas without paying the tax? I submit there is none. Here is all the record contains on the vital question:

‘1 CrOSS-ExAMINATION
“Q. As a matter of fact were you taking them to Houston?
“A. Probably the first place.
“Q. Why wait and go to the state line?
“A. There was supposed to have been more money involved.
“Q. You were supposed to get more in Texas than Arkansas ?
“A. I should have realized two or three percent on the load.
‘ ‘ Q. If you could have gotten three in Arkansas, you would have sold them, would you not?
“A. Yes, sir.

Re-Direct ExamiNatioN

“Q. Where had you started when you came into Arkansas.
“A. I was going to Texas.
“Q. Had you intended to stop in Arkansas!
“A. No, sir.”

It will be observed that appellant was asked if he could have gotten three percent profit on the cigarettes in Arkansas, would he have sold them; and he said yes. The State did not ask him if he would have sold them without paying the tax. He was merely asked if he could have gotten three percent, would he have sold the cigarettes. On that one question and answer the State contended in the oral argument before this Court that appellant admitted that he possessed the cigarettes in Arkansas for the purpose of illegal sale. I submit that he made no such admission. He merely said that he would have sold them, but do we presume that he was going to violate the law? I understand the State still has the burden of proving the guilt of the accused beyond a reasonable doubt; and I submit that that one question and answer on cross-examination does not constitute any admission of guilt.

Suppose while driving down the highway at 25 miles an hour in a lawful manner, a person should be arrested for speeding and when the case came up for trial it was shown that he had been going 25 miles an hour; but suppose the prosecuting attorney asked him on cross-examination, whether, under any circumstances he would have gone faster than 60 miles an hour and he answered in the affirmative. Did the answer that he might, under some circumstances, have gone faster than 60 miles an hour prove that he had been speeding at the time and place when he was arrested? No. A hypothetical question, as to what one might do at some other time and place, but had never done, is no evidence of what one did at the time and place for which he is being tried. This simple illustration shows that the appellant in this case had not violated any law; and so his conviction should be reversed. But it should be on the factual issue rather than on the issue of interstate commerce.

J. Seaborn Holt, Associate Justice

(dissent). In my view, if the majority opinion stands its effect will he far-reaching and open the doors to bootleggers of cigarettes and also liquor, [the liquor traffic tax and transportation of liquor, § 48-921, 48-925, 48-934, Ark. Stats. 1947]. At the outset I want to point out that the majority opinion, in the last paragraph, states that “the State has no authority to levy a tax on property while it is being transported in interstate commerce.” It is not my understanding that we are dealing here with a tax on property. The cigarette tax is not a tax on property but is an excise, or a tax on the privilege of holding or possessing cigarettes for personal use or for any other purpose in the State of Arkansas. § 84-2304, Arle. Stats. 1947 provides: “There is hereby levied the following excise or privilege tax, etc.” “There is a material distinction between an excise and a property tax. An excise tax has been defined to be a tax imposed upon the performance of an act, engaging in an occupation, or the enjoyment of a privilege. It is usually imposed directly by the legislature, without an assessment, while a property tax is ordinarily computed upon valuation and levied either where the property is situated or at the owner’s domicile, etc.” [Head v. Cigarette Sales Co., 188 Ga. 452, 4 SB 2nd 203].

As I read this record the facts are practically undisputed. Appellant, after procuring 173 cases of cigarettes for himself in St. Louis, Missouri, and loading them into his personally owned truck, entered Arkansas where he was arrested for violation of § 84-2317 Ark. Stats. 1947 which prohibits the possession for one’s own use or any other purpose, cigarettes upon which the Arkansas cigarette tax has not been paid. At the time of his arrest he admitted that he had not paid the cigarette tax required. He was not a common carrier, was not a licensed Arkansas dealer, wholesaler, distributor or retailer, had no federal interstate commerce permit and carried no bill of lading. There was no consignee for the cigarettes. He said he was on his way with his cargo to Texas, and, in effect, that he proposed to dispose of them anywhere along the route in Arkansas if he could find a buyer that would net him a 3% profit. He had no one in mind either in Arkansas or Texas to whom he would sell the cigarettes. In these circumstances the majority hold that “beyond a doubt” these cigarettes, when appellant was arrested, were being transported in interstate commerce; had not come to rest in this state; and that the tax imposed by Arkansas was a burden on interstate commerce and, therefore, unconstitutional. It seems to me that it would be splitting hairs for us to say in the circumstances here that this cargo of untaxed cigarettes, which defendant had in his possession in Arkansas, had not, in effect, come to rest, and thus take it out of interstate commerce, just because the defendant was apprehended before he had actually sold any of the cigarettes in Arkansas. I think the direct and circumstantial evidence in this case was substantial and supports the judgment of the circuit court. It is undisputed, that defendant every foot of the way on his proposed journey through Arkansas was ready, willing, and intended to dispose of his cigarettes or any part thereof in Arkansas to anybody who might care to buy. Are we going to say that it was necessary in these circumstances for the State of Arkansas to trail defendant every inch of the way through the State in order to catch him in the act of a sale, when the mere possession of the untaxed cigarettes is illegal. “. . . the immunity in case of an article transported from another state depends upon whether the tax challenged regulates or burdens interstate commerce. While a tax which discriminates against goods transported in interstate commerce is invalid, a state tax upon merchandise brought in from another state or upon its sales, whether in the original packages or not, after it has reached its destination and is in a state of rest, is lawful if the tax is not discriminating in its incidence against the merchandise because of its origin in another state.” 11 Am. Jur., Commerce, § 56. “... Also, in the absence of congressional legislation, a state may constitutionally impose taxes, enact inspection laws, quarantine laws, and, generally, laws of internal police, even though the enactments may have an incidental effect upon interstate commerce ...” 11 Am. Jur., Commerce, § 23. As I see it, whether the appellant was legally transporting the cigarettes in question across the state line, is not a question of law, hut one of fact, the evidence was conflicting as to the ultimate destination of the cigarettes and whether they were being transported interstate.

In the Georgia case above, the supreme court of that state, in construing a cigarette statute similar in effect to our own, had this to say: “Under a proper construction of the statute, the tax is not laid upon the privilege of receiving cigarettes in this State, but is levied upon the privilege of retaining, keeping, holding, or possessing them for personal use, after they have been . . . brought into this State, the essential requirement being that any person . . . within one hour . . . after having brought the same within the State of Georgia, as the case may be, and before the same, or any part thereof, are used or consumed, cause the same to have the requisite denomination and amount of stamp or stamps to represent the tax due thereon affixed as stated . . . we think it is a tax for the privilege of holding or possessing for personal use after receipt or acquisition by any means. This seems to be the necessary conclusion, in view of the provision that if the cigarettes are not stamped as required, the person acquiring them ‘shall within one hour after receipt of such products, or after having acquired possession thereof, or after having brought the same within the State of Georgia, as the case may be, and before the same, or any part thereof, are used or consumed,’ cause the requisite denomination and amount of stamps to be affixed. The tax is therefore an excise upon the privilege of use, or of holding or possessing for use, and not upon receipt. As was stated in Henneford v. Silas Mason Co., 300 U. S. 577, 57 S. Ct. 524, 526, 81 L. Ed. 814, ‘The tax is not upon the operations of interstate commerce, but upon the privilege of use after commerce is at an end.’ ”

So I conclude that there was some substantial evidence to support the judgment in this ease and I would affirm. Mr. Justice Millwee joins in this dissent.


author: Lee Seamster, Chief Justice.

text:
    Coulter v. O’Kelly.
    5-1026
    295 S. W. 2d 753
    Opinion delivered October 29, 1956.
    , [Rehearing denied December 17, 1956.]

      Leffel Gentry and U. A. Gentry, for appellant.

      McMillan & McMillan, J. R. Wilson and Thomas E. SparTces, for appellee.
   Lee Seamster, Chief Justice.

The appellants, Murray "Whitfield Coulter and George Prothro Coulter, filed this action in the Dallas Chancery Court on April 13, 1954, to quiet title to certain lands located in Dallas County, Arkansas. Certain stipulations were introduced in the record. At the close of appellants’ testimony and upon motion of appellees, the trial court dismissed the complaint for want of equity. This appeal follows.

The appellants alleged in their complaint that they owned three separate 80 acre tracts of land located in different sections of Dallas County. The appellees were all made defendants to the complaint and were called upon to show what interest, if any, they claimed in the lands. The appellees, W. P. Sturgis, C. F. Sturgis, L. Weems Trussell, J. R. Wilson and Mabel I. Wilson, his Avife, all filed answers and cross-complaints.

The above named appellees contended as their sources of title, that they owned two of the 80 acre tracts of land by reason of deeds from the State Land Commissioner and payment of taxes for 17 years. The Land Commissioner issued his deeds on the strength of a tax title due to the fact that the taxes were not paid on said tracts in the year 1933, and the lands Avere sold to the State as delinquent tax lands.

The appellees further contend, as to one of the above mentioned 80 acre tracts, that E. W. Prothro conveyed the land to Prank Cathey and they were successors in title to the said Prank Cathey.

The appellants answered the cross-complaints and admitted that said appellees, or their predecessors in title, had acquired tax deeds from the State Land Commissioner. However, the appellants contend that the sale of the lands for taxes was void for several reasons set out in appellants’ pleading.

The other appellees filed separate answers setting up the defense that they were innocent purchasers for value of the lands and that they were in actual possession of said lands. They also claimed that they and their predecessors in title had been in open, notorious, continuous and peaceable possession of said lands for more than fifteen years and had made valuable improvements upon the respective tracts of land.

The appellants introduced in evidence three deeds of record. Two deeds were from W. A. G. Woodward, Trustee in Bankruptcy of the Estate of Harris Brothers, to E. W. Prothro, as grantee. In these two deeds the grant- or conveyed “all my right, title and interest as snch trustee (including all rights vested in E. T. Hays, Trustee, under a deed of trust dated April 15, 1931, executed by John E. Harris, Neil M. Harris, W. L. Harris, Versa Sue Harris, Sweet Harris, and John E. Harris, as guardian of C. C. Harris, and recorded in Eecord Book Vol. ‘Gr. Gr.’ page 418, of the records of Calhoun County, Arkansas and free and clear of any claim on the part of the estate of John E. Harris, bankrupt).” The first of these deeds was dated August 17, 1933, and filed for record in Dallas County on September 5, 1933; the second deed was dated August 28, 1933 and filed for record in Dallas County on October 29, 1955.

The third deed was from E. W. Prothro, conveying the above mentioned lands to the appellants. This deed was dated August 28, 1933, and was filed for record in Dallas County on October 29, 1955, after the commencement of this suit. Each of the three deeds mentioned above, also conveyed other lands not here in question. None of the deeds mentioned contained a warranty of title.

There was also introduced into the record the birth certificates of the two appellants, for the purpose of showing that the suit had been brought within the time provided by law after appellants had reached their majority.

The record also reveals that the parties stipulated to the following:

(1) W. P. Sturgis and C. P. Sturgis acquired the North Half of the Northeast Quarter ... by deed from L. Weems Trussell now of record in Book 33, page 292 and paid therefor the sum of $2,400 (Tr. 100).

(2) W. P. Sturgis and C. P. Sturgis acquired the South Half of the Southeast Quarter from J. E. Wilson by deed of record in Book 20, page 5 and paid therefor the sum of $750 (Tr. 101).

(3) The defendants Sturgis acquired the property for a valuable consideration and without notice either actual or constructive of the claims of the plaintiffs or either of them.

(4) The record of payment of taxes shown by the certificate of Ed Baker and which shows the payment of taxes for the years 1937 through 1953, inclusive, by Sturgis Brothers or their predecessor in title (Tr. 98 and 99).

(5) It is stipulated between plaintiffs’ attorney and attorney for defendants John O’Kelly and Mary O’Kelly and Bruce McAlister and Grace McAlister that these named defendants are bona fide purchasers of the West Half of the Northwest Quarter, Section 20, Township 10 South, Range 14 West in Dallas County, Arkansas, are now in possession of this tract of land, claiming to be the owners of the same.

The records set out in the stipulations were introduced in evidence. At the close of appellants’ testimony and upon motion of appellees, the trial court dismissed the cause for want of equity.

For reversal, the appellants contend:

“1. Plaintiffs made out a prima facie case;
“2. The mere prior recording of the deeds to the defendants without showing that the grantors had title and the right to convey would not, within itself, give priority over plaintiffs ’ holding under an unrecorded deed from the rightful owner;
‘ ‘ 3. The burden was not on plaintiffs to prove that the deed from E. W. Prothro to Frank Cathey was a forgery until the defendants put the deed in evidence. When, and if, the deed was introduced, the plaintiffs had the right to rebut the evidence by showing the invalidity of the deed.”

The stipulations admit that defendants are bona fide purchasers of the tracts of land; that defendants O’Kelly and McAlister are in possession of their tract of land; and, that the Sturgises and predecessors in title had paid taxes, for more than 15 years, on the wild and unimproved tracts of land. This makes a presumption of law that the Sturgises have a title to the land. See Sec. 37-103, Ark. Stats., 1947.

The above mentioned statute was upheld in the case of Schmeltzer v. Scheid, 203 Ark. 274, 157 S. W. 2d 193. In this case the title was quieted in Scheid due to the fact that he had paid the taxes on wild and unimproved land for more than 15 years, as against the record owners of the land.

The appellants contend that since they were minors during the time appellees acquired their title and also since they brought their suit within three years after attaining their majority, that they have a right to maintain this suit. This contention would be correct if appellants introduce sufficient proof to show they have title to the land.

The appellants further contend that had the appel-lees introduced the Cathey deed, they were prepared to show the deed was a forgery. Also, that had appellees introduced their tax deed, appellants were prepared to show that said deeds were void.

The stipulations admit that appellees have such a title to the lands so as to make this case an adversary suit, since it shows that appellees are bona fide purchasers and in possession, or have paid the taxes on the wild and unimproved land for more than 15 years. The law is well settled in this state, that appellants would have to recover on the strength of their own title, and not on the weakness of appellees’ title. Greer v. Vaughan, 128 Ark. 331, 194 S. W. 232; McClelland v. McClelland, 219 Ark. 255, 241 S. W. 2d 264; Gibbs v. Pace, 207 Ark, 199, 179 S. W. 2d 690; Sanders v. Baker, 217 Ark. 521, 231 S. W. 2d 106; Chavis v. Henry, 205 Ark. 163, 168 S. W. 2d 610; Allen v. Phillips, 87 Ark. 185, 112 S. W. 403; Cook v. Ziff Colored Masonic Lodge No. 119, 80 Ark. 31, 96 S. W. 618.

To sustain their case, the appellants, as plaintiffs, introduced in evidence a deed to the tracts of land from E. W. Prothro to appellants and deeds to E. W. Prothro from the Trustee in Bankruptcy of the Harris bankrupt estate. There is no evidence that appellants, or their predecessors in title, owned the property. Neither is there evidence that any of them were ever in possession of any of the tracts of land involved herein. There is a total lack of evidence that appellants, or their predecessors in title, ever paid any taxes on any of said tracts of land. There was a complete lack of action, upon the part of appellants or their predecessors in title, to demonstrate their ownership of the tracts of land. This court has held this to he insufficient to justify a decree quieting title in the petitioners. Rushing v. Thompson, 208 Ark. 248, 185 S. W. 2d 941.

In the early case of Wilson v. Spring, 38 Ark. 181, this court said:

“But we are unable to see how a purchaser of lands, under an execution sale, or attachment, against Constant A. Wilson, and without any showing of how said Constant himself acquired title, can make a prima facie case in favor of one who must succeed upon the strength of his own title, against one who claims from a different source. A deed gives color of title, but is not even prima facie. evidence of title against a stranger without showing title in the grantor, and several successive transfers cannot alter the case. Nor can lapse of time, until aided by the statute of limitations. There is absolutely no proof at all of title in Constant A. Wilson, to the lands in 29 at the time of the levy and sale to Clark.” This case was cited with approval in Gingles v. Rogers, 206 Ark. 915, 175 S. W. 2d 192. See also Sanders v. Boone, 154 Ark. 237, 242 S. W. 66, 33 A. L. R. 461 where petitioner testified he purchased land from a certain individual and received a deed to the land, but he did not show that his vendor was the owner of the land nor had any interest therein. The court in this case reversed a decree quieting title in the petitioner.

To be entitled to a decree quieting title, in an adversary suit, the plaintiff must deraign title from the government or from someone who is shown to be owner of the land by possession and/or payment of taxes. In the ease of wild and unimproved land, there must be shown a payment of taxes. Chavis v. Henry, 205 Ark. 163, 168 S. W. 2d 610, and cases there cited. See also Chavis v. Taylor and Co., 211 Ark. 252, 200 S. W. 2d 507.

As to the 80 acre tract of land claimed by appellees under the Cathey deed, appellants contend that they are not required to deraign title further than to Prothro, the common source of title. That contention would be correct if appellees had relied only on the title obtained from Cathey. However, the appellees also claimed title by reason of a tax title and by payment of taxes on the wild and unimproved lands for more than 15 years. Since each of such claims is not derived from a common source of title, the appellants still have to prove title in themselves, by deraigning title to the government or to some one shown to have been the owner of the land. This question was determined by this court in Eickhoff v. Scott, 137 Ark. 170, 208 S. W. 421, where we held that if the defendant had shown a title independent of the common source o? title, the plaintiff would have to recover on the strength of his own title.

In the case of Wood v. Freeman-Smith Lumber Company, 109 Ark. 499, 160 S. W. 396, this court held:

“Whenever plaintiff and defendant both deraign title from the same source, the plaintiff usually need not go behind this source to prove his title. * * * Where the defendant can show a better title outstanding and has acquired it, the rule ceases to apply. Where the defendant is allowed to impeach the common source of title, he must establish that he himself has acquired a superior title, and, except to this extent, he is not permitted to invoke the rule that the defendant can defeat the plaintiff by showing a better title in a third person. ’ ’

The appellants also insist that by their pleadings they denied the appellees’ assertion that a tax deed had been issued. It is accordingly argued that in the orderly course of proof it was sufficient for the appellants to deraign their title to the common source and that it was not incumbent upon the appellants to attack the validity of the tax title until that title had first been established by the appellees. We are not convinced, however, that the existence of the tax deed was denied. In the appellants’ first answer to the appellees’ cross-complaint the appellants unqualifiedly admitted the issuance of the tax deed. After a number of amendments to the various cross-complaints had been filed the appellants filed what is styled an “answer to cross-complaint.” In this pleading the appellants denied “each and every allegation of said cross-complaint and of each of the amendments thereto. ’ ’ This pleading was filed long after the time for answering the cross-complaint and without leave of court. It does not purport to be in substitution for the original answer to the cross-complaint. In these circumstances we do not think that the belated general denial should be treated as a withdrawal of the previous admission that the tax deed had been issued. Thus the appellants are in the position of having admitted that the ap-pellees had a title in addition to the common source, and it was necessary for them to prove the invalidity of that additional title in order that prima facie title in themselves would be sufficient.

Since the appellants failed to prove title in themselves, the decree of the trial court in dismissing appellants’ cause of action is affirmed.


author: J. SbabobN Holt, Associate Justice.

text:
    Brown v. Davis.
    5-1198
    294 S. W. 2d 481
    Opinion delivered October 29, 1956.

      Van Johnson and Shaver, Tackett, Jones & Lowe, for appellant.

      Avin E. Johnson and A. P. Steele,, for appellee.
   J. SbabobN Holt, Associate Justice.

This appeal comes from a decree of the Miller Chancery Court entered October 6, 1956, which denied appellants’ petition for review of the action of the County Clerk of Miller County in certifying the sufficiency of a petition filed by certain qualified electors in said county for a local option election and which decree denied appellants’ prayer that the Miller County Board of Election Commissioners be enjoined and restrained from causing to be placed upon the ballots to be used in Miller County in the general election, November 6, 1956, the question proposed by the sponsors of the petition.

For reversal appellant relies on the following points: “1. The Chancellor erred in dismissing plaintiff’s complaint and in denying the restraining order prayed for. 2. The Chancellor erred in ruling that the Clerk made a certification of the sufficiency of the petition, whereas the alleged ‘certification’ was insufficient in law. 3. The Chancellor erred in ruling that Act 15 of 1955 did not repeal all provisions of Initiated Act No. 1 of 1942 except such as pertain to the ‘preparation’ of the petition. 4. The Chancellor erred in ruling that, since the adoption of Act 15 of 1955, it does not take a county initiative act under the I. & B. Amendment No. 7 to chance a‘wet’county into a‘dry’one. 5. The Chancellor erred in saying that appellants contend that Act 15 intended to and did abolish for all practical purposes local options on the liquor question in Arkansas. 6. The Chancellor erred in his construction of the term ‘preparation,’ as used in Act 15, 1955. 7. The Chancellor erred in ruling that it was not necessary to set out in the petition the proposed initiative act containing a proper or sufficient title or an enacting clause. 8. The Chancellor erred in ruling that the failure of the County Clerk to submit a ballot title to the County Board of Election Commissioners and to give the notice of election required by Act 4, 1935, was not fatal, and in ruling that a title can hereafter be so submitted and that the notice can be hereafter published. 9. The Chancellor erred in holding that Sec. 4 of Act 4, 1935 (§ 2-305 Ark. Stats.), does not apply to the petition in question as it is not a county initiative petition within the meaning of Amendment No. 7. 10. The proceedings for the proposed election are insufficient in law for reasons not heretofore covered or commented upon by the Chancellor, though briefed and argued. ’ ’

Proceeding under the provisions of our I. & B. Amendment No. 7 to the Constitution of the State of Arkansas, Initiated Act 1 of 1942, and the recent Act 15 of 1955, the following steps in this case were taken as recited in the chancellor’s findings: “The undisputed evidence shows that on September 5, 1956, there was filed with the County Clerk of Miller County a petition composed of several identical parts, purporting to be signed by more than 15% of the qualified electors of said county, as shown by the poll tax records, seeking a Local Option Election in Miller County under the provisions of Initiated Act No. 1 of 1942, as amended by Act 15 of 1955 ... On September 14, 1956, the County Clerk executed a certificate wherein he certified as to the sufficiency of the petition, and later sent such certificate, and other papers, to the Miller County Board of Election Commissioners, including a copy of the petition. In addition, and prior thereto, the clerk had also certified the sufficiency of the petition to the Miller County Court, and on September 14, 1956, the county court made and entered an order wherein that court also found the petition sufficient and ordered the County Board of Election Commissioners to cause said Local Option Election to be held on the regular biennial election date of November 6, 1956. The County Court order, among other things, directed that the ballot contain the question: ‘FOB. the manufacture or sale of alcoholic liquors.’ ‘AGAINST the manufacture or sale of alcoholic liquors.’ That was the ballot title, or question, proposed in the body of the petition as circulated. A copy of this County Court Order was also sent to the Board of Election Commissioners by the County Clerk.

“Plaintiffs have conceded in oral argument before this Court that the petition in question was prepared in accordance with the original provisions of Initiated Act No. 1 of 1942, but contend that such petition does not meet the requirement of that Act as now amended by Act 15 of 1955. So the disposition of this lawsuit will turn on the meaning of Act 15 of 1955 and the effect that the enactment of such measure has had on the provisions of Initiated Act No. 1, supra.”

At the outset we point out that we have consistently held that local option elections, as here, are not initiated measures within the meaning of Amendment 7 but are in the nature of a referendum measure. In the case of Yarbrough v. Beardon and Phillips v. Foreman, 206 Ark. 553, 177 S. W. 2d 38, we said “Amendment No. 7 to the constitution has no application. This is not an initiated act as provided for in that amendment. It is merely a submission to the legal voters of the county on the question of the sale of liquor, and is more in the nature of a referendum than an initiative petition, etc.” Act 15 of 1955 provides: “An Act to fix the time for holding certain elections; and for other purposes. Be it enacted by the General Assembly of the State of Arkansas: Section 1. Local option elections, to determine the legality or illegality of the manufacture, sale, bartering, loaning, or giving away of intoxicating liquors, shall hereafter be held only on the regular biennial November general election days. Section 2. Every petition for a local option shall be prepared in accordance with Initiated Act No. 1 of 1942, and it shall be filed, and the subsequent proceedings thereupon shall be had and conducted, in the manner provided for county initiative measures by Initiative and Referendum Amendment No. 7 to the Constitution of Arkansas and enabling acts pertaining thereto. Section 3. All laws and parts of laws in conflict herewith are hereby repealed. Section 4. Whereas, under the present laws local option elections can be called and held at special elections; and, whereas these elections can be held on regular biennial general election days and thereby save the counties the expense of these elections; now, therefore it is determined by the General Assembly that an emergency is hereby declared to exist, and this act being necessary for the immediate preservation of the public peace, health and safety, shall be in full force and effect from and after its passage and approval.”

The legislative purpose or intent in this Act 15 is clear. Its primary purpose is to change the date of holding local option elections to the regular biennial November election days; in other words, special local option elections are prohibited. In Section 2 it expressly provides that petitions for local option elections must be prepared in accordance with the provisions of Initiated Act No. 1 of 1942, and all subsequent proceedings thereupon shall be had and conducted in the manner provided for county initiative measures by I. & R. Amendment No. 7 to the Constitution of Arkansas. This could only mean, we think, that petitions should be prepared and that procedure followed in accordance with our construction of Act 1 of 1942. Had the legislature intended to repeal any part of Act 1 of 1942 or to change local option elections into intiatiye acts., it would have been very easy for it to have, so declared. \The legislature is presumed to take knowledge of the decisions of this court when enacting legislation.

The decree of the trial court contains these further recitals, which we hold the record supports and to which we agree. “Under the clear wording and intent of Act 15, supra, the provisions of the I. & R. Amendment, and its enabling act, did not come into play (or affect this petition) until said petition was filed with the County Clerk. Up to that time, the petition was and is governed by Initiative Act No. 1 unaffected by the provisions of Sections 2 and 3 of Act 15, supra. However, after such petition was filed with the County Clerk, ‘subsequent proceedings thereon shall be had and conducted, in the manner provided for county initiative measures by Initiative and Referendum Amendment No. 7 to the Constitution and enabling acts pertaining thereto.’ This means simply that while the local option petition under Act 1, supra, as amended, is not an initiative measure within the meaning of the I. & R. Amendment, still after such local option petition is prepared in accordance with Initiative Act No. 1 of 1942, and filed with the County Clerk, thereafter in order to get the question on the ballot at the regular biennial November general election in an orderly way such petition shall be handled in the same manner, and the same procedure followed, as if it were in fact a county initiative measure. Though different in nature, the same procedure insofar as getting the question on the ballot is concerned, must be followed after said petition is filed with the Clerk. That is what Section 2 provides.

“Plaintiffs contend that the petition in question should not have been referred to the County Court after it was filed with the Clerk. That point is immaterial insofar as this particular case is concerned, for the proof shows that the County Clerk actually did certify the sufficiency of the petition to the County Board of Election Commissioners in line with the provisions of the I. & R. Amendment. [The sufficiency of all local petitions shall be decided in the first instance by the county clerk or the city clerk, as the case may be, subject to review by the Chancery Court. I. & R. Amendment No. 7, Constitution of Arkansas]. The County Court also followed the provisions of Initiated Act No. 1 of 1942. So, insofar as this particular petition is concerned, it was handled both ways.

“The proof does show that the County Clerk has not, as yet, taken some of the steps required by Amendment No. 7, and its enabling act, in regard to this petition. For example, the petition recites, to-wit: ‘that the ballot title of such proposition be as follows: ‘FOR the manufacture or sale of intoxicating liquors.’ ‘AGAINST the manufacture or sale of intoxicating liquors. ’ and that title has not been submitted by the County Clerk to the Board of Election Commissioners, as required by Sec. 2-303 and 2-306 Arkansas Statutes (Act 4 of 1935). The Notice of the Election (previously given by the Sheriff under the provisions of Act 1, supra) but now required of the Clerk under Section 2-304 Ark. Statutes (Act 4 of 1935) has not been given. However, neither omission is fatal at this time for both can still be performed by the Clerk . . . The omissions, however, are not fatal at this time.”

Accordingly, the decree is affirmed.


author: Ed. F. McFaddin, Associate Justice.

text:
    Myers v. Snider.
    5-1055
    294 S. W. 2d 495
    Opinion delivered October 29, 1956.

      Alonso D. Camp, for appellant.

      Wood & Smith, for appellee.
   Ed. F. McFaddin, Associate Justice.

In seeking a reversal the appellant contends that: (a) the Chancellor’s findings are against the preponderance of the evidence; and (b) the findings are inconsistent.

We give the salient facts: appellee, Snider, had owned for many years a tract of about two acres fronting on the basin cut-off of White River at DeValls Bluff. He was willing to allow some of his friends to have cottages on his land. Accordingly, on May 1, 1950, Snider gave appellant Myers an instrument reading:

“I agree to lease to Mr. George Meyers part of my ground at DeValls Bluff, Ark. to put a small house on for 5 years at 25 Dollars per year. I agree that Mr. Myers may move his building at any time from my ground that he may want to. This lease is not transferrable. This lease in carbon copy. Signed: Elijah Snider.”

Myers moved a cottage, 16 x 24 feet, on the Snider land and paid the required annual rent. Later Myers placed of record a “contract of sale and rent,” dated June 13,1950, wherein Snider purported to sell to Myers the entire two acres for payments of $25 per year for 99 years. When he learned that Myers was claiming more than what was specified in the lease of May 1,1950, Snider brought the present suit, alleging that the purported “contract of sale and rent” was a forgery; and, if not a forgery, then the contract was void for uncertainty and material alterations. The prayer of the complaint was that the recorded “contract of sale and rent” should be declared void and cancelled of record.

Myers asserted the complete validity of the “contract of sale and rent” and, by cross complaint, sought the full enforcement of that contract. At the trial Myers admitted that certain parts of the “contract of sale and rent” were never agreed to. We list his admissions:

(a) The “contract of sale and rent” definitely recited that if Myers paid $25 per year for 99 years and fulfilled all the other provisions of the contract then, at the expiration of the 99 years, Snider was to execute to Myers a warranty deed conveying the premises. Myers admitted that Snider never agreed to deed him the property, even though such language was plainly contained in the printed contract.

(b) The “contract of sale and rent” stated that Myers was to pay all taxes on the land, and upon failure to pay the taxes promptly when due, all of Myers ’ claims under the contract would be ipso facto forfeited. Myers claimed that there was no agreement requiring him to pay the taxes, even though the contract so provided.

(c) The “contract of sale and rent” described the property in Prairie County in this language: ‘ That parcel of land and appurtenances thereon now owned by Elijah Snider of DeValls Bluff, Arkansas, as per record title of said lands, and known as ‘Snider’s Pish Dock’ ” Following said description someone attached to the instrument a paper, of sixteen typewritten lines, containing a definite description of certain property in metes and bounds. Myers admitted that such typewritten addenda had never been a part of the contract; and there was no satisfactory explanation of this addenda. Myers did not pray for reformation of the uncertain description in the original contract and the proof failed to establish that Snider owned “Snider’s Fish Dock.”

In the light of the admissions by Myers, and in consideration of other evidence in the record, the Chancery Court found, inter alia: (1) that the “contract of sale and rent” “. . . is void because it does not express the agreement of the parties”; and (2) that the “contract of sale and rent” “. . . was breached by the defendants in that they failed to pay taxes, and that as a result of such breach a forefeiture occurred . , .”

We have carefully examined the record and conclude that the Chancery Court was correct. In praying that his possession and title be quieted to the premises described in the ‘ ‘ contract of sale and rent, ’ ’ Myers had the same burden as one who seeks specific performance. In Lacey v. Bennett, 210 Ark. 277, 195 S. W. 2d 341, we held that one seeking specific performance of a contract must prove (a) the essentials of a valid and binding contract; and (b) that he had at all times been ready, able and willing to perform his part of the contract. See also Fox v. Hutton, 142 Ark. 530, 219 S. W. 28; and Moody v. Kahn, 174 Ark. 1072, 298 S. W. 353.

Tested by the holdings in the foregoing cases, it is clear that Myers failed to show himself entitled to any relief. By his own admissions, the “contract of sale and rent” — as to sale and as to payment of taxes — did not express the agreement that he seeks to enforce; so there was no meeting of the minds of the parties in regard to a valid and binding contract. Furthermore, even if we assume that the “contract of sale and rent” was definite and binding, nevertheless Myers admits that he has entirely failed to perform his part of the contract as regards the payment of taxes: so he did not show himself to have been at all times ready, willing and able to perform the contract that he says was signed and acknowledged and placed of record. Without considering the other matters urged by Snider, it is clear that the Chancellor was correct in his decree.

Affirmed.

       Appellant used this language in his points relied on: “I. The decree itself reflects inconsistent findings of fact treating of the same essential matter — the lease — and prejudicially affecting substantial rights. “II. The decree, based upon either set of contradictory findings of fact, is unsupported by any substantial, evidence.”

       This was the printed form of “Contract of Sale and Rent,” being numbered “Form 886”, and being in general use in this State.

       Among other relief prayed by Myers there was . . that cross-complainant’s rights under said lease be quieted and confirmed.”

         Myers’ wife was a nominal defendant.


author: Minor W. Millwee, Associate Justice.

text:
    Croswell v. Linder.
    5-1023
    294 S. W. 2d 493
    Opinion delivered October 29, 1956.

      A. D. Chavis, for appellant.

      G. V, Head and William 8. Arnold, for appellee.
   Minor W. Millwee, Associate Justice.

This is a suit to vacate a decree rendered May 16, 1938 by the Chancery Court of Ashley County, Arkansas, foreclosing a mortgage executed by L. E. Croswell and wife to The Federal Land Bank of St. Louis.

Appellant, Harry Croswell, is an heir of L. E. Cros-well who was mentally incompetent and confined in the State Hospital for Nervous Diseases at Little Rock, Arkansas on October 20, 1937, when the Federal Land Bank filed the foreclosure Suit. L. E. Croswell died May 17, 1951, while still confined in the hospital and the instant suit to vacate the 1938 foreclosure decree was brought by appellant on December 9, 1953. Originally appellees, A. James Linder and wife, present owners of the land in question, and Herbert Woods, a mortgage holder, were made party defendants. Linder and wife answered the complaint and filed a third party complaint against Frances Bankston and wife who had conveyed the land to the Linders. The Bankstons then answered and filed a third party complaint against the Federal Land Bank who had acquired the land at the foreclosure sale in 1938 and conveyed it to the Bankstons in 1941. Demurrers by the appellant to the third party complaints were sustained and the Bankstons and the Federal Land Bank were stricken from the proceedings as parties. Subsequently the Linders demurred to the complaint on the ground that the court was without jurisdiction since the necessary parties for determination of a motion to vacate were not before the court. The demurrer was overruled and the case proceeded to trial resulting in a decree dismissing appellant’s complaint with prejudice.

Although appellant attacked the 1938 foreclosure decree on numerous grounds, the principal and controlling issue is the sufficiency of the service of process upon L. E. Croswell in that suit. The record discloses that L. E. Croswell was adjudicated mentally incompetent by the Ashley County Court on August 29, 1937, and so remained until his death in 1951. No regular guardian was ever appointed and he was confined in the State Hospital for Nervous Diseases in Pulaski County on October 27,1937. On that date process in the foreclosure suit directed to the sheriff of Pulaski County was served by him upon “L. E. Croswell in person” and upon E. D. Fletcher, superintendent of said hospital.

Ark. Stats., Sec. 27-337, reads as follows:

“Service on insane persons. — Where the defendant is a person judicially found to be of unsound mind, the service must be upon him and upon his guardian; if there is no guardian, upon his wife, or the person having the care of him, or with whom he lives, or the keeper of the asylum in which he may be confined. Provided, when such defendant is confined in an institution for the insane maintained Toy the State or Federal Government, then he may be served by service of a copy of the process upon the superintendent or keeper of such institution and service upon his guardian if there be a guardian” (Italics supplied). The proviso in italics was added to the original statute by Act 140 of 1951. The section as quoted, without the proviso, was in effect in 1937 when L. E. Croswell was served with process.

Appellant contends no valid service could be had upon an incompetent in 1937 unless made upon both the incompetent in person and his regular guardian; and that, if the incompetent defendant is outside the county in which suit is brought, valid service cannot be had by service upon him and also upon the asylum keeper. The contentions are without merit. „ Under the statute in effect in 1937, service was necessary upon the incompetent and upon his guardian, if he had a guardian. If no guardian had been appointed, service was required upon the incompetent and upon his wife, or the person having the care of him, or with whom he lives, or the keeper of the asylum in which he was confined. Since L. E. Croswell had no guardian, the service upon him in person and upon the superintendent of the State Hospital was in strict and literal compliance with the requirements of the statute. This is the effect of our holdings in Wilder v. Wilder, 208 Ark. 521, 186 S. W. 2d 933, and cases there cited.

Appellant also argues that the order appointing a guardian ad litem in the 1937 foreclosure suit was void because it was made prior to personal service upon the incompetent defendant. It is true that, under Ark. Stats., Sec. 27-830, a guardian ad litem cannot properly be appointed until after personal service upon the incompetent. However, the record here discloses that L. E. Cros-well was personally served with process on October 27, 1937, and the order appointing the guardian ad litem was entered February 23, 1938.

There are several reasons why the appellant cannot prevail in his contention that the 1938 foreclosure decree was obtained by fraud practiced by the Federal Land Bank under the fourth subdivision of Ark. Stats., Sec. 29-506. While the complaint alleged that the bank fraudulently failed and refused to credit the mortgage debt with payments and other credits on behalf of L. E. Cros-well, and that the bank and guardian ad litem concealed such matters from the court throughout the litigation, these allegations were not sustained by the proof. Even if the trial court’s conclusion on the amount of the mortgage indebtedness in the original suit was reached on false or perjured testimony, that fact alone would not afford a sufficient basis for vacating the decree for fraud under the statute. As the court stated in Parker v. Sims, 185 Ark. 1111, 51 S. W. 2d 517: “The law is settled that the fraud which entitles a party to impeach a judgment must be fraud extrinsic of the matter tried in the cause, and does not consist of any false or fraudulent act or testimony the truth of which was or might have been in issue in the proceeding before the court which resulted in the judgment assailed. It must be a fraud practiced upon the court in the procurement of the judgment itself.” See also, Alexander v. Alexander, 217 Ark. 230, 229 S. W. 2d 234, and cases there cited.

The amount of the mortgage indebtedness was one of the issues involved in the 1938 foreclosure suit. Since the only fraud alleged in the instant suit related to the truth or falsity of the testimony adduced on this issue in the original action, it amounted to intrinsic fraud and not to such extrinsic fraud as is required to vacate a decree under the statute.

. The record reflects that the court had jurisdiction of the person of L. E. Croswell and the subject matter of the 1938 foreclosure suit; and that a guardian ad litem was duly appointed who fully and competently represented the incompetent defendant in an action to which no meritorious defense has been shown. The decree dismissing appellant’s complaint is, therefore, affirmed.