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

text:
    Ratliff v. Ratliff, Adm’x.
    5-3050
    372 S. W. 2d 216
    Opinion delivered November 11, 1963.

      Paul Jameson and O. E. Williams, for appellant.

      James R. Hale and Glen Wing, for appellee.
   George Rose Smith, J.

The appellee, as administratrix of the estate of her husband, Charles Ratliff, inventoried as an asset of the estate a savings account in a Prairie Grove bank. The appellants, Ratliff’s son and daughter, excepted to the inventory, contending that the bank account had been a joint account with survivorship which did not become part of the estate. The only question here is ’whether the probate court was right in holding that Ratliff did not take the necessary steps to create a right of survivorship.

Ratliff opened an account in this bank many years ago, at least as far back as 1929. At that time the bank did not use signature cards, relying instead upon its employees’ familiarity with every depositor’s signature.

On October 21, 1961, Ratliff went to the bank, made a deposit of $970.25, and directed the assistant cashier, Mrs. Broyles, to add the names of Ratliff’s son and daughter to the account. The bank had on hand two forms of printed signature cards that might have been used. One by its language would have created a joint account with survivorship. The other would merely have given the son and daughter the right to check against the account, with any balance in the account at Ratliff’s death becoming part of his estate.

Mrs. Broyles did not use a signature card at all. There was a ledger sheet for the account, showing the date and amount of each deposit and withdrawal, together with the resulting new balance. Mrs. Broyles wrote above Ratliff’s name at the top of the ledger sheet, “Mrs. N. Edith Matthews or Herbert L. Ratliff.” She also inserted a typewritten notation, “Names added by Mr. Ratliff 10-21-61.” There is some indication, but no direct proof, that the two new names were also written in the passbook for the account.

Ratliff died in 1962, survived by his widow and the two children (and perhaps by a third heir, the adopted child of a deceased son. See case note, 15 Ark. L. Rev. 194). The estate was valued at $13,064.73, the principal assets being a homestead worth $7,500 and this $3,909.01 bank account.

Apart from the transaction between Batliff and Mrs. Broyles there is evidence indicating that Batliff thought his two children would be entitled to the account at'his death. First, he did not tell them about having added their names to the ^ eco ant, which suggests that he did not mean for them to have any control over the account until his own death. Secondly, six weeks after the account was changed Batliff wrote out a statement, perhaps intended as a will, in which he mentioned his other property but, significantly, made no reference to the savings account.. In view of all the proof we may assume for the purpose of this opinion that when Batliff went to the bank on October 21, 1961, he intended to change the account to a joint one with a right of survivorship in his children. That intention, however, was not fully disclosed, for, according to the testimony, Batliff merely instructed Mrs. Broyles to add the two names to the account.

At common law the action taken on October 21 would not, according to the great majority of the courts, have created survivorship rights in the appellants. The various common law theories are discussed in Professor Brown’s work on Personal Property, § 65. We are not now concerned with the common la*w, however, for in Arkansas the field has been covered by statute:

“When a deposit shall have been made by any person in the name of such depositor and another person and in form to be paid to either, or the survivor of them, such deposit thereupon and any additions thereto made by either of such persons, upon the making thereof, shall become the property of such persons as joint tenants, and the same . . . shall be held for the exclusive use of the person[s] so named, and may be paid to either during the lifetime of both, or to the survivor after the death of one of them; ...” Ark. Stat. Ann. § 67-521 (Bepl. 1957).

The statute explicitly and unmistakenly requires that the deposit be made “in form to be paid to either, or the survivor.” Admittedly that requirement was not observed here. The problem is whether the omission may be supplied by extrinsic facts showing that the depositor really intended to create a joint account with survivor-ship.

We think the trial court was right in holding that Ratliff did not take the minimum action essential to the creation of a right of survivorship. We need not hold, as the New York courts do under a similar statute, that there must be a strict and literal compliance with the wording of the act. In re Fonda’s Estate, 206 App. Div. 61, 200 N.Y.S. 881. We do hold that there must be a substantial compliance.

.Our earlier cases point to this conclusion. We lay aside the matter of joint accounts between husbands and wives, for such an account is a tenancy by the entirety, with a right of survivorship that is not derived from the statute. Black v. Black, 199 Ark. 609, 135 S. W. 2d 837. In other situations when we have found a right of survivorship the opinion has almost always recited facts showing that the statute was complied with, in that the account was payable to either depositor or the survivor. Pye v. Higgason, 210 Ark. 347, 195 S. W. 2d 632; Vincent v. Vincent, 224 Ark. 449, 274 S. W. 2d 772; Tesch v. Miller, 227 Ark. 74, 296 S. W. 2d 392. The facts were not fully stated in Von Tungeen v. Chapman, 233 Ark. 219, 343 S. W. 2d 782. We referred only to the prima facie intent indicated by the signature card, but the record in that case shows that the signature card created an account “in the joint names of the undersigned as joint tenants with the right of survivorship and not as tenants in common.” So there was substantial compliance with the statute.

The appellants insist that Ratliff’s intention should be of controlling importance. This matter of the depositor’s intention was thoroughly considered in Park v. McClemens, 231 Ark. 983, 334 S. W. 2d 709. The case involved four bank accounts. Three of them were evidenced by signature cards conforming to the statute and creating a prima facie case for a right of survivorship. The proof showed, however, that the depositor, Mrs. Witten, had not really meant to create snch a right. We therefore held that the prima facie case for survivorship had been overcome.

The fourth account in the Park case was like the one now before us, in that it was not in form payable to either depositor or the survivor. With reference to that account we added language which, if it were not for the possibility that it was dictum, would be absolutely controlling in the case at bar: “We point out also that in any event (and regardless of the intention of Mrs. Wit-ten) the Chancellor’s finding must be affirmed in regard to the $2,159.59 Savings Account No. 4931 in the Texarkana National Bank, because there is no language on the signature card creating a joint account with the right of survivorship.”

Dictum or not, this is a correct interpretation of the statute. A joint account with survivorship is similar to a will in that both are statutory devices by which property may be disposed of at death. In each case certain minimum formal action in the exercise of the statutory privilege has been required by the legislature, doubtless to avoid the dangers of perjury and the uncertainties of parol evidence after death has sealed the lips of the person principally concerned. The chief safeguard with respect to a joint bank account is the requirement that it be in form payable to either depositor or to the survivor. In the case at hand that essential condition to a right of survivorship is absent. Unless we are to strike an important clause from the statute, which we are not at liberty to do, we must conclude that Ratliff failed to take the necessary steps to create a joint account with the right of survivorship.

Affirmed.

Robinson and Johnson, JJ., dissent.

Sam Robinson, Associate Justice

(dissenting). The majority concedes that the evidence in this case proves that in setting up the joint bank account it was the intention of the depositor, Charles Ratliff, that his son and daughter should have the right of survivorship in the account; that a joint tenancy was intended. But the majority holds that the depositor did not take the steps necessary to accomplish his intention. I do not agree. I think the intention of the depositor should prevail.

Here, the evidence is overwhelming that it was the intention of the depositor to make his son and daughter owners of the account as joint tenants. The majority does not contend that the evidence shows otherwise, but say, in effect, that it was admitted that the account was not set up in proper form to constitute a joint tenancy. In my opinion, the record in this case does not show such admission. In fact, appellants stoutly contend that the account as set up by their father is sufficient to constitute a joint tenancy under the provisions of our statute, Ark. Stats. 67-521. The account was set up in form to be paid to either the father, or the son or daughter, or the survivor of them. The bank would have honored a check drawn by either of them, or the survivor, as was done in Black v. Black, 199 Ark. 609, 135 S. W. 2d 837, and Park v. McClemens, 231 Ark. 983, 334 S. W. 2d 709.

What more was necessary? The statute makes no other requirement in order to make an account a joint tenancy. If there is some particular form that a depositor has to fill out to make an account a joint tenancy, the majority should spell out what that form is. The statute provides for none. This court has held heretofore that the filling out of a form, furnished by the bank for the very purpose of providing for survivorship, was not sufficient to bring the account within the purview of the statute, where there was parole evidence proving that it was not the intention of the depositor to create a joint tenancy in the account. Park v. McClemens, supra. There, it was held that the intention of the depositor controlled, and not the printed matter on the signature card that was furnished by the bank. To the same effect is Powell v. Powell, 222 Ark. 918, 263 S. W. 2d 708.

Now this court is holding that there is no right of survivorship when the evidence proves overwhelmingly that it was the intention of the depositor to create the right of survivorship in the money. The majority points out that under the common law the account would not be owned as a joint tenancy, but it is also pointed out that we are not dealing with a joint tenancy created by the common law, but one provided for by statute.

It was the intention of the depositor, and as I read the record, it was the understanding of the bank that the account was payable to appellants, or their father, or the survivor. Mr. Delford Rieff, president of the bank testified:

“Q. Let’s go back to my original question then: Just state from the ledger sheet who would have been permitted to make withdrawals on that account on and after October 21, 1961?

A. Mr. Ratliff, Edith Matthews or Herbert Ratliff. ’ ’ In these circumstances the account became a joint tenancy. The statute makes it a joint tenancy. The statute uses words of art “joint tenancy”. Such words are to be construed in their technical meaning. It is said in 50 Am. Jur. 265: “Technical words and phrases which have acquired a peculiar and appropriate meaning in law, cannot be presumed to have been used by the legislature in a loose popular sense, but, to the contrary, have been presumed and assumed to have been used according to its legal meaning, and will ordinarily be interpreted, not in its popular, but in its fixed legal sense and with regard to the limitations which the law attaches to them.” Thus, when the legislature provided for a joint tenancy in the account, it automatically provided that one who owns as a joint tenant has the right of survivor-ship.

In 14 Am. Jur. 79, it is said: “An estate in joint tenancy is one held by two or more persons jointly, with equal rights to share in its enjoyment during their lives, and having as its distinguishing feature the right of survivorship . . .”. In Ferrell v. Holland, 205 Ark. 523, 169 S. W. 2d 643, it was pointed out that there can be a joint tenancy in almost any kind of personal property, and that survivorship is one of the essential results of joint tenancy. In 48 C.J.S. Joint Tenancy § 1, p. 910, it is said: “Survivorship is the distinctive characteristic of an estate in joint tenancy.”

In 50 Am. Jur. 272, it is said: “When the meaning of a law is evident, to go elsewhere in search of conjecture in order to restrict or extend the act would be an attempt to elude it, a method which, if once admitted, would be exceedingly dangerous, since there would be no law, however definite and precise in its language, which might not by interpretation be rendered useless.”

Our statute, Ark. Stats. 67-521, adopted in 1937, providing for joint tenancy in bank accounts, was apparently adopted from the State of Missouri. (Mo. Rev. Stats., Yol. 3, Sec. 362.470, adopted by the State of Missouri in 1915.) The Arkansas and Missouri statutes are identical, word for word. The Missouri court has held that a signature card signed by a depositor constitutes a prima facie showing of joint tenancy in the account, but such prima facie case is subject to rebuttal. Kaimann’s Estate, 229 S. W. 2d 527 (1950). We have held the same thing. In Von Tungeen v. Chapman, 233 Ark. 219, 343 S. W. 2d 782, the court said: “Reviewing the evidence on trial de novo here, we find the record utterly bare of evidence to overcome the prima facie intent which we hold the signature card creates as to the existence of a joint tenancy.”

The Missouri case of Princeton State Bank v. Wayman, 271 S. W. 2d 600 (1954), is directly in point with the case at bar. In that case no signature card or other writing was used evidencing the kind of joint account that was established. The Missouri court held that the Missouri statute 362.470, identical with our statute 67-521, providing for joint tenancy, applied because it was shown by the evidence that it was the intention of the depositor that the account be held as a joint tenancy. There, the court said: “It is the intention that controls.” The court further said that there was no statutory presumption, but that the burden was on those seeking to establish joint tenancy to prove their contention by a preponderance of the evidence, and that the evidence in that case proved the joint tenancy. Here, the majority apparently concedes that appellants made such proof.

Since I believe that the intention of the depositor should control, I respectfully dissent.

Mr. Justice Johnson joins in this dissent.


source: Caselaw Access Project

author: Paul Ward, Associate Justice.

license: Public Domain

text:
    Bowling v. Bowling.
    5-3103
    372 S. W. 2d 239
    Opinion delivered November 11, 1963.
    J. G. Moore, for appellant.

      Felver A. Rowell, Jr., for appellee.
   Paul Ward, Associate Justice.

A brief statement of the background facts will be useful in understanding the one issue presented on this appeal.

First Suit.

The parties hereto were married in 1944. In August, 1960 Mr. Bowling filed suit for divorce in Van Burén County, and Mrs. Bowling filed a cross-complaint in which she also asked for a divorce. After a hearing the court refused to give either party a divorce. However, at the request of both parties, the court ordered two parcels of land (owned by the entirety) sold and the proceeds divided equally between them. Nothing was said by the parties or the court about other property, real or personal, belonging to Mr. Bowling. So,, the case is res judicata only as to the two parcels of land mentioned in the decree—being the property held by the-, entirety. No appeal was taken by either party.

Second Suit.

Following the Yan Burén County divorce action appellant herein (Mrs. Bowling) moved her residence to Conway County where, on January 25, 1963, she filed suit for a divorce. In the complaint it was alleged that the parties have a home on sis acres of land in Yan Burén County worth about $9,000. The prayer was that she be granted a divorce; that she be given the use of the homestead during her natural life, or that it be sold and the proceeds be divided equally between her and appellee; and, that she be given all other legal and equitable relief to which she is entitled whether prayed for or not. To this complaint appellee entered a general denial. At the conclusion of the trial the court entered a decree granting a divorce to appellant, but refused to make any order respecting her property rights. To reverse the above decree appellant now prosecutes this appeal.

In our opinion the trial court committed error. Ark. Stat. Ann. § 34-1214 (Repl. 1962) provides, among other things :

“. . . the wife so granted a divorce . . . shall be entitled to one-third (%) of the husband’s personal property absolutely, and one-third (%) of all the lands whereof her husband was seized of an estate of inheritance at any time during the marriage for her life, unless the same shall have been relinquished by. her in legal form ...”

It is undisputed that appellee owned the six acre homestead, and it was not positively shown in either suit that-he does not own other property. Since appellee does not claim appellant has released her interest in any of his property, it was imperative that appellant be given one-third (absolutely) of all personal property and one-third (for life) of all real'property still owned by appellee. We make it clear, however, that appellant gets no part of appellee’s interest in the property sold in the first suit or in the proceeds thereof. In Myers v. Myers, 226 Ark. 632, 639, 294 S. W. 2d 67, 72 (on rehearing) we said:

“When a divorce is awarded to the wife the statute affirmatively requires that she be granted a third of the husband’s personal property absolutely and a third of .his real property for life.” Citing Ark. Stat. § 34-1214. (Emphasis added.)

In the cited case we also said, referring to Hegwood v. Hegwood, 133 Ark. 160, 202 S. W. 35:

“The decree for divorce draws to the court the power to ascertain the description of the property owned by the husband for the purpose of awarding to the divorced wife her share thereof.”

On remand the trial court will have power, if appellant still so desires, to give her the right to occupy the homestead during her natural life. If appellant does not so desire, then the trial court must give her a third interest for life in the said six acres of land.

The decree of the trial court is reversed, and it is accordingly remanded for further proceedings in conformity with this opinion.

Reversed, and remanded with directions.


author: Sam Robinson, Associate Justice.

text:
    Ark. State Highway Comm. v. Hood.
    5-3062
    372 S. W. 2d 387
    Opinion delivered November 11, 1963.
    [Rehearing Denied Dec. 9, 1963.]

      Dowell Anders, George 0. Green and Bill B. Demmer, for appellant.

      John W. Goods on, for appellee.
   Sam Robinson, Associate Justice.

This is a case wherein the appellant, Arkansas State Highway Commission, condemned for highway purposes 6.1 acres of land belonging to appellees, Marvin D. Hood and wife. The Commission deposited $2,250.00 in the registry of the court as just compensation. Twenty-seven acres were in the original tract. After the taking 2% acres were separated by the right-of-way from that part remaining. The case was tried before the court sitting as a jury. There was an award of $12,500.00. The Highway Commission has appealed.

Appellee Hood is engaged in the nursery business and the land involved in this litigation was used to grow nursery stock. On appeal, appellant contends that the court erred in permitting the introduction of evidence showing the value of the nursery stock independent of the land on which it was growing.

It is firmly established that the measure of damages in this kind of case is the difference in the fair market value of the land before and after the taking. Arkansas State Highway Commission v. Fox, 230 Ark. 287, 322 S. W. 2d 81; Arkansas State Highway Commission v. Kennedy, 233 Ark. 844, 349 S. W. 2d 132. In arriving at the before and after value it is proper to take into consideration all those things pertaining to the land that a seller or purchaser would consider in arriving at the market value. Pulaski County v. Horton, 224 Ark. 864, 276 S. W. 2d 706; Arkansas State Highway Commission v. Carpenter, 237 Ark. 46, 371 S. W. 2d 535 (October 14, 1963). An exception to this rule is that profits from a business conducted on the property cannot be considered. Arkansas State Highway Commission v. Wilmans, 236 Ark. 945, 370 S. W. 2d 802 (September 30, 1963).

Here, appellee introduced considerable evidence going to show the number, kind, and value of the various plants growing on the land condemned. There is evidence to the effect that the nursery stock itself was worth $13,370.00, and that the witness for appellee, P. M. Brown, took that value into consideration in arriving at the market value of the land. But it is clear from the witness’ testimony that he did not merely add his estimated value of the nursery stock to his estimated value of the naked land in arriving at the market value of the land with the plants in place. The witness testified that he did consider the value of the plants, but that was only one of the things considered in arriving at the market value.

The court had the correct conception of the law, and applied to the facts the proper rule of law for determining damages to be awarded the landowner. In the course of the trial the court said: “All right, let’s talk just a moment now about the law. Mr. G-oodson, I rather believe the general rule to be this: I think the Court should know what’s on that property. Then I think the Court would be interested in knowing the fair market value of the lands taken, which value can be calculated on the basis of the bare land plus whatever was growing there on the date the land was taken. That is, not what each plant would bring if sold to John Doe, Richard Roe, or Jim Smith, but what a willing buyer interested in this kind of business could walk out there and see all of this, and what he would be willing to give, not being-obligated to buy.” The court further said: “The best authority was in Corpus Juris, a general statement, which statement is made without exception ‘it is proper to consider’ and I am quoting, ‘the valuation of crops, trees, grass, etc., growing on the land, but they cannot be valued separately and apart from the value of the land’ that is the end of the quotation. Now, of course, I feel that it might be a factor in considering the overall subject of land values. A man might, for example, an expert, might want to check his findings against such an element as that, but as a single method of determining the land values, this authority which I think is absolutely in point, says that it is not permitted to follow that procedure. ’ ’

Appellant concedes that what the court said is a correct declaration of the law, but contends that the court did not apply that conception of the law in deciding the case. We do not find anything in the record which indicates that the court did not follow the correct principle.

Of course, a castle costing a million dollars, built in the desert 100 miles from the nearest habitation may add very little, if anything, to the value of the desert land. But if the land was being taken in a condemnation proceeding the landowner would be entitled to show that a very fine castle was located thereon. Actually, it is conceivable that in some instances structures on the condemned property may cause it to have less market value than if the structures were not there.

Here, it is shown that the highest value of the land was for its use as a nursery; that there were more than 11,000 nursery plants on the property. The jury, or in this case the court, had the right to take into consideration the value of the plants in arriving at the fair market value of the land with the plants located thereon. That is, the price that someone wanting to buy a plant nursery would pay for the land on which the plants were growing. Shelby County v. Adams (1932), 15 Tenn. App. 66.

Appellant contends also that in reaching a decision in this case the trial court took into consideration testimony that had been excluded on motion of appellant. The witness, Glen Rose, had testified that $50,000.00 for appellee’s nursery business was reasonable. Mr. Rose further testified: “You are taking so much of the deeper soil that if it was my nursery I would move off it and start over.” Counsel for the Highway Commission made the following objection: “If the Court please, I think at this time I am going to have to object to Mr. Rose’s testimony and move that it be stricken because he testified that this $50,000.00 represents Mr. Hood’s business. We submit to the Court that that is not a proper area of his appraisal in determining land values, and that if his appraisal is based on this over-all value of $50,000.00, saying as he states it in the record, that that was Mr. Hood’s business; it was a going business, and he based his estimation on that, and we move that his testimony be stricken as not being proper, immaterial, irrelevant.” The court sustained the objection. Later, in a memorandum of the findings the court said: “The Highway Department moved to strike Mr. Rose’s testimony and that motion was sustained; however, their objection went to the attempt of plaintiff to extract an opinion from Rose as to fair market value. Rose could not qualify in this respect and the Court so ruled. His knowledge of this nursery, together with his many years of experience in the business in the same locale certainly qualified him with respect to his other testimony.”

That part of the witness Rose’s testimony objected to by appellant, which objection was sustained, dealt with the $50,000.00 valuation of the business. In stating that he would move off and start over, Rose was only emphasizing his opinion of the damages to the property caused by the taking, and his testimony in that respect had no connection with the estimated value of the business.

All in all it appears that there was a fair trial without error. The judgment is affirmed.


author: Jim Johnson, Associate Justice. Ed. F. McFaddin, Associate Justice

text:
    Twin City Amusement Co., Inc. v. Salater.
    5-3093
    372 S. W. 2d 224
    Opinion delivered November 11, 1963.

      Iiarry G. Robinson, for appellant.

      Ghowning, Mitchell, Hamilton £ Burroio, for appellee.
   Jim Johnson, Associate Justice.

This is a suit for damages resulting from rock throwing following a rock and roll concert. Appellant, Twin City Amusement Company, Inc., leased Barton Coliseum and adjoining parking areas from the Arkansas Livestock Show Association for the night of April 21, 1961, for the purpose of holding a rock and roll concert. Tickets were sold to the public and both Negroes and Whites attended. Mrs. Joe Felton of Little Rock took a carfull of young teenagers to the concert, including one of her own children. She parked on the Livestock Show grounds near the Coliseum. After the show, she was proceeding toward an exit gate with the five or six children in her station wagon when she was forced to stop in a line of vehicles waiting to leave the show grounds. At that point (about two blocks from the gate and three blocks from the Coliseum entrance) two colored youths approached her car and demanded that one or more of the boys sing a rock and roll song and tried to pull the boys out of the station wagon or get into the vehicles themselves. Mrs. Felton and the children screamed and honked to attract help. In the car following Mrs. Felton were several teenagers, including appellee Isaac Salater who was driving his family’s automobile. These young men voluntarily went to Mrs. Felton’s aid, and a fight ensued with the colored boys. The white boys tried to end the fight, got back into appellees’ automobile, locked the doors and closed the windows, but the colored boys began throwing rocks and swinging rocks. tied in bandanas, breaking the window and otherwise damaging the car and cutting Isaac deeply across the scalp. Isaac maneuvered his car out of the line of traffic, across a field to an exit gate and reported the incident to a fireman directing traffic, who in turn called the police stationed at the main gate.

Appellee Peter Salater, father of Isaac Salater, filed suit against Twin City Amusement Company, Inc., on April 10, 1962, in Pulaski Circuit Court for damages to his car and for injuries to his son, alleging that such damages and injuries resulted from the negligence of appellant. At trial on February 19, 1963, the jury returned a verdict for Peter Salater for $303.00 for automobile damage and medical expenses, and $750.00 for Isaac’s pain and suffering. From the judgment on the verdict comes this appeal. For reversal, appellant contends that the trial court erred in not directing a verdict for appellant because there was no substantial evidence of any negligent act on the part of appellant which proximately resulted in injury to appellees.

The record reveals that appellant’s lease was the standard form of lease used by the Coliseum {i.e., the Arkansas Livestock Show Association) which provided that the lessor supply, among other things, firemen and policemen for the protection of the public, parking lot attendants, ticket sellers, etc., and the' number of such employees was decided by the lessor; the lessor also retained control of the concession stands and reserved the right to expel anyone out of line. For this particular concert, the Coliseum hired ten off-duty police officers and some firemen. In addition there were 011-duty policemen present. The testimony is in conflict as to whether there were any disturbances during the performance, the consensus of the testimony is that any threatened disturbance that might have occurred was quickly broken up by officers in the Coliseum. The record is silent as to whether any officers were assigned or were present in the parking areas after the concert other than at the gate and outside the Coliseum entrance.

This appears to be a case of first impression on this type of suit in Arkansas. We have reviewed a number of cases from other jurisdictions, among them Hawkins v. Maine & New Hampshire Theaters Co., 132 Me. 1, 164 A. 628; Whitfield v. Cox, 189 Va. 219, 52 S. E. 2d 72; Worcester v. Theatrical Enterprises Corporation, 28 Cal. App. 2d 116, 82 P. 2d 68; Hart v. Hercules Theatre Corp., 258 App. Div. 537, 17 N. Y. S. 2d 441; Dickinson v. Eden Theatre Co., 360 Mo. 941, 231 S. W. 2d 609; Nash v. Stanley Warner Management Corp. (D. C.), 165 A. 2d 238; Gross v. Wiley, (Or.), 373 P. 2d 421, and Stevenson v. Kansas City, 187 Kan. 705, 360 P. 2d 1; as well as various encyclopedias and an excellent annotation, 29 A.L.R. 2d 911, entitled “Liability of owner or operator of theater or other amusement for assault on patron by another patron.” We find the duty owed by a proprietor of a place of amusement to his patrons in a case such as this succinctly set out in Restatement, Torts, § 348, as follows:

“A . . . possessor of land who holds it out to the public for entry for his business purposes, is subject to liability to members of the public while upon the land for such purpose for bodily harm caused to them by the accidental, negligent or intentionally harmful acts of third persons or animals if the possessor by the exercise of reasonable care could have

(a) discovered that such acts were being done or were about to be done, and

(b) ' protected the members of the public by

(i) controlling the conduct of the third persons, or

(ii) giving a warning adequate to enable them to' avoid the harm without relinquishing any of the services which they are entitled to receive ...”

Restatement, Comment c, following § 348, supra, observes that while such a proprietor is not an insurer, he has a duty to police his premises and employ enough servants to afford reasonable protection.

This was a sudden, unexpected and unforeseeable affray. Appellees would, in effect, require appellant to be:an insurer of their safety, whereas appellant is in fact required only to exercise reasonable care. A statement in Stevenson v. Kansas City, supra, is apt:

“To foresee that plaintiff while attending the wrestling matches would be assaulted at the hour of 11:00 pan. at the particular spot on the particular ramp on the way to the particular rest room in the Memorial Building in Kansas City would indeed require imaginative foresight and such is not the type of foreseeability required under our law. Only the standard of the reasonable and prudent man, ... is required.”

While it might be desirable and very much in the interests of society to prohibit the type of “entertainment” offered in the instant case by requiring the exercise of the highest degree of care by the proprietor, however such a rule could not be imposed without adversely affecting all places of amusement and public gathering. As was said in the Stevenson case, supra:

“To apply such-a high degree of vigilance would make a public amusement impossible because of the expense of guards, time for searching customers to discover possible weapons, etc.”

Nothing in the evidence suggests that more servants were necessary to provide reasonable security at the time and place here in question, or that more servants could have prevented the affray. Certainly a proprietor is not required to have an attendant, guard or usher for every patron.

In the absence of facts which would have charged appellant with the discovery contemplated in Restatement, Torts, § 348, supra, there was nothing to submit to the jury. Since the case has been fully developed, we must therefore reverse and dismiss.

McFaddin, J., dissents; Robinson, J., not participating.

Ed. F. McFaddin, Associate Justice

(dissenting). I dissent: I am of the view that a question of fact was made for the jury as to whether the appellant, under the existing conditions, exercised reasonable care to protect its patrons from assault while on the premises. That the Salater boy was a patron and was injured by an assault while on the premises, is thoroughly established. The Salater boy went to the aid of a white lady and her children and thereby incurred the ire of some Negro rowdies, who injured the Salater boy.

The Twin City Amusement Company leased from the Arkansas Livestock Association for a “rock and roll show” on the night of April 21, 1961, the Barton Coliseum building and streets adjacent thereto. The duty of the appellant as the operator of the entertainment is clear. In 52 Am. Jur. p. 291, ‘ ‘ Theaters, Shows, Exhibitions, Etc. ’ ’ §47, the rule as to the degree of care required of the appellant in this case is stated:

“It is the general rule, of almost universal acceptance, that an owner or proprietor of a theater or public amusement is bound to exercise a degree of ordinary and reasonable care for the safety and protection of his patrons—the degree of care that would be exercised by an ordinarily careful and prudent man in the same position and circumstance.”

In §52 of the same article the holdings are summarized:

“Liability for Assault of Patron; Acts or Conduct of Third Persons.—One who invites the public to his theater or public amusement owes to all persons who accept the invitation the duty of reasonable care to protect them from assault, abuse, or injury at his hands or those of his servants, employees, or agents. And he is liable to a patron for assault, abuse, or injury suffered by reason of a breach of this duty, even where the assailant was a police officer employed to protect the premises and keep order therein, where the acts complained of were done by the officer in his private, and not his official, capacity. He is also under duty to protect patrons from injury resulting from the acts or conduct of other patrons and third persons, and is chargeable with liability for injuries suffered by reason of such acts or conduct. Thus, it has been held that the owner or proprietor of a bathing resort is bound to protect his patrons from injury caused by the conduct of other patrons or his own employees. And the manager of a place of public amusement who sells to a patron intoxicating liquors until he becomes drunk and disorderly, knowing that in such condition he may assault others without cause or provocation, is bound to protect other patrons, and for failure to do so is liable to another patron who is assaulted and injured by the drunken patron.”

The Twin City Amusement Company could not delegate to the Livestock Association or any other person or group of persons the duties that the Twin City Amusement Company owed to its patrons, as above stated. The duties were absolute. The evidence showed that the purpose of the entertainment was a “rock and roll show” at which both white people and Negroes were in attendance. The Salater boy testified:

“Q. Was beer generally available to the patrons?

“A. Yes, sir, . . .

: Did you witness any fights or disturbances during the course of the show?

“A. Yes, sir, I did.

“Q. Could you estimate how many and what type fights they were? ' 1

“A. There were about three or four fights that I saw.

“Q. Were they between individuals or groups - -

“A. They were between individuals. One time they had to stop the band, the music.

“Q. Who stopped the band?

“A. The announcer, or the police went up and told the announcer to stop the band. ...

‘ ‘ Q. What was occurring at the time the police officer stopped the band from playing?

“A. Well, there was a big fight in the stands. A guy in the stands was throwing a guy to the floor.”

In the face of the foregoing quoted testimony it can hardly be said that there was nothing to put the Twin City Amusement Company on notice of possible danger to patrons in leaving the grounds. In Citizens Coach Co. v. Wright, 228 Ark. 1143, 313 S. W. 2d 949, we held a carrier liable for failure to protect a passenger, saying:

“Therefore, because of the testimony previously recited, and other in the record, we conclude that the evidence was sufficient to take the case to the jury and to support a verdict for some amount.”

Here, there was evidence of disorder in the course of the evening; and certainly, with such disorder going on in the meeting, it could be reasonably anticipated that some disorder would take place after the show was over. Yet, with such condition existing, there is no testimony that any particular precautions were taken to protect the patrons. To my way of thinking the affair was unusual and called for more than usual precautions. Under the facts and circumstances then existing, did the Twin City Amusement Company take reasonable precautions to protect the patrons against assault? In 52 Am. Jur. p. 324, “Theaters, Shows, Exhibitions, Etc.” §78, the rule as to who answers that question is stated:

“The general rules and principles which control as to Avhat questions are for determination by the jury and what questions are for the court, and the application of those rules and principles in actions of negligence generally, are controlling in actions to charge owners or proprietors of theaters or public amusements Avitli liability for injuries to invitees. Thus, it is ordinarily a question of fact for the jury to determine, on the facts and circumstances shoAvn in the particular case, the question of negligence or want of due care of the owner or proprietor sought to be charged, even though the injury to a patron was received in a rare, unusual, and unexpected accident. ’ ’

Seasonable men might differ as to whether reasonable precautions Avere taken by the Twin City Amusement Company in the case at bar. A Pulaski County Jury by its verdict in effect held that reasonable care Avas not exercised by the Twin City Amusement Company to protect the patrons against assault by other patrons. I Avould leave that verdict undisturbed; and, therefore, I dissent.

       Annotations on various points in the above quotation may be found in 3 L.R.N.S. 1132, 85 A.S.R. 449, 5 Ann. Cas. 926, 29 A.L.R. 2d 911, and 67 A.L.R. 2d 965.


author: Frank Holt, Associate Justice.

text:
    Vaughn v. Chandler.
    5-3096
    372 S. W. 2d 213
    Opinion delivered November 11, 1963.

      Douglas Bradley, for appellant.

      Frierson, Walker & Snellgrove, for appellee.
   Frank Holt, Associate Justice.

The appellants and appellees are adjoining landowners. The appellants brought this action to settle a boundary line dispute between them. In resolving the issues and the conflicting testimony in favor of the appellees, the Court found:

í í * * * The driveway presently used by the defendants is situated upon the boundary line between the parties as established and recognized by the respective owners of the tracts for a long period of years, considerably exceeding seven years prior to the bringing of this present action; that the lands owned by the plaintiffs lie entirely to the South of the present existing fence and the lands of the defendants lie immediately and adjacent to the North; that neither party is entitled to question the boundary as established by the said fence.”

On appeal the appellants contend that they are the record owners of the disputed strip of lands, including the major portion of the driveway, and that the appellees “had the burden to show title to the disputed strip either by adverse possession, agreed boundary, or estoppel, which burden they failed to meet.”

The appellants acquired their title by a metes and bounds description in 1935 but did not occupy it until 1955 when they built a house and moved on their property. They have lived there since that time. The appellees acquired their property in 1947 and have occupied it since then. The common boundary line extends for a distance of 1,593 feet. It begins at an undisputed eastern point and runs west to Wood Street for this distance. The appellants’ property lies to the south and the appellees ’ is on the north of the disputed line. The western portion of appellants’ and appellees’ adjacent properties abuts on Wood Street, and both their homes face on this street. This litigation was precipitated by a dispute over the use of a driveway which leaves Wood Street and enters on the west end of the two adjacent tracts. 'The driveway runs east curving to the north to reach appellees ’ house. Appellees have continuously used this driveway since 1947 as a means of ingress and egress to their property. Along and south of the 1,593 foot survey line, which appellants contend is the true boundary line, there was an existing fence for a distance of 1,295.7 feet at the time this litigation arose. This is the first segment of the disputed strip of land. The appellees claim this existing fence, instead of the survey line, is the true boundary line. Appellants contend this fence encroaches upon their property as much as 14 feet at its western terminus as it gradually deviates to the south along the survey line. From the point where this existing fence ends and westward to the street for a distance of 297.3 feet along the survey line is the second segment in dispute. When this litigation arose appellees extended the existing fence westward approximately 297.3 feet, or the balance of the survey line, to the street where it is 20 to 25 feet south of the survey line. Appellants claim this new fence encroaches upon their lands to this extent. The driveway is entirely included in this alleged encroachment.

As to the first segment, or the 1,295.7 feet, the appellants contend that prior to 1957 another fence existed which was on the survey line and that appellees surreptitiously moved this original fence at night to its presen* location. The -appellees deny this and testified, as did numerous witnesses in their behalf, that the existing fence along this first segment of 1,295.7 feet is situated on the boundary or division line between the parties as established and recognized before and since 1947 when appellees purchased their property. There appears to have been no dispute between appellants and appellees about the boundary line along this 1,295.7 feet until 1957 although the appellants have owned their property since 1935 and appellees since 1947.

After a careful review of the evidence in this case we have determined that the 1,295.7 foot strip of land was occupied adversely by the appellee for more than seven (7) years in the belief that the existing fence represented the true boundary. For adverse possession to be hostile it is not necessary that the possessor have a conscious feeling of ill will or enmity toward his neighbor. Moeller v. Graves, 236 Ark. 583. Further, we think there was sufficient evidence of acquiescence to sustain the Chancellor’s finding that this boundary line was “established and recognized by the respective owners for a long period of years. ’ ’ In Stewart v. Bittle, 236 Ark. 716, we quoted from Tull v. Ashcraft, 231 Ark. 928, 333 S. W. 2d 490, as follows:

“* * * We have frequently held that when adjoining landowners silently acquiesce for many years in the location of a fence as the visible evidence of the division line and thus apparently consent to that line, the fence line becomes the boundary by acquiescence.”

It is also.unnecessary that a prior dispute exist about a boundary or division line in order to establish such by long acquiescence. Gregory v. Jones, 212 Ark. 443, 206 S. W. 2d 18.

With reference to the second segment of the disputed boundary line, or the balance consisting of 297.3 feet as surveyed by’the appellants, the appellees’ evidence was to the effect that when they moved on their property in 1947 the appellant Vaughn voluntarily pointed out to appellee Chandler their common boundary or division line; that appellees relied upon and regarded this as mil agreed boundary and they built the new fence' on this agreed boundary when this litigation arose; that this new fence of approximately 300 feet, which was built in 1962, is merely an extension westward of the old existing fence to the street. Also, in 1955 appellant had a survey made resulting in stakes being placed in and along the disputed driveway. Appellee, Mrs. Chandler, testified that appellant [quoting from appellants’ brief] “told me to tell Hoyt [Chandler] not to worry about those survey stakes being over the line because if he c.ame over on us Mr. Barkley would come over on his line .on the south.” According to appellants’ testimony, when they purchased their property in 1935 this driveway existed and led off the street to a garage that was then situated on what is now appellees’ property. Several witnesses testified that this driveway on the disputed strip of land had existed and served the property now occupied by appellees before and since their purchase. Evidence was also adduced on behalf of appellees that an old fence once existed on the same location where this new fence now stands. It is undisputed that the appellees used this driveway continuously and without any question or dispute with the appellants from 1947 until 1955.

We also agree with the Chancellor in his findings when applied to this second segment of the disputed boundary line. We think there was ample evidence of an agreed division line. The appellees testified there was an agreed boundary, which appellants denied, and the Chancellor chose to believe the appellees. In Stewart v. Bittle, supra, we quoted from Deidrech v. Simmons, 75 Ark. 400, 87 S. W. 649, as follows:

“The proprietors of adjacent lands may by parol agreement establish an arbitrary division line, or an agreement may be inferred from long continued acquiescence and occupation according to such line, and they will be bound thereby.”

Also, in Moeller v. Graves, supra, we said:

“We have often held that when the location of the true line is in doubt or in dispute the parties may, by parol agreement, fix a line that will be binding, even though their possession under the agreement does not continue for the full statutory period of seven years. (Citing cases)”

Furthermore, in the case at bar we construe the evidence to be sufficient to indicate that the appellees used this driveway for a period of more than seven (7) years in the belief that they owned it and that it was situated on their property. • As previously stated, it is not necessary that the possessor of the land have a conscious feeling of ill will or enmity toward his neighbor in order to constitute adverse possession. Moeller v. Graves, supra.

The evidence adduced by the appellants and appellees in the case at bar is sharply in conflict and the Chancellor resolved these factual issues in favor of appellees. We do not disturb the findings of the Trial Court unless against the preponderance of the evidence. Murphy v. Osborne, 211 Ark. 319, 200 S. W. 2d 517; Hill v. Barnard, 216 Ark. 29, 224 S. W. 2d 31; and Stricklin v. Mitchell, 234 Ark. 31, 350 S. W. 2d 319. We cannot say that the findings by the Chancellor in the case at bar are against the clear preponderance of the evidence.

Affirmed.


author: Carleton Harris, Chief Justice.

text:
    Osborne v. Clarkson, Ex’x.
    5-3108
    372 S. W. 2d 622
    Opinion delivered November 18, 1963.
    [Rehearing denied Dec. 23, 1963.]

      James R. Hale, for appellant.

      John W. Cloer, for appellee.
   Carleton Harris, Chief Justice.

This litigation relates to the proper construction of a deed. J. H. Fletcher and Ella Grimes Fletcher were husband and wife. Both had been previously married, and had children by the prior marriages. No children were born of the union of Mr. and Mrs. Fletcher. On August 26, 1905, Mrs. Ada Bevers and Joseph D. Bevers, her husband, conveyed certain property in the town of Springdale to Mrs. Ella G. Fletcher, the granting clause providing: “do hereby grant, bargain, sell and convey unto the said Mrs. Ella G. Fletcher, her heirs and assigns, the following described lands, situated in AYashington County, State of Arkansas, to-wit: (here follows description of property conveyed, which consisted of four lots in Block 9 in Springdale). ’ ’

The habendum clause provides as follows:

“To have and to hold the said lands and appurtenances thereto belonging unto the said Ella G-. Fletcher and unto her heirs and assigns forever, and I the said Ada Beavers hereby covenant that I am lawfully seized of said land and that I will forever warrant and defend the title to said land against all legal claims whatever, And, I, the said Joseph D. Bevers, husband, in consideration of said sum of money do hereby release, relinquish and convey unto the said Ella G. Fletcher, all my right, title, dower, and right of homestead in and to said lands.”

Immediately following the description of the conveyed lands in the deed, there appears a clause, which is the subject of this litigation. That clause provides:

“The conditions of this deed is as foliotes, to-ivit: at the ‘deth’ [sic] of the said Ella G. Fletcher, the title of the above said property to revert bach to John E. Fletcher or his heirs.’’

J. H. Fletcher died in 1931. On August 15, 1962, Ella G. Fletcher passed away. Mrs. Fletcher left a will, in which, after making several specific bequests (not here involved), she left all of the remainder of her property, real and personal, (the general residuary paragraph), to her grandchildren, Mildred Clarkson, and John Lynn Fletcher. These two parties are the appellees herein. John. F. Mullins and Eula Osborne are grandchildren of J. H. Fletcher, and are the appellants in this case. This action was commenced in the Washington Chancery Court by Mildred Clarkson, individually, and as executrix of the estate of Ella Grimes Fletcher, and John Lynn Fletcher, wherein a construction of the italicized clause was sought, the complaint containing the prayer that appellees be held to be the owners in fee of the lands and that the provision in question be declared void and of no effect, and repugnant to the grant of the lands to Ella Grimes Fletcher. After the filing of an answer, the case proceeded to trial, and at the conclusion of the evidence, the court rendered a lengthy opinion in which it held that the deed was not effective to confer any interest of any nature to John H. Fletcher or his heirs, but rather that the deed conveyed a fee simple title to Ella Grimes Fletcher. The court then entered its decree, holding that “said provision in said deed is declared void for uncertainty, and is of no effect, and is repugnant to the grant of the lands in fee simple to Ella G. Fletcher, and that a fee simple title was vested in Ella G. Fletcher at the time of the execution of said deed by Mrs. Ada Bevers and Joseph D. Bevers, her husband to said Ella G. Fletcher, and plaintiffs are the owners of said lands above described as sole devisees of said Ella G. Fletcher, deceased.” From this decree, appellants bring this appeal.

We have reached the conclusion that the court erred in.its findings. While we have no cases in Arkansas with a similar, factual background, our principles of construction is well expressed in Carter Oil Co. v. Weil, 209 Ark. 653, 192 S. W. 2d 215. There, this court, referring to the case of Luther v. Patman, 200 Ark. 853, 141 S. W. 2d 42, stated:

“In that case Mr. Justice Humphreys, speaking for an undivided court, quoted with approval the statement of the law from 16 Am. Jur. § 237, p. 570, to the following-effect: That the modern and now widely accepted rule to determine the estate conveyed by a deed with inconsistent clauses has for its cardinal principle the proposition that if the intention of the parties is apparent from examination of the deed ‘from its four corners’ without regard to its technical and formal divisions, it will be given effect even though, in doing- so, technical rules of construction will be violated.”

The above quotation states the rule which has been adhered to by this court for a long number of years, and it is by following this rule, i.e., viewing the instrument here in question, “from its four corners,” that we have concluded that the decree must be reversed.

Certainly, the clause was inserted for a purpose. The grantors meant to do “ something, ’ ’ else there would have been no occasion to insert the provision in question. We think it absolutely clear, from the language employed, that the grantors had only one thing in mind, and that was to convey to Ella Grimes Fletcher a life estate in the property, with remainder in fee in John H. Fletcher or his heirs. It is true that the words used are technically incorrect, but when the entire instrument is scrutinized, we think the intent of the Bevers is unquestionably established. The learned Chancellor was evidently of the opinion that the provision in question was void because of the use of the language, “revert back,” John H. Fletcher having no prior interest in the lands, and he held that a remainder interest was not created in the instrument, but that the deed conveyed a fee simple title to Ella Grimes Fletcher. A case bearing great similarity to the instant litigation is Petty v. Griffith, et al (Mo.), 165 S. W. 2d 412. There, the validity of certain deeds was questioned. The nature of the instruments is best explained in the language of the court:

“The first deed (‘Exhibit 1’) is dated January 3, 1923, and recites that Lucina B. Franklin is the party of the first part and that Bell Ford Griffith is the party of the second part. It says: ‘ That the said party of the first part, in consideration of the sum of One Dollar and Love and affection * * * to her paid * 0 # does by these presents Grant Bargain and Sell, Convey and Confirm, unto the said party of the second part, her heirs and assigns, the following described * * * land.’ Following the description is this paragraph: ‘ The intention of grantor herein being to convey to the said Belle Ford Griffith, grantee herein, a life estate only, and at her death to revert to G. M. Beal of Fremont County, Iowa, and his legal heirs.’

“The clause defining the estate granted (the habendum clause) recites that the grant is ‘unto the party of the second part, her heirs and assigns, forever.’ The deed recites the covenants usually contained in a warranty deed.

“The second deed (‘Exhibit 2’), conveying a different tract of land, is exactly like the first deed except for slight differences in the paragraph following the description. That paragraph in the second deed says: ‘ The intention of Grantor being to convey to the said Belle Ford Griffith, grantee herein, a life estate only, and at her death to revert to G. M. Beal of Fremont County, Iowa, and his legal heirs only.’ ”

It will be noted that the only difference in those deeds and the one here in' question is that, following the description, the term, “life estate,” is used, although both the granting and habendum clauses, purportedly convey a fee simple title (as here), and the disputed clause also uses the term, “revert to G. M. Beal of Fremont County, Iowa, and his legal heirs” (here, “to revert back to John H. Fletcher or his heirs”). There, it was contended that Beal was a “stranger,” the same contention being made as to J. H. Fletcher in this case. There, too, the trial court reached the conclusion that the fee simple title was in Belle Ford Griffith, and that the heirs of G. M. Beal had no interest whatever in the land by reason of these deeds. The Supreme Court of Missouri, in a comprehensive opinion, reversed the trial court judgment, and the reasoning used by the court is quite, apropos to the case at bar, since the same arguments were there advanced by the appellees as present appellees present for our consideration. Since the facts in the Missouri ease are so very similar, and the reasoning employed by the Missouri court completely expresses our own views, we quote from the opinion of the Missouri Supreme Court as follows:

“Did Lucina Franklin, by these deeds, convey her fee simple title in the land to Belle Ford Griffith? Or, did she convey Belle Ford Griffith a life- estate only and convey the remainder in fee simple to the heirs of G. B. Beal?

“The trial court concluded that the fee simple title was in Belle Ford Griffith and that the heirs of G. B. Beal had no interest whatever in the land by reason of these deeds. Belle Ford Griffith’s argument in support of the trial court’s decree is that the deeds constituted an absolute conveyance of the fee simple title to her and that the clause following the descriptions, not being-in the clause in which the estate granted is usually defined, is repugnant, contradictory of the words of conveyance contained in the deeds and is, therefore, void. She says that G. B. Beal and his heirs had no interest in the land and consequently there could be no such tiling-as the title reverting to them. As to Beal and his heirs, she says there were no words of conveyance and, therefore, they are not parties to the deeds but strangers and the most that can be said for their claims is that the clauses following the descriptions indicated that the grantor intended to convey them some interest but failed to do so.

“We agree with the respondent that the deeds use the language and terminology usually employed in conveying a fee simple title and that absent the clauses following the descriptions these deeds do constitute an absolute conveyance of the fee simple title. [Citing-cases.] We also agree with the respondent that the title could not “revert” to G. B. Beal and his heirs. The word “revert” to those skilled in conveyancing usually means that the instrument contains a clause so limiting- the estate conveyed that there is a possibility of its terminating- and reverting- to the grantor; it is a reversionary interest, a defeasible fee simple estate, which could not exist here because G. B. Beal and his heirs were neither grantors nor owners and there are no words of defeasance in the deeds. [Citing authority.] Nor could there be any title or interest in G. B. Beal and his heirs by reservation or exception because the one reserves to the grantor some new interest out of the thing granted, while the other excludes from the operation of the grant some existing- part of the estate, neither of which is attempted in this instance. [Citing authority.]

“We do not agree with the respondent that Beal and his heirs are not grantees in. the deeds and, therefore, strangers. * * * .

“It does not necessarily follow from the fact that one is not mentioned in the places or clauses of a deed in which grantees are usually named or indicated that he may not he or become a grantee. It is immaterial in what part of the conveyance the grantees’ names appear as long as the parties ’ intention is clearly and plainly manifest as to who they are and the estate they are to receive. [Citations.] The rule as to the repugnant designation of parties is that ‘All the language of a grant should be considered and effect given to it unless so repugnant or meaningless that it cannot be done, in which ease the repugnant or meaningless portion may be rejected.’

“Neither do we agree with the respondents’ contention that the clause following the descriptions is necessarily contradictory of the estate previously conveyed and, therefore, void for repugnancy. If repugnancy or-irreconcilable conflict exists, of course, the clause in which estates are usually defined and granted would prevail over a subsequently conflicting clause. But, as the case is with the grantees so it is as to repugnancy in other respects, even if various clauses do conflict, yet if the intention of the parties may be gathered from the whole instrument, rather than from particular segregated clauses, that intention will prevail and be given effect if possible and if it is not contrary to some positive rule of law. [Citations.] ‘In accordance with the modern rule, which is to ascertain the grantor’s intention from all the terms of a deed in all cases where it is possible so to do and to consider all the clauses together without undue reference to their location in the deed, where two clauses are inconsistent, the paramount rule is that the deed must be construed so as to give effect to the intention of the parties as collected from the whole instrument. The primary or dominant intent expressed in the instrument, when ascertained, will control.’ ”

It follows that the Chancellor erred in his ruling.

The litigation is thus disposed of, i.e., we reach our determination solely and entirely from the language used in the deed itself; however, it is interesting to note that Mrs. Fletcher apparently felt that she was only possessed of a life estate in the property. In the first place, wishing to construct a bungalow upon a tract in the northwest corner of the property conveyed in the deed, Mrs. Fletcher, many years ago, purchased this particular tract from the children and grandchild of J. H. Fletcher, paying to them the sum of $300 for the property. Joe Yingst, caretaker at the First Methodist Church for the past seven years, testified that the church is located right east of the Fletcher “home place,” and he went to the Fletcher home once a week for five or six years before her death to wind a clock; that Mrs. Fletcher told him that the Methodist people wanted to buy a strip across her lot for a parking lot, but that “she couldn’t sell it.” Yingst was not acquainted with appellants, and apparently had no interest in the case. He also testified that she said, “she guessed the church was counting the days so they could buy the property from the heirs.”

Mrs. Sadie Croft, 83 years of age, testified that she had known Ella Fletcher from 1914 until the time of her death; that she and Mrs. Fletcher were close friends and visited back and forth. Mrs. Croft stated that Mrs. Fletcher told her of the efforts of the Methodist church to buy the property mentioned, and “she said she couldn’t sell it because it belonged to the Fletcher estate. * * * She said they kept wanting to buy it but she couldn’t sell it.” A few other instances appear in the record which indicate that Mrs. Fletcher considered she only held a life interest, but as heretofore stated, our conclusions are based solely upon the provisions in the deed, which we consider to be clear and unambiguous.

In accordance with the reasoning herein set forth, we are of the opinion that Mrs. Fletcher only held absolute title to the tract, heretofore referred to, wherein she purchased, for $300.00, the interest of the daughters and granddaughter of J. H. Fletcher. Appellees have no valid claim to the balance of the property in litigation.

The decree is reversed, and the cause remanded to the Washington Chancery Court with directions to enter a decree not inconsistent with this opinion.

       The connection, or relationship, between the Bevers and Fletchers is never shown in the record.

       Emphasis supplied.

       Appellees herein.

       More particularly described as follows: “Beginning at the Northwest corner of Block Number nine (9) in the Original Town of Springdale (Old Town) as designated on the plat of said Town, now on file in the office of the Circuit Clerk of said County of Washington, State of Arkansas, and running thence east 60 feet, thence south 108 feet and 9 inches, thence west 60 feet, thence north 108 feet and 9 inches to the place of beginning.”


author: Ed. F. McFaddin, Associate Justice.

text:
    Coulter v. Clemons.
    5-3024
    372 S. W. 2d 396
    Opinion delivered November 18, 1963.

      Gentry & Gentry, for appellant.

      L. B. Sinead and L. Weems Truss ell, for appellee.
   Ed. F. McFaddin, Associate Justice.

This is a suit to quiet title brought by the appellants, Murray Whitfield Coulter and George Prothro Coulter, against the appellees, Julia Clemons et al. Other parties were added by cross complaint and third party procedures. The appellants claimed title to the real estate here involved by mesne conveyances from those who owned the lands prior to the 1932 tax sale for the 1931 taxes. The appellees claimed by statutory possession acquired under the deed issued because of such tax sale. The decree of the Chancery Court in favor of the appellees was reached largely because of the finding that the appellants were claiming under a forged deed; and that issue of forgery becomes the most important point on this appeal.

Before discussing the forgery matter, however, we give other background information. The appellants, in seeking to quiet their title, claimed: (a) that the lands here involved were originally owned by Harris Brothers, who became bankrupt in 1931; (b) that the 1932 tax sale was void for failure of the Clerk to affix his certificate before the date of sale; (c) that there was no valid statute curing such defect; (d) that the trustee in bankruptcy conveyed the lands to E. W. Prothro in 1933; (e) that E. W. Prothro conveyed the lands to the appellants in 1933; and (f) that the appellants were minors in 1933 and within proper time brought this suit—not to redeem the lands from taxes but—to quiet their title to the lands under the claim that their predecessors in title were the owners of the lands.

The appellees claim under a deed from the State Land Commissioner in 1935, the lands having forfeited to the State in 1932 for the delinquent taxes of 1931; and appellees claim: (a) that, regardless of the validity of the tax sale, the appellees under the tax deed have paid taxes on the lands (admitted to be wild and unimproved) for more than fifteen years; (b) that such payments make good title; (c) that, the deed from E. W. Prothro to the appellants is a forgery; and (d) that the appellants have no title to the lands and therefore cannot maintain this suit.

The alleged deed from E. W. Prothro to appellants was dated August 28, 1933, and recorded August 3, 1940 —A lapse of almost seven years between date of execution and date of recordation. At the time of the date of the deed the appellants were children, aged one and three years respectively, and were nephews of E. W. Prothro. The appellants brought this suit within the permissible time after arriving at full age. The suit was filed on April 16, 1952, and remained untried until 1962 because of other litigation later to be mentioned. Trial in the Chancery Court in 1962 resulted in a holding that the deed from E. W. Prothro to the appellants was a forgery; and this appeal challenges the correctness of that holding. The appellants raise three points:

“1. The Court erred in holding that the deed of E. W. Prothro, dated August 28, 1933, conveying the lands to appellants, was a forgery and that by reason thereof appellants had no title to the lands involved.

“2. The testimony of E. W. Prothro in the form of a deposition introduced as evidence by appellees is binding upon them, and the court erred in not so holding.

“3. The Court erred in holding that appellants had not shown title in themselves and in dismissing appellants’ complaint for want of equity.”

1. Forgery. It was established that the Trustee in Bankruptcy of Harris Brothers executed a deed dated August 17, 1933, conveying the land here involved to E. W. Prothro; that the deed was actually delivered on August 23,1933 to E. H. Coulter, Sr., a brother-in-law of E. TV. Prothro, and the deed was recorded the same day delivered; that E. H. Coulter, Sr. is the father of the appellants, Murray "Whitfield Coulter and George Prothro Coulter; that E. H. Coulter, Sr. was an attorney and had represented E. W. Prothro previously; that the challenged deed here involved was dated August 28, 1933 but was not recorded until August 3, 1940, a lapse of almost seven years; and that the challenged deed here involved purported to have been acknowledged by E. W. Prothro before T. P. Oliver, a Notary Public.

T. P. Oliver testified that he never signed the said acknowledgment on the deed and that his signature thereon was a forgery. Furthermore, Mrs. T. P. Oliver, the wife of T. P. Oliver, testified that she was the chief operator for the Southwestern Bell Telephone Company in El Dorado; that she and T. P. Oliver had been married 32 years; that she was well familiar with the signature of T. P. Oliver; and that the signature of T. P. Oliver on the acknowledgment of the questioned deed was not the signature of T. P. Oliver. The Olivers were entirely disinterested witnesses.

Other instruments admittedly signed by E. TV". Prothro were introduced in evidence in order to establish his genuine signature. Some of these were: (a) a deed from E. TV". Prothro to O. E. McGugan, dated January 1, 1934; and (b) a deed from E. TV. Prothro to Lionel Robertson, dated January 23, 1934. Thus, contemporaneous instruments were in evidence containing the admittedly genuine signature of E. W. Prothro. Then C. TV. Talbot, President 'of the First National Bank of Fordyce, and with 43 years experience in handwriting, testified that the purported signature of E. TV. Prothro on the questioned deed (that is, from E. TV. Prothro to Murray Whitfield Coulter and George Prothro Coulter) was not written by the same person who had signed the McGugan and the Robertson deeds, as previously set forth. Here is Mr. Talbot’s positive testimony on the point as abstracted by the appellants :

<£I am now handed a photostatic copy of a deed purporting to have been executed by E. W. Prothro to George Prothro Coulter and Murray Whitfield Coulter, dated August 28, 1933, and filed for record in Calhoun County on August 3, 1940, which deed I have examined previously and it is my opinion, based upon my experience since 1920, and from a careful examination of these deeds that the signature of E. W. Prothro on the deed to George Prothro Coulter and Murray Whitfield Coulter is not the same handwriting as the signature of E. W. Prothro on the McGugan and Robertson deeds.”

Other admittedly genuine signatures of E. W. Prothro were in evidence: one was his signature on a deed from Prothro to Johnson Brothers in August 1933; and the other was a signature of Prothro on an indemnity bond executed at the same time, 17111011 indemnity bond was signed by E. W. Prothro as principal, and E. H. Coulter as surety. The Chancery Court compared Prothro ’s signature on the deed here in question, as against the admitted signatures in the Johnson transaction. The only evidence against the forgery was that of E. W. Prothro, which came into the record in the manner discussed in Topic II, infra. E. W. Prothro testified that he signed the deed to the appellants on the date shown and delivered the deed to his sister, who ivas the mother of the appellants; that the appellants were small children at the time; and the deed was a gift to them.

The appellees had the burden of proving the forgery by a preponderance of the evidence. Thompson v. Kinard, 168 Ark. 1057, 272 S. W. 668; Hildebrand v. Graves, 169 Ark. 210, 275 S. W. 524; Ledbetter v. Smith, 202 Ark. 144, 149 S. W. 2d 564. Did the testimony of E. T\T. Prothro outweigh the testimony of Mr. and Mrs. Oliver and C. L. Talbot, and the admittedly genuine signatures as against the questioned signature ? The thought and study which the learned Chancellor gave to this question of forgery and to the entire case is exemplified by the opinion which he delivered and which is in the transcript. On the evidence as we have outlined it—and the record contains no other for the appellants—the Chancery Court concluded that the alleged deed from E. W. Prothro to the appellants was a forgery; and we cannot say that such finding is contrary to the preponderance of the evidence. Therefore, we affirm the finding that the deed from E. W. Prothro to the appellants was a forgery, and that the appellants are without title.

II. The Testimony Of E. W. Prothro As Binding On Appellees. The appellants insist that the appellees brought into the trial of this case the testimony of E. W. Prothro and are, therefore, bound by his testimony to the effect that he signed the questioned deed to the appellants. The answer to this contention necessitates a mention of previous litigation between these appellants. We have reference to the case of Coulter v. Anthony, 228 Ark. 192, 308 S. W. 2d 445, decided by us on November 4, 1957, and certiorari denied by the Supreme Court of the United States on November 17, 1958, 358 U. S. 73; 3 L. Ed. (U.S.) 118; 79 S. Ct. 153. The said Coulter-Anthony case (involving the same tax sale as here) was No. 1557 in the Calhoun Chancery Court; and E. W. Prothro was a party defendant, being brought in by cross complaint just as in the present case. He gave a deposition in answer to interrogatories propounded to him by the opposite side (just as here), and his deposition was offered in that case under Sub-section (d) of Section 1 of the Discovery Statutes of 1953.

The present case in the Calhoun Chancery Court was No. 1559; and by agreement, the deposition of E. W. Prothro in Case No. 1557 was used'by the present appellees, since Prothro was a party adverse to them in this case. Here is what transpired in the Lower Court when the deposition of E. W. Prothro was offered:

“L. WEEMS TEUSSELL: If the Court please, at this time I would like to offer in evidence the Interrogatories propounded to Dr. Ernest Prothro, who was an adverse party in Case No. 1557 and who was made an adverse party in this Case No. 1559. This instrument is now offered by the defendants without being bound by the testimony of E. W. Prothro, who is an adverse party, and is offered under Section 1, Act 335 of 1953. . . .

"IT. A. GENTRY: We would like to interpose our objections to the introduction of these two depositions or the testimony given by these two witnesses found in the record of Coulter v. Anthony, Case .No. 1557, not because it is testimony given in that case but because it is evidence that goes to fraud, or an undertaking to prove some fraud on the Bankruptcy Court or by Officers of the Bankruptcy Court in acquiring this property that is in litigation today. That has nothing to do with this case. ...”

Later, and just before the close of all the testimony, the following occurred:

‘ ‘ MR. GENTRY: If the Court please, Mr. Trussell has offered all the rebuttal testimony I wanted to offer in the deposition of Dr. Prothro. We would make that our testimony.

"MR. TRUSSELL: Since I have offered it, do'you agree that I am offering it as an adverse party or do you prefer to offer it?

"MR. GENTRY: We want it in the record, after they introduced their testimony about the validity of the deed.

"MR. TRUSSELL: Very well, your Honor, that is all.

"MR. GENTRY: That is all we have.”

We have copied the pertinent excerpts from the proceedings of this trial to show just how the deposition of E. W. Prothro came into the record, and to establish that it was offered by the appellees as the testimony of an adverse party. Act No. 335 of 1953 (now found in Ark. Stat. Ann. § 28-348 et seq. [Repl. 1962]) provides that the introduction of a deposition of a person makes such deponent the witness of the person' introducing the deposition "... but this shall not apply to the use by an adverse party of his deposition. . .- .” Therefore, the appellees had the right to offer the deposition of E. W. Prothro without being bound by his answers. The appellees so stated when they offered the deposition, and the appellants did not make any claim in the Trial Court that the appellees would be bound by the answers of Prothro. We find no merit in the claim of the appellants that the appellees were bound by the testimony of E. W. Prothro.

III. The Appellants Claim That Their Title Shotold Be Quieted. This point was practically eliminated when we affirmed—in Point I, supra—the Chancery finding that the appellants were claiming under a forged deed. A forged deed does not pass title. Bird v. Jones, 37 Ark. 195; Wilson v. Biles, 171 Ark. 912, 287 S. W. 373; McCarley v. Carter, 187 Ark. 282, 59 S. W. 2d 596. Therefore, with the deed from E. W. Prothro to appellants held to be a forgery, the appellants have shown no title in themselves. Prom 1935 to the tidal of this cause the appellees, under color of title, had paid the taxes on the lands, admitted to be wild and unimproved (Ark. Stat. Ann. § 37-102 [Repl. 1962]); so the appellants had no title to be quieted.

The decree is affirmed.

       On this point see Coulter v. Anthony, 228 Ark. 192, 308 S. W. 2d 445, which case is discussed on another point in Topic II, infra.

       The fact that E. W. Prothro testified that he signed the deed does not completely foreclose the appellees on this issue of forgery, because his testimony is the same as that of any other party in the case. We can easily imagine a situation wherein a son was charged with forging his father’s name to a check. The testimony of the father —to the effect that he had signed the check himself—would not conclusively establish that there had been no forgery. In 23 Am. Jur. p. 679, “Forgery” § 8, there is a discussion of forgery by the use of one’s own name with intent to deceive; and there are annotations cn this point in 41 A.L.R. 229, 46 A.L.R. 1522, and 51 A.L.R. 568.

       There is another case by these appellants, styled Coulter v. O’Kelly, 226 Ark. 836, 296 S. W. 2d 753, but it has no direct bearing on the present litigation.


author: George Rose Smith, J.

text:
    Benson v. Benson.
    5-3081
    372 S. W. 2d 263
    Opinion delivered November 18, 1963.

      W. C. Medley, for appellant.

      Brotvn, Compton $ Preiuett, for appellee.
   George Rose Smith, J.

The appellee, Wallace H. Benson, was granted a divorce in the court below. This appeal questions only that part of the decree that awarded him the custody of the couple’s three children, a boy and two girls, aged ten, eight, and six. It is contended that it would be to the children’s best interest for them to be in their mother’s care.

Wallace Benson and Attie Lou . Strickland were married in 1951, both being in their teens. They had grown up in Calhoun county, but during the eleven years of their married life they lived in Camden, where Wallace worked for a paper company. In June of 1961 Wallace’s older brother, Gervis Benson, came up from Texas to make his home with them, paying nothing for his room and board.

Each spouse blames the other for their separation late in May, 1962. Attie Lou stayed with a friend in Camden for a few days. On June 4 Attie Lou took the three children and accompanied her brother-in-law, Gervis, to Dallas, Texas. They say that they consulted an attorney, who advised Attie Lou to seek a divorce in Mexico. Attie Lou and Gervis immediately went to Mexico, where Attie Lou obtained a divorce the next day, June 5. The two were married in Mexico on June 6 and returned to Dallas, where they rented an apartment and lived together as man and wife. The appellee did not learn the whereabouts of his wife and children until about two months after they left Camden.

The controlling consideration is the best interest of the children; custody is not awarded or withheld with any thought of rewarding or punishing either parent. Tidwell v. Tidwell, 224 Ark. 819, 276 S. W. 2d 697. Here the chancellor, in announcing his decision, recognized the reluctance of the courts to take young children from their mother, but he considered this to be an exceptional ease in which that action was called for. We cannot say that he was wrong.

The environment that the children would have in Dallas leaves much to be desired. Attie Lou is employed at a cafeteria, where her working hours are from 9:00 ■a.m. until 1:00 p.m. and from 4:30 p.m. until 9:00 p.m. Hence for the greater part of the time that the children are not at school they would be in the care of a maid or baby sitter.

Gervis Benson is hardly the ideal person to act as a foster father to the children. Gervis’s own father testified that Gervis.had been addicted to drinking for ten years and was getting worse every year. Gervis’s mother also appeared as a witness for the appellee and testified that Gervis had been dishonorably discharged by the Navy for peddling dope. (Gervis says that his discharge was the result of his having been court-martialed for intoxication.) The county sheriff testified that Gervis had been jailed twelve or fifteen times for drunkenness and fighting. It will be remembered that Gervis, after having enjoyed his brother Wallace’s hospitality for a year, ran away with Wallace’s wife and children and took up what was actually an adulterous relationship with the woman, since the Mexican divorce was unquestionably void. It is fairly open to doubt whether a relationship so originating is likely to be permanent'.

By comparison the outlook for the children in Calhoun county is a bright one. There they will live with their father in the home of his parents, who are fairly young to be grandparents and in fact have a son of their own who is a year younger than the oldest of Wallace and Attie Lou’s three children. Wallace is still employed at Camden, a few miles from his parents’ residence, but he will be at home after working hours. We cannot say whether or not Wallace seriously mistreated his wife during their marriage; upon this issue the evidence is in hopeless conflict. It is reasonably certain, however, that even if he was at fault Wallace will be a better influence in the lives of his children than Gervis would be.

In a case of this kind the chancellor’s opportunity to reach the right decision is immeasurably better than ours. He has the advantage of seeing everyone concerned at first-hand and is thus in a position to give all the testimony its proper weight. This case presents a close question, upon which strong arguments can be made on both sides, but we cannot say with confidence that the chancellor was wrong in awarding the custody of the children to their father.

Affirmed.


text:
    Hardin v. Hardin.
    5-3041
    372 S. W. 2d 260
    Opinion delivered November 18, 1963.

      Cecil Grooms, for appellant.

      T. A. French, for appellee.
   Paul Ward, Associate Justice.

This appeal comes from an order dismissing appellant’s petition to set aside a divorce decree on the ground that it was procured by fraud practiced on the court. The proceeding is unusual in that the divorce decree was granted to appellant on her own petition. The only record we have before us on appeal is appellant’s petition (to set aside the divorce decree) and the order of dismissal.

On August 28, 1962 appellant (Cyntlia Hardin) filed in chancery court her four page petition. In substance and in all essential parts the complaint contains the allegations set out below.

Appellant (Cyntha Hardin) was married to appellee (Claud Hardin) January 2, 1934; to this union five children were born; there were frequent quarrels and on September 25, 1945 appellee drove her away from home; she went to the home of her daughter (by a former marriage) to live; on October 6, 1945 the chancery court, on her own petition, granted her a divorce, giving custody of their children to appellee; during the latter part of October, 1945 she returned to appellee’s home, with appellee’s consent, to live and to look after the children; and she there lived with appellee as man and wife until February 15, 1960 when he ran her away from his home. In the petition appellant further states she did not learn, until January 1, 1962, that appellee perpetrated a fraud upon her and the court—which fraud (she alleges) caused her to secure the divorce. The perpetration of the fraud, she says, consisted of the following: With knowledge and the connivance of appellee a certain man came by where she was living on October 4, 1945, at about 7:30 p.m., for the alleged purpose of taking her to Rector to see her husband; that on the way this man stopped the ear and forced her to get out to make love; that while they were “scuffling or wrestling” her husband (with his son-in-law) came by and saw them; that the}'- took her to a lawyer in Rector where she signed a paper; that she thought the paper was to give a divorce to her husband but it was in fact a petition for her to secure a divorce from him. In the petition appellant sa3's she is uneducated and did not understand what she signed, and that everything mentioned above was prearranged by appellee for the purpose of getting rid of her without having to give her a portion of her property.

In our opinion the trial court was correct in sustaining appellee’s motion to dismiss the above petition. Appellant very properly admits that her petition was based on Ark. Stat. Ann. § 29-506 (Repl. 1962). This section, in all parts pertinent to the facts in this case, provides:

“The court in which a judgment or final order has been rendered or made, shall have power, after the expiration of the term, to vacate or modify such judgment or order.

# # #

“Fourth, For fraud practiced by the successful party in the obtaining of the judgment or order.”

Few of our statutes have better withstood the test of time or have been more uniformly interpreted than the section above quoted. Without any change in wording it appears in the Civil Code (as § 571), Gantt’s Digest (as § 3596), in Kirby’s Digest (as § 4431), in Crawford & Moses’ Digest (as § 6290), in Pope’s Digest (as § 8246), and, of course, in Ark. Stat. Ann. as § 29-506. The statute has been considered by this Court with reference to each of the above designations, and each interpretation has been consistent and harmonious. In no case has it been construed in language with more clarity than in an opinion written by Justice Butler in Hendrickson v. Farmers’ Bank & Trust Company, 189 Ark. 423, 73 S. W. 2d 725. It was there said:

“The fraud for which a decree will be cancelled must consist in its procurement and not merely in the original cause of action. It is not sufficient to show that the court reached its conclusion upon false or incompetent evidence, or -without any evidence at all, but it must be shown that some fraud or imposition was practiced upon the court in the procurement of the decree, and this must be something more than false or fraudulent acts or testimony the truth of which was, or might have been, in issue in the proceeding before the court which resulted in the decree assailed. James v. Gibson, 73 Ark. 440, 84 S. W. 485; Johnson v. Johnson, 169 Ark. 1151, 277 S. W. 535; Boynton v. Ashabranner, 75 Ark. 415, 88 S. W. 566, 1011, 91 S. W. 20.”

The above quotation was adopted in an opinion written by the late Minor W. Millwee found in Alexander v. Alexander, 217 Ark. 230, 229 S. W. 2d 234. In the case of Parker v. Sims, 185 Ark. 1111, 51 S. W. 2d 517, we said:

“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. ’ ’

The above quotation was adopted in Jamieson v. Jamieson, 223 Ark. 845, 268 S. W. 2d 881, and also in Crosswell v. Linder, 226 Ark. 853, 294 S. W. 2d 493. In the case of Nevil C. Withrow Co., Inc. v. Heber Springs School District, 229 Ark. 939, 320 S. W. 2d 95, we quoted with approval from the Alexander case, supra, the following:

“ ‘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, ... It must be a fraud practiced upon the court in the procurement of the judgment itself.’ ”

We can find nothing in the petition in this case that could be construed under the above decision, as a fraud on the court. There is an allegation in the petition that “. . . the conduct of the defendant as above described constituted fraud practiced on this court in procuring the decree of divorce ...” This statement relative to what constitutes fraud is a conclusion of law. In the ease of Sibley v. Manufacturers Furniture Co., 220 Ark. 234, 247 S. W. 2d 20, we said:

“While the complaint alleges that the procurement of the default judgment was a fraud upon the court, that is a conclusion of law not admitted by the demurrer.”

As heretofore noted the alleged fraud (referred to in § 29-506) must be “extrinsic of [that is, apart from] the matter tried in the cause ...” We find no such fraud here. The fraud or deception which appellant complains of seems to be: (a) she was trapped into a compromising position with the man who took her riding, and (b) sbe thought she was signing a paper to give her husband a divorce when in fact it was to give her a divorce. Both situations were subject to explanation in a divorce proceeding and both were a part of the matter which was tried or could have been tried in the divorce suit. At no time does appellant say she did not know the divorce was granted when it was granted, and the petition clearly indicates she did know.

We are not free to give a liberal interpretation to the statute simply to try to correct what might be considered an injustice done appellant. One of the earliest cases to construe the statute which is now § 29-506 was Izard County v. Huddleston, 39 Ark. 107. In that ease we said:

“The statute to vacate judgments by this proceeding is in derogation not only of the common law, but of the very important policy of holding judgments final after the close of the term. Citizens must have some confidence in the judgments of our judicial tribunals, as settlements of their controversies, and there should be some end to them. Unless a case be clearly within the spirit and policy of the act, the judgment should not be disturbed. ’ ’

To the same effect see also Weller v. Studebaker Bros. Mfg. Co., 93 Ark. 462, 471, 125 S. W. 129.

It follows from the above that the order of the trial court must be and it is hereby affirmed.

Affirmed.