text:
    Shackleford v. Ford.
    Opinion delivered January 10, 1927.
    1. Attorney and client — summary judgment against attorney. —A summary- judgment will not be entered for money collected by an attorney, under Crawford & Moses’ Dig., §§ 609, 6250, where there is a real issue of fact or a substantial defense to the proceeding.
    2. Attorney and client — proceeding for summary judgment. — In a summary proceeding under Crawford & Moses’ Dig., §§ 609, 6250, to recover money which an attorney collected and failed to pay over, where defendant’s answer alleged facts constituting a good defense and the evidence was conflicting, the issue was properly submitted by consent to the judge sitting as a jury.
    3. Appeal and error — conclusiveness of finding. — A finding of facts by the trial judge is not-subject to review where there is substantial evidence to support it.
    Appeal from Pulaski Circuit Court, Second Division; Richard M. Mann, Judge;
    affirmed.
    STATEMENT BY THE COURT.
    This is a statutory proceeding by F. P. Ford-against John D. Shackleford to recover a summary judgment in the sum of $1,362.52, which Shackleford collected for him as attorney and failed to pay over to him on demand.
    Shackleford filed an answer, in which he admitted collecting the amount of money sued for, for the plaintiff, Ford, but claimed he was entitled to a greater fee than that tendered by Ford. The defendant also set up that the plaintiff was indebted to him in the aggregate sum of $872.50 for services as an attorney in other matters. The amount due on each item and the kind and character of services performed as such attorney are specifically set forth in the answer. The answer also admits that the defendant has a balance in his hands of $357.50 which is due the plaintiff, and offers to pay that amount to him. The answer was duly verified by the defendant, Shackleford.
    On the trial of the case the plaintiff moved that the proceedings be treated as raising an issue of facts in an adversary proceeding and that the case do not proceed further as a summary proceeding for judgment under the statute. The motion was sustained by the court, and the defendant saved his exceptions to the ruling of the court.
    The court held that the case should proceed as an adversary one, and that it would be necessary to waive a jury if the parties wished to submit the case to it for a decision on the issues of fact. The defendant duly excepted to the ruling of the court in this respect. Thereupon both parties waived a jury, and agreed to submit the matters of fact and the issues to the court sitting as a jury.
    F. P. Ford was a witness for himself. According to his testimony, John D. Shackleford, as his attorney, collected for him the sum of $1,229.92 on the 14th day of March, 1923. Under their agreement, Shackleford was to receive $100 as his attorney fee. Shackleford refused to pay Ford,, and this proceeding was commenced on March 23, 1925. Ford denied that he owed Shackleford any other sum for attorney’s fees or on any other account whatever. He categorically denied owing Shackleford the various amounts set up and claimed by him in his answer. Other evidence was adduced by the plaintiff to corroborate his own testimony.
    The defendant, Shackleford, was also a witness for himself. According to his testimony, the plaintiff agreed to pay him a fee of twenty-five per cent, for collecting the sum sued for in this action. The plaintiff also owed him the sum set out in his answer for legal services in other matters. Shackleford testified to the character of services performed by him. Other evidence was adduced by the defendant tending to corroborate his own testimony to the effect that the fees charged by him were reasonable.
    The circuit court, sitting as a jury, found that the defendant was indebted to the plaintiff in the sum of $731.14. Judgment was rendered accordingly, and, to reverse that judgment, the defendant has duly prosecuted an appeal to this court.

      G. W. Hendricks, for appellant.

      E. L. Westbrooke, Jr., and E. L. Westbrooke, for appellee.
   Hart, J.,

(after stating the facts). This action was commenced as a summary proceeding under the statute to recover money which the defendant, as an attorney, had collected for the plaintiff and failed to pay the same over on demand. See Crawford &• Moses’ Digest, §§ 609 and 6250.

The defendant filed an answer, alleging facts which, if proved, constituted a good defense to the action, and his answer was duly verified to show that it was a bona fide one.

A motion for a summary judgment under the statute should not be allowed where there appears a real issue of fact between the parties or a substantial defense to the proceeding. In other words, if it is made to appear to the court that the matters of defense set np in the answer are genuine and that a substantial issue of facts is thereby created, the parties are entitled to trial in the regular way in which suits between adversary parties are tried and decided, and a summary judgment is improper. Davies & Davies v. Patterson, 132 Ark. 484.

In that case the court said that the proceedings against an attorney under the above statutes are not in the nature of a common-law action or an ordinary civil suit under our Code of Procedure, but are special statutory proceedings, and must be specifically followed. In that case the answer stated facts which, if true, were sufficient to constitute a defense to the motion for a summary judgment. After stating these facts, the court said that in all such cases the trial court should deny the motion and treat the proceeding as an ordinary action at law, and allow it to take its regular course as such an action.

This is precisely what was done by the circuit court in the case at bar. The facts were submitted to the circuit court sitting as a jury. The evidence was in direct and irreconcilable conflict.

Under our settled rules of practice, the finding of facts made by the circuit court upon the trial of a case is not the subject of review upon appeal where there is any evidence of a substantial character to support it. The court was the trier of the facts as well as the law. It had the right to accept such portion of the evidence as it believed to he true and to reject that part which it did not believe to be true. In this view of the matter, it cannot be said that the finding of facts made by the circuit court is without evidence to sustain it.

It follows that the judgment of the circuit court must be affirmed.


source: Caselaw Access Project

author: Smith, J.

license: Public Domain

text:
    Alexander v. Stack.
    Opinion delivered January 10, 1927.
    1. Mortgages — foreclosure sale — confirmation.—After confirmation of a' foreclosure sale of mortgaged property, neither inadequacy of price nor anything hut 'fraud, accident, mistake, or some other cause for which equity would avoid a like sale between private parties, will warrant a court in avoiding the confirmation of the sale, or in -opening the latter and receiving subsequent bids.
    2. Mortgages — foreclosure sale — confirmation.—Objection that a foreclosure sale of mortgaged property was not advertised for the length of time required by the decree of sale came too late when not made until after the sale had been confirmed.
    3. Mortgages — confirmation of foreclosure sale — parties.—Heirs of a deceased mortgagor suing to cancel a deed based on a sale under a power in the mortgage were affected with notice of proceedings ordering a resale of the property on default in payment of a balance of the debt, and are precluded from objecting, after confirmation of such sale, that the land was not advertised for the time required by the decree.
    Appeal from Monroe Chancery Court; A. L. Hutch-ins, Chancellor;
    affirmed.

      J. A. Tellier, for appellant.
    • Bogle db Sharp, for appellee.
   Smith, J.

Appellants filed a complaint in which they alleged that in 1909 their ancestor, who then owned two lots in Smith’s Addition to the city of Brinkley, mortgaged the lots to J. H. Stack, and that this mortgage was foreclosed under the power of sale incorporated therein. At this sale one Loeb became the purchaser, and he later conveyed the lots to Stack. Appellants brought suit to cancel these deeds, and in October, 1923, a decree was rendered which granted that relief. This decree recited that, while the foreclosure under the power of sale was void, a balance of $135 and interest was due Stack. Appellants were given eight months from the date of the decree to pay this sum, in default of which it was ordered that the clerk of the court, as commissioner, sell the lots, on a credit of three months, after first advertising the same in a newspaper for twenty days before the day of sale.

Appellants alleged that, through their absence from the State, they failed to pay the balance due on the mortgage, which was decreed to be a lien against the lots, but that a redemption was attempted on the day of the sale. They had been advised by their attorney that the amount necessary to redeem was $150, and one of the appellants appeared at the time and place of the commissioner’s sale, and tendered that amount in redemption of the lots, but was informed by the commissioner that the judgment, with the interest and costs, amounted to $178.30. Not having this amount of money, and being unable to tender it, the commissioner proceeded with the sale, and Stack became the purchaser for that sum. Appellants alleged that the sale was not advertised for the twenty days as required by the decree, and that the lots sold for a grossly inadequate price, the lots being reasonably worth $600.

Appellants further alleged that, after the sale, they applied to Stack to redeem the lots from the commissioner’s sale, and he agreed that they might do so by paying the debt and interest and all costs that had then accrued. They further alleged that they applied more than once to Stack for a statement of the amount required to redeem but were never furnished that information, and, when they last applied to him for this information, they were advised that the sale had been confirmed by the court, and that the commissioner’s deed to Stack had also been confirmed, and that Stack had sold the lots to another party. Appellants further alleged that the confirmation of the sale and the commissioner’s deed had occurred before the expiration of the three months ’ credit allowed the purchaser, and that they had been misled by this premature confirmation of the sale and the conduct of Stack in neglecting and refusing to permit appellants to pay him as agreed the amount for which the lots sold and the costs of suit.

Wherefore appellants prayed that the sale and the confirmation thereof be set aside and that Stack be required to accept the tender contained in the complaint, of the money which Stack had agreed to accept.

Appellee Stack filed a demurrer and an answer. The demurrer was sustained, and the cause was dismissed as being without equity, and this appeal is. from that decree.

It appears from the foregoing statement of facts that this litigation arose out of a proceeding to foreclose a mortgage executed in 1909; that the court set aside deeds 'based on a sale made under the power of sale incorporated in the mortgage, and, after doing so, gave appellants eight months within which to discharge the balance found due on the mortgage. This decree was rendered on the 23d of October, 1923, and the commissioner’s sale did not occur until the 12fh day of September thereafter. The complaint, to which the demurrer was sustained, does allege that Stack agreed to accept the debt due him and the costs which he would be required to pay as purchaser, but there is no allegation that he agreed not to ask the confirmation of the sale to him.

Had appellants excepted to the confirmation of the commissioner’s report of sale, and there made the showing that the lots had been sold for a grossly inadequate price, without being advertised for the full time required by the decree, the court, no doubt, would have refused to confirm it, but no action was taken to prevent tbe confirmation. No exceptions were filed to tbe confirmation of tbe commissioner’s report, and appellants must be held to have known that the report would be confirmed in due course in the absence of some objection to that action. As we have said, there is no allegation that Stack agreed that he would not ask a confirmation of the sale, or that he would wait for any definite time for appellants to tender the sum which they alleged he agreed to accept. This sum could have been ascertained from the clerk as commissioner ; in fact, Stack himself would have had to obtain the information from that official. No tender was ever made, at least none was alleged, prior to tliat made in the complaint, and we think the court below did not err in refusing to set aside the confirmation regularly made.

In the case of Morrison v. Burnette, 154 Fed. 617, Judge Sanborn said: “Hence the rule is settled, and it seems to be universally approved, that, after confirmation of a judicial sale, neither inadequacy of price nor offers of better prices, nor anything but fraud, accident, mistake, or some other cause for which equity would avoid, a like sale between private parties, will warrant a court in avoiding the confirmation of the sale or in opening the latter and receiving subsequent bids.”

The sale here attacked was duly confirmed, and the facts alleged do not show fraud or any accident or mistake for which Stack was responsible. Appellants evidently relied upon a continued indulgence which Stack had not agreed to give. No deception was practiced by him; he merely failed, under the allegations of the complaint, to' continue to extend an indulgence to appellants. They should either have made, in apt^time, the tender which they alleged Stack agreed to accept, or they should have filed exceptions to the confirmation of the commissioner’s report of sale.

As to the allegation that the lots were not advertised for the length of time required by the decree of sale, it suffices to say that this objection comes too late when not made until after the sale has been confirmed. Farnsworth v. Hoover, 66 Ark. 367, 50 S. W. 865; Waldo v. Thweatt, 64 Ark. 126, 40 S. W. 782; Carpenter v. Zarbuck, 74 Ark. 474, 86 S. W. 299; Glasscock v. Glasscock, 98 Ark. 151, 135 S. W. 835; Day v. Johnston, 158 Ark. 478, 250 S. W. 532; Little Red River Levee Dist. No. 2 v. Thomas, 154 Ark. 328, 242 S. W. 552; Brasch v. Mumey, 99 Ark. 324, 138 S. W. 458, Ann. Cas. 1913B., 38; Bank of Pine Bluff v. Levi, 90 Ark. 166, 118 S. W. 250; Apel v. Kelsey, 47 Ark. 413, 2 S. W. 102.

Appellants were parties to this litigation — -indeed, they were the moving parties, and were asking affirmative relief. They were therefore affected with notice of the proceedings subsequent to the rendition of the decree.

There appears to have been an entire lack of diligence on the part of -appellants, and we think sufficient facts were not alleged to show that any fraud had -been practiced upon them, or that they had been deprived of any legal right through any accident or mistake for which Stack was responsible, and the decree sustaining the demurrer will therefore be affirmed.


author: Humphreys, J.

text:
    Earle v. Boyer.
    Opinion delivered January 10, 1927.
    1. Sales — constouction of complaint. — A complaint alleging that defendants sold to plaintiff cane seed represented to be a certain variety of sorghum suitable for making molasses, and that it proved not to be of that variety, and to be worthless for making molasses, held to support' recovery on either an express or an implied warranty.
    2. Sales — warranty—instruction.—An instruction that if defendants sold seed warranted to be of a certain variety, and plaintiff, relying upon such warranty, bought and planted the seed, which was not of that variety and was unfit for the purpose wanted, plaintiff could recover, was not erroneous in failing to charge that the plaintiff must have relied solely on such warranty and not on an inspection, where plaintiff testified that he made no inspection.

      3. Trial — instructions—construction as a whole. — An instruction by which the jury were told that defendants would.be liable for a breach of warranty in the sale of seed represented to be of a certain variety was not open to the objection that it failed to tell the jury that, before he could recover, it must appear that he relied on such representation and not on his own inspection of the seed, where another instruction given correctly presented that theory of the defense.
    4. Sales — breach of contract — damages.—The measure of damages for breach of warranty in the sale of cane seed suitable for making molasses, held to be the value of a crop at maturity which would have been raised from the seed contracted for, less the value of the crop actually raised and the cost of growing the same and having it made into molasses.
    5. Sales — warranties.—An express warranty in the sale of seed excludes an implied warranty.
    6. Trial — application of instructions. — Where the allegations of the complaint and the testimony were broad enough to sustain recovery for breach of either an express or an implied warranty, it was not error to instruct upon both theories of the case.
    Appeal from Clark Circuit Court; James H. McCollum, Judge;
    affirmed.

      Ilardage & Wilson, for appellant.

      John II. Crawford and Dwight H. Crawford, for appellee.
   Humphreys, J.

This suit was instituted in the circuit court of Clark County by appellee against appellant to recover damages in the sum of $225 on account of a sale and purchase of “Japanese Seeded” cane seed, intended to grow cane for making molasses, which proved worthless for that purpose. It was alleged in the complaint that appellants sold appellee seed which they represented to he a variety of sorghum known as “Japanese Seeded,” 'suitable for making molasses; that appellee purchased said seed to grow cane to make a crop of molasses, and that appellants knew appellee’s purpose in .buying the seed at the time of the sale; that said seed was not “Japanese Seeded” sorghum seed,- hut was seed of a variety of plant without-juice, and worthless for making molasses.

Appellants filed an answer, denying seriatim the allegations in the complaint.

The cause was submitted to a jury upon the plead- • ings, the testimony adduced by the respective parties, and the instructions of- the court, which resulted in a verdict and consequent judgment in the sum of $100 against appellants, from which is this appeal.

It will be observed that the allegations in the complaint were broad enough to support a recovery either upon an express or implied warranty.

The testimony introduced by appellee tended to support the allegations of his complaint, and that introduced by appellants tended to disprove each and every material allegation in the complaint.

Appellants’ first contention for a reversal of the judgment is that the court erred in giving instruction number one, which is as follows:

“If you find from á preponderance of the evidence that the defendants warranted the seed sold to plaintiff to be Japanese Seeded cane seed, and that the plaintiff, in reliance on said warranty, bought and planted said seed and cultivated the crop raised therefrom; and if you further find that the seed sold to plaintiff was not Japanese Seeded cane seed and was unfit for growing cane to make molasses, you are told that the plaintiff is entitled to recover from defendants a sum equal to the value of a crop at maturity which would' have been raised from Japanese Seeded cane seed, less the value of the crop actually raised and the cost of cutting the same and having it made into molasses. ’ ’

The first attack made upon the instruction is that it failed to tell the jury that, before appellee could recover, he must have relied solely upon appellants’ alleged warranty. This instruction related to the alleged express warranty upon which appellee sought a recovery. It did not tell the .jury, in so many words, that, before appellee could recover, he must have relied solely on the representation of appellants and not on inspection; but appellee testified that he made no inspection, so this instruction properly presented appellee’s theory of his right to recover upon an express warranty, if the jury believed his testimony. It is true that the testimony offered by appellants tended' to show that appellee made an inspection of the seed before purchasing same, but this point was taken care of'by appellants’ third request, given by the court, which is as follows:

“If you should believe from the evidence that plaintiff inspected said seed before he bought them,- and bought them on his own belief, formed from inspection, that they were Japanese Ribbon cane seed, then your verdict will be for defendants.”

Appellants are not in a position to assail instruction number one because it did not contain their theory in the case, when their theory was clearly and correctly submitted to the jury in a separate instruction given at their own request.

The second and last attack made upon instruction number one is that it did not specifically set out what items of expense were to be deducted from the value of a crop raised from Japanese Seeded cane seed. The instruction told the jury that, if they found for appellee, they should deduct from the value of such a crop the cost of growing same and having it made into molasses. This was a correct general measure of damages applicable to the case. The testimony in the case reflected the various items of expense necessary to produce and harvest a crop of molasses, and there is nothing in the verdict and judgment to indicate that appellants did not receive the benefit of all the necessary items incident to producing a crop of molasses.

Appellants’ next and last contention for a reversal of the judgment is that the court erred in instructing the jury upon the law of an implied warranty. The objection is that there is no room for an implied warranty if there was an express warranty in the case. This contention would be sound if the undisputed testimony in the case had shown that there was an express warranty, but both the allegations and the testimony were broad enough, to sustain a recovery upon either an express or implied warranty, so a declaration of law in separate instructions upon both an express and implied warranty did not produce a conflict between the instructions. The instructions were upon different phases of the law, the first being applicable if the jury should find that appellants expressly warranted the seed to appellee, and second, applicable in case the jury should find that appellants sold “Japanese seeded” seed cane to appellee with the knowledge that he purchased same' for the purpose of making a crop of sorghum molasses.

No error appearing, the judgment is affirmed.


text:
    Rainwater v. Davis.
    Opinion delivered January 10, 1927.
    Banks and banking — insolvency—preferred claims. — Under Crawford & Moses’ Dig., § 2832, as amended by Acts 1923, p. 526, § 8, held that where funds of the State were deposited in an incorporated bank by the county collector, the relationship of debtor and creditor existed between the bank and the collector, and the collector had no preferred claim on the bank’s subsequent insolvency.
    Appeal from Franklin Chancery Court, Ozark District; J. V. Bourland, Chancellor;
    reversed.

      Rill & Fitzhugh, for appellant.

      J. P. Clayton and Evans <& Evans, for appellee.
   Humphreys, J.

This is an appeal by the State Bank Commissioner, Loid Rainwater, from a decree of the chancery court of Franklin County, Ozark District, allowing the claim of S. J. Davis, collector of taxes and other public revenues of Franklin County, to the amount of $13,587.03 as a preferential claim against the assets of the People’s Bank of Ozark, Arkansas, which became insolvent and passed into the hands of said Commissioner. The amount allowed by the trial court to said collector as a preferred claim had been collected for licenses for automobiles due the State of Arkansas for the year 1926, and had been deposited in said bank in his name as collector of said county.

The trial court allowed the claim as a preference, under his construction of § 2832 of Crawford & Moses’ Digest, as modified and amended 'by § 8 of act 627 of the Acts of 1923. Section 2832, Crawford & Moses’ Digest, is as follows:

“It shall be unlawful for any officer of this State, or of any county, township, city or incorporated town in this State, or any deputy, clerk or other person employed by any such officer, having the custody or possession of any public funds, by virtue of his office or employment, to use any of such funds in any manner whatsoever for his own purpose or benefit, or to loan any of such funds to any person or corporation whomsoever or whatsoever, or to permit any person or corporation whomsoever or whatsoever to use any of such funds, or to pay or deliver any such funds to any person or corporation, knowing that he is not entitled to receive it, or for any such officer to willfully fail or to omit to pay any such funds to his successor in office at the expiration of his term of office; but collectors of taxes, county treasurers and treasurers of cities and incorporated towns may deposit the public funds in their custody in incorporated banks for safekeeping; and the said officers and the sureties on their official bonds, the bank and the stockholders of the bank shall be liable for all funds that such bank on demand shall fail to pay to the person entitled to receive the' same.”

The amendment of 1923 to said section omitted the liability of stockholders for public funds deposited in incorporated banks, except in so far as such funds are protected by the double liability of stockholders in § 36 of the Banking Act of 1913, Acts-1913, page 462, which is as follows:

“The stockholders of every bank doing business in this 'State shall be held individually responsible equally and ratably, and not one for another, for all contracts, debts and engagements of such bank, to. the extent of the amount of their stock therein, at the par value thereof, in addition to the amount invested in such stock.”

This court construed § 2832, Crawford & Moses’ Digest, before it was amended by § 8 of act 627, Acts of 1923, in the case of Warren v. Nix, 97 Ark. 374, 135 S. W. 896, to mean that collectors of taxes and certain other officers named therein could make a general deposit of public funds in an incorporated bank. It was specifically decided in that case that authority to deposit public funds for “safekeeping” in an incorporated bank only did not restrict such deposits .to special deposits. The interpretation placed upon § 2832 of Crawford & Moses ’ Digest in the case of Warren v. Nix, supra, was reaffirmed in the case of Wallace v. Davis, 123 Ark. 70, 184 S. W. 834. The language of said section was not changed one. whit by the amendment thereto in 1923, so the amendment, or modification, was, in effect, an adoption ■ by the Legislature of the construction given said section in the cases of Warren v. Nix and Wallace v. Davis, supra. As stated above, the only effect of the amendment of 1923 to § 2832 óf• Crawford & Moses’ Digest was to relieve the stockholders of an incorporated bank from liability for deposits of public funds made as general deposits, except on their general liability of an additional 100 per cent, assessment, if the bank in which they owned stock should become insolvent.

In the instant case the collector of taxes deposited public funds in the incorporated bank as a general deposit, thereby creating the relationship of debtor and creditor between himself and the bank. The trial court erred in preferring his claim over other nonpreferred claims.

The decree is therefore reversed, and the cause is remanded with instructions to allow the claim as a common one.


author: Kirby, J.,

text:
    Taylor v. Collins.
    Opinion delivered January 10, 1927.
    1. Adoption — petition—-name of child. — A petition for the adoption of a child which alleged that the child is a resident of the county, but his name is unknown and could not be ascertained, and that his parents are unknown-and his mother dead, held a sufficient compliance with Crawford & Moses’ Dig., §§ 252-256.
    2. Domicile — residence of child. — The residence of a child of unknown parents, delivered temporarily by a probation officer to persons desiring to adopt him, is that of the probation officer.
    3. Adoption — collateral attack. — Where the record of the probate court in the matter of the adoption of a child recites that the child is a resident of the county, such fact cannot be controverted by proof aliunde.

    4. Adoption — consent of parent. — Testimony of two witnesses that the residence of the father of an infant sought to be adopted was unknown dispensed -with the statutory requirement that he appear in open court and give consent to the order of adoption.
    5. Adoption — jurisdiction.—-The probate court’s jurisdiction to grant a petition for adoption of an infant does not depend on evidence that the residence of his father .is unknown, nor on the recital thereof in the record.
    6. Adoption — objection to. — Neither -petitioners for adoption nor any one claiming through either of them can object to a judgment granting the petition for want of evidence that the residence of the infant’s father was unknown.
    . Appeal from Lonoke Chancery Court; John E. Martdneau, Chancellor;
    affirmed.
    STATEMENT BY THE COURT.
    This is a collateral attack upon a judgment and order of the Pulaski Probate Court adopting a minor, George Lee Collins, affecting his right as an heir of George and Hattie Collins, by whom he was adopted, to certain lands in Lonoke County, of which she died seized and possessed.
    A baby boy was born on the east side in the city of Little Pock, Pulaski County, on April 4, 1920, and brought by Essie "Wesley, at the age of three months, on July 20,1920, to the office of Mamie A. Jeffries, a probation officer of the juvenile court, whose duty it was to look after neglected, dependent and delinquent children of the county. She received the baby from Essie Wesley, who said she lived next door to where the child was; that its mother died, and was buried the day before in Little Rock; that she had kept the baby all night, and was going to Pine Bluff that day, and desired to get rid of him. She was a stranger to the probation officer, and said she knew nothing about the father, either who he was or where he could be found.
    The probation officer placed the baby temporarily with Hattie and George Collins, near Scotts, in Pulaski County, and they carried the child to their home.
    Testimony of other witnesses showed that George and Hattie Collins lived, in fact, at the time of the order of adoption and ever since, near Scotts, but in Lonoke County. Their petition to the probate court of Pulaski County for the adoption of the baby recited: That they are residents of Pulaski County, Arkansas; desired to adopt a child of six months of age, a resident of Pulaski County, who has no estate, and that the parents of the child are unknown.” Prayed the court “to make an order adopting unto them the said child, to be hereafter known as George Lee Collins, who is to have all the rights and privileges of a natural heir.”
    This petition was signed and verified by the petitioners, and had a notation on the back: “George Lee Collins, adopted to George Collins and wife; filed December 7, 1920. Dan. D. Quinn, county and probate clerk”; and “Petition granted. Lee Miles, Judge, 12/7/1920.”
    The order of adoption recites the presentation to the court of the petition of George and Hattie Collins, showing that they have in their possession a male child of the age of about six months, a resident of Pulaski County, whose present name is unknown to them; who has no estate of any kind; and also that the whereabouts of the parents of the child,, if living, are unknown to them; that they are well able to care for him.
    Further that, on examination of said petition and the testimony of Thomas Fisher, Charles Moyer and Mamie Jeffries, householders of Pulaski County, and disinterested persons, who stated that the residence of the parents of the said child was unknown to them, the court granted the prayer of the petition and made the order.
    The chancery court found that the said minor, George Lee Collins, was duly and in all things legally adopted as the legal son and heir of Hattie Collins of Lonoke County, and, as such, entitled to one-half interest in the estate of the said Hattie Collins, deceased, and decreed accordingly.

      Thos. G. Trimble and Thos. G. Trimble, Jr., for appellant.

      T. E. Helm, for appellee.
   Kirby, J.,

(after stating the facts). Appellant contends that the Pulaski Probate Court was without jurisdiction to make the order of adoption, since the child, as a matter of fact, was living at the time in Lonoke County. The petition, however, states that the child is a resident of Pulaski County, as well as the petitioners who desired his adoption; that his name is unknown, and could not be ascertained, and that his mother was dead, and his father’s whereabouts unknown.

The court found from the testimony of more than two competent witnesses that such was the fact. It was obvious that the name of the child could not be stated in the petition, since no one knew the name of its mother, who was dead, the woman who delivered the baby to the probation officer not disclosing it, and denying that she had any knowledge of the identity of the father, if living. It was not necessary therefore that the name of the child be set out in the petition, which was a sufficient compliance, under the circumstances, with the requirement of the statute. Crawford & Moses’ Digest, §§ 252-256.

Even though it was a fact that the baby had been in the home of the petitioners in Lonoke County when they presented their petition for his adoption, it can make no difference, since he had been delivered to them temporarily by the probation officer of Pulaski County, who was entitled to his custody; and, whether the residence of the child would, in legal contemplation, be that of the probation officer of Pulaski County, which is doubtless true under the circumstances, can make no difference, since the petition itself alleged that the child was a resident of Pulaski County at the time of the adoption, and as recited in the order, which allegation gave said probate court jurisdiction and cannot be disputed aliunde. Avery v. Avery, 160 Ark. 375, 255 S. W. 18.

The testimony of the two witnesses that the residence of the father of the infant was unknown dispensed, of course, with the statutory requirement that he should appear in open court and give consent to the order, and, had there been no such testimony, the jurisdiction of the court did not depend on such evidence nor its recital in the record, and, while the making of the order of adoption without such proof might be error and furnish ground for setting aside the order of adoption on the petition of the child’s father, neither the petitioners on whose petition the order was made nor any one claiming through either of them, as appellant does, would be allowed to object to the judgment on 'that ground. Coleman v. Coleman, 81 Ark. 7, 98 S. W. 733.

No error is found in the record. The judgment is affirmed.


author: Meiiaffy, J.

text:
    Board of Commissioners of Street Improvement District No. 349 v. Little Rock.
    Opinion delivered January 10, 1927.
    1. Municipal corporations — street improvement' — assessment of benefits. — By requiring three assessors to assess benefits from a street improvement, joint action on the part of the three assessors was contemplated, and an assessment was valid only when all three appointees took part in making it.
    2. Municipal corporations — injunction—action of council on assessment. — Where plaintiif seeks a mandatory injunction to compel the city council to confirm an assessment- of benefits made by assessors appointed by the council, plaintiff must show that a valid assessment was made.

      Appeal from Pulaski Chancery Court; John E. Martineau, Chancellor;
    affirmed.

      Melbourne M. Martin, for appellant.

      Lasker S. Ehrman and Pat. L. Robinson, for appellee.
   Meiiaffy, J.

The appellant filed its complaint in the Pulaski Chancery Court, alleging that, on August 29, 1925, there was filed with the city council of the city of Little Bock a petition praying that certain property in the city of Little Bock, Arkansas, be organized and annexed to Street Improvement District No. 349 for the extension of the improvement of said district within the territory proposed to be annexed. That the city council, in compliance with the statute, passed a resolution and published notice of the date for hearing said petition, to determine whether the same contained signatures sufficient to constitute a majority of the assessed valuation within the proposed territory to be annexed. That the council refused to establish said annexation, and that a suit was filed by a property owner in the Pulaski Chancery Court seeking a review of the action of the defendants, and that the chancery court entered a decree for said plaintiff. The decree, among other things, ordered the city council to proceed with the organization of the district by adopting a resolution and passing the ordinance filed with the said city council, and to pass such' ordinances and to take such steps as are necessary to legally organize said territory. That an appeal was taken from the chancery court to this court, and that the decree was affirmed by this court on May 21, 1926.

That thereafter J. A. Brooks, J. B. Goodwin and J. S. Laird were appointed assessors, and took their oaths of office and qualified as assessors, and proceeded with the making of assessments of benefits. It is alleged that said assessment was duly made and lodged with the city clerk of the city of Little Bock, and remained for a period of ten days, in compliance with the statute. It is further alleged that, after the expiration of ten days, but during the period of time that the same was held by the city clerk, a number of protests were filed and appeals taken, and, upon a hearing by the city council, the council referred the protests and appeals to the finance committee with directions to hear said protest and report its action to the council. That the finance committee neglectfully and wantonly failed and refused to make disposition until threatened with citation; that members of said finance committee persuaded two of the board of assessors to resign, and that, when the finance committee reported on October 11, 1926, they reported that they found from the evidence that there was no proper and legal assessment made, and recommended that an assessment be made. It was further alleged that the action of the finance committee and city council nullified the assessment and prayed that the action of the city council be reviewed, that the assessments be confirmed, and a mandatory injunction be issued.

Other parties were made parties defendant on their motion. Defendants filed an answer, denying the allegations of the petition, except they admitted that the protests and appeals were referred to the finance committee, but denied that the members of the finance committee neglectfully and wantonly failed to make disposition of said appeals; denied that they persuaded members of the board of assessors to resign; admitted that they reported to the council that they found, from testimony adduced on numerous hearings, that the assessment was not proper and legal. They denied that the assessments were valid, and denied that they nullified the assessments. Defendants alleged in their answer that, within ten days after assessments were filed, a number of protests were lodged with the city clerk and notice given that appeals were being taken. These matters were then referred to the finance committee. Defendants further stated that plaintiff had a remedy at law, and that the chancery court was without jurisdiction.

The only issue necessary to be determined here is whether the chancery court erred in refusing to issue an order requiring the defendants to proceed with the passage of an ordinance levying assessments as made by tbe board of assessors. Tbe city clerk was called and introduced the ordinance, but about the validity of the ordinance there is no controversy. The assessment was introduced, together with the certificate from the three assessors ; also the notice of filing the assessment, and proof of publication. The city clerk testified that there were a number of protests filed against the assessment of benefits and that they were referred to the finance committee on August 9, 1926. The certificate of the assessors is dated July 23, 1926. The finance committee reported back on October 11,1926.

J. B. Goodwin, one of the assessors, testified that he had nothing to do with the assessment or with the making of the assessment; that Mr. Martin brought it to his house, and he signed it; that that was the only thing he had to do with it; that he never went over the district for the purpose of making the assessment, and that he would not know how to figure the benefits; that he met Mr. Brooks, another assessor, one time in Mr. Martin’s office, but that they had nothing to do about the assessment, and he did not remember meeting the other assessor. That the only thing he knew about the basis upon which the assessments were made was that Mr. Martin told him how the figures were got. The only thing he knew about it was what Mr. Martin told him. “I signed the assessment, but I was told that that was the way it was done, and I stated at the time that I was signing something I did not have anything to do with. ’ ’

J. S. Brooks, another assessor, testified that he did not attempt to act as assessor at airy time or at any place, and that he did not arrive at the amount of benefits, never made a figure of any kind in making the assessments. “I know nothing about the basis upon which the assessment was made. I signed because I just took Mr. Martin’s word. I did not know anything about the land values or anything like that. I signed the statement to the mayor and city council,-but I told Mr. Martin that I would sign it upon his word that everything was all right. I do not know who prepared the statement.”

J. S. Laird, the other assessor, testified that he did not meet with the other two assessors; never met with them and discussed the assessment; that he went over the property twice; that he was called once to meet with the other assessors, but it was impossible for him to meet them at the time; that the other two assessors had already signed the assessment roll before he did; that he made a comparative valuation on the assessment roll, with the location of the lots and their relationship to each other, to determine if it was a just and uniform assessment; that, in his opinion, it was just and uniform. That if it had not been he would not have signed it. That one of the assessors, Mr. Goodwin, tried to get him to resign.

It seems perfectly clear that at least two of the assessors had nothing to do with making the assessment. This court has several times held that a collateral attack cannot be made upon the assessment of benefits unless void on the face of the proceedings. But that is a very different matter from the district itself invoking the jurisdiction of the court to compel action on an assessment claimed to be void. Without deciding whether the chancery court would have jurisdiction to make the order prayed for, we think that, when the plaintiff seeks a mandatory injunction compelling the city council to act on an assessment, he would have to show that there was an assessment made, and it appears from the evidence in this case that the assessment was made by one assessor only, and not by three. It is unnecessary to decide in this case whether they would have to meet as a board and make the assessment, because we have here no assessment made at all except by one assessor. The statute requires the appointment of three electors of the city or town, and says they shall constitute a board of assessment of the benefits. It requires each of them to take the oath of office before entering upon the discharge of his duties, and then provides that they shall at once proceed to inscribe in a book tbe description of tbe property and shall assess the value to accrue to each of said lots, that is, the board of assessors shall assess the value, not one, but all of them. The law also provides for an appeal by a property owner and for a hearing on appeal by the council, and this law w;as followed by property owners and by the city council. By requiring three assessors, the law evidently intends that the assessment shall be made by the three. It contemplates the joint action on the part of the three assessors appointed, and all three assessors must take part in the assessment; and, while it might not réquire the unanimous agreement of the three, we think it would require joint action on the part of the three. Page & Jones , Taxation by Assessment, § 901; Cicero v. Andren, 224 Ill. 617, 79 N. E. 962; Larsen v. Chicago, 192 Ill. 298, 50 N. E. 179; Hinkle v. Mattoon, 170 Ill. 316, 48 N. E. 908.

In this case it appears from the evidence that there was not only no joint action but that two of the members of the board of assessors actually took no part at all and made no effort to assess, and the assessment made was therefore void.

The decree of the chancerv court is affirmed.


author: McCulloch, C. J.

text:
    Smith v. Goldby.
    Opinion delivered January 17, 1927.
    1. Dower — newly acquired estate. — Where a husband died leaving a widow and no children, her dower interest in one-half of her husband’s newly acquired real property vests immediately on his death, under Crawford & Moses’ Dig., § 3536, and, in the absence of assignment by her, will descend to her heirs on her death, while the other half descends to the collateral heirs of the husband, subject to her homestead right.
    2. Descent and distribution — right op surviving wipe. — Where an only child died before the husband, the surviving wife did not, as the child’s heir, inherit the whole of the husband’s land on his death, as there was no title to pass through the child.

      Appeal from Ouachita Chancery Court, Second Division ; George M. LeCroy, Chancellor;
    affirmed.

      Allyn Smith, for appellant.^
   McCulloch, C. J.

J. S. MeCluskey was the owner of the land in controversy, and he died in the year of 1915, leaving surviving his widow, Alpha C. MeCluskey, and his sister, Mary Salino Goldby, as his sole heir at law. There had been a child, the issue of the intermarriage of J. S. MeCluskey and Alpha C, MeCluskey, but the. child died before the death of its father, and there were no lineal descendants of J. S. MeCluskey living at the time of his death. The land constituted the homestead of J. S. MeCluskey, and it was occupied by his widow as a homestead until the time of her death, which occurred in the year 1923. There was never an assignment of dower during the lifetime of the widow. After her death, this action was instituted 'by the appellants, who were the sisters of Alpha C. MeCluskey, against the appellee, Mary Salino Goldby, to recover, as such heirs, the whole of the land left by J. S. MeCluskey. The contention of appellant is that the widow inherited the land from her deceased husband, and that the inheritance inured to the collateral heirs of the widow upon her death.

It seems to have been conceded below that the land in controversy was a new acquisition by J. S. MeCluskey, and not an ancestral estate, that it constituted his homestead, and that the widow was entitled to hold the same for life as the homestead, and was also entitled to an undivided one-half of the land in fee simple as dower, pursuant to the statute (§ 3536, Crawford & Moses’ Digest), and that this interest passed to the collateral heirs of the widow upon her death.

The section of the statute quoted above provides, in substance, that, if a husband dies leaving a widow and no children, the widow shall, as against collateral heirs, be endowed of one-half in fee simple of real estate which was a new acquisition and not an ancestral estate. This court has held that the interest of the widow, under the dower statute, vests in her immediately on the death of the husband, and will, without assignment, descend to her heirs. Barton v. Wilson, 116 Ark. 400, 172 S. W. 1032; Arbaugh v. West, 127 Ark. 98, 192 S. W. 171; Maxwell v. Awtrey, 151 Ark. 85, 235 S. W. 384.

The court below, in its decree, awarded one-half of the land to the appellants as collateral heirs of the widow, but overruled the prayer for recovery of the other undivided half. The ruling of the court was correct, for the widow took only an undivided one-half as dower. She took nothing by inheritance, the other one-half descending to the collateral heirs of the husband, subject to the widow’s homestead rights.

Counsel for appellants claim that the whole of the land was inherited by the widow under our statutes of descent and distribution (Crawford & Moses’ Digest, 3471 et seq). This claim is based upon the theory that the inheritance came to the widow through the deceased child, but the answer is that the child, having died before either of the parents, could not inherit, therefore there was no title to pass through the child to the widow.-

The decision of the trial court was correct, and must be affirmed. It is so ordered.


author: Wood, J.

text:
    J. H. Askew & Company v. Lindsey.
    Opinion delivered January 17, 1927.
    Landlord and tenant — when relation does not exist. — To justify the recovery of rents and the enforcement of a lien therefor, the relation of landlord and tenant must exist, and ' that relation depends upon contract, express or implied; but there is no implied promise on the part of a judgment debtor, whose land has been sold under execution, to hold as tenant of the purchaser.
    Appeal from Columbia Circuit Court; L. 8. Britt, Judge;
    affirmed.

      Wade Kitchens, for appellant.

      W. D. McKay, for appellee.
   Wood, J.

On October 16, 1924, J. H. Askew & Company had a summons and attachment issued out of a justice court against Sam Lindsey and Mrs. J. D. Moore. The writ of attachment commanded the constable to attach and safely keep the crop of Sam Lindsey and Mrs. Moore, produced on the farm of the plaintiff, J. H. Askew & Company, in Columbia County, during the year 1924, to satisfy the debt of the defendants to the plaintiff in the sum of $100 for rent for the year 1924. The summons directed the defendant to appear on October 30, 1924, to answer the claim of the plaintiff. The plaintiff filed its complaint before the justice court on the 30th of October, 1924, alleging that the defendants were indebted to the plaintiff in the sum of $100 rent for land during the year 1924, and that the plaintiff had a lien on the crop produced on the land for payment of such rent. The trial before the justice court resulted in a judgment in favor of the defendant. There was a trial before a jury in the circuit court, and the following facts were developed from the testimony.

On the 11th of June, 1924, the chancery court entered a decree foreclosing a deed of trust executed by J. D. Bryan and wife on certain land in Columbia County, Arkansas, and directed the lands be sold on July 19, 1924. The lands were sold by the commissioner on that date, and were purchased by the appellant. The commissioner executed his deed to the appellant and made his report of the sale to the court on October 27, 1924. The report was approved and the deed confirmed and approved on that day.

The appellee, Lindsey, rented the land from J. D, Bryan prior to Christmas, 1923, for the year-1924, and made a crop on the land that year. The appellee was present at the sale of the land on July 19, 1924. J. E. Askew testified that he informed the appellee on the day of the sale that the appellant had bought the land and would expect the appellee to pay him rent for the year 1924, the rent paid to be a third of the corn and a fourth of the cotton produced on the land, a customary rent in that section of the country. The appellee, in his testimony, denied that appellant had notified, him that he would be expected to pay the rent to appellant. He testified that he was at the sale, but did not talk with Askew. He paid the rent for the year 1924 to Mrs. J. D. Bryan, from whom he rented the land and with whom he renewed the contract, after Bryan’s death, for the rent of the land. He was informed that Askew had bought the land, but witness did not know whether he had bought it or not. Mrs. Bryan was living on the land, and witness moved into the house with her. The crop which had been attached by the appellants was raised on the place. At the close of the above testimony the appellant moved the court for a peremptory instruction, which the court refused. The appellee moved for a peremptory instruction, which was granted. The jury returned a verdict as directed in favor of the appellee. From a judgment in favor of the appellee is this appeal.

The court ruled correctly in directing a verdict in favor of the appellee, because the undisputed testimony shows that the relation of landlord and tenant did not exist between the appellant and the appellee for the year 1924. There was no contract between the appellant and the appellee for the rent of the land which the appellant claims for the year 1924.

In Tucker v. Byers, 57 Ark. 215, it is said: “To justify the recovery of rents, the relation of landlord and tenant must exist,.and that relation depends upon contract, express or implied. But there is no implied promise on the part of a judgment debtor, whose land has been sold under execution, to hold as a tenant of the purchaser.” See also Love v. Cohn, 93 Ark. 215.

The .judgment in favor of the appellee is therefore correct, and it is affirmed.


text:
    Clark v. Lewis.
    Opinion delivered January 17, 1927.
    1. Partnership — distinguished from trust. — In a suit between persons who engaged in an oil and gas enterprise, in which the title was taken in the name of one of them as “trustee,” the pleadings alone held insufficient to show a trust relationship between the parties rather than a partnership relation.
    2. Trust — when not created. — The fact that an oil and gas lease was taken in the name of one of the parties engaging in the enterprise as trustee did not constitute him a trustee of an express trust, rather than a partner.
    3. Partnership — when relation created. — Parties to an oil and gas enterprise who joined their money in definite ratios, with mutual agreement to share in the gain and loss in proportion to contribution, were partners.
    Appeal from Ouachita Chancery Court, Second Division; George M. LeCroy, Chancellor;
    affirmed.

      T.- J. Gaughan, J. T. Sifford, J. E. Gaughan and Elbert Godioin, for appellant.

      Thos. W. Hardy and Powell, Smead S Knox, for appellee.
   Wood, J.

In August, 1923, the plaintiff met the defendant, Dr. Clark, and Judge Gould, and the three of them inspected a well which had just been drilled in and known as the Magnus well. G. M. Martin was the owner of a lease which was an offset to the lease on which the well was located, and the pláintiff, having information that Martin would be willing to sell the lease for a consideration payable entirely out of oil, advised Dr. Clark and Judge Gould of this fact, and, after some discussion, it was agreed that they would acquire the lease and undertake its development. The Magnus well was a rather large well, and the parties believed that the first well on their property would be at least a four-hundred-barrel well, which, as they figured it, -Would be sufficient to insure sufficient money to carry on the further development of the lease. The most serious problem confronting them was the matter of financing the drilling of the first well, which, according to the then prevailing prices, wouid cost $10,000. It was finally decided that Dr. Clark wonld contribute $5,000, and would own a half interest in the lease, that Judge Gould, or rather his wife, Beulah Gould, would contribute $4,000, and would own a four-tenths interest in the lease, and that the plaintiff, Lewis, would contribute $1,000 and would own a one-tenth interest in the lease. The amounts were paid into the fund, and the lease acquired in the name of Dr. O. W. Clark, trustee. No declaration of trust or other writing evidencing the trust was executed, and the rights and duties of the parties were not defined. It was agreed that Mr. Lewis, who was an experienced oil operator, would operate the lease, and it seems that he employed all the labor, bought the necessary material, and was in full charge of the actual operations. Dr. Clark seemed to hold the purse, strings, and all invoices for material and possibly statements of account for labor were sent to him, likewise the payments received from the pipe-line companies were made to him, and he handled all the receipts and disbursements for the enterprise. Just what duties Judge Gould, as the agent of his wife, performed, is not clear. It is admitted that there was no agreement that Dr. Clark would receive any salary, but it is undisputed that Lewis should receive $200 per month for superintending the lease. The evidence shows that this amount was meager and far below the customary salary paid for such work in the field, and Mr. Lewis explains this by saying that it was understood that, in case more than $10,000 was needed, Dr. Clark and Mrs. Gould would advance his portion and charge him no interest.

When, after several months of operation, Lewis could obtain no statement from Clark, he brought this suit for an accounting. He alleged the respective interests of the parties, and alleged that they were to share in all profits and all losses in proportion to their interest. This was admitted by the answer. Plaintiff prayed for the appointment of a master to- state an account, and the defendants -consented to such an appointment. Dr. Clark presented an account, on which he made no claim for salary, for traveling expenses, or for interest on money which he claimed to have advanced to the enterprise.

Before the close of the taking of the testimony in the case before the master, Dr. Clark, at the suggestion of his counsel, filed a claim for his services and interest on money he. had advanced, and for his expenses. During the taking of his testimony he and his counsel assumed that the relation he sustained toward those' associated with him in the development of the lease was that of trustee. This is shown by the questions asked by his counsel and answered by him.

The master filed a report, too voluminous to set forth, in which he states that the testimony shows that O. W. Clark was trustee for himself and his associates in owning and operating the lease. Exceptions were filed by both the plaintiff and the defendant to the master’s report, and the court held that the master had erred in stating the account on the theory that the subject-matter of the cause was a trust estate, and directed the master to restate the account between the parties, basing the same on the theory that the relation existing between them was that of partners and not that of a trust estate. The final decree recites as follows: “That the plaintiff, J. I. Lewis, do have and recover of and from O. W. Clark, trustee, and Mrs. Beulah Gould an undivided one-tenth interest in and to all of the net profits derived from the operation and sale of the oil and gas lease covering the following described land, to-wit: The west half of the southeast quarter of section 24, township 15 south, range 17 west, lying south and west of the Missouri Pacific Railroad, in Ouachita County, Arkansas, in keeping with the statement and finding of the amended and substituted report of the master heretofore filed in accordance with the directions of the court heretofore made; that the plaintiff do have and recover of and from said defendants all his costs in and about this cause laid out and expended. To all of which the defendants except, and ask that their exceptions be noted of record, which is accordingly done. Whereupon said defendants pray an appeal to the Supreme Court of Arkansas, which is granted.”

The above are the facts as stated by counsel for the plaintiff. Counsel for the defendants set forth the complaint and answer, the report of the master and the exceptions thereto filed by the plaintiff and the defendant, and state: “We deem it unnecessary to abstract the testimony of the various witnesses testifying before the master, for the reason that practically all of said testimony was directed toward the establishment or dis-allowance or some identification of some item of expense incurred in the operation of the property in question. Inasmuch as the findings of fact by the master are sustained in most instances 'by a preponderance of the evidence, we shall merely set out the report of the master, and not incumber the brief with an extended abstract of the testimony of the various witnesses.”

1. The appellant concedes that the only issue is, what was the relation existing between the appellant and the appellees with reference to the ownership and operation of the oil and gas lease covering the property described in the complaint? The appellant contends that the property described in the lease was a trust estate, of which he was trustee, and of which appellee was a beneficiary, and the appellee contends that the relationship between the parties was that of partners. The facts as set forth by counsel for the appellee aré correct, and the finding of the court that these facts established a partnership between the parties in interest is not against a clear preponderance of the evidence. The appellee alleged in his complaint, in substance, that the appellant trustee had purchased the lease of the lands in controversy, and that, after such purchase, he employed appellee to superintend the drilling operations, and agreed to pay him for his services in the sum of $200 per month and his expenses. The appellee also alleged that he purchased an undivided one-tenth interest iri the oil and gas lease and paid the appellant the sum of $1,000 therefor in cash, and that appellee was to share in all profits and losses in proportion to the amount expended on the lease fay the appellant.

The appellant, in his answer, admitted these allegations of the complaint, and alleged that “he holds the legal title to said lease in trust; that, as such trustee, he holds the same for the appellee a one-tenth interest, for himself a five-tenths interest, and for James Gould a four-tenths interest, after all expenses and obligations of the trust are paid and discharged.” Appellant contends that these allegations of the pleadings show that the appellant was a trustee of the appellee, and not a partner, and that the parties are bound by the allegations of their pleadings, since neither party asked that the same be amended. But it cannot be determined merely from the allegations of the pleadings whether the relationship between the appellant and the appellee was that of a common-law, or “Massachusetts,” trust, or whether it was a partnership. From the allegations of the pleadings alone, the theory that the relationship between the parties was that of a partnership can be as plausibly maintained as that the relation was that of a common law, or “Massachusetts,” trust, such as was declared by us to exist in Betts v. Hackathorne, 159 Ark. 622, 252 S. W. 602. Learned counsel for the appellant contend that the doctrine of that case applies to the- pleadings and testimony in this record and establishes the relation between the parties in the case at bar as that of a common-law, or pure business," trust, commonly known as a Massachusetts trust, rather than the relation of a partnership. In that case we said: ‘ ‘ The only right accorded to holders of certificates of stock is to share in profits or dividends. They are in the attitude of one of lending money to a partnership for a share of the profits in lieu of interest. A reading- of the trust instrument in its entirety has convinced us that the shareholders are not associated with each other and the trustees for the purpose of conducting a business in person or through, agents for a profit. There is nothing in the instrument showing an intention on the part of the shareholders to enter into a copartnership, or an intention on the part of the trustees to cooperate with the shareholders in the conduct of the business. The test, after all, in determining whether a business is a partnership, is to ascertain whether the parties intended one.” In the case of Haskell v. Patterson, 165 Ark. 65, at page 90, 262 S. W. 1002, in construing an instrument of writing, we said: “It is certain that this syndicate is not a pure common-law trust, as was created by the instrument in Betts v. Hackathorne, 159 Ark. 621-625, 252 S. W. 602. The syndicate created by the instrument under review combines some of the features of a partnership with those of a pure trust, but the predominant features are those of a partnership rather than a pure trust, because the interest-holders have the power to amend the declaration of trust, to remove the trustees without cause and substitute new ones, to continue or to terminate the trust, to require of the trustees a statement of their accounts in dealing with the syndicate and its assets, and to transact any other business pertaining to the properties of the syndicate specified in the call for their meeting. In other words, here the beneficiaries or interest-holders are the masters of the trust, rather than the trustees. Where such is the case the association or syndicate should be classified as a partnership, rather than a pure trust.”

Counsel for appellant contend that, under the doctrine announced in Haskell v. Patterson, above, neither the appellee nor the Goulds had any power or authority to change or to alter the agreement of Clark, the trustee, with reference to his authority; that they had no power to remove him, nor to substitute another in his place as trustee; that they had no power to continue or to terminate the trust; that neither the appellee nor the Goulds had any power or authority to require Clark, as trustee, to make any statement of his accounts in dealing with the trust estate and its assets; that neither appellee nor the Goulds had any power to transact any business whatever pertaining to the properties held by Clark as trustee. In the above cases the court was construing written instruments purporting to be declarations of trust, and, under the facts developed in those cases, the doctrine above quoted was announced. There was no instrument in the case at bar purporting to create a trust. True, the deed was taken in the name of Clark as trustee, but there was no instrument defining and declaring what his rights and powers, his duties and liabilities, should be. The mere fact that the lease was taken in his name as trustee did not constitute him the trustee of a pure business trust vested with the powers, responsibilities and liabilities of such trustee. In 20 R. C. L., p. 859, § 66, it is said: “Where real éstate is acquired in a partnership business, and for. its purposes, it is partnership assets, though the legal title be taken in the name of one of the partners. Whether real estate standing in the name of a member of a partnership is, as between the partners, to be treated as partnership property must be determined by ascertaining, from their conduct and course of dealing, their understanding and intention. Here, as in other cases, the intention may be shown by parol, in the absence of written evidence, and where the partners intend that the property shall be partnership assets, the fact that the title is taken in the name of one of the partners will not affect the question. Real estate is not necessarily the individual property of the members of the firm because the title is held by one member in his individual name, and, if several persons purchase real estate as a speculation, they may become partners in respect to it, and the mere fact that the title is taken in the name of one of them, although he executes a mortgage for the unpaid purchase money, does not change the relationship of the parties or the ownership of the property.”

Under the oral testimony in this case the trial court was justified in finding that, although the lease was taken in the name of the appellant as trustee, nevertheless it was the intention of the appellant and the appellee and the Goulds, in the development and operation of the lease, to hold the property as partnership assets. The proof shows that the appellee and the Goulds did transact business pertaining to the operation and development of the lease; that the appellee bought materials and hired labor and was in full charge of the operations, and James Gould, acting for his wife, counseled with Dr. Clark concerning the management, control and disposition of the property. We believe the preponderance of the testimony warrants the conclusion that these parties joined together their money, Dr. Clark contributing one-half, Mrs. Gould two-fifths, and the appellee one-tenth, with the mutual understanding that they should sh_are in the gain and the loss in the purchase and development of the gas and oil lease in the proportion each had contributed. This, under our cases defining partnership, would constitute them partners. In Stevens v. Neely, 161 Ark. 114, 118, 225 S. W. 562, quoting from Howell v. Harvey, 5 Ark. 270, we said: “A partnership, in its most significant and extended sense, is a voluntary contract of two or more persons for joining together their money, goods, labor and skill, or either of them, upon an agreement that the gain or loss shall be divided proportionately between them, and having for its object the advancement and protection of fair and open trade. . In later cases this court has said that a partnership may be defined as the relation existing between two or more persons who have agreed to carry on a business together, and to share the profits thereof as the joint owners of the business. This court has also held that participating in the profits of a partnership is of itself cogent proof that the person who does so is a partner, and that, if unexplained, this may 'be conclusive proof. Johnson v. Rothschilds, 63 Ark. 518; Herman Kahn Co. v. Bowden, 80 Ark. 23, and cases cited; and Mehaffy v. Wilson, 138 Ark. 28.” See also 20 R. C. L. p. 800, § 2.

The decree is correct, and it is therefore affirmed.


text:
    Security Finance Company v. Ozark Hardware Company.
    Opinion delivered January 17, 1927.
    1. Appeal and error — refusal of instructions — setting out entire CHARGE. — It cannot be shown that the error of refusing instructions requested was ground for reversal where all of the court’s charge is not presented in appellant’s abstract or brief.
    2. Trial — instruction ignoring issues. — In an action on notes, an instruction ignoring issues raised as to fraud in procuring the notes, and as to whether the plaintiff-assignee had notice thereof, held defective.
    3. Appeal and error — refusal of instruction — harmless error.— Modification of wholly defective prayers for instruction, though inaccurate, gave no ground for complaint by the party offering such instructions, where the modifications did not render the instructions inherently erroneous.
    •4. Trial — abstract instruction. — An instruction which did not attempt to apply abstract principles of law stated therein to the facts of the case was properly refused.
    5. Trial — argumentative instruction. — In an action on notes by an assignee, an instruction that the mere fact that plaintiff had to sue on other notes purchased from the same assignor did not constitute notice of defense to notes sued on was properly refused, being argumentative.
    6. Bills and notes — innocent purchaser — evidence.—In an action on notes, evidence held to sustain finding that plaintiff purchased the notes with notice that defendant had a good defense.
    Appeal from Carroll Circuit Court, Eastern District; W. A. Dickson, Judge;
    affirmed.

      Joe T. McKinney, for appellant.

      ■Festus 0. Butt, for appellee.
   Wood, J.

This action was brought by-the appellant against the appellee in the justice court to recover judgment on six separate promissory notes, dated April 22,1924. Five of the notes were for the sum of $87 each and one for the sum of $84.26. The notes were executed by the appellant in favor of the Brenard Manufacturing Company. They were given in payment for certain graphophones which, the appellant claims, were sold and delivered to the appellee by that company. The appellant alleged that the notes were later assigned to it by the Brenard Manufacturing Company for value before maturity, and that it was therefore an innocent purchaser of the notes, and entitled to recover judgment thereon in the aggregate sum of the principal and interest shown to be due on the notes, for which it prayed judgment.

The appellee claimed that it had a good defense to the notes. There was no formal answer filed in either justice or circuit court, but the testimony developed on the trial in the circuit court shows that the appellee predicated its defense on the ground that the notes were executed by the appellee’s secretary and treasurer without authority, and through fraud perpetrated by the Brenard Manufacturing Company on him, and that the appellant was not an innocent purchaser for value of the notes. The testimony on behalf of the appellant tended to prove that the Brenard Manufacturing Company, hereafter called the Brenard Company, was a- partnership, doing business in Iowa City, Iowa. On April 24, 1924, the appellee signed a printed order, dated at Berry-ville, Arkansas, which came into the hands of the Brenard Company through the mail on April 25, 1924. *The Brenard Company accepted the order. The order was for talking machines, and the company inspected it and approved it, and wrote the appellee a letter to that effect, inclosing an exact copy of appellee’s order and the notes which it had signed. The records and printed matter ■ called for in the order were delivered to the American Bailway Express Company at Iowa City, Iowa, April 30, 1924, and consigned to the appellee at Berryville, • Arkansas. The order was sent in to the Brenard Company by its solicitor, W. E. Howe, a traveling salesman. He was employed by the company to call upon merchants to take orders for the company’s line of goods on blanks furnished him for that purpose. He was to send the orders to the Brenard Company at Iowa City, Iowa, for approval, as soon as he procured them. He was instructed by the company not to make any reference or statement other than was contained in the order blank. The Brenard Company inspected the orders as they came in. and, when found satisfactory, it approved them. The Brenard Company then paid the salesman his commission. When the order was received by the company, there came with it a report of the salesman, in which he said he made no verbal or written agreement in securing the order other than was shown in the original order.

The notes in controversy were executed at the time the order was executed, and were given in settlement of the terms of the order. The Brenard Company detached the notes, as the order provides, and sold them to the appellant for cash, May ”31, 1924. The notes were dated April 22, 1924, and were due two, three, four, five and six months after date. None of the notes were due when they were sold to the appellant. The Brenard Company, owning the notes, had no interest in the appellant company which purchased the notes. There was no connection, either direct or indirect, between them. The appellant purchased the notes of the Brenard Company on May 31, 1924, in the total sum of $3,003.52, and gave the Brenard Company its check for same in the*sum of $2,600.

There was testimony by the witnesses for the appellant to the effect that the general attorney for the appellant is also the attorney for the Brenard Company, and had his office in the same building with the latter company. The Brenard Company began selling its commercial paper to appellant on August 31, 1923. Up to June 15, 1925, the appellant had purchased of the Brenard Company commercial paper of the total value of forty or fifty thousand dollars. It had purchased several thousand dollars’ worth of such paper August 31, 1923, and May 31,1924. The paper so sold and purchased was similar to the paper in controversy. All these notes had been detached from the contracts before being offered to the appellant. The notes had perforated edges, showing that they had been detached from contracts. On the notes purchased from the Brenard Company between August 31, 1923, and May 31, 1924, the appellant had to bring a number of suits. Tbe witness stated- that be bad been a witness for tbe appellant a dozen times on paper wbicb bis firm bad sold to tbe appellant prior to May 31, 1924. The notes on wbicb these actions were brought were given to the Brenard Company for phonographs on agency contracts similar to that in the present case. Tbe notes sold appellant were all taken from tbe Brenard Company’s customers, and were all of tbe same general form, but for varying amounts. Tbe notes involved bad been detached from contracts similar to tbe notes and contracts tbe Brenard Company used in dealing with tbe appellee. Tbe president of the appellant might have known that tbe notes sued on bad been detached from a contract. There was no secret about it. The notes were perforated at tbe ends and sides, showing that they bad been detached from something. Tbe president of tbe appellant, in bis testimony, corroborated tbe testimony of tbe manager of tbe Brenard Company. Tbe appellee bad to sue tbe Brenard Company twenty or thirty times on notes purchased of them. Some of tbe suits were on paper bought from tbe Brenard Company prior to May 31, 1924. Those actions were on notes similar in size, design and printed matter to those in controversy. Witness knew tbe notes bad been detached from an order, contract, or other paper; witness knew, when he purchased the notes in controversy, that tbe Brenard Company was selling phonographs under some agency contract and taking customers’ notes therefor. After buying tbe notes in controversy, appellant did not correspond with tbe appellee about collecting them. Appellant did not investigate appellee’s financial.standing; supposed it was good.

Tbe above is substantially tbe testimony of appellant’s own witnesses.

According to tbe testimony of tbe secretary of appellee, a representative of tbe Brenard Company approached witness and represented that be bad phonographs for sale with a radio attachment. Appellee is a corporation, and it was not handling phonographs. Witness had no authority to purchase phonographs. The representative of the Brenard Company stated that he would not expect the appellee- to sell them; he only wished to store them with the appellee, with the privilege of demonstrating them; he stated that he would sell them himself, and would refund to appellee the freight it paid on the phonographs. Witness signed one Mg piece of paper. The Brenard agent represented that it was an acceptance. It was not in the form of notes as they are now. When the shipment of tailing machines arrived, the appellee, to save storage charges, let them be brought over and stored in appellee’s warehouse, supposing that the Brenard Company’s agent would soon show up to begin selling them. Appellee had never uncrated any of them; it did not know what they really were; sent to the Brenard Company a bill for the freight, and they replied that appellee had bought the shipment and had signed notes for them, which would soon be due. Witness wrote, denying that appellee owed the Brenard Company any notes, and stating that appellee would ship the stuff back. The Brenard Company shortly wrote, saying it had sold the notes to some one else, and refused to receive the stuff back. The Brenard Company wrote, in one of its letters, that the shipment was phonographs only, and did not have radio attachments. Appellee had never opened the shipment, and did not try to sell the machines. Two other witnesses for the appellee corroborated the testimony of the above witness.

The appellant presented the following prayer for instruction, which the court refused: “No. 3. You are instructed that, where there is a valid written assignment of a note in a suit by the assignee, the maker of the note cannot question the amount of consideration paid for the assignment; that a bona fide holder of a note is not affected by want of consideration between the original parties.”

Appellant requested prayer for instruction No. 5, as follows: “You are instructed that, even though you may find from the evidence that the defendant, Ozark Hardware Company, had a defense as to the Brenard Manufacturing Company, such defense would not affect the plaintiff’s right to recover in this case, unless it be shown by proof that the plaintiff, Security Finance Company, knew (or had reason to know) of said defense at the time said notes were assigned to it, and the burden of proof in showing that said plaintiff has such knowledge of equities or defenses is upon the defendant in this action.”

The trial court refused to grant prayer for instruction No. 5, but modified same by inserting the words in parentheses.

The appellant also presented prayer for instruction No. 6, which the court refused, but modified, and gave the same as modified by adding the words in parentheses. “No 6. You are further instructed that a bona fide purchaser of a note is one who takes the same in due course of business, before maturity, for a valuable consideration, and without knowing (or having reason to know) of any equities or defenses. If you find from the evidence in this action that the plaintiff, the Security Finance Company, is a bona fide holder of said notes herein sued on, then, in that event, it is your duty to find for the plaintiff in this action.”

Appellant requested prayer for instruction No. 7, as follows, which the court refused: “You are further instructed that the mere fact that the plaintiff in this action may have had to sue on other notes heretofore bought from the Brenard Manufacturing Company does not constitute notice of a defense to the notes herein sued on.”

Counsel for appellant, in his brief, complains of the ruling of the court in refusing appellant’s prayers for instructions numbered 3 and 7. He also complains that the court erred in not granting his prayers for instructions numbered 5 and 6 as asked, and in modifying and giving the prayers as modified. Counsel for appellee, in his brief, calls attention to the fact that counsel for appellant has not brought into his abstract and brief all of the instructions that were given by the trial court. Appellant’s counsel sets out certain of the instructions by number and comments thereon. These numbers show that the court had given other instructions in the case.

1. We find no reversible error in the rulings of the trial court. Since the appellant’s counsel has not presented in his abstract or brief all of the instructions that were given by the court, it is impossible for us to determine whether there was any reversible error in the rulings of the court in granting and refusing’ prayers by appellant for instructions numbered 3 and 7, and also in the granting of appellee’s prayer number 3. For aught we know, the instructions given by the court which are not set out may have presented, as a whole, a correct charge to the .jury applicable to the issues raised and the proof in the case, and may have cured all the alleged errors in the rulings of the court of which counsel for appellant complain. Chicago Mill S Lbr. Co. v. Cooper, 90 Ark. 326-335, 119 S. W. 672. Moreover, we have examined appellant’s prayers for instructions numbered 5 and 6. These prayers as originally offered were wholly defective, in that they completely ignored the issue of fraud, and all the testimony adduced by the appellee tending to prove that appellant had notice that the paper purchased by it of the Brenard Company was not issued bona fide and that appellee had a good defense thereto. The court, for this reason, might have rejected these prayers outright. The court instead attempted to modify same to embrace this defense. Even though its modification may have been inaccurate, the appellant is in no attitude to complain of the court’s ruling, because the prayers offered by it were erroneous, and the modification by the court did not render the prayers wholly and inherently erroneous.

Appellant’s prayer for instruction 3 did not attempt to apply the abstract principle of law stated therein to the facts which the testimony tended to prove, and the court, for this reason, did not err in refusing it. Appellant’s prayer for instruction number 7 was wholly argumentative, and was therefore properly rejected. There was no specific objection by appellant to any of the prayers.

The .jury were warranted in finding from the testimony of the appellee that appellant purchased the notes with notice that appellee had a good defense thereto, and that appellant was nót therefore an- innocent purchaser thereof. The testimony adduced tending to prove this is fully set forth supra, and it could serve no useful purpose' to comment upon it.

The judgment is correct, and it is affirmed.


author: Hart, J.,

text:
    Bonner v. Stroud Brothers' Gin.
    Opinion delivered January 17, 1927.
    1. Mortgages — construction—what law governs. — In construing and determining the priority of mortgages covering cotton to he grown in another State, where the contracts were to be- performed, the courts must be governed by the laws of that State.
    2. Acknowledgment — sufficiency.—A certificate of acknowledgment of a mortgage held valid under the laws of Oklahoma.
    3. Mortgages — sufficiency of description. — Crop mortgages describing the crop as so many acres of cotton to be planted and grown by the mortgagor on a named person’s land “in Poteau bottom in Leflore County, Oklahoma,” held not void for uncertainty of description.
    4. Mortgages — certainty of description. — Evidence that a mortgagor grew only 15 acres of cotton on a certain farm held to render certain a description in one mortgage as the crop grown on 30 acres of land and in another as the crop grown on 15 acres.
    5. Mortgages — priority.—A junior mortgagee is not entitled to judgment against a senior mortgagee for conversion of the mortgaged property where it was not sufficient to pay the senior mortgages.
    Appeal from Sebastian Circuit Court, Fort Smith District; John E. Tatum, Judge;
    affirmed.
    statement oe facts.
    This is an action by Joe Bonner against the Stroud Bros. Gin, a partnership, and Mamie Cleaver, to recover $161.14 for the conversion of seed cotton claimed by the plaintiff. The answer justified the taking and converting of the seed cotton under two chattel mortgages executed by the person who planted and grew the cotton, duly transferred to Mamie Cleaver. The seed cotton in controversy was grown on the Mamie Cleaver farm, in LeFlore County, Oklahoma, during the year 1924.
    The plaintiff introduced in evidence a chattel mortgage executed to him on the 25th day of May, 1924. The mortgage was duly acknowledged and filed for record in LeFlore County, Oklahoma. The mortgage was given to secure an indebtedness of $250 owed by Bud Hill to Joe Bonner. The property described in the mortgage was two horses, some plow tools, “and my entire crop, consisting of 15 acres of growing cotton, no acres of growing corn, to be planted and grown on Mamie Cleaver farm in said LeFlore County, State of Oklahoma, about 4 miles east from Peno, LeFlore County, Oklahoma, during the year 1924.” Bud Hill failed to pay any part of the mortgage indebtedness. .
    Mamie Cleaver claimed the seed cotton in controversy under two chattel mortgages executed by Jefferson Hill to the Williams Horse and Mule Company, which were transferred to her. On the 24th day of December, 1923, Jefferson Hill executed a chattel mortgage on a bay mare mule ‘ ‘ and all of my, or our, interest in the following described crops planted and grown by me, or us, by tenants, lessees and employees: 30 acres cotton;............ acres corn; .....,...... acres potatoes; ............acres ............ on the following described lands, to-wit: On Mamie Cleaver’s land near Poteau Bridge, 1 mile southwest Fort Smith, in Poteau Bottom, section............, township............, range........., State of Oklahoma, 1/4 rent; said property now being within the county of LeFlore, State of Oklahoma.”
    The mortgage was duly signed by Jefferson Hill, and the acknowledgment of it reads as follows:
    “Jefferson Hill, being duly sworn according to law, says that he is the sole and exclusive owner of all the property mentioned and described in tbe foregoing cbat-' tel mortgage; that there are no chattel mortgages or liens of any ldnd whatsoever on any part of said property; and that each and every representation in the foregoing mortgage is true, and has been made for the purpose of securing a loan of money on said property; said loan being based upon said representations.
    [Signed] “Jefferson Hill.
    “Subscribed and sworn to before me this 24th day of Dec. 1923. Kate Bell, notary public.
    “My commission expires Feb. 15, 1925.”
    This mortgage was given to secure a note of even date with the mortgage for $193.
    On the 13th day of February, 1924, Jeff Hill executed a mortgage to the Williams Horse & Mule Company on certain live stock and 15 acres of cotton to be planted and grown by him on Mrs. Mamie Cleaver’s farm, in Poteau Bottom, LeFlore County, Oklahoma. This mortgage was given to secure an indebtedness of $50, and no part of the mortgage debt has been paid. The mortgage was signed by Jeff Hill, and the acknowledgment to it is as follows
    “........................being first duly sworn according to law, says that he is the sole and exclusive owner of all the property mentioned and described in the foregoing chattel mortgage; that there are no chattel mortgages or liens of any kind whatsoever on any part of said property ; and that each and every representation in the foregoing mortgage is true, and has been made for the purpose of securing a loan of money on said property; said loan heing based upon said representation.
    “ [Signed].........................................
    “Subscribed and sworn to before me this 13th day of February, 1924. [Seal] Nina Garmon, notary public.
    “My commission expires May 5, 1925.”
    According to the testimony of Mrs. Mamie Cleaver, Bud Hill, Jeff Hill and Jefferson Hill were the same person, and, during the year 1924, raised a crop of cotton on her farm in .LeFlore County, Oklahoma. Hill planted about 40 acres of cotton, but most of it grew up in weeds and bushes, and some of it got under water. Hill became disheartened, and did not work more than 15 acres of the crop planted by him. He raised only two bales and a remnant of 300 ponds. After paying the expenses of picking, Mamie Cleaver got in all $161.14 for the cotton raised by Hill. Mrs. Cleaver gave the Williams Horse & Mule Company $225 for the transfer of the two mortgages to her.
    The jury returned a verdict for'the defendants, and the plaintiff has duly prosecuted an appeal to this court.

      John P. Roberts, for appellant.

      W. L. Curtis, for appellee.
   Hart, J.,

(after stating the facts). At the outset it may be stated that all the mortgages show that the cotton was to be planted and grown in the State of Oklahoma, and, by their terms, show that the contracts which they evidence were to be performed there. Hence in construing the mortgages and in determining their priority we must be governed by the laws of the State of Oklahoma. Tallmam v. Union Loan & Trust Co., 161 Ark. 614, 256 S. W. 379; Guardian Life Insurance Co. v. Dixon, 152 Ark. 597, 240 S. W. 25; Wilson v. Todhunter, 137 Ark. 80, 207 S. W. 221; and Nelson v. Forbes & Sons, 164 Ark. 460, 261 S, W. 910.

The first reliance by counsel for the plaintiff for a reversal of the judgment is that, although the two mortgages transferred to Mamie Cleaver were executed before the mortgage on the same property to the plaintiff Bonner, the acknowledgments to these two .mortgages were so defective as to render them invalid as far as the rights of third persons are concerned. The acknowledgments to the two mortgages given by Hill to the Williams Horse & Mule Company and transferred by it to Mamie Cleaver are set out in our statement of facts, and need not be repeated here. A reading of the acknowledgments copied in our statement of facts will show that they are valid under the laws of Oklahoma. The body of each mortgage is in the usual form, reciting that it

is a mortgage, and is signed 'by the mortgagor. It is true that the certificate of acknowledgment is in the form of an affidavit, but the signature of the mortgagor to the mortgage is identified, and the acknowledgment to each mortgage shows that Hill stated that he was the sole and exclusive owner of all the property described in the chattel mortgage, and that every representation in the mortgage was true, and that the mortgage was executed for the purpose of securing a loan of money on the property. An acknowledgment in all essential respects the same as the one in the case at bar has been held valid by the Supreme Court of the State of Oklahoma. First National Bank of Buffalo v. Devore, 110 Okla. 283, 234 P., 734.

It is next insisted that the judgment should be reversed because the description of the property in the mortgages to the Williams Horse & Mule Company, which were transferred to Mamie Cleaver, are void for uncertainty of description of the cotton mortgaged. We do not agree with counsel in this contention. In Wichita Mill & Elevator Co. v. Farmers’ State Bank, 102 Okla. 83, 226 Pac. 870, it was held that a description in a chattel mortgage which is sufficient to put a third person upon inquiry, which, when pursued, will enable him to ascertain the property intended to be included in said mortgage, is good, and parol evidence is admissible in order to show the particular property intended to be covered by the description in the mortgage. In Watson v. Pugh, 51 Ark. 218, 10 S. W. 493, it was held that a mortgage which described the property conveyed as ‘ ‘ eight bales of cotton weighing 500 pounds each, of the crop” which the mortgagor should raise in a designated locality, is not void for uncertainty, where the whole crop did not amount to eight bales. See also Jones on Chattel Mortgages, 5 ed., §§ 55 and 55a.

It will be observed from our statement of facts that the mortgage of Hill to the Williams Horse & Mule Company to secure the $193 indebtedness describes the cotton as 30 acres to be planted and grown by Hill on Mamie Cleaver’s land in Poteau Bottom, LeFlore County, Oklahoma. In the mortgage to secure the $50’ indebtedness the description is 15 acres of cotton to be planted and grown by Hill on Mamie Cleaver’s farm in Poteau Bottom, LeFlore County, Oklahoma. The only element of uncertainty in the mortgage is that the mortgagor might plant and grow on Mrs. Mamie Cleaver’s farm 45 acres of cotton; in which event, no separation' having been made by the parties, it could not be ascertained what particular cotton was covered by each mortgage. According to the testimony of Mamie Cleaver, Hill planted 40 acres of cotton, but about 25 acres of it were overflowed and grew up in weeds and bushes. Hill did not work this part of his crop of cotton. He only worked 15 acres of the amount planted, and the cotton in controversy was grown on the 15 acres.- Each mortgage provides that the cotton is to be planted and grown on Mamie Cleaver’s farm. That part of it which provides that the crop is to be grown on the Mamie Cleaver farm is as much a part of the description as that part referring to the planting of the cotton. When it was shown that the entire crop of cotton thus planted-and grown and subject to the description was not more than 15 acres, the description became definite and certain; hence there was no occasion for its separation from a larger mass.

The record shows that the mortgage to the plaintiff was executed on the same cotton subsequent to the execution of the two mortgages to the Williams Horse & Mule Company and transferred by it to Mamie Cleaver. The cotton obtained by Mamie Cleaver under the two mortgages held by her was not sufficient to pay the mortgage indebtedness, and it follows that the judgment of the circuit court was correct. It will therefore be affirmed.