text:
    Scull et al. vs. Vaugine et al.
    The construction of tlie statute of descents and distributions, as to real estate acquired' by descent, and as to personal property, in the case of Kelly’s Heirs et al. vs. McGwire et al., ante, approved.
    Upon division of property among heirs, and settlement of the widow’s claims upon the estate, the heirs execute a deed, to which the widow, who is the grandmother of A. is a party, by which they convey to A. a slave, then in the possession of the grandmother, with the proviso that, “In the event of his death, before he come to the age of twenty-one years, or has heirs of his own, then to revert and become the joint property of the grantors;” and declare the grandmother trustee and guardian of the minor to take and keep possession of the slave for his use; the grandmother continues in possession of the slave, during the lifetime of A., some fifteen yoars: Held, That the conveyance created an absolute estate in the grantee, that the proviso is repugnant to the deed and void: that if the grandmother held under the deed, she held according to its legal effect, and not as trustee for the benefit of the grantors; that her possession was adverse, and the statute of limitations a bar to their recovery of the slave. ,

      Cross Appeals from the Circuit Court of Jefferson County in Chancery.

    Hon. John C. Mukbay, Circuit Judge.

      TbapNAll, for ’appellants, Scull et al.
    Yell, and Piee & Cramms, for Yangine et al.
    The pretended deed of trust executed by Taylor and others, was a mere nullity, because it was executed by parties having no interest whatever, unless it be as to Paul and Francis Yaugine, who were direct heirs of the intestate. As to them, possibly, it had force.
    The statute of limitation would clearly attach as against all the other parties, ip favor of the party in possession. As to all other parties, it could be nothing more than a eonstruotwe trust, if any trust at all. In such case, the statute would operate as well in favor of Mary Yaugine, as Marshall and wife, and Joseph Yarn gine. /Sonser and wife vs. De Meyer et al., 2 Paige 574/ Kane vs. Bloodgood et al., 7 J. 0. R. 90/ 4 Gowen 718/ Litt. Sel. Gas. 511/ 3 Litt. 381/ 6 Monr. 11/ 1 Dev. & Batt. 73, 325/ 8 Port. 211/ 9 Dana 139; 20 J. 0. 325/ 3 J. G. R. 190/ 4 Wash. G. C. R. 631.
    As to those who joined in the deed of trust, and were competent to make it: the deed conveyed an absolute ¡property to Joe Vaugine.

    The deed is an absolute conveyance, “to have • and to hold to him and his heirs,” &c.
    This gives an absolute estate in real or personal property. Any subsequent condition, or proviso, repugnant to it, is simply void. 2 Blaeh. Com. 156, 7/ Go. on Lit., vol. 2,p. 30, 32 N. S.; Appendix K. 4, 36, 38/ Moody vs. Walter, 187, 8, 3 Arh. Rep.; Ja/r-mi/n on Wills, 809, 810, c&o.

   Mr. Justice Scott

delivered the opinion of the Court.

All the parties, both complainants and defendants, have appealed to this court, and the material facts of the case may be thus stated: Stephen. Yaugine, son of .Francis Yaugine, deceased, died intestate, in Jefferson -county, in this State, in or about-the year 1831, seized and .possessed both of real and personal estate, and leaving him surviving a widow named Matilda — who is one of the defendants — and an only child, named Joseph, an infant offender years. Matilda, the widow -of Stephen and mother of Joseph, afterwards married Joseph J. Marshall, who is another one of the defendants. Joseph lived until the year 1846, when he also died, within age, intestate and without issue.

'The complainants are Mary -F. M. Scull, a daughter of Francis Yaugine, deceased, and several others of the name of Scull, who •describe themselves as the heirs and legal representatives of James Scull, deceased; several of the name of Dodge, who describe them■selves as the heirs and legal representatives of John Dodge, deceased, and Emma Dodge, deceased; the last named of whom was also a daughter of Francis Yaugine,- deceased: several of the -name ••of Yangine, who describe themselves as the heirs and legal representatives of Francis N. Yangine, deceased; the last named of ■whom was a son of Francis Yaugine, deceased; Paul Yangine, who is also a son of Francis Yangine, deceased: several who represent themselves as the heirs of Eulalia Taylor, deceased, who was also a daughter of Francis Yaugine, deceased.

They filed their bill in chancery in the Jefferson Circuit Court, -on the 15th day of April, 184J, against the two defendants already mentioned, and also against another named Mary Yaugine, who is the widow of the said Francis Vaugine, the latter having-departed this life intestate, as is alleged, soon after the death of his son Stephen. Mary Yaugine, the defendant, is not the mother of any-of the complainants, or of any oné -they represent, or of Stephen, hut the step-mother; hut she is the maternal grandmother of Joseph, being the mother of Matilda.

The complainants claim, hy their bill, the whole of the property, real and personal, which, by operation of law, came to Joseph, on the part of his father Stephen, upon the death of the latter. This claim, the defendants, Marshall and-wife, deny m toto; and, so far as tbe personal estate is concerned, they are fully sustained by tbe construction of our statute of descents and distributions, made during tbe present term, in tbe case of Kelly's Heirs et al. vs. McGuire & wife et al.; because Mrs. Marshall,.under tbe facts of this case, as we have stated them above, was tbe sole distributee of her deceased son Josepb, to tbe exclusion of all other persons. But tbe real estate, having been inherited by Joseph, from bis deceased father Stephen, was in bis bands an ancestral estate, ex parte paterna, according to tbe doctrines settled in the case cited, and upon bis death without issue, passed by inheritance to bis (Joseph’s) next of kin of tbe blood of bis father, who was tbe last purchaser of tbe estate. And J osepb leaving him surviving, no father, and no mother capable of inheriting, and no brothers, or sisters, or their descendants, his paternal grandfather, grandmother, uncles and aunts, and their descendants, were the next class called to thé inheritance. Of these, he had only uncles and aunts, and their descendants; the latter, to-take per stirpes, the equal share of him or her they represent. These appear as complainants along with others, who seem to have no interest in, or claim to, the inheritance.

The rights of those entitled to inherit, however, are subject to the rights in the land which vested in Mrs. Marshall, as the widow of Stephen, the last purchaser, under the territorial laws: (Steele & Mc. C. Digest, 222, 223, 224 and 55; 210, 212); and until these parties do equity to her, (who, although she has not sought her rights by cross bill, has, in her answer, interposed the fact that she has never yet received dower in the estate of her deceased husband) they cannot, in conscience, recover from her, to say nothing, by way of objection, to the frame of their pleadings.

In addition to these alleged rights of the complainants below, which have been thus disposed of, they set up claim, as against these defendants, to a certain negro woman named Monnette and her increase,, upon the foundation of a state of facts which we will now proceed to set out in the manner insisted upon by them, without any regard to various objections made, on the part of the defendants, as to the failure and deficiency of proof, as to some of them, or as to the incompetency of some of the evidence allowed by the court below, to prove several of these alleged facts, against the objection of the defendants. It being unnecessary, as will be seen, in the view that we take of this part of the case, to consider these objections.

In the year 1826, Francis Yaugine being then a widower, married a seeond wife, Mary Derreuisseaux, who is the Mary Yau-gine, one of the defendants in this suit.' With her, he made a marriage agreement, in which among other things, he stipulated that all her property brought into the marriage, should go to the children of the marriage, if any, and if none, then to Mary’s own children by her marriage with Derreuisseaux; and that he would secure to her, by will or otherwise, eighty acres of land, and improvements upon it, with two thousand dollars in slaves, cattle, &c.

On the 1st of January, 1831, whieh was a few weeks before the death of Francis Yaugine, he executed a deed, conveying to Mary F. Scull, Ulalia Taylor, and Elizabeth Taylor, children of Creed Taylor, Emma Dodge, F. N. Yaugine and Paul Yaugine, a number of parcels of land, describing each; a number of negroes, specifying each by name; a number of cattle, hogs, household and kitchen furniture, farming utensils, &c., and all other property the grantor then had, or might dAe possessed of, to have and to hold,'&c., then following a clause, “It being expressly understood that said property, real and personal, by the grantor here disposed of, is to remain in his possession during his own life time, and on his decease, said property is to be taken possession of by Creed Taylor, James Scull and Francis N. Yaugine, they being of the same degree of kin to the grantor, and having severally paid equal proportions of the five thousand dollars before specified, they to divide the said property equally between the grantees.” It having been recited in this deed, that it was executed upon the consideration of love and affection to the grantées, and of five .thousand-dollars in hand .paid, and of the further eonside-ration, of tbe grantees'-collectively paying,. after the grantor’s-death, the unpaid part of.his just and lawful debts.

No subscribing witness, appears to this deed but from the certificate-of John Fisher, it appears to have been acknowledged before him as a justice of ‘thepeace, on.the 1st day of January, 1830, which, was one year before its-date.

On the 25th April, 1831,. Francis Vaugine being then dead,^ the parties seem to have assembled at his late- residence, which was the then residence of his widow, the defendant Mary, to take-into possession, and divide the- property in accordance, with the-provisions of th deed,.when.difficulties arose from two sources,, to wit: Fmt, Because no provision hadbeen-made for the widow,,, either in satisfaction of the marriage agreement, or of her lawful, claim of dower: Secondly, Because Joseph Yaugine, the only child of Stephen Yaugine, had been, in no- way, provided for_ Upon an examination ©f the deed, it was found, that.in it file-name of Monnette, (the negro girl, then .about twelve years old,., about whom and her children this contest has arisen) did.not appear, as did. the names of all the other negroes of the estate. She ■ then being in possession of the widow, the defendant Mary, as-she had been before, from the death, of. Francis Yaugine, by a. deed of that date, executed by James Scull, John Dodge, Francis-N. Yaugine, Creed. Taj-lor, and. Paul Yaugine, (reciting their, willingness to do equal and impartial justice in the distribution, of the estate of Francis Yaugine, deceased, of whom they claimed to be heirs, and that he had,, in his life time, conveyed his whole-estate, both real and personal, except the said negro girl Mon-nette to-them, and that no part of his estate had been conveyed to Joseph, the minor, and only child of Stephen, deceased, also one of the heirs of. Francis, deceased;;therefore, acting for themselves, and in right of their children) -they “ granted, bargained and sold'to the said Joseph Yaugine, the minor son of Stephen Yaugine, deceased,.the said negro girk Monnette, to have and to hold to the said Joseph Yaugine, his heirs, &c: and, whereas,., the said. Joseph Yaugine is- a minor,,, we hereby constitute and appoint Mary Vaugine, grandmother of the said Joseph, his trustee and guardian, to take and. keep possession oí said negro girl Monnette, for the use of said Joseph Vaugine, to be kept by said Mary Vaugine until the said Joseph comes to the full age of twenty-one years, provided the said Mary Vaugine shall live so-long; and, in case of her death, then to go to the possession of the-lawful guardian of said Joseph, and in the event of the death of said, Joseph, before he comes to the age of twenty-one years, or1 has heirs of his own,, then said negro girl Monnette to revert and become the joint property of us, the undersigned heirs of Francis-Vaugine-, Sr. Given under our hands,” &c.

For the satisfaction of the claims of the- defendant, Mary Vau-gine, founded upon the marriage agreement, and her claims founded upon her right of dower in the estate of her deceased husband, a deed was executed on the same day by James Scull, and-Mannette, his wife, John Dodge, and Ettunnette, his wife, Francis N. Vaugine, and Audel, his wife, Creed Taylor, in behalf of his children by Ulalia, his wife, and Paul Vaugine, and Harriet,., his wife, giving, granting, and conveying to her eighty acres of land, with the improvements upon it,, all the, stock of cattle and. hogs of the estate, then on the south side of the Arkansas river,, three head of horses, two yoke of oxen, and the whole property,, negroes, and other arricies then in existence, which the defendant Mary had, at the time of her marriage, in 1826,. with Francis, in consideration of which, she, as a party to the deed, signing and sealing the same, acknowledged satisfaction of her claim under* the- marriage agreement, and surrendered the same, and relinquished all right to dower in the estate.

From that time, the negro girl Monnette, and her increase, continued in Mary Vaugine’s possession until after the death of Joseph Vaugine, a period of upwards of fifteen years.*

Upon this state of facts, supposing them all to have been established by proper evidence, which, as we have remarked, is contested, the question arises, whether or not the statute of limitations, interposed and insisted npon by all the defendants — who do not contest or litigate as among themselves at all — is a bar to a recovery by the complainants.

To avoid the statute bar, it is not shown that any of the complainants were infants, or otherwise within the savings of the statute, at any time within five years next before the commencement of this suit; but it is insisted that the possession of Mary Yaugine was, as trustee, under an express and continuing and subsisting trust, up to the death of her grand son Joseph, which occurred within that period. And they rely upon the deed of 25th of April, 1831, conveying the slave in question to Joseph, by the terms of which, as we have seen, Mary Yaugine is made trustee •to hold possession of the slave. In her answer, she denies that :she ever was trustee, or held the slaves in question as such, but in her own right; and there is no testimony of her acceptance of the supposed trust created by the deed, except in the deposition of Creed Taylor, which was obj ected to as incompetent evidence, upon the ground of his interest in the event of this cause; lie being liable over to his children, as it is contended, in the ■event they fail in the suit, by reason of the defendant’s gaining title by the efflux of time under his (Taylor’s) act by deed. But ■conceding the deed properly in evidence, and the testimony of Taylor in connection with it admissible, which, as we have remarked, •it is unnecessary to decide, the question is, will all that remove the statute bar?

This necessarily depends upon the legal effect of the deed. Then, what was this legal effect, even when construing the words “heirs'of-his own” to mean “heirs of his body,” as was proven by the complainants, against the objection of the defendants,’ to have ■been the intention of the grantors ? Clearly, as we think, to create, so far as the grantees could do so, an absolute estate in Joseph Yaugine, the grantee, quit of all trusts and conditions whatsoever, within the’doctrine several times recognized by this ■court, that although -chattels and money may be limited over ■after a 'life interest, they cannot be, after a gift of the absolute property: .nor can there be an estate tail in a chattel interest, for that would lead to a perpetuity, and no remainder over can be-permitted on such a limitation, it being the settled rule, that the same words, which, under the English law, would-create an estate tail as to freeholds, give the absolute property as to chattels. Moody vs. Walker, 3 Ark. R. 187, 188.

It being perfectly apparent in this case, from the language of the whole deed, taken together, that it was the intention of the grantors, that the slave should not revert, if Joseph had children, whether he died under or over twenty-one years of age, and that she should revert if he died without children, whether under or over that age, and this construction being for the benefit of Joseph, is fully authorized by the rule, which is as old as construction itself, that “a grant shall be taken most strongly against him who made it, and most beneficially for him to whom it is-made.” Afoyes Maxims, p. 62. And being adopted, it follows-that, being an attempt to create an estate tail general in a personal chattel, the absolute property is vested in the grantee, so-far as the grantors could do so, and hence, any condition or proviso repugnant to such absolute grant, is simply void, as is shown, by the authorities cited to the point. And these being void, Mary 'V’augine was no trustee, there being nothing left in the gram-tors upon which a trust could be raised; and allowing the complainants’ proof that Mary Vaugine held under this deed, she must be taken, in the absence of proof to the contrary, to have, held in accordance with its legal effect: and this being adverse to any rights of the complainants, her possession was consequently adverse to any claim of theirs, and necessarily let in the statute bar, unless displaced by proofs, which would bring the complainants, or any of them within the savings of the statute, which have not been made. We think, therefore, that this- ground of the defence must prevail against ,all of the complainants; and. this without any regard to the nature of the title that was in fact vested in Joseph Vaugine by the deed, which, it must be borne in mind, vested title, so far as it did so at all,, not in a trustee for Ms use and benefit, but in himself. And we are free to say, that 'if tbis slave really belonged to the estate of Francis Taugine, deceased, as the complainants allege in their bill, and adults and minors were entitled to equal distributive shares in her, it would be difficult to see how, in a land of laws, the deeds of the adults, •before distribution under amhoritiy of some proceeding in the proper court, could operate to vest title in the grantee to any specific property, otherwise than by way of estoppel as against the grantors. But like several other questions mooted, to which we have alluded, it is not necessary to decide this; and it is mentioned only to show more distinctly that the conclusion, at which we have arrived, as to the allowance of the defence of the statute Tbar, had no necessary connection with it.

Upon the whole case, we are of the opinion, that the entire decree of the court below ought to be reversed. And for as much as a portion of the property that was in litigation in this ■cause, to wit: the slave Monnette, and her children, and the hires and profits of- the same pending this suit, are in the hands of a receiver of the court below, it seems most proper that the final decree should be entered in that court. It will, therefore, be ordered that this cause be remanded, with instructions to the comt below, to call the receiver to account, and cause him to deliver said slaves to the custody of the party, or his or their legal representative, from whom they were taken by the process of that •court, and to pay over the hires and profits accrued in his (the receiver’s) hands, or which ought to have accrued, to the same: that as to so much of the complainants’ bill as relates to the lands of which Stephen Taugine died seized or possessed, and to which a portion of the'complainants are entitled, as we have held, •subject to the rights of the defendant Matilda Marshall, which vested in her, under the Territorial laws, as the widow of the said 'Stephen Taugine, deceased, that the same be dismissed, without prejudice to the rights of such of the said complainants as are so •entitled to inherit said lands, so encumbered; and, as to the residue of complainants’ bill, that it be dismissed absolutely, all at their costs.


source: Caselaw Access Project

author: McCulloch, C; J.

license: Public Domain

text:
    Morris v. State.
    Opinion delivered October 3, 1921.
    1. New trial — newly-discovered evidence — diligence.—A new trial for newly discovered evidence will not be granted where the party moving for new trial knew of the evidence before the trial and neglected to avail himself of it at the1 trial.
    2. Witnesses — self-incrimination.—In a . prosecution for assault with intent to kill, a third person could not be compelled to testify that he, and not the defendant, shot the prosecuting witness, since one could not be compelled to incriminate himself.
    Appeal from the Stone Circuit Court; Dene E. Coleman, Judge;
    affirmed.

      S. W. Woods, for appellant.
    Tbe motion for new trial on the ground of newly-discovered evidence should have been sustained, as it met all the requirements laid down in 2 Ark. 33.
    Under our law the witness Shanks could not have been compelled to incriminate himself by his testimony in the case, but, after his expressed willingness to testify was made known to appellant, this testimony stood in the same position as newly discovered testimony.
    The courts of some States have held that where several parties were jointly indicted and tried, and the defendants were not competent witnesses, and part were convicted and part acquitted, those who were convicted were entitled to a new trial, so that they could avail themselves of the testimony of the acquitted defendants. 41 Tex. 172; 19 Am. Rep. 38; 52 Tex. Crim. 465; 56 Tex. Cr. 202.

      J. 8. Utley, Attorney General; Elbert Godwin and W. T. Hammock, assistants, for appellee.
    Appellant in his motion for new trial did not meet the requirements laid down by 2 Ark. 33. Shanks could have been put on the witness stand, and if he had there denied that he had done the shooting, under § 4186, C. & M. Digest, appellant could then have introduced various witnesses to whom Shanks had stated that he had shot Taylor. It is worthy of note that these parties to whom Shanks made his statements were all close personal friends of the appellant.
    The finding made by the court, after hearing the testimony of Shanks and Ware, that the affidavits made by them were hot based on the truth, should have the same sanctity as the verdict of a jury.
   McCulloch, C; J.

Appellant was convicted of the crime of assault with intent to kill, alleged to have been committed by shooting one Taylor with a gun. It is undisputed that Taylor was shot and seriously wounded as he was driving along a lonely part of the road late in the évening of March 26, 1921, returning to his home in Stone County from' Mountain View, the county seat.

Taylor testified that appellant did the shooting. His statement was, in substance, that as he was driving along in a wagon he saw appellant come out into the road with a gun on his shoulder, and, after walking a short distance in the direction of the witness, he turned into the bushes, and as the witness drove by he fired the shot which took effect in the shoulder of-witness. He testified that he saw appellant and recognized him as he fired the gun.

Appellant testified in his own behalf, and denied that he fired the shot or was present when the prosecuting witness received the wound. Appellant testified that he was out in the woods hunting for strayed goats, and upon hearing the shooting he went to the scene and ascertained for the first time that the witness, Taylor, had been shot. There had been previous difficulties and ill-will between the parties, and each one in his testimony placed the blame for their troubles on the other. There was other testimony in the case bearing with more or less force on the question as to who fired the shot, but all of the direct testimony on that issue came from the two parties to the encounter, the appellant and Taylor.

After the return of the verdict appellant filed a mo-' tion for new trial, setting up, in addition to other grounds, the discovery of new evidence. It was alleged in the motion that Taylor was shot by one Shanks, and there was filed with the motion certain affidavits tending to support the claim that Shanks did the shooting. One of the affidavits was made by Shanks himself, in which he swore that he shot Taylor himself; there was also filed the affidavit of one Ware, stating that he was in the woods near the scene of the shooting and saw Shanks shoot the witness Taylor. There were also affidavits of other parties to the effect that on the night of the shooting Shanks came to a dance in-the neighborhood and told them that he shot Taylor. On . the trial of the motion Shanks and Ware were introduced as witnesses, and Shanks testified to the same effect as the statement in his affidavit, that he had shot Taylor and did so in self-defense, after having engaged Taylor in a conversation with reference to an alleged slanderous statement made by Taylor concerning the mother of witness. Ware testified that he was standing in the woods near a little branch or creek, and, after hearing a quarrel between the parties, he looked and saw Shanks shoot Taylor. The court overruled the motion for new trial, and in doing so stated that he knew from his own personal knowledge that appellant and his counsel were advised before the trial that Shanks claimed to have done the shooting, and also that the court did not believe that the statements of the witnesses were true.

It appears from the. record that Shanks was summoned as a witness and was in attendance at the trial, and on the cross-examination of Taylor appellant’s counsel asked him the question whether or not Shanks had done the shooting. It does not appear that appellant was apprised, before the trial, of the testimony of witness Ware, but it is clear that appellant and his counsel were advised before the trial all about the claim of Shanks that he had done the shooting and his statements to that effect to numerous parties on the night of the dance. There is an entire lack of diligence which is essential before an accused can claim the benefit of another trial on account of newly discovered evidence. Shanks could not have been compelled to testify to facts which would incriminate himself (Ex parte Butt, 78 Ark. 262), but after appellant’s conviction he volunteered his testimony and would perhaps have voluntarily testified to the facts if he had been called to the witness stand at the trial. At least, it was the duty of appellant, knowing that Shanks had openly avowed that he had done the shooting, to call the latter to the witness stand and give' him an opportunity to testify. He had so freely and publicly made the statement to that effect that it was reasonable to assume that he would then as well as later have been willing to narrate the facts on the witness stand. While appellant was not apprised, so far as it appears from the record, that Ware would testify to having seen Shanks do the shooting, it was his duty to make all possible inquiry into the testimony tending substantiate Shanks’ statement that he had done the shooting. Besides this, the story told by Shanks and Ware is so improbable that the court was justified in the conclusion that the whole thing was a “frame-up” after the trial to secure appellant’s acquittal and then also to secure Shanks’ acquittal on the ground of self-defense. The court was therefore correct in refusing to set aside the verdict.

This is the only ground urged here for reversal of the judgment, and since we find there was no error in refusing to grant a new trial on account of newly discovered evidence, it follows that the judgment must be affirmed, and it is so ordered.


author: McCulloch, C. J.

text:
    Newlin v. Webb.
    Opinion delivered October 3, 1921.
    1. Sales — oral warranty. — Where a complaint in replevin alleged the sale of five mules with reservation of title and that a note for part of the purchase money was executed reciting such reservation, and remained unpaid, with prayer for recovery of possession of the mules and for damages, an answer setting up as a counter-claim a breach of an oral warranty that the mules were free from all defects is good on demurrer; the rule prohibiting the engrafting of an oral warranty on a written contract of sale not applying, as the contract of sale was not in writing.
    2. Set-off and counterclaim — right to plead in replevin. — In an action to recover personal property and damages for its detention, defendant may interpose a counterclaim of damages for breach of warranty, and this right cannot be cut off by plaintiff’s withdrawal of his claim for damages after the counterclaim was filed.
    3. Replevin — counterclaim as defense. — One sued in replevin to enforce a reservation of title until the purchase money is paid may by way of counterclaim set up a breach of warranty whereby the note which is the basis of plaintiff’s right of recovery has been extinguished.
    Appeal from Deslía Circuit Court; W. B. Sorrels, Judge;
    reversed.

      II. II. Ilays, for appellant.
    Tbe court erred in sustaining tbe demurrer to tbe cross-complaint. Plaintiff’s cause of action was not for tbe recovery of specific property only, but also to recover damages for tbe detention thereof. 135 Ark. 531.

      Buchner é Golclen and E. E. Hopson, for appellee.
    If tbe warranty alleged in tbe cross-complaint bad been made by tbe plaintiff, it merged into tbe written contract, and cannot be established by parol evidence tending to chang’e tbe written contract. 108 Ark. 255, 261; 94 Ark. 130; 24 Ark. 210; 25 Ark. 309; 30 Ark. 186; 67 Ark. 62; 80 Ark. 507; 83 Ark. 163; 86 Id. 162; 88 Id. 213; 102 Id. 326; 106 Id. 346; 140 Id. 187; Creenleaf on Ev. § 275; 120 Ark. 366; 142 Ark. 234.
   McCulloch, C. J.

Appellee instituted this action against appellant in the circuit court of Desha County to recover possession of five mules and for damages for detention in the sum of $35. It is alleged in the complaint that appellee sold the mules in controversy to appellant, and that the latter executed to the former a promissory note for the sum of $500 for the balance of the purchase price, and that in said note there was a stipulation that the title to the mules should remain in appellee until the note was paid in full. The note was exhibited with the complaint. Appellant filed an answer and cross-complaint in which it was stated that the purchase price of the mules was the sum of $1850, of which $1350 was paid in cash, and that the note was executed for the balance ; that in the sale of the mules appellee orally gave a warranty that each of the mules “was sound and free from any and all defects.” It is further alleged that two of the mules, of the value of $800, “proved to be dis-eased, crippled and absolutely worthless, and that the plaintiff was informed of said facts and failed and refused to make good his warranty.” The prayer of the cross-complaint is as follows:

“Defendant says that by the failure of the warranty of the plaintiff, as aforesaid, and because of the condition of the mules described, he has been damaged in the sum of eight hundred dollars, for which he prays judgment as a set-off, or counterclaim, against the demand of the plaintiff; prays that the note be satisfied in full by cancellation, and for judgment over against the plaintiff for $300, and for all other proper relief to which he may be entitled. ’ ’

The court sustained a demurrer to appellant’s plea, and, on failure to plead further, rendered judgment against appellant and in favor of appellee for recovery of the possession of the mules, without damages. Counsel for appellee defend the ruling of the court, first, on the ground that the contract of sale was in writing and that the writing can not he varied ngr anything super-added by proof of an oral warranty. The contract of sale was not in writing as tbe note for tbe purchase price. containing reservation of title did not constitute a contract of sale. Parrett Tractor Co. v. Brownfiel, 149 Ark. 566.

It is next contended that the ruling of the court was correct, for the reason that, this being an action for the recovery of possession of personal property, a counterclaim or set-off could not be asserted. This contention is not well founded for the reason, in the first place, that the action was one not only for the recovery of personal property, but for the recovery of money as damages for detention of the property in controversy. We held in Smith v. Glover, 135 Ark. 531, that in an action for recovery of real property, where damages for detention were also sought to be recovered, the action was in part one for the recovery of money, and that a counterclaim could be pleaded. The fact that the court did not render judgment for the recovery of damages does not deprive appellant of the benefit of his counterclaim, for the admissibility of his plea must be tested by the state of the pleadings at the time same was filed. Appellant could not cut off the right to assert a counterclaim by withdrawing his claim for damages after the counterclaim was filed. Crawford & Moses’ Digest, § 6236.

There is still an other, conclusive reason why the ruling of the court was erroneous. Appellant had the right to establish his counterclaim in order to show that the debt evidenced by the promissory note, which was the basis of appellee’s right to recover the possession of the property, had been extinguished. Ames Iron Works v. Rea, 56 Ark. 450; Ramsey v. Capshaw, 71 Ark. 408; Jones v. Blythe, 138 Ark. 81. The case of Ames Iron Works v. Rea, supra, was one like this for the recovery of possession of personal property, and there was asserted a counterclaim for unliquidated damages, and Judge Battle, speaking for the court, said: “The right to the possession of property sued for is essential to a recovery in actions of replevin. Any state of facts which will show the existence or nonexistence of such a right is, as a rule, pleadable in such actions. Thus, in an action of replevin by a mortgagee against the mortgagor to recover the possession of the goods mortgaged to him, the mortgagor can successfully defend the action by showing that the debt, which the mortgage was given to secure, has been paid.”

For both of the reasons set .out above, our conclusion is that the court erred in sustaining the demurrer to appellant’s plea. The judgment is therefore reversed, and the cause remanded with directions to overrule the demurrer.


text:
    Hornor Transfer Company v. Abrams.
    Opinion delivered October 3, 1921.
    1. Bailment- — negligence.—A bailee of goods for hire is not absolutely liable for their loss, but only for their negligent loss.
    2. Bailment — question por jury. — •'While the burden is on a bailee for hire who is placed in exclusive possession of the property to explain the loss before the plaintiff can be put upon proof as to negligence, where evidence was adduced by bailees tending to show that the property was lost without negligence on their part, the issue as to their negligence should have been submitted to the jury.
    Appeal from Phillips Circuit Court; J. M. Jackson, Judge;
    reversed.
    P. B. Andrews, for appellant.
    The oral instruction given by the court made the defendant the absolute insurer of the safety of the goods stored, regardless of what may have happened to them, and regardless of the degree of care and diligence exercised by it, which was error.
    134 Ark. 76 lays down the rule that “a bailee for hire in exclusive possession of the property must explain its loss before it devolves upon the bailor to show that it was lost through the bailee’s negligence.”

      The loss of the property was explained as having been stolen, and it thereupon devolved upon appellee to show that it was through the bailee’s negligence.
    Under the court’s oral instruction it was only necessary for the jury to find, before returning a verdict for plaintiff, that the goods' were stored by the defendant and were afterwards lost, which was error.

      R. B: Campbell and John C.. Sheffield, for appellee.
    A prima facie case' of negligence was made against appellant, and he should have explained the loss before it devolved on appellee to show that it occurred through appellant’s negligence. 134 Ark. 76; 101 Ark. 75; 6 C. J. 1158, § 160. Unless the appellant overcomes this prima facie case that the loss occurred through no fault of his, the appellee may prevail. 168 N. C. 31 (9 A. L. R. 557). There is absolutely no testimony in explanation of the loss; simply a denial of negligence, without any testimony as to the degree of care exercised for the protection of the goods.
    Even as a gratuitous bailee some slight degree of care was necessary. 6 C. J. p. 1157, § 154.
    The oral instruction was properly given, for the court must confine itself to such principles of law as are applicable to the evidence given. 14 R. C. L. p. 786, § 51. Appellant introduced no evidence explaining the loss, and, upon his failure to do so, the prima facie of negligence was not overcome, and the instructions of the court were proper.
   McCulloch, C. J.

This is an action instituted by the plaintiff, Mrs. Abrams, against the defendants, Hornor Transfer Company, a copartnership, to recover the value of certain articles of per&onal property alleged to have been received from the plaintiff by the defendants at their warehouse and which were, not returned on demand. The defendants in their answer denied that they were engaged in the business of operating a warehouse or that they received plaintiff’s property in that capacity, and denied that the property was lost by reason of any negligence on the part of the defendants.

There was a sharp conflict in the testimony concerning the circumstances under which defendants received plaintiff’s property and the agreement between them with respect to it. It is uncontradicted that some time during the month of January, in the year 1918, plaintiff received at Helena certain bundles or packages containing the articles in controversy, which had been shipped to her from Cincinnati, Ohio. The packages were shipped to Helena by steamboat. The defendants were agents at Helena for the steamboat company and received all consignments of freight to the city of Helena. Defendants were also engaged in the transfer business in the. city of Helena, hauling goods and other property for hire. On receipt of the bill of lading and on the arrival of the goods plaintiff’s husband gave the bill of lading to defendants and the goods were placed in the upper story of the elevator building, defendants having their office in the lower story.

The contention of plaintiff is that the defendants accepted the goods for hire and expressly agreed, in consideration of the payment of the charges, to keep the goods as warehousemen. On the other hand, defendants contend that they were not engaged in the warehouse business, but were merely agents for the steamboat company and were engaged in hauling for hire, and that at the request of plaintiff and merely for her accommodation, they permitted her to place the goods in the second story of the elevator building without any agreement with respect to safely keeping the same. They contended that they did not operate a warehouse there, but had permitted several persons to temporarily place goods in the second story of the elevator building, and one of the defendants testified that they kept a watchman on guard at the building and that he visited the second story of the building occasionally to see that everything was in order, and that there was no combustible matter, so as to avoid the outbreak of fire.

Plaintiff did not discover the loss of the goods until about a year after they had been placed in the building, and then made immediate demand for their return or payment, which was refused, and this suit was instituted. The property consisted of a davenport, of the alleged value of $65, a roll of bedding, towels, kitchen utensils, scarfs, chafing dish, an electric iron, and certain other articles, the whole being of the alleged value of $231.50.

The court, at the request of the defendants, submitted to the jury the question whether defendants received the property as warehousemen to keep the same for hire, or whether merely as a gratuitous bailee. The court told the jury, in an instruction given at the request of defendants, that, if they permitted the plaintiff to store the goods in the building for accommodation only, without compensation, the only duty that defendants owed the plaintiff with reference to the goods was to exercise slight degree of care in protecting the same, and that if the goods were stolen from the building while defendants were exercising such care there would be no liability. The verdict being in favor of the plaintiff, we must treat it as having settled in plaintiff’s favor the question whether or not defendants received the goods as bailee for hire. But the court went further and gave the following instruction, over the objections of defendants:

‘ ‘ If, on the other hand, you find from the evidence in this case that the defendant company was a bailee for hire, that is, that the goods were stored by. plaintiff with the defendant company and the defendant was to make a charge, or to charge for the storage of the goods, and they were lost while in the possession of the defendant company, then you will find for the plaintiff for the value of the goods, as shown by the evidence.”

This instruction told the jury, in substance, it will be observed, that if the defendants were bailees for hire, and if the goods were lost while in the possession of the defendants, the latter were liable for the value of the goods. It was error, we think, to give this instruction, for, even though the defendants were bailees for hire, they were only liable for negligence. Bertig y. Norman, 101 Ark. 75. It is true that, according to the testimony adduced, the defendants were placed in exclusive possession of the property, and it devolved upon them to explain the loss before the plaintiff could be put upon proof as to negligence. Phoenix Cotton Oil Co. v. Pettus & Buford, 134 Ark. 76. But there was evidence adduced bv the defendants tending to explain the loss of the goods and also tending to show that the same were lost without negligence on the part of the defendants. In other words, there was legally sufficient evidence to warrant a submission to the jury of the question whether or not the loss was explained and occurred without fault or negligence on the part of the defendants. This being true, it was the duty -of the court to submit those issues to the jury, rather than take them from the jury by the instruction given, which, in substance, told the jury that the defendants were liable if they held the goods as bailees for hire.

For the error in giving this instruction, the judgment must be reversed and the cause remanded for a new trial. It is so ordered.

Humphreys, J., not participating.


author: McCulloci-i, C. J.

text:
    Payne v. McDonald.
    Opinion delivered October 3, 1921.
    1. Carriers — fright of passenger — question for jury. — Evidence held to sustain a submission to the jury of the question whether defendant’s train officials permitted a passenger to use violent, insulting and profane language in plaintiff’s presence, without taking steps to quell the disturbance, and to make a move as if to draw a pistol, and whether plaintiff was frightened thereby and suffered a miscarriage, and received other personal injuries.
    2. Pleading — amendment to conform to proof. — Where evidence tending to prove negligence was introduced, though the complaint only set forth the facts upon which a recovery was sought without incorporating a formal charge of negligence, in the absence of any claim of surprise, the complaint will be treated as amended to conform to the proof.

      3. Pleading — -motion to make more definite. — In an action against a railroad company for permitting a passenger to use violent and threatening language in plaintiff’s presence, causing fright and resulting in a miscarriage, the failure of the complaint to make formal charge of negligence should be reached by a motion to make more definite, and not by a motion to strike out testimony.
    4. Appeal and error — ambiguous instruction — specific objection. —Specific objection should be taken to ambiguous language in the court’s instructions.
    Appeal from Polk Circuit Court; James S. Steel, Judge;
    affirmed.

      J. B. McDonough, for appellant.
    The court should have directed a verdict in favor of defendant. The facts of the case bring it within the rule announced in 135 Ark. 76; 122 Ark. 516; 97 Ark. 24; 32 L. E. A. (N. S.) 529; 111 Ark. 288; 4 E. C. L. 606 to 608.
    It would have been a violation of the Interstate Commerce Act to have permitted Wright, the obstreperous passenger, to ride without paying his fare. 34 U. S. St. at L. Sec. 584; Compiled Stat. U. S. 1918, Sec. 8563, par. 5; also a violation of our State law. C. & M. Digest, §§ 848, 850, 917, 919 and 1631.
    While the carrier owed a duty to the passenger to protect her, yet its servants did all within their power in a gentlemanly manner to afford such protection, and the judgment should be reversed. 204 S. W. 508; 84 Ark. 194.

      Nonvood $ Alley, for appellee.
    The issues were fairly submitted to the jury, and the verdict has settled them against defendant, -and on appeal such verdict will not be set aside when supported by substantial evidence. 144 Ark. 227; Id. 401; 143 Ark. 122; Id. 565; 142 Ark. 159; 13 Ark. 474; 12 Ark. 43.
    The cases cited by appellant in support of his contention that a verdict should have been directed in its favor, do not support his contention.

      Instruction No. 2 was properly given. 122 Ark. 521. Only, a' general objection was made to the instruction, whereas appellant should have pointed out his objections and offered what he considered a proper instruction. 71 Ark. 475; 87 Ark. 528; 56 Ark. 594; 69 Ark. 632.
    Instruction No. 3 finds support in vol. 2, §§ 580-1-7 White on Personal Injuries on Railroads; 142 Ark. 159; 97 Ark. 28; 55 Ark. 248; 51 Ark. 459. Aider a general objection only was made at the trial on appeal, specific objections cannot be pointed out for the first time. 99 Ark. 226.
   McCulloci-i, C. J.

Appellee sued appellant, John Barton Payne, as designated agent of the Kansas City Southern Railway Company, in the circuit court of Polk County, to recover for injuries alleged to have been received while she was a passenger on a tram operated on said railroad. The basis of appellee’s claim is that there was a quarrel or controversy in her presence between the train auditors and a passenger, which became so violent that it excited and frightened her, and that she became seriously ill, and, being pregnant, a miscarriage subsequently resulted, as well as ill health in other respects. The answer of appellant contained appropriate denials of all the charges contained in the complaint. On a trial of the issues before a jury, there was a verdict in appellee’s favor assessing damages in the sum of five hundred dollars.

One of the contentions made for reversal of the judgment is that the evidence is not sufficient to sustain the verdict. Appellee took passage on a train at Texarkana en route to Grannis, a station in Polk County. She had her four children with her, ranging in age from five to eleven years, and two of her children were placed in a seat across the aisle from her, and the other two occupied the seat with her. There were two train auditors, Patterson and Whitehead, 'the latter being a new and inexperienced man, and the former being on duty merely for the purpose of “breaking in” the new man.

There was a stop in the yards at De Qneen for the purpose of setting in a new car or setting one out,.and during this stop a man named Wright, who was an employee of the railroad in some capacity not shown in the record, boarded the train and entered the coach occupied by appellee. Wright met the two auditors in the aisle immediately in front of the seat occupied by appellee and presented a pass,which was found to have expired, and, on the refusal of the auditors to honor the pass, Wright drew out his union card and presented that to the auditors, claiming the right to free transportation on the faith of his union card. The auditors refused to permit Wright to ride, and the latter became angry and used boisterous language, the extent of which is controverted in the testimony. Appellee in her testimony relates the substance of the occurrence, as follows:

“A. Well, Wright got on the train and wanted Patterson'to recognize his pass, and he told him it was out of date, and he couldn’t ride on that, and Wright cursed him, and he stood there and let him keep on cursing him and abusing him and used very foul language, and he stood there, I suppose, fifteen or twenty minutes, maybe longer than that, .just using that talk over and over until the train started out, and he taken the cash fare from Wright, and let him ride on the train, and he got so abusive until Patterson made an attempt to use a gun right between me and my little children.

Other parts of appellee’s examination are as follows:

“Q. Did they pass any licks?” “A. No sir. * * *” “Q. Just state what they did?” “A. Well, they cursed, and just kept cursing and cursing.” “Q. Who did?” “A. Wright.” “Q. What did Patterson do?” “A. He just stood there and listened at it. ” “Q. Did he use any abusive language?” “A. No, I don’t reckon he did.” “Q. What made him start to draw his pistol?” “A. He just told him to hush, and he didn’t hush, and he put his hand back in his pocket.” “Q. What did you do then?” “A. I don’t know what I did do.” “Q. Was he close to you when he started to shoot?” “A. Yes, sir;-right at my arm. ” “Q. Did he make any effort to get Wright to leave the train?” “A. He just told him to get off, and he didn’t do it, and he just kept standing there listening at him.”
On cross-examination of appellee, the following occurred: “Q. Wright was the man that did the swearing and cursing?” “Yes, sir.” “Q. You didn’t hear either of the other two men swear or curse?” “A. No, sir.” “Q. They didn’t swear any at all?” “A. No, sir; they didn’t swear. ” “ Q. They didn’t use any language of any kind in the way of insulting■ language?” “A. Not any profanity of any kind; just told him to get off, that he didn’t want to fight dogs.”

Appellee testified further concerning her fright and excitement and illness which immediately ensued and resulted in a miscarriage. The two auditors were introduced as witnesses, and each testified that they used no improper language nor made any attempt to draw a pistol, and that they were not negligent in any respect. The substance of their testimony is that when Wright presented his pass and union card, which were refused, he became obstreperous and they called the conductor, who required him to pay his fare in money, and that this ended the controversy.

We are of the opinion that the evidence was legally sufficient to warrant a submission of the issues to the jury. Hines v. Rice, 142 Ark. 159. The evidence justified a finding that Wright became obstreperous and used violent, insulting and profane language, and that the auditors, instead of quelling the disturbance and taking-steps to have him ejected, negligently permitted the passenger to continue his conduct for an unreasonable length of time, and even participated in it by making a move as if to draw a pistol, and in replying to the invitation to fight by saying “they did not want to fight dogs.” There is also sufficient evidence that appellee’s injuries, both physical and mental, resulted from the fright, which was caused by her critical condition of pregnancy.

It is next contended very earnestly that the court erred in refusing to exclude all of the testimony of appellee which related to the conduct of Wright, the contention being that the allegations of the complaint are not sufficient to charge negligence of the train auditors in failing to repress the obstreperous conduct of Wright or cause his ejection from the train. The second paragraph of the complaint, which is the one setting forth the acts upon which recovery is sought, reads in part as follows :

“Plaintiff alleges that on the said 6th day of December, 1919, she was a passenger on one of the passenger trains of defendant, the same being known as passenger train No. 2, north-bound, and had with her four little children of her own, and that as the train was leaving De Queen, the auditor, whose name is Patterson, began taking up tickets, and approached' a man named Wright for his ticket, and the said auditor and this man Wright became engaged in a dispute and almost a fight; that thev cursed and abused each other in the presence of this plaintiff and in the aisle in the coach immediately between where this plaintiff was sitting and her two little children, who were seated across the aisle from her, and in this difficulty the auditor attempted to draw a pistol from his pocket, as if to shoot the man Wright, and it is the act of the auditor, together with the insulting and abusive language used by the participants engaged in this dispute, so unnerved and excited plaintiff that she became ill as a result thereof. * * *”

There was no demurrer to the complaint, and the question of the effect and sufficiency of the complaint was raised for the first time after the examination of appellee as a witness had been about completed, and a motion was made to strike out all the 'testimony which’ related to the conduct of Wright. The complaint only sets forth the facts upon which recovery is sought, without incorporating a formal charge of negligence. If it was thought that the complaint was insufficient, an objection ought to have been made before the trial commenced. The complaint stated a canse of action, even if imperfectly so; and,if objection was raised, it should have been to make more definite and certain. Appellant’s counsel cross-examined the appellee at length before making the motion to strike out the testimony, and when the motion was overruled there was no claim of surprise on account of the omission from the complaint of any specific charge of negligence with respect to the failure of the auditors to stop Wright’s improper conduct. The ruling of. the court was tantamount to treating the complaint as amended to conform to the proof, and, since appellant was not placed at a disadvantage by surprise, no prejudice resulted from the ruling.

■ The court gave the following instruction, the giving of which is assigned as error:

“In this case, if you find from the evidence that plaintiff was a passenger on the train of defendant at the time and place alleged, with her children seated across the aisle of the train from her, and that a dispute arose between the auditor of defendant and another party in the aisle and near plaintiff and her children, and that abusive or profane language was used in the dispute or difficult}*-, and that the auditor acted as though he was going to draw a pistol and fire on the opposing party, and you find that plaintiff became excited and scared because of this trouble, and the acts and disputes of the participants, and as a result of her becoming excited and scared, if you so find from the evidence, she suffered a miscarriage and experienced pain and suffering and injury to her health, and you so find from the evidence, you will find for plaintiff, and assess her damages at such sum as you believe from the evidence she has been damaged, not to exceed the amount sued for, provided you find the same was caused by the negligent acts of defendant'or its employees.”

The grounds of objection stated to the court at the time were that the evidence was insufficient to justify a submission of the issues to the jury, and that there was no allegation in the complaint concerning the negligence of the auditors in failing to protect the appellee as a passenger, from the conduct of Wright. There were these specific objections to the instruction, .but there was no objection made on the ground that the instruction did not properly submit to the jury the question of negligence of the train auditors in .their conduct toward the obstreperous passenger. The instruction, it must be conceded, is not very aptly phrased, but the concluding-portion of it does submit to the jury the question whether or not the conduct of the train auditors constituted negligence. If the instruction was ambiguous in its terms, there ought to have been a specific objection to it. It is too late now to criticise the instruction on account of ambiguity in its language. A specific objection, therefore, was essential in order to raise the objections now urged against it.

The same may be said with reference to the objections now made that the use of the words “dispute or difficulty” was improper. If those words were inappropriate in view of the testimony, a specific objection ought to have been made to their use.

There are other assignments of error to the rulings of the court in giving and refusing instructions, but we are of the opinion that the issues were properly submitted, and that there was no error in that respect. Nor is there any error in any other respect.

Judgment affirmed.


author: Wood, J.

text:
    Interurban Railway Company v. Trainer.
    Opinion delivered October 3, 1921.
    1. Death — parent’s right to recover for child’s death. — In an action by a parent for the negligent killing of a child, damages are not to be awarded as a solatium, but must be founded on pecuniary loss; actual or expected, and mere injury to feelings cannot be considered.

      2. Death — damages for loss of child. — The measure of damages to a parent for killing his child is the pecuniary value of his services during minority and the cost and expense incurred hy the parent on account of the injury, less the reasonable and necessary expense of raising the child; the value to be such as is ordinary with children in like condition and station in life, without regard to the relationship between them or to the parent’s feelings or the child’s suffering.
    3. Parent and child — damage by death of child. — Since parents are entitled to the services of their minor children during minority, the law presumes that a parent has incurred or suffered pecuniary loss and damage in the death of an infant of sound body and mind, even before it has arrived at an age to render services of pecuniary value, or-when it is of such tender age that the value of such services cannot be estimated in money.
    4. Death — value of child’s services. — In determining what the pecuniary value of the services of a child of tender age would have been to its parents between the time of its death and the ao’e of maturity, the jury should consider the position in life of both parents and child, the occupation of the parents, their physical condition, their circumstances, and also the sex, age, physical and mental condition of the child.
    5. Death of child — excessive damages. — Where, in an action for the negligent killing of a child eleven years old, the evidence merely showed that she was helpful, kind and obedient, and that she could do only such work as “kitchen work, sweeping, or odd things about the house,” a verdict for $5,000 in favor of the parent for pecuniary loss in the death of the child is excessive, and will be reduced to $2,500.
    6. Death — pecuniary contributions to parent. — Where a child was too young to earn anything, a recovery by the parent of pecuniary contributions beyond the child’s minority cannot be considered.
    Appeal from Phillips Circuit Court; J. M. Jackson, Judge;
    modified and affirmed.

      P. B. Andrews, for appellant.
    The award of $5,000 to the plaintiff as compensation for the loss of services of the deceased during her minority is manifestly excessive; it is wholly out of proportion to the amount which should have been awarded him under the proof, and can be accounted for only on the ground of prejudice or palpable mistake. 33 Ark. 363,363; 39 Id. 516.

      Finh 'é Dinning and J. G. Burhe, for appellee.
    The jury were the judges of the amount and value of the child’s services, and, in the absence of an affirmative showing that their verdict was the result of passion and prejudice, it should be sustained. 47 N. Y. 317; ■ 75 111. 469. Cases of this character must be tried each upon its own merits and the particular state of facts affecting that case. The facts in the Barker case, relied on by appellant, are easily differentiated from the facts in this. See 55 Ark. 462; 467; 145 Id. 602; 48 So. <85; 95 111. 510; 106 111. App. 164; 139 Id. 160; 190 Id. 84; 140 Ky. 579; 181 Pac. 223; 205 111. App. 606; 80 So. 790; 207 S. W. 121; 217 Id. 950.
   Wood, J.

On the 22d of May, 1920, Aline Trainer, a girl eleven years of age, was killed by one of appellant’s cars. The jury returned a verdict in favor of the appellee in the sum of $2,000 for the benefit of the estate, and in the sum of $5,000 for the benefit of the appellee, the father of the child.

The liability of the appellant for damages on account of the death of the child is conceded, and the only question for our decision is whether or not the verdict and judgment for $5,000 in favor of the appellee, and for his benefit as father, were excessive. The little girl was a healthy, vigorous child. At the time she was injured she was on an errand for her mother. Her father testified that she was “very helpful, kind, and obedient about the house.” He was' asked to tell the jury how she would help about the house, and said: “Well, naturally, a child of that age couldn’t do only such as kitchen work, such as sweeping, or odd things about the house, but she was always ready to aid her mother; in fact, she was that way in the whole neighborhood. She was exceptional, I think, in manners and behavior at home and to the teachers.”

The case of Little Rock & Ft. Smith Ry. Co. v. Bather 33 Ark. 350, is the leading case in this State upon the question under consideration. In that case the mother, who was a poor widow and kept a boarding house for a living, sought to recover damages against the railway company for the killing of her only child, who was five years old at the time he was killed. He was an intelligent, healthy, and promising* lad. Judgment was rendered in her favor in the sum of $4,500. In that case, Chief Justice English, in speaking for the court, among other things, said: “The damages are not to be given as a solatium, but must be founded on pecuniary loss, actual or expected; and mere injury to feelings can not be considered. * * * Nor does our statute limit the amount of the recovery, as the statutes of some of the States do, but juries are not warranted in finding verdicts for sums disproportionate to, or in excess of, the probable pecuniary loss of the parent, occasioned by the death of a child. Reasonable damages only, in view of all of the circumstances in evidence, should be awarded.” In concluding the discussion on the issue as to whether the judgment was excessive, the court said: “We are satisfied that if the facts of the case were submitted to one hundred impartial men, of sound, discriminating judgment,- of experience and observation in the raising of children, properly instructed in the law as to the measure of damages, ninety-nine, if not all of them, would say that the damages awarded in this case for loss of probable service were excessive, and such is our judgment.”

The judgment in that case was reversed because it was excessive, and the cause, was remanded for a new trial. On the second trial the jury awarded damages in the sum of $3,500. From this sum the plaintiffs (appellees) voluntarily remitted the sum of $1,235, and the trial court allowed the verdict to stand for $2,265, and entered judgment for that sum, and this court affirmed the judgment, stating: “It is not probable that another jury would give a less amount. There must be an end to litigation in the case.”

In the course of the opinion on the last appeal, Judge English said: “So, where the death of a person earning or capable of earning wages or doing service is the subject of the action, what he was earning or capable of earning at the time of his death may be proved by witnesses, as the basis of forming a judgment of probable future earnings. 'But where the death of a child, incapable of earning anything, or rendering service of ,any value, at the time of its death, as in this case, is the subject of the action, the value of the probable future services to its parent during its minority must in the nature of things be matter of conjecture. * * * The amount of damages to be recovered is not limited by the statute, and could not be under the constitutional provision above cited. But a jury is not left without restraint in the matter of assessing damages -for death of a minor, or in any other case. If the damages assessed are so enormous as to shock the sense of justice, and to indicate that the verdict is the result of passion or prejudice, the trial judge may set aside, and, if he refuse, this court, on appeal or writ of error, may do so.” Little Rock & Fort Smith Ry. Co. v. Barker, 39 Ark. 491.

In the case of St. Louis, I. M. & S. Ry. Co. v. Freeman, 36 Ark. 41, we held (quoting syllabus) that “the measure of damages to a parent for killing his child is the pecuniary value of his services during minority, and the cost and expense incurred by the parent on account of the injury, less the reasonable and necessary expense of raising it; the value to be such as is ordinary with children in like condition and station in life, without regard to the relationship between them, or to the parent’s feelings or the child’s suffering.”

In this case it was not essential to recovery that the value of the services of the child to its parents be shown by any affirmative evidence, for, as was said by this court in Little Rock & F. S. R. Co. v. Barker, supra: “Where damages are claimed for the death of a child incapable of earning anything, or rendering service of any value, the value if its probable future services to the parent during its minority, is a matter of conjecture, and may be determined by the jury without the testimony of witnesses.” See also Hines v. Johnson, 145 Ark. 602.

Since parents are entitled to the services of their minor children during their minority, the law presumes that a parent has incurred or suffered pecuniary loss and damage in the death of an infant of sound body and mind, even before it has arrived at the age to actually render services of a pecuniary value, or when it is still of such tender age that the value of such services can not be estimated in money. Because it accords with the general observation and experience of mankind in civilized society that such children, before they reach their majority, are capable of rendering, and do generally render, to their parents services that have a pecuniary value. In determining what the pecuniary value of the services of a child of tender age would be to its parents between the time of its death and the age of maturity, the jury should take into consideration the position in life of both parents and child, the occupation of the parents, their physical condition, their circumstances, and also the sex, age, physical and mental condition of the child. While the law is liberal in allowing the jurors to voice their own opinions and conclusions as to the pecuniary value of the services without any specific proof or opinion of such value by affirmative evidence, yet such conclusion as reflected by their verdict must be predicated upon the facts and circumstances as above detailed and accord with what reasonable men in viewing such facts and circumstances would decide. Chicago v. Choate, 75 Ill. 490.

Learned counsel for appellants have cited cases where verdicts in sums greater than in the present case have been upheld. We have examined these cases, and find that several of them are differentiated by the facts from the case at bar, while in some of them the facts are similar. But whatever may be the rule in other jurisdictions, it occurs to us that under the interpretation given the statute (1074-5, C. & M. Digest) by our own court in Little Rock & F. S. R. Co. v. Barker, and St. Louis, I. M. & S. R. Co. v. Freeman, and Ry. Co. v. Davis, 55 Ark. 462, and the rule declared in those cases for measuring damages, the verdict and judgment based thereon in this case must be pronounced excessive. The jury awarded a sum equivalent to $714.28 per year, $59.52 per month, or $1.98 per day during the entire seven'years of her minority, making no deduction for the expenses that her parents would have to incur for boarding, clothing, education, loss of time, and expense of probable illness. In other words, tlie jury assumed that the child would be of this pecuniary value to her father every day, every month, and every year.

In the meagre testimony in this record it appears that the little girl could do only such as “kitchen work, sweeping, or odd things about the house.” She had not reached the age where she had shown herself “able and willing to make her own living and to contribute out of her earnings to the support of her parents. ’ ’ Therefore, a recovery for probable future pecuniary contributions to them beyond her minority could not be taken into consideration. In the cases of Ry. Co. v. Davis, supra, Memphis, D. & G. Rd. Co. v. Buckley, 99 Ark. 422, and St. L., I. M. & S. Ry. Co. v. Jacks, 105 Ark. 347, we held that the jury, in assessing damages to the father for the death of his minor son, may take into consideration the parent’s expectation of pecuniary benefit from the life of the child beyond minority. The reason for this holding is bottomed expressly upon testimony in .each of the cases showing that the minor was able and willing to make his own living, and “to contribute out of his earnings to the support of his parents.” In the last two cases the minors were contributing all their earnings— quite substantial sums — to their parents, and expected to continue to support them as long as they lived. But there is no testimony in this record to warrant an inference that there would be any pecuniary benefit to the parents of this child beyond her minority, and the rule as announced in Little Rock & F. S. R. Co. v. Barker, and St. Louis, I. M. & S. R. Co. v. Freeman, supra, must govern. The little girl was bright and “exceptional in manners and behavior,” and her injuries were horrible. The resultant conscious suffering for the few hours she lived was terrible in the extreme. For this, as stated, her estate recovered the sum of $2,000. We realize that it is most difficult for jurors and judges, in rendering verdicts and judgments in such cases, to shut out all considerations of sympathy for the natural affection and consequent mental anguish of parents. But it must be remembered that at the common law the death of a human being was not the subject of civil action, and that, under our statute as it has been construed by this court, there can be no recovery as a “solatium,” and that mental anguish can not be considered. Therefore, jurors and judges must abjure these but natural and laudable impulses and set their faces like flint toward the Constitution and laws which they are sworn to administer that they may resist and overcome the natural feelings of sympathy and humanity in every normal breast toward the distressed and sorrowing. Otherwise, they can not give to every litigant defendant in 'such (jases that which is due him under the law, justice.

Now, we can find no basis in reason to sustain the judgment of $5,000 as a compensation to the appellee for the strictly pecuniary loss to him in the death of his child. In the ordinary course of the domestic relation between father and daughter, it occurs to us that the sum of $2,500 would be the very highest amount that could be recovered for his pecuniary loss under any reasonable view of the evidence most favorable to him. This sum would meet every probable or possible contingency that could arise in the usual course of family affairs by which the services .of this child would have been enhanced to her parents during the period of her minority. Of course, the jury can not be allowed to speculate-on the value of services that in the ordinary course of the family relation and environment it would 'be improbable or impossible for the minor to ever render.

The judgment therefore will be modified by deducting therefrom the sum of '$2,500. As thus modified, it is affirmed.


text:
    Arnold v. State.
    Opinion delivered October 3, 1921.
    1. Jury- — competency of juror. — A juror was not incompetent by reason of relationship to a witness, though he stated that such relationship might affect him in reaching a verdict, where he stated that he would not give any more credence to the testimony of such witness than he would to any other credible witness, although his relationship and personal knowledge of the witness might cause him to give greater credit to his testimony than he would give to that of another witness.
    2. Criminal law — instruction of court. — After the jury had deliberated for some time, they returned into court, and announced that they could arrive at a verdict “if what we recommend to the court would be given any consideration as to suspending sentence or making it so that his wife and child wouldn’t suffer while he was taken away from them.” The court refused to make any agreement as to suspending the sentence, and instructed the jury to find defendant guilty if the evidence convinced them beyond a reasonable doubt of his guilt. Held no error.
    3. Criminal law — testimony of jurors to impeach verdict. — A juror cannot be examined to establish a ground for a new trial, except to establish that the verdict was made by lot.
    Appeal.from G-arland Circuit Court; Scott Wood, Judge;
    affirmed.

      George P. Whittington, for appellant.
    1. The court erred ruling that the juror who was related to the witness, Dr. King, was a competent juror, thereby compelling appellant to exhaust a challenge.
    2. The statements made by the foreman of the jury in open court prior to the return of the verdict, make it clear that the verdict wag agreed upon only in pursuance of an agreement by the jurors that a suspension of sentence should be recommended. These proceedings had in upen court and made a part of the record, independently of the testimony of the jurors afterwards, which was introduced without objection on the part of the State, establishes the fact that the verdict would not have been arrived at, had there not been such agreement. C. & M. Digest, $ 3219.

      J. 8. TJtley, Attorney General, Elbert Godwin and’ W. T. Hammock, Assisstants, for appellee.
    1, Relationship of a juror to a witness is not a disqualification. 16 R. C. L. § 77, p. 259; 87 S. O. 434; 69 S. E. 1077, Am. Cas. 1912B, 1057 and note; 100 Ark. 437; 74 Id. 286; 58 Id. 363; 16 R. C. L. § 106, p. 292; 123 IT. S. 131; 17 Stand. Ency. Proc. § 6, pp. 256-257.
    2. 'At the hearing on the motion for new trial, the testimony of the jurors did not establish that the verdict was made by lot, and their testimony was therefore incompetent and inadmissible. C. & M. Dig. § 3220; 29 Ark. 293. Lot defined: 42 N. E. 1103, 1105; 144 Ind. 86; 31 L. R. A. 835; 55 Am. St. Rep. 168; 49 Ala. 396; 114 Id. 34; 137 Id. 101; 74 N. Y. 63; 1 N. Y. Cr. Rep. 252, 258. Affidavits of jurors, or other evidence of statements made by them, after the trial, is not competent to impeach a verdict in which they have joined. • 59 Ark. 132; 70 Id. 244; 35 Id. 109; 15 Id. 403; 126 Id. 562.
   Wood, J.

The appellant appeals from a judgment of conviction for carnal abuse. ITe presents two questions for our consideration.

Gibbons King, while being examined as to his qualifications to sit as a juror, in response to questions asked him by counsel for appellant, stated: That he was related to Doctor King, one of the witnesses in the case, and that his relationship might affect him in reaching a verdict. He further stated, in response to questions by the court and counsel, that he would not give any more credence to the testimony of Doctor King than he would give to any other credible witness. He stated that his personal knowledge of Doctor King and relationship to him might determine him to be a credible witness as compared with any other witnesses and cause him to give greater credibility to his testimony.

The court held that the juror was qualified, to which counsel for appellant objected, and appellant excused the juror. The appellant afterward exhausted all his peremptory challenges. The appellant duly excepted to the ruling of the court in holding the juror, King, qualified. The court did not err in its ruling. The testimony of Doctor King only tended to prove that he made a vaginal examination of the prosecuting witness and found that her hymen had been ruptured, but there was nothing to indicate whether she had had sexual intercotirse three or four days before. His testimony did not tend to prove any fact connecting the appellant with the commission of the offense charged against him, and the appellant did not attempt in any manner to controvert his testimony. Besides, the answers of the juror to the questions propounded by the court and counsel showed that he was an impartial juror and would not, on account of his relationship to Doctor King,’be biased against the appellant in the consideration of his case; that he would not give any greater credence to the testimony of Doctor King on account of his relationship to him than he would that of any other credible witness.

The record shows that, after deliberating for some time, the jury returned to the courtroom, and, upon being asked if they had reached a verdict, the foreman responded: “"We could arrive at a verdict, but, on account of this defendant having a wife and child, we do not feel like, under the circumstances, inflicting the penalty, but we could arrive at a verdict if what we recommend to the court would be given any consideration as to suspending sentence or making it so that his wife and child wouldn’t suffer while he was taken away from them. ’ ’

To this the court responded: “Well, the court wouldn’t feel like making any agreement about it, gentlemen; you will just have to do your duty regardless of that. You haven’t-a right really to consider those things. The question is just one of guilt and innocence. ’ ’ To this the foreman responded: “ Of course, we understand that, but we didn’t know whether you could enter into that kind of an agreement with us or not.” The court replied : “ I do not feel like the court ought to enter into an agreement of that kind. On a question as to the amount of punishment, you could consider that, of course, but the law fixes the minimum punishment; you have a right to fix that at anything within the range which the law prescribes. If you find the defendant guilty, then as a matter of course a punishment ranging in between one and twenty-one years follows. You can now retire. It is your duty to come to a verdict if -the evidence convinces you beyond a reasonable doubt of his guilt.”

The appellant objected and excepted to the rulings of the court. The jury retired to further consider their verdict, and later returned into court and rendered the following verdict: “We, the jury, find the defendant euilty as charged, and fix the punishment at one year in the penitentiary.” ■

Afterward the appellant filed his motion for a new trial, and assigned as one of the grounds of his motion “that the court erred in .giving its instruction to the jury when they returned to the courtroom after having deliberated for a considerable length of time, and which proceeding was had in the following manner: ” (Setting forth the proceedings as above.) To sustain this ground of his motion the appellant introduced as witnesses before the court several of the trial jurors, who testified substantially to the effect that the jury had not agreed upon a verdict of guilty at the time they sought information from the court as to whether or not the court could suspend sentence before the jury returned a verdict of guilty. One juror said: “We took the points of the ease into consideration and decided that we could come to a verdict and petition or ask the judge to stay the sentence.” Before that they had not come to a verdict. Some of the jurors- in the consideration of their verdict offered that as an inducement to finally agree on a verdict of conviction. One of the jurors further stated that, after taking the evidence of the case into consideration, they agreed to come to a verdict and then petition for a stay of the sentence. The agreement to petition the court for a stay of the sentence and to return a verdict of guilty “all came in together and was discussed at the same time.” The purpose of the agreement to petition the judge for a stay of the sentence was “to bring about an agreement on the verdict of conviction.” This juror further testified that the court informed the jury, when they sought the information, that “the verdict would have to be reached before anything could be done.” They went back to the jury room and afterward returned their verdict.

The juror further stated: “My understanding of it was that, by reaching a verdict and coming to a verdict, that the judge should be petitioned afterward to stay the sentence.” He further stated, in response to a question by the court: “The jurors were all agreed on the; facts of the case, and thought from the evidence that the defendant had carnal knowledge of this prosecuting witness according to the testimony. Up to the time the agreement was entered into to seek information from the court, some of the jurors had voted on all votes taken on the question of guilt, or innocence 'not guilty.’ ”

Another one of the jurors stated that, after the jurors couldn’t get together, they went into an agreement to petition the judge. “They thought the punishment was too severe, and the fellows that were not for 'guilty’ wouldn’t agree to anything, and that agreement to petition the judge brought the jurors who prior to that time were voting for ‘not guilty’ to vote for a verdict of ‘guilty.’ ” It was the information of this juror that the verdict of “guilty” would uot have been agreed to by all of the.jurors but’ for the agreement by all of them to petition for a stay of the sentence.

The ruling of the court was correct. At the time the verdict was rendered the appellant did not ask to have the jury polled, which he had the right to do. If he had done so, and any of the jurors had answered that the verdict returned was not their verdict, then the verdict could not have been received. Section 3216, C. & M. Digest.

The proceedings, to which the appellant objects, were brought to the attention of the court after the verdict had been received and the jury discharged. The only testimony by which appellant sought to impeach the verdict was by the jurors themselves. “A juror can not be examined to establish a ground for a new trial, except it be to establish as a ground for a new trial that the verdict was made by lot.” Section 3220, C. &. M. Digest; Pleasants v. Heard, 15 Ark. 403; Fain v. Goodwin, 35 Ark. 109; Smith v. State, 59 Ark. 132; Griffith v. Moore, 70 Ark. 244; Wilder v. State, 29 Ark. 293; Williams v. State, 66 Ark. 264; Hampton v. State, 67 Ark. 266; Osborne v. State, 96 Ark. 400. See, also, Capps v. State, 100 Ark. 109; Jenkins v. State, 131 Ark. 312; Kindrix v. State, 138 Ark. 594; Speer v. State, 130 Ark. 457-464.

The appellant does not contend, and indeed it could not be contended, that the testimony of any of the jurors proved that the verdict was arrived at by lot. There was no element of chance, hazard, or fortune in the method by which the verdict was decided, as shown by the testimony of the jurors. “Lot” is defined to be “a contrivance to determine a question by chance or without the action of man’s choice or will.” Webster’s Dict.; Chavannah v. State, 49 Ala. 396; Loiseau v. State, 22 So. 138; Johnson v. State, 34 So. 1019. See also Lynch v. Rosenthal, 144 Ind. 86; 42 N. E. 1103, 31 L. R. A. 835.

In Speer v. State, supra, at page 464, we said: ‘ ‘ Lot involves an element of chance.” To allow a verdict to be impeached, in the manner herein attempted would contravene the statute and be subversive of a sound public policy which the statute was intended to conserve.

The judgment is correct, and it is therefore affirmed.


text:
    Belcher v. Winter.
    Opinion delivered October 3, 1921.
    Mortgages — crop to be- grown by mortgagor. — A mortgage on the crop of cotton which the mortgagor will cultivate and agrees to cultivate on the mortgagor’s farm did not give the mortgagee any lien on cotton grown on such farm by tenants of the mortgagor who paid their rent' in money, and not by sharing their crops, as the landlord had no title to such crops, but merely a lien thereon.
    Appeal from St. Francis Chancery Court; A. L. Hutchins, Chancellor;
    affirmed.

      B. J. Semmes, for appellants.
    Winter’s interest in the crop, being that of a landlord who furnishes and supplies his tenants who work the land, was expressly conveyed in the 'chattel mortgage, whereby he conveyed all his ‘ ‘ right, title, claim and interest” in the crop. 80 Ark. 431. He intended to convey a lien on the 1920 crop on the Gray place, and this lien attached when the crop came into existence. 52 Ark. 439. The mortgage was in existence and on record before Winters delivered the rent notes to the bank. The facts differentiate this, case from cases relied on by appellee, viz: 33 Ark. 737, and 37 Id. 43. Assignment of .a rent note does not carry with it the landlord’s lien. 61 Ark. 266; 39 Id. 344; 37M43; 31 Id. 597.

      Mann & Mann, for appellees.
    1. The chattel mortgage does not cover the cotton involved in this suit. Where a mortgage purports to cover crops to be grown by the mortgagor, it will not in-include the crops grown by his tenants or other persons. 11 Corpus Juris, 505.

      2. The lien of appellants under the mortgage is not superior to the rights of appellees in the cotton in controversy. The bank being the holder of the rent notes, the tenants were within their rights in seeing that the cotton or its proceeds was applied to the payment thereof. 123 Ark. 528; 52 Id. 58; 37 Id. 43.
   Wood, J.

On April 1,, 1920, W. A. Winters was indebted to Crutcher & Company in the sum of $4500, evidenced-by promissory note of that date, due November 1, 1920, and secured by a mortgage executed on the 8th day of April, 1920, in which the property mortgaged is described as “all tlieir right, title, claim and interest in the entire crops of cotton, cotton seed, and corn, which the party of the first part (Winter) will cultivate, and agrees to cultivate and produce, during this year on what is known as the Walter Gray place farms, or elsewhere in the county and State aforesaid.” Winter owned what is known as the Walter Gray place farms in St. Francis county. Winter leased these farms to negro tenants for the year 1920 and took their notes for their rents, amounting in'the aggregate to $2,800. Winter furnished to these tenants in the aggregate more than $4000 to enable them to make and gather crops. Winter was indebted to the First National Bank in a sum in excess of $6000, secured by a deed of trust on certain lands and by mortgage on chattels.

On the 30th day of November, 1920, Winter deposited the rent notes mentioned above with the First National Bank as collateral security for his indebtedness to the bank. This was in addition to the other security which he had given the bank. At the time he deposited these notes as collateral, he did not obtain from the bank any more money or additional consideration. On the first day of December, 1920, Winter delivered to the First National Bank ten bales of cotton which had been grown by his tenants on the Walter Gray place farms.

This suit was begun by a complaint in equity filed by Crutcher & Company, and at their instance an attachment was issued and levied upon the ten bales of cotton which had been delivered to the First National Bank. Crutcher & Company alleg’ed that they had a lien on the cotton by virtue of the chattel mortgage executed by Winter to them, and the First National Bank alleged that it had a right to the cotton because same had been delivered to them by Winter on the notes of his tenants which Winter had deposited with it as collateral. At the time the bank accepted these notes as collateral, it knew of the existence of the chattel mortgage which Winter had executed to Crutcher & Company. Before the attachment issued, the First National Bank had sold the cotton, and had received therefor the sum of $641:62.

The above are the facts upon which the trial court rendered a judgment in favor of the appellees, from which the appellants prosecute this appeal.

The decree of the court was correct. The language of the mortgage is: “ The party of the first part (Winter) has bargained, granted and sold,- and does by these presents bargain, grant and sell to said party of the second part (Crutcher & Company) their heirs, administartors and assigns, all their (his) right, title and interest in the entire crops of cotton, cotton seed and corn, which the party of the first part (Winter) will cultivate and agrees to cultivate and produce during this year on what is known as the Walter Gray place farms in the county, and State aforesaid.”

The above language is not sufficient to create in favor of the appellants any lien on the cotton in controversy. For this cotton was cultivated and produced by the tenants of Winter and not 'by. Winter himself. But the language of the mortgage only conveyed to Crutcher & Company “all the right, title, claim and interest in the crops of cotton” which Winter himself “will cultivate and agrees to cultivate and produce” on the farms mentioned. Winter had no right, title, claim and interest in and to the crops of cotton grown on his farms by his tenants. These tenants were not share-croppers. They paid their rent in money, and not by sharing their crops with Winter. True, Winter, as the landlord, had a lien on the cotton grown on the farms during the year 1920 for the rent and supplies furnished the tenants by him for that year. Sections 6889, 6890, C. & M. Digest. But such lien did not give Winter any right, title, claim and interest in the cotton itself grown on his farms by his tenants. The crops grown by Winter’s tenants on Winter’s .farms belonged to the tenants and were only subject to his lien for rents and supplies which he furnished them.

“A lien is neither property nor a debt, but a right to have satisfaction for a debt out of property, and is not the subject of sale or assignment.” Roberts v. Jacks, 31 Ark. 597. See also Buckner v. McIlroy, 31 Ark. 631. But, even if it could be said that- the language “all right, title, claim and interest” was broad enough to include future cotton afterward grown on Winter’s plantations and delivered to him by his tenants, nevertheless such cotton was not convej^d by the mortgage, for the reason that the language, as before stated, only purports to convey to appellants the entire crops of cotton which Winter himself would cultivate and produce. He did not cultivate and did not produce the cotton in controversy.

The case of Delta Cotton Co. v. Ark. Cotton Oil Co., 80 Ark. 431, upon which appellants rely, does not sustain their contention. By the language of the mortgage in that case the mortgagor conveyed the “entire crop of cotton, cotton seed and corn grown and to be grown during the year 1903 on certain described real estate in the county of Jefferson and State of Arkansas.” No such language is contained in the clause of the mortgage under review.

In the case of Blakemore v. Eagle, 73 Ark. 477, the deed of trust described the property conveyed, as follows: “The entire crop of cotton and corn that I (the mortgagor, Blakemore) may raise or cause to be raised during the year 1898 on my plantation known as the Blakemore place in Lonoke county, etc.” In that case Mr. Justice Biddick, speaking for the court in construing the above language, expressed the opinion that the cotton delivered to Blakemore by his tenants in the settlement of accounts for supplies furnished by him was not covered by the trust deed. While this language, as the opinion further shows, was not necessary to the decision in that case and was therefore obiter, nevertheless it is very persuasive as to the proper construction of such language.

And in the later case of Delta Cotton Co. v. Ark. Cotton Oil Co., supra, Judge Battle, in the concluding part of his opinion, expressed the view that the court in Blakemore v. Eagle, supra, was of the opinion that the language of the deed of trust in that case was not sufficient to cover cotton raised and cultivated during the year by the tenants on the plantation of the mortgagor (Blakemore), and the court in making the distinction between the cases of Delta Cotton Co. v. Ark. Cotton Oil Co. and Blakemore v. Eagle, recognized that the latter case decided that the language therein contained was not sufficient to cover cotton raised by tenants on the plantation of the mortgagor. So we feel that our opinion and judgment in the case at bar is fortified by the opinions of two former very able judges of our court.

In 11 Corpus Juris, § 178 (3), p. 505, the following language is used by the authors of the text: “As a general rule, where the mortgage purports to cover crops to be grown by the mortgagor, it will not include crops grown by his tenants, or other persons, but will cover the crops grown by him on the land designated. * * * But a mortgage on crops to be grown during a certain year on certain lands will include crops grown on the premises by tenants and share-croppers of the mortgagor.”

Several cases are cited to support the first part of the text, and, to support the latter part of the text, our own case of Delta Cotton Co. v. Arkansas Cotton Oil Co., supra, is cited.

We conclude that there was no error in the decree of the court, and the same is therefore affirmed.