text:
    National Union Fire Insurance Co. v. Avant.
    Opinion delivered January 26, 1925.
    1. Insurance — enforcement of provisions of policy. — In the absence of any proof of fraud in the insertion, in a policy insuring a motor car, of a loss payable clause expressly made part of such poliey and attached thereto at the time of its issuance, its provisions must be given full force and effect as part of the contract, though insured did not examine them.

      2. Insurance — promissory warranties. — Provision of a loss payable clause invalidating the policy if any of insured’s notes for the purchase price of an insured automobile should not be paid within 10 days after maturity, held a promissory warranty.
    8. Insurance — forfeiture for failure to pay notes at maturity.— A provision in a policy insuring an automobile invalidating the poliey if the insured failed to pay the purchase notes within 10 days after maturity means the time originally fixed by the parties or as subsequently extended by them.
    4. Insurance — change in purchase notes. — A provision in a policy of insurance of an automobile invalidating the policy if any change is made in any of the purchase notes means any change detrimental to the insurer.
    5. Insurance — change in purchase notes. — Where insured had paid off four-sevenths of his notes given for purchase of insured automobile and the dealer extended the time of payment of part of the unpaid purchase notes, such extension was not a material change within a provision of the loss payable clause invalidating the policy if any change was made in the notes.
    6. Insurance — construction of policies. — While the courts may not arbitrarily disregard limitations on the insurer’s liability expressed in the policy, they will look through the whole contract for the intention of the parties and give it such construction as will give it a reasonable intendment, and will relieve against forfeitures if consistent with the general intent expressed in the policy.
    Appeal from St. Francis Circuit Court; E. D. Robertson, Judge;
    affirmed.

      Mann & Mann, for appellant.
    An insurance company lias the right to fix the terms and conditions upon which it would insure property. 62 Ark 348; 65 Ark. 295. A “rider” or mortgage clause is a part of the policy when attached to. the policy at the time of delivery. 30 LI R. A. 636; 153 N. C. 285; 69 S. E. 214; 138 A. S. 6'65. In the absence of fraud, a person executing a written contract is bound by its provisions. 133 N. T. 356; 28 A. S. R. 645; 43 Kan. 15; 19 A. S. R. 118; 71 Mich. 414; 15 A. S. R. 275; 69 Tex. 353; 5 A. S. R. 63. The extension of the time of the payment of the notes was a breach of the warranty and therefore voided the policy. 119 Ark. 597; 72 Ark. 47; 77 Ark. 57; 152 Ark. 65; 153 Ark. 156; 72 N. J. L. 289; 3 L. R. A. (N. S.) 107; 125 Ark.'93; 79 Tex. 23; 11 L. R. A. 293; 111 Ark. 167; 120 Fed. 916; 61 L. R. A. 137; 69 Ark. 295; 171 Mo. 143; 71 S. W. 160; 94 A. S. R. 778; 53 Ark. 53; 58 Ark. 276; 62 Ark. 276.

      8. 8. Hargraves and John M. Prewitt, for appellee.
    Any ambiguities in an insurance policy must be most strongly construed against the insurance company. 50 Am. St. Rep. 832; 22 Am. St. Rep. 324 ; 25 Am. St. Rep. 773; 65 Am. St. Rep. 264; 69 Am. St. Rep. 134; 77 Am. St. Rep. 129. Forfeitures are not favored, and should not be enforced by the courts unless compelled to do so. 73 Am. St. Rep. 532; 78 N. W. 300; 45 N. W. 171; 83 N. W. 78. Stipulations and conditions in policies of insurance are to have a reasonable intendment and are to be construed, if possible, so as to avoid forfeitures and to advance the beneficial purposes intended. 97 Ga. 44; 69 Am. St. Rep. 143; C. & M. Digest, § 6148.
   Wood, J.

This is an action by the appellee on a fire insurance policy issued to the appellee by the appellant, in which the appellant undertook to indemnify the appellee against loss or damage by fire to a seven-passenger touring car. The car was totally destroyed by fire while the policy was in force, and the appellee alleged that he had fully complied with the terms of the policy on his part, and prayed judgment in the sum of $500 and for penalty and costs.

The appellant admitted the issuance of the policy and the loss, but set up in defense that the policy contained a loss-payable clause in favor of the mortgagee of the car, Karakoffe Motor Company, which clause contained a promissory warranty or condition that the policy should ibe wholly void if any of the notes due the mortgagee should not be completely paid on or before ten days after the maturity thereof, or if any change be-mad'e in any of the notes representing the incumbrance otherwise than by the payment thereof. The appellant alleged that, at the time the car was destroyed by fire, said notes due the mortgagee were past due and unpaid for more than ten days' after maturity, and therefore the policy was void as to the appellee. Appellant further alleged that the mortgagee had been paid the amount of appellee’s indebtedness to it.

The appellee testified, among other things, as follows : “I paid a premium of $14.75 for the policy. When the notes became past due I had made arrangements with the Karakoffe Motor Company about when I was to pay them. This was before the car burned. I did not tell the insurance people anything about these arrangements made with the Karakoffe Motor Company, until after the car burned. I did not notify them of the arrangements to extend the notes? at the time they were made. I notified them, after the car had burned, to collect the money.” The appellee identified and introduced the policy which recites that, in consideration of the warranties and the premium mentioned, it insured the automobile described therein to an amount not exceeding the amount specified therein.

Under the title “warranties” in the policy, the policy contains the recital that “the following are statements of facts known to and warranted by the assured to be true, and this policy is issued by the company relying upon the truth thereof.” Then follows, among other things, a loss-payable clause, in which it is recited that the appellee owed a balance on the purchase price of the automobile of $350, evidenced by seven notes of $50 each, payable on the 22d day of each month, beginning with July, 1922, and reciting that the policy “shall be wholly void if any of such statements is inaccurate in any respect, or if any change is made in any of the notes representing said indebtedness or incumbrance otherwise than by payment thereof. * * * Or if' any of said notes shall not be completely paid and the indebtedness represented wholly discharged on or before ten days after maturity thereof, without grace.” There was the further provision in the loss-payable clause to the effect that the interest of the owner of the notes only shall not be invalidated by the failure of the assured to pay any of the notes within the time specified, and, in such case, the liability of the company under the policy shall be to the Karakoffe Motor Company only, and limited to the amount of the principal and interest then unpaid on said notes. There is a further provision to the effect that the policy is made and accepted subject to the provisions, exclusions, conditions and warranties set forth herein or indorsed hereon, and that the insured agrees that its terms embody all agreements then existing between himself and the company.

The testimony on behalf of the appellant was to the effect that the Karakoffe Motor Company sold the automobile to the appellee, the entire consideration being the sum of $850. The company took a mortgage for the balance due on the purchase money, $350, evidenced by notes in the sum of $50 each, payable in seven installments. The first one or two notes were paid as they fell due. At the time the car burned three of the notes were unpaid. The company extended the time for payment of one or two of the notes, and did not notify the insurance company of the extension. The insurance company inserted a loss-payable clause in the policy at the time it was issued. The insured knew that such clause was in the policy. The premium of $14.75 was paid, and carried the policy for a year. The premium was not reduced by reason of the fact that the loss-payable clause was inserted.

The court gave instructions as to the burden of proof and the credibility of witnesses, and refused to grant appellant’s prayer for instructions as follows:

“1. The jury is instructed to return a verdict for the' defendant.
“2. You are instructed that, unless you find by a fair preponderance of the evidence that the plaintiff, Lee Avant, paid the indebtedness of $350 owed to Karakoffe Motor Company, as the same became due and payable, you will find for the defendant.
“3. You are instructed that, under the terms of the policy, the plaintiff agreed to pay $50 a month on the 22d day of each month, beginning July, 1922, to the Karakoffe Motor Company, and agreed that the policy would be wholly void if these notes were not paid as due, or if any change is made in any of said notes, you are instructed that if the notes were not paid as they matured, or if any extension were granted on any of the notes, the policy is void as to the plaintiff, and you will find for the defendant.”

The appellant duly excepted to the ruling of the court in the refusal of these instructions.

The jury returned a verdict against the appellant for the amount of the policy, less the amount paid the Karakoffe Motor Company, in the sum of $340.56. The court entered a judgment in favor of the appellee for that sum, from which is this appeal.

The policy, according to its recitals, was issued "in consideration of the warranties and premium hereinafter mentioned.” Under the title ‘Warranties” the loss-payable clause is expressly referred to. These and other references elsewhere in the policy expressly make the loss-payable clause a part of the policy, and the undisputed evidence shows that the mortgage or loss-payable clause was attached to the policy at the time it was issued, and that the insured knew that it was .so attached. In the absence of any proof of fraud in the insertion of this loss-payable clause, it must be considered a part of appellee’s contract of insurance, and its provisions given full force and effect as such, even if the appellee had not examined these provisions. Lancaster v. Southern Ins. Co., 153 N. C. 285; Quinlin v. P. & W. Ins. Co., 133 N. Y. 356-364; Cleaver v. Ins. Co., 171 Mich. 414-417; Morrison v. Ins. Co. of N. A., 69 Tex, 353. See also Colonial & U. S. Mortgage Co. v. Jeter, 71 Ark 185.

In 14 R. C. L., at page 1082, § 260, a promissory warranty is defined to be “an absolute undertaking by the insured, contained in a policy or in a paper properly incorporated1 by reference, that certain facts or conditions pertaining to the risk shall continue, or that certain things with reference thereto shall be done or omitted.” According to this definition, the clauses “or if any change is made in any of the notes,” etc., “or if any of said notes shall not be completely paid and the indebtedness represented wholly discharged on or before ten days after maturity thereof without grace,” etc., are promissory warranties.

The crux of the case is whether or not these warranties are violated by any change in, or by the nonpayment of, some of the notes at the time they were due, or within the ten days of grace thereafter, as specified in the warranties. The words “maturity thereof without grace” should be construed as meaning the time specified by the parties to the mortgage when the notes should be paid, and if, when the notes became due, the mortgagee extended the time for their payment, then the time fixed by the extension agreement for the payment of the notes would 'be the time of maturity of such notes. The words in the clause, “if any change is made in any of the notes representing said indebtedness or incumbrance,” necessarily meant some change that would be detrimental to the insurer. The parties to the contract of insurance could not have meant that immaterial changes, or changes that did not affect the risk, were included in the contract. See Providence Life Assurance Society v. Reutlinger, 58 Ark. 528; Mutual Reserve Fund Life Insurance Co. v. Farmer, 65 Ark. 581; Des. Moines Life Ins. Co. v. Clay, 89 Ark. 230.

Under the construction we give the policy, the extension of the time for the payment of the notes was not a change in the notes, but, if so, certainly not a material change. So far as the insurer was concerned, its purpose was to preserve the conditions that existed at the time of the issuance of the policy, and to have the policy so framed that it would be warranted against any change in the notes representing the indebtedness that would affect the risk to its prejudice.

Now, the undisputed testimony shows that the conditions surrounding the parties to the contract when it was entered into were not changed to the prejudice of appellant by the agreement for the extension of the time for the payment of the notes between the mortgagee and the appellee. On the contrary, the mortgage debt at the time of the fire had been reduced by payments from the sum of $350 to the sum of $160. It is a well-settled principle in the law, and one often announced by this court, that forfeitures are not favored, and slight circumstances will be seized upon to avoid them, and any ambiguous provisions, especially in contracts of insurance, must be construed most strongly against the insurance company, because it prepared the policy. Sun Ins. Co. v. Jones, 51 Ark. 376; Ark. Fire Ins. Co. v. Wilson, 67 Ark. 553; Hope Spoke Co. v. Maryland Casualty Co., 102 Ark. 1; Monongahela Ins. Co. v. Batson, 111 Ark. 167; Maloney v. Maryland Casualty Co., 113 Ark. 171.

As is well said in Clay v. Phoenix Ins. Co., 97 Ga. 44-52, “courts are not at liberty to arbitrarily disregard reasonable limitations imposed upon the liability of insurance companies under policies of insurance, by stipulations and conditions therein expressed; but, in the construction of such policies, and such conditions and stipulations, the courts will look through the whole contract to the real intention of the parties at the time of the execution of the instrument, and give to it such construction as will impute to them a reasonable intendment, and such construction as will relieve against forfeitures, if that construction be consistent with the g’eneral intent expressed in the policy. ” Providence Life Assurance Society v. Reutlinger, 58 Ark. supra.

If the appellant intended that the language of the warranty should embrace immaterial as well as material changes, it should have so declared in the contract, and, if it intended that there should be no extension of the time for the payment of the notes beyond the due date and the ten days thereafter specified, it should have in plain terms so declared. In that event, nothing would have been left for construction, but, under the terms of the policy and the undisputed testimony, we are convinced there are no errors prejudicial to the appellant in the rulings of the trial court, and that there has been a substantial compliance with the terms, conditions and warranties of such policy upon the part of the assured.

The judgment is therefore affirmed.


source: Caselaw Access Project

author: McCulloch, C. J.

license: Public Domain

text:
    State v. Craig.
    Opinion delivered January 26, 1925.
    Railroads — imperiling life by placing obstruction on track.— Under Crawford & Moses’ Dig., § 8595, imposing a penalty for wilfully and maliciously placing an obstruction on a railroad and thereby causing an engine or car to be thrown off the track, an indictment which alleged that defendant caused the life of another to be put in danger by causing a certain locomotive engine to run and be thrown off the track into the turntable pit is insufficient.
    Appeal from Lawrence Circuit Court, Eastern District; Dene R. Coleman, Judge;
    ¿firmed.

      J. S. TJtley, Attorney General, John L. Carter, Assistant, and R. U. WilUamson, for appellant.

      Smith & Blachford, for appellee.
   McCulloch, C. J.

This is an appeal by the State from a judgment of the court sustaining appellee’s demurrer to an indictment which, omitting the caption and formal parts, read's as follows:

“The said Preston Craig, in the district, county and State aforesaid, on the 4th day of May, A. D. 1923, unlawfully, wilfully, feloniously and maliciously did cause the life of L. A. Young to be put in immediate danger and peril by causing a certain locomotive engine to run and be thrown off the track of the Missouri Pacific Railway Company, in the yards of said railway company at Hoxie, Arkansas, into the turntable pit in said yards, and by said means put the life of the Said L. A. Young in immediate peril, as aforesaid, against the peace and dignity of the State of Arkansas.”

The charge is preferred under the following sections of the statute:

“Section 8594. Placing obstruction on track. Every person who shall wilfully and maliciously place an obstruction, by stones, logs, or any other thing, on the track of a railroad, or shall tear up or remove, or burn or destroy, any part of any railroad or the works thereof, with intent to obstruct the passage of a car or cars thereon, or to throw them off the track, shall, upon conviction, be imprisoned in the penitentiary for a period not exceeding twenty years. ’ ’ Crawford & Moses ’ Digest.
“Section 8595. Imperiling life — Penalty. Every person who shall, by any of the unlawful acts enumerated in the preceding section, cause the life of any person to be put in immediate peril, or shall cause any engine or car to be actually thrown off the track of any part of a railroad or the works thereof, shall, upon conviction, be punished by imprisonment in the penitentiary not more than twenty years.” Ib.

The Attorney General concedes that the charge is really based on the last phrase of § 8595, reading, “or shall cause any engine or car to be actually thrown off the track of any part of a railroad or the works thereof,” and it is contended that the language of the indictment is sufficient to state an offense under that part of the statute.

It will be observed that § 8594 creates an offense in placing obstructions on the track of a railroad, or removing or destroying any part of a railroad “or the works thereof, with intent to obstruct the passage of a ear or cars thereon, or to throw them off the track.” The language of the next section relates back, in creating the offense, to the acts enumerated in the preceding section, and it does not constitute an offense under that section either to cause the life of any person to be put in immediate peril, or “to cause any engine or car to be actually thrown off the track, ’ ’ except by one or more of the acts enumerated in § 8594. Any other interpretation of the language of § 8595 would make it a felony for a person, even by a mere act of negligence, to cause an engine to be thrown from the track. Such was manifestly not the design of the framers of this statute. Now, it will be observed from perusal of the language of the indictment that it merely charges that the accused caused a locomotive engine to be thrown from the track, “and by said means put the life of the said L. A. Young in immediate peril,” and it does not charge, either directly or inferentially, the doing of any of the acts enumerated in § 8594.

This is a statutory offense, and, conceding that it would be sufficient to charge an offense in the language of the statute, such is not the case here, for the language of the statute is not used either formally or in substance. In other words, the acts enumerated in § 8594 must be taken as the basis of any offense under this statute, and the failure to charge the doing of one or more of these things falls short of charging a public offense.

Our conclusion therefore is that the ruling of the court was correct, and the judgment is affirmed.


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    Burgener v. Spooner.
    Opinion delivered January 26, 1925.
    1. Attachment — effect of giving discharging bond. — The fact that the defendant in an attachment suit executes a discharging bond does not, under Acts 1891, p. 56, preclude him from controverting the grounds of attachment, and consequently no judgment can be entered against the surety on such bond where the attachment is not sustained.
    2. Justices of the peace — nunc pro tunc judgment on appeal bond. — Under Crawford & Moses’ Dig., §§ 6513, 6531, providing for appeal bond on appeals from justices of the peace, and that if, on appeal, the judgment be against the appellant, judgment shall be against him and his sureties, held that where the judgment against the appellant omits the sureties, a nunc pro time judgment may be rendered against them at a subsequent term.
    Appeal from Coirway Circuit Court; J. T. Bulloch, Judge;
    affirmed.

      J. Allen Eades, for appellant.
    Circuit courts have no power, after the expiration of the term, to vacate or modify a judgment or final order, except in the mode and for the causes specified in the Civil Code. 46 Ark. 552; 85 Ark. 605.

      Edward Gordon, for appellee.
    The court did not err in entering the order nunc pro tunc against the surety after the lapse of the term. 35 Ark. 278.
   McCulloch, C. J.

This is an appeal from a summary judgment entered nunc pro time by the circuit court of Conway County in favor of appellee against appellant as surety, on an appeal bond executed on appeal from a judgment of a justice of the peace to the circuit court.

Appellee instituted before a justice of the peace of Conway County an action against Joe Spooner to recover a debt in the sum of $150, alleged to be due for rent of land. There was an order of attachment issued and levied on crops raised on the leased premises, and defendant Spooner gave a discharging bond, with appellant Ralph Burgner as surety.

Appellee also instituted another action against Joe Spooner, before the same justice of the peace, to recover a lot of personal property. An order of delivery was issued and served, and the defendant Spooner gave a retaining bond, with appellant as surety.

The two cases were consolidated and tried together before a justice of the peace, and the trial resulted in a judgment in favor of the plaintiff, who is the appellee on this appeal. Joe Spooner, the defendant, obtained an appeal to the circuit court, and the two causes were consolidated there and tried together, resulting in a verdiet and judgment in favor of appellee against Joe Spooner, for the sum of $75 as rent and for a portion of the personal property sued for in the action of replevin. The court rendered judgment against Joe Spooner on the verdict, but failed to render any judgment against the surety. At a subsequent term of the court, appellee filed a motion against appellant, as surety on the appeal bond, for judgment to be entered nunc pro tunc. Upon the filing of the motion a summons or notice was issued and served on appellant, and thereafter the court heard the motion, and rendered judgment in accordance with the prayer thereof, against appellant, for' the amount of the original money judgment against the defendant Spooner.

Appellant argues the case as if the summary judgment appealed from was rendered on the attachment bond, and he contends that, inasmuch as there was a verdict of the jury dissolving the attachment, there could be no judgment rendered on that bond. The contention of counsel would be sound if he were correct in stating that the judgment was rendered on the attachment bond. The'statute (Crawford & Moses’ Digest, § 525) was taken from the Civil Code, § 242, and provides for the execution of a discharging bond in attachments. The digester failed, however, to include the amendment to this section by the act of March 6, 1891 (Act 1891, p. 56), adding a proviso as follows: “Provided, that the giving of this bond by the defendant shall not preclude his right to controvert the existence of the ground stated by the plaintiff in his affidavit for the order of attachment.” Another section of the statute (Crawford & Moses’ Digest, § 542) provides that if, in an action where there is an attachment, the plaintiff recover against the defendant, and the attachment shall be discharged upon the execution of a bond, “the court shall render judgment against the defendant and his sureties in said bond for the amount recovered and the cost of the suit.” This section was impliedly amended by the act of 1891, supra, to the extent that judgment can only be rendered against a surety where the attachment is sustained, for the provision permitting the defendant in the action to controvert the ground of attachment, notwithstanding the execution of a bond, necessarily implies that if, on such contest, the attachment is not sustained, the surety is not bound. In this case the attachment was dissolved by the verdict of the jury, and this discharged the surety from any liability on that bond. Appellant was, however, the surety on the appeal bond, and, as before stated, that was the bond on which the court rendered judgment.

The statute provides (Crawford & Moses’ Digest, § 6513) that, on appeal from a judgment of a justice of the peace, the appellant shall give bond conditioned that he will prosecute his appeal with diligence to a decision, and that “if, on such appeal, the judgment of the justice be affirmed, or if, on a trial anew in the circuit court, judgment be given against him, that he will pay such judgment, and, if his appeal be dismissed, that he will pay the judgment of the justice, together with the costs,” etc. The bond was given in accordance with this statute, and another section of the statute (Crawford & Moses’ Digest, § 6531) provides that, in the case of an appeal from a justice of the peace, “if, on a trial anew in the circuit court, the judgment be against the appellant, such judgment shall be rendered against him and his securities in the appeal bond.”

It has been decided by this court that, where the judgment omits the sureties on the appeal bond, a judgment may be rendered nunc pro tunc against the sureties at a subsequent term without notice to them. Freeman v. Mears, 35 Ark. 278. Notice was, however, given in the present case.

The court was correct in rendering the judgment, and the same is affirmed.


author: Wood, J.

text:
    Eason v. Wheeler.
    Opinion delivered January 26, 1925.
    1. Frauds, statute of — parol agreement to reconvey. — A mere parol agreement by a purchaser of land at execution sale to reconvey the land to the execution defendants upon their reimbursing him for expenses incurred is void within the statute of frauds unless there is established an element of positive fraud whereby the title was wrongfully acquired.
    2. Trusts — burden of proof. — In a suit to compel defendant to convey a lot purchased by him at execution sale under a parol agreement to reconvey to the execution defendants upon their reimbursing him for expenses incurred, the burden is on the plaintiffs to show that defendant, by fraudulent representation, deceived them and induced them to rely upon his promise to . reconvey and thus to fail to make other arrangements to protect their interest in the lot.
    3. Evidence — hearsay.—In a suit to compel defendant to reconvey a lot purchased by him at execution sale, under a parol agreement to that effect, testimony that plaintiffs’ agent, on the day of sale, told third parties that defendant had agreed to buy the lot for plaintiffs was incompetent to corroborate such agent’s testimony that such an agreement was entered into between plaintiffs and defendant.
    4. Trusts — evidence.—In a suit to compel defendant to convey a lot at execution sale, plaintiffs held not to have established a trust ex maleficio■, in view of Crawford & Moses’ Dig., §§ 4867, 4868.
    Appeal from Hot Spring Chancery Court; J. P. Henderson, Chancellor;
    affirmed.

      D. D. Glover and >D. M. H'albert, for appellants.
    The evidence in the case and the fact that appellee waited more than three years before attempting to claim any ownership in the property, is convincing that he agreed to take up the debt for appellants by buying in the property at the sale and holding same under a commissioner’s deed for his security. The case falls within the provisions of the statute, C. & M. Digest, § 4868, and the principles announced in Ammonette v. BlacJc, 73 Ark. 310. See also 109 Ark. 335; 113 Ark. 36; 92 Ark. 58; 101 Ark. 455; 151 Ark. 314. The statute of frauds was not pleaded in the answer as a defense, yet the chancellor evidently considered it in passing upon the case. This statute is not available unless pleaded. 71 Arle. 302.

      Oscar Barnett, .for appellee.
    The appellant did not allege that the contract was in writing. It devolved upon appellant to prove a valid and enforceable contract, and it was not necessary for the appellee, who denied its execution, to plead the statute of frauds. 141 Ark. 458; 19 Ark. 23; 19 Ark. 39. Remaining in possession after making the alleged contract was not alone sufficient to take the case out of the operation of the statute of frauds. 136 Ark. 447. If the alleged contract carried mutual obligations, full compliance on the part of the plaintiff must have been shown, to entitle him to a decree for specific performance on the part of the defendant. .142 Ark. 537; 118 Ark. 283.
   Wood, J.

This action was instituted by the appellants against the appellee. The appellants alleged that a judgment was obtained against them in the Hot Spring-Chancery Court, which was declared a lien against a certain lot in Malvern, Arkansas, and the lot was ordered sold to satisfy the judgment; that,,on the day of sale, Alice Wilson, acting as agent of Creen Eason, entered into a contract with W. W. Wheeler to buy in the lot for appellants, with the understanding that they were to pay Wheeler the amount bid by him with ten per cent, interest until the amount for which the lot was sold and the costs of suit were fully paid to Wheeler; that, in pursuance of such agreement, Wheeler bought the lot for the appellants, and, by agreement of appellant with him, a deed to the lot was to be made to Wheeler to secure him against loss until the amount was fully paid; that, under the contract, when the amount was fully paid, Wheeler was to deed the lot to Eason; that Wheeler paid the sum of $228.62 for the lot, and that appellants had paid appellee on this sum $98, and tendered him the balance, and asked that he perform his part of the contract to convey to Eason the lot in controversy, which appellee refused to do. Appellants prayed that appellee he required to perform his contract.

Appellee answered denying all the allegations of the complaint, and set up, by way of cross-complaint,that appellant Eason was in the unlawful possession of the lot, and had been since the 5th day of December, 1921; that by .reason of such possession, the appellee had been damaged in the sum of $112. He prayed judgment for the possession of the lot, and for damages.

The testimony for the appellants followed closely the allegations of their complaint. It was shown, in addition to these allegations, that the lot in controversy was worth about $1,000. The appellants testified to the contract as set up in their complaint, and that appellee bought the lot pursuant to this contract, and refused, after they had paid him the sum of $98, to receive the balance of the purchase money paid by him for the lot, and refused to make Eason a deed.

Alice Wilson testified that, on the day of the sale, she told certain parties that the appellant had entered into the contract with appellee to buy the lot in for Eason, and these parties corroborated her testimony in that respect. There was also testimony to the effect that the party who held the judgment against the appellants for which the lot was sold, heard his son say that the appellee purchased the lot for the appellants.

The appellee testified that he never made any agreement with the appellants to buy the lot in controversy. He bought the lot on the day it was dated for sale, and paid the money to the commissioner and received his deed; that he never agreed to buy the propery in for anybody; that the appellants had not paid him the sum of $98 on the purchase money. After appellee bought the lot, he told Eason that he would have to pay the sum of $7 per month rent for same. Appellee did not receive any rents from Eason, and had him arrested -on one or two occasions for failure to pay the rent. Eason had paid only the sum of $15.80 for the whole time ho had been there. Appellee, since his purchase, had continuously paid the taxes on the property. The property had a value of about $500. Eason lived on the property at the time appellee bought the same in 1921, and had been living on it ever since.' The appellee further testified that Alice Wilson came to see him on the day of the sale and asked him if he would buy in the property, and he told her he didn’t want to fool with it in the condition it was in.

The appellants testified, in rebuttal, that they never agreed with the appellee at any time to pay rent on the place.

The trial court dismissed the appellants’ complaint for want of equity, and entered a decree in favor of the appellee for the possession of the property and the sum of $129.56, balance due appellee on the rents, from which decree is this appeal.

The appellants seek to establish a trust ex maleficio on the part of the appellee concerning the lot in controversy, under the provisions of § 4868, Crawford & Moses’ Digest, as follows:

“Where any conveyance shall be made of any lands or tenements, by which a trust or confidence may arise or result by implication of law, such trust or confidence shall not be affected by anything contained in this act.”

The alleged contract between the appellants and the appellee concerning the lot in controversy was oral, and was void and unenforceable under the statute of frauds, unless the testimony was sufficient to prove an implied trust under the above statute. See § 4867, C. & M. Digest.

In LaCotts v. LaCotts, 109 Ark. 335-337, we said: “We are of the opinion that, according to the proof adduced, this case does not contain any elements of a trust ex mlaleficio, for the reason that the proof does not show that appellant procured the title by the commission of any fraud. Putting it in the strongest light, the testimony adduced by appellee only tends to establish a promise on the part of appellant to purchase the land and hold it for appellee, and a .breach of that promise. This alone is not sufficient to establish a trust ex maleficio. Spradling v. Spradling, 101 Ark. 451.” Under the facts of that case, we held that the proof was not sufficient to show any positive fraud on the part of the purchaser of the land at the sale by which he procured the title. But if the appellee, in the case at bar, procured the title in the manner alleged by the appellants, then appellee would be guilty of a positive fraud, and should be declared a trustee ex maleficio of the lot in controversy, under the doctrine announced by Prof. Pomeroy and quoted by Judge Riddick, speaking for this court, in Ammonette v. Black, 73 Ark. 310, as follows: “A second well-settled and even common form of trusts ex maleficio occurs whenever a person acquires the legal title to lands by means of an intentionally false and fraudulent verbal promise to hold the same for a certain specified purpose — as, for example, a promise to convey the land to a designated individual, or to reconvey it to the grantor, and the like — and, having thus fraudulently obtained the title, he retains, uses and claims the property as absolutely his own, so that the whole transaction by means of which the ownership is obtained is in fact a scheme of actual deceit. Equity regards such a person as holding the property charged with a constructive trust, and will compel him to fulfill the trust by conveying according to his engagement. There must, of course, in such cases be an element of positive fraud by means of which legal title is wrongfully acquired, for, if there was only a mere parol promise, the statute of frauds would apply.” See also Bray v. Timms, 162 Ark. 247.

According to the testimony of the appellants, the appellee intentionally deceived them when they were seeking to make arrangements to have some one purchase the lot, by telling them that he would purchase the same and take title in his own name as security and allow them to repay him the purchase monev. It is manifest that, if this testimony of the appellants be true, appellee, by these false and fraudulent representations, deceived the appellants and caused them not to proceed further to make arrangements to purchase the lot, which they might have done hut for such promises and representations upon the part of the appellee. But the burden was upon the appellants to prove that the appellee defrauded them in the manner alleged. The testimony of third parties, to the effect that Alice Wilson told them, on the day of the sale, that the appellee had agreed to buy the lot in controversy for the appellants, was not competent as proof in corroboration of her statements that such a contract was entered into between appellee and appellants. Such statements of Alice Wilson, in the absence of the appellee, were not binding on him, and there is no testimony in the record, except the testimony nf the appellants, to the effect that the oral contract was entered into as alleged by the appellants. The testi money of the appellee, on the other hand, is as strong to the effect that he did not enter into such a contract. With this conflict of testimony, we are convinced that the appellants have not established a trust ex maleficio under the requirements of the rule announced in Tiller v. Henry, 75 Ark 446, as follows: “Constructive trusts may be proved by parol, but parol evidence is received with great caution, and the courts uniformly require the evidence to establish such trusts to. be clear and satisfactory. Sometimes it is expressed that the ‘evidence offered for this purpose must be of so positive a character as to leave no doubt of the fact,’ and sometimes it is expressed as requiring: the evidence to be ‘full, clear and convincing’ and sometime expressed as requiring it to be clearly established.’ * * * Titles to real estate cannot be overturned by a bare preponderance of oral testimony seeking to establish a trust in opposition to written instruments. The conservatism of the courts has prevented the tenure of realty being based on such shifting sands.” See also Bray v. Timms, supra, and cases there cited to the same point.

The decree is therefore correct, and it is affirmed.


author: Hart, J.,

text:
    Church v. Jones.
    Opinion delivered January 26, 1925.
    1. Set-off and counterclaim — effect of filing counterclaim.— Under Crawford & Moses’ Dig., §§ 1195, 6236, an answer alleging a counterclaim is in the nature of a complaint in a cross-action against the plaintiff, and entitles defendant to any relief consistent with the evidence and the issue.
    2. Trial — conflict in instructions. — 'Where defendant admitted the execution of the note sued on, but claimed that there was an agreement that there should be a subsequent settlement, and ¡sought affirmative relief on a counterclaim, but plaintiff contended that the note was in full settlement, instructions placing the burden on plaintiff to show, as a defense to the counterclaim, that the note was in full settlement, and on defendant to establish his counterclaim, were not conflicting.
    Appeal from Clay Circuit Court, Eastern District; G. E. Keels, Judge;
    affirmed.
    STATEMENT OE EAOTS.
    This suit was commenced before a justice of the peace by Greorge Church against E. M. Jones, to recover $133.70, balance due on a promissory n"ote.
    Jones admitted the execution of the note and that the amount sued for was due and unpaid, but set up facts which constituted a counterclaim, and asked for affirmative relief against Church for the balance due him. The justice of the peace found that there was a balance due Jones on his counterclaim, and rendered judgment against Church in his favor. Church appealed to the circuit court. There Gr. W. Church was the principal witness for himself. „ According to his testimony, on the 16th day of August, 1922, he executed a bill of sale to Jones to his undivided interest in a crop of cotton which had been grown by them in Clay County, Arkansas. The agreement provided that Jones was to pay for the picking of a part of the cotton and that the balance of it was to be picked by the person who had grown it. The contract also provided that-Jones agreed to pay certain notes which he had signed as surety for Church. The note sued on was one of the notes referred to in the bill of sale. Jones paid the other note described in the bill of sale. The note sued on was introduced in evidence, and the indorsement on the back showed that the amount sued for was due and unpaid.
    On cross-examination Church admitted that he and Jones had made' a partnership crop of cotton, and that this was the cotton referred to in the bill of sale. According to his testimony, they had a full settlement of their partnership affairs at the time the bill of sale and the note sued on were executed, and the notes described in the bill of sale represented the balance due him by Jones in the settlement of their partnership affairs.
    C. F. Brennecke, cashier of the Bank of Greenway, and a notary public, was a witness for the defendant.
    According* to his testimony, he prepared the bill of sale in question at the request of both Church and Jones. It was definitely understood between Church and Jones that it was not a final settlement, but was just a partial settlement. The reason was that Jones did not know exactly the amount of his claim against Church, and it was agreed between them that they would get their books together and have a final settlement later, and whoever owned the other would pay him then. The partial settlement was made and the two notes executed by Jones to Church in order to enable Church to borrow some money. They so explained the transaction to the witness at the time:
    According to the testimony of Jones, he made a contract with Church in the spring of 1922, for the cultivation of some land in partnership. They rented some land, and share-cropped it. Jones was to furnish the team and tools and Church the feed. At the time the bill of sale was executed, Church wanted to borrow some money, and the bill of sale and notes in question were executed to enable him to use Jones’ name in that way. They did not have their books at the time, and did not make a final settlement. It was a partial settlement, and each party agreed that they would have a final settlement, and then whoever was in debt to the other would pay Mm.

      The jury returned a verdict for Jones against Church in excess of the amount of the note sued on, in the sum of $50, and from the judgment rendered Church has duly prosecuted an appeal to this court.

      Arthur Sneed, for appellant.

      Ward & Ward, for appellee.
   Hart, J.,

(after stating the facts). The court told the jury that it was the contention of Church that, at the time of the execution of the note sued on, he and Jones had a full and complete settlement of their accounts. That, on the other hand, Jones admitted the execution of the note, and that the amount sued for had not been paid; but he claimed that Church owed him more than the amount of the note, and denied that they had had a full settlement of their accounts at the time the note was executed. In other instructions the court submitted the respective theories of the parties to the jury.

The court gave to the jury instructions Nos. 3 and 4, which read as follows: “The burden of proof is on defendant to show by a preponderance of the evidence that the plaintiff owes him on his counterclaim, so in this case your verdict will be for the plaintiff for the amount of the note, less any credit you may find, from a preponderance of the evidence, to be due on said note, and, if you find that the plaintiff owes the defendant more than the amount of said note sued on, you will find for the defendant against the plaintiff for the amount you may find from the evidence the plaintiff owes the defendant in excess of the amount of the said note.

“No. 4. The burden of proof is on the party alleging things to be true, to establish it by preponderance of the evidence; therefore the plaintiff in this case says that there was a full settlement at the time of the execution of this note; they allege that to be true, therefore the burden would be on them to establish that to be true by a preponderance of the evidence.” •

It is the contention of counsel for appellant that the instructions are contradictory, and, for that reason, the judgment must be reversed. We cannot agree wilh counsel in this contention. Section 1195 of Crawford & Moses’ Digest defines a counterclaim as any cause of action in favor of the defendant against the plaintiff.

Section 6236 of the Digest provides that, in any case where a set-off or counterclaim has been presented, the defendant shall have the right of proceeding to the trial of his claim, although the plaintiff may have dismissed his action or failed to appear. This section was a part of our Civil Code, and § 1195, defining a counterclaim, was passed by the Legislature of 1917. Thus it will be seen that the pleading of a counterclaim, with the demand for relief, is, in effect, the institution of a cross-action for a recovery under the facts set up in the counterclaim. Although the matters set up in the counterclaim constitute a defense to plaintiff’s cause of action, it is also of a nature that entitles the defendant to affirmative relief, so that he might have brought an action on it in the first place. In short, pleading the counterclaim in this suit was, in effect, the instituting of a cross-action, and the part of the answer alleging it is in the nature of a complaint by the defendant against the plaintiff. As such, the defendant is entitled upon it to any relief consistent with the case made and embraced within the issue. This is the effect of our decision in Coats v. Milner, 134 Ark. 311. In that case the court said that the manifest purpose of the Legislature in defining a counterclaim was to permit persons who have gone to law to settle, in a single suit, all matters in dispute between them, whether the respective causes of action grow out of' the same or different contracts or whether they arise upon contract or arise out of some tort.

In the case before us, Jones admitted the execution of the note sued on and that there was a balance due upon the note in the amount sued for. Jones said that he executed the note in order to accommodate. Church, and that it was expressly understood that afterwards there should be a settlement of their affairs, and that tbe one owing the other would pay him. Jones sought affirmative relief against Church.

In this view of the matter we do not think that there was any necessary conflict between the two instructions. Tbe only disputed question of fact was whether or not Jones was entitled to recover on his counterclaim. The court placed the burden upon him in this respect in instruction No. 3; and, in instruction No. 4, intended to tell the jury that, if the plaintiff relied upon the fact that there had been a full settlement at the time tbe note was executed, as a defense to the counterclaim, the burden was on him to show it. This instruction evidently had reference to the trial of the issue on the counterclaim, and, if the defendant thought otherwise, he should have made a specific objection to the instruction. Tbe court had already told the jury. that Jones admitted tbe execution of the note, and that the amount sued on was due and unpaid, and he only defended the suit and asked for affirmative relief by way of counterclaim upon the theory that there was a balance due him in the settlement of their partnership affairs, and the note was executed for the accommodation of Church, and that he was entitled to an affirmative judgment against Church.

It is well settled in this State that the court will only reverse a judgment for prejudicial errors, and we are of the opinion that, in the absence of a specific objection, it cannot be said that the instruction was necessarily prejudicial.

It follows that tbe judgment will be affirmed.


author: Smith, J.

text:
    Ex parte Stroud.
    Opinion delivered January 26, 1925.
    Contempt- — subpoenaing unnecessary number op witnesses.— Where petitioner, charged with the commission of certain felonies, subpoenaed 16Y witnesses, many of whom could give no material testimony in the cases, a fine for contempt was not authorized, as there was no violation of any court order.
    Certiorari to Franklin Circuit Court, Ozark District; James Cochran, Judge;
    reversed and judgment quashed.

      Benson db Benson and Hays, Priddy S Hays, for appellant.

      H. W. Applegate, Attorney General, and John L. Carter, Assistant, for appellee.
   Smith, J.

At the September, 1924 term of the' Franklin Circuit Court for the Ozark District there was pending against petitioner, Walter Stroud, three indictments, one charging him as an accessory before the fact to the -crime of arson, another with the -crime of forgery, and the third with the crime of embezzlement, committed while petitioner was assistant cashier of the Bank of Ratcliff. There was also pending at the same time, in the same court, five indictments against W. D. Stroud, a brother of petitioner, and there were three indictments against another brother, making eleven indictments in all, and each was for a felony charge. These cases were all set for trial on Monday, September 8, and no order of court had been made indicating which -case would be first -called for trial, or in what order the cases would be tried. Just prior to the September term of court petitioner, for himself and his two brothers, wrote a letter to the clerk of the circuit court, inclosing a list of witnesses for whom he wished subpoenas to be issue.

On September 8 W. D. Stroud was placed on trial on the charge of being an accessory before the fact to the crime of arson, and, at the conclusion of the trial, on Wednesday of that week, he -was convicted. On Thursday a brother was placed on trial on the same charge, and, at the conclusion of his trial, on Saturday of the same week, he too was convicted.

Two weeks later, and during the same term of court, petitioner was cited and fined for contempt. Upon the hearing of this charge the court made the following finding of fact, after having heard the testimony offered: Petitioner had caused 167 witnesses to he subpoenaed and had caused his brother to be subpoenaed in each other’s cases. A large number of these witnesses were never sworn nor put under the rule, and were not called as witnesses. Upon petitioner’s examination he testified that a large number of witnesses had been subpoenaed to testify as character witnesses, but it appeared from his examination that many of these witnesses could have given no relevant or material testimony on that issue, and that there were still other witnesses for whom petitioner was unable to give any reason for having subpoenas issued. Upon this finding the court adjudged petitioner guilty of contempt, and „ assessed a fine against him in the sum of $250, and the record upon which this was done has been brought before us by certiorari for review.

In Rapalje on Contempts, § 21, civil and criminal contempts are defined and distinguished in the following language: “Civil contempts are those quasi con-tempts which consist in failing to do something which the contemnor is ordered by the court to do for the benefit or advantage of another party to the proceeding before the court; while criminal contempts are all those acts in disrespect of the court or of its process, or which obstruct the administration of justice, or tend to bring the court into disrepute, such as disorderly conduct, insulting behavior in the presence or immediate vicinity of the court, or acts of violence which interrupt its proceedings; also disobedience or resistance of the process of the court, interference with property in the custody of the law, misconduct of officers of the court,” etc.

Assuming that the testimony heard by the court sustains the finding of fact made, we are of the opinion that the court erred in adjudging petitioner to be in contempt of court. Certainly his conduct does not come within the definition above quoted. There was no defiance of any order of court. The parties were endeavoring to ■prepare for trial, and they were tried at the time and in the order in which the State elected to proceed.

It may have been that an unnecessary number of witnesses were subpoenaed, but the case does not even present the question of a violation of any rule on that subject (Aikin v. State, 58 Ark. 544), and we need not consider what action, if any, the court might have taken to prevent the abuse of the right to have process for witnesses. But, if it be conceded that there was an abuse of the right of an accused person to have compulsory process to procure the attendance of witnesses in his behalf, this would not constitute contempt of court.

In Johnson v. State, 87 Ark. 45, the trial court found that the plaintiff’s attorney had filed a number of vexatious motions in the cause, which had been overruled, and thereafter another motion was filed which the court regarded as frivolous, its purport being that the court was related within the prohibited degree of consanguinity to one of the attorneys for a cross-complainant in the case, and that said attorney had a contingent interest in any recovery which might be had, and that the judge of the court was therefore, disqualified. Upon filing this motion plaintiff’s attorney, after citations, was fined for contempt. The proceedings was brought before this court for review on certiorari, where the judgment of the court below was set aside and quashed; and, in the opinion in that case, this court said: ‘‘ There is a recital, however, that petitioner had previously filed in the case and argued before the court other vexatious motions. When these motions were filed the judgment does not recite, nor does it declare, that petitioner had been guilty of contempt in filing any of them. The mere filing and presentation of a motion or repeated motions which, are thought to be for the purpose of vexation or delay, do not constitute contempt of court. The' court may, in the exercise of its inherent powers, strike them from the files because they are not presented to subserve the ends of justice, and are merely for vaxation or delay, but, unless they are presented in a contemptuous or disrespectful manner, or unless they contain matter which of itself constitutes contempt, the court cannot treat them as contemptuous merely because they are thought to be for vexation or delay. Take, for instance, motions for continuance or change of venue. The court may well treat repeated motions of this kind as dilatory in their purpose, and refuse to hear them; but, if they are presented in a respectful manner, it shows no contempt of court, and cannot be so treated, unless they involve some violation of the court’s order, so as to amount to an obstruction of the administration of justice. ’ ’

This case is reported in 18 L. R. A. (N. S.) 619, and in 15 Ann. Cas. 531. In the annotator’s note in 18 L. R. A. (N. S.) it is said that a careful search of the authorities had failed to disclose any other decision on the question of contempt in filing" repeated motions which were not presented in a contemptuous or disrespectful manner and contained nothing which, of itself, constituted contempt. But we think the principle announced in the Johnson case, supra, is conclusive here, 'and that the court’s action in fining petitioner for contempt was unauthorized by law, and that judgment is therefore set aside and quashed.


text:
    Missouri Pacific Railroad Company v. King.
    Opinion deivered February 9, 1925.
    1. Appeal and error — harmless error. — Appellant cannot complain that the verdict for appellees is for a less amount than the evidence warranted.
    2. Carriers — exemption from liability. — In an action against a carrier for loss of cattle which escaped from a defective loading pen, it is. no defense that the toil! of lading stipulated that the shipper should assume liability for feeding, watering and caring for the cattle while in the yards, cars or pens; the loss complained-of having occurred before the bill of lading was issued.
    3. Carriers — exemption for delay caused by strike. — To avail itself of a clause in a bill of lading exempting it from liability for delay caused by a strike, the carrier must establish that the strike caused the particular delay.
    Appeal from White Circuit Court; E. D. Robertson, Judge;
    affirmed.

      Thos. B. Pryor and E. L. Ponder, for appellant.
    The carrier did not assume any liability until the live stock had been delivered to and accepted by the company for immediate 'Shipment. 69 Ark. 150. The company only became liable for damage to the cattle after they were loaded on its train and bill of lading issued. 82 Ark. 469; 83 Ark. 502; 50 Ark. 397; 56 Ark. 424.

      John E. Miller, for appellee.
    The failure of the agent of the appellant to notify the shippers that there was a strike of the employees, which made it impossible to promptly deliver the cattle, rendered the appellant liable. 101 Ark. 289; 88 Ark. 138; 63 Ark. 331. The liability of the carrier for stock to be transported over its lines commences when the animals are placed in the usual place for receiving them-for shipment. 83 Ark. 502; 68 Ark. 218; 79 Ark. 470; 82 Ark. 353; 101 Ark. '289; 132 Ark. 37. It is the duty of the railroad company to keep its stock yards in a reasonably safe condition. 75 Kan. 295; 10 L. R. A. (N. S.) 571; 89 Pac. 683; 15 A. L. R. 200.
   McCulloch, C. J.

The two appellees, Jess King and Fred King, each instituted a separate action against appellant to recover the value of cattle which escaped from the pens at Bald Knoh, where the cattle had been placed for shipment, and also to recover damages for delay in the shipment of the. remainder of the cattle.

It was alleged that, on account of the insecurity of the pens, the cattle escaped, and that one of the appellees, Jess King, lost five of his cattle, and that Fred King lost four. It was also alleged that there was a delay of more than twenty-four hours in the transportation of the remainder of the cattle, and that each of the appellees sustained loss on account of the shrinkage in weig'ht and consequent loss in value. Negligence of appellant is alleged in furnishing insecure cattle pens. The allegations of negligence were denied by appellant, and there was also a plea that the delay was caused by a strike of appellant’s employees, and-that the bills of lading issued to appellees exempted the carrier from loss or damage resulting from delays caused by strikes of employees. The two cases were consolidated, and the trial resulted in a verdict in favor of Jess King for $100, and in favor of Fred King for $40.

The evidence adduced by appellees tended to show that the cattle which were lost were of the value of twenty to twenty-five dollars per head, and that the loss of Jess King-for shrinkage in weight amounted to the sum of $115.89, and that the loss of appellee Fred King amounted to $49.65. The case was submitted to the jury on the question of liability, both for the alleged negligence in furnishing an insecure cattle pen and for the alleged negligent delay in transportation. It is impossible to determine upon which phase of the case the verdict of the jury was based, as the verdict might have been upon either phase of the case, so far as the amount is concerned. The recovery by Jess King was for $100, which might have been solely on account of the loss of five head of cattle -at twenty dollars per head, or the verdict'might have been for that much of the claim for shrinkage in weight. It is evident that the jury based its verdict in favor of Fred King on the shrinkage in weight of the cattle, hut the amount recovered was not for the full amount which the evidence showed he lost. The fact that the verdict is for a less amount than the evidence warranted, and may appear to be inconsistent on that account, does not call for a reversal, for the appellees are not complaining. Sledge & Norfleet Co. v. Mann, 166 Ark. 358. The situation, however, calls for a consideration of each of the phases of liability asserted by appellees, and, if there is any error on either branch of the case, a reversal must result.

It is contended by counsel for appellant that there is no liability for the escape of the cattle because the bill of lading contained a stipulation that the shipper should assume the risk of feeding, watering and otherwise caring for the cattle while in the yards, cars or pens, and load the same at his own expense and risk. The answer to this contention is that the loss on account of the escape of the cattle occurred before the bill of lading was issued, and therefore the exemption from liability does not apply. St. L. S. F. Ry. Co. v. Pearce, 82 Ark. 353; St. L. I. M. & S. Ry. Co. v. Jones, 93 Ark. 537.

It is next contended that appellant is not liable as a carrier for the reason that the cattle had not been accepted for immediate shipment and that its liability would only be as a depository or bailee. It is sufficient, for the purpose of the case, to answer this contention by saying that the court did not submit the issue to the jury upon the liability of appellant as a public carrier, so far as concerns the escape of the cattle, but the instruction merely submitted the question of negligence in furnishing insecure pens and thus permitting the cattle to escape. In other words, the court submitted the question of ordinary care, and not the question of liability of appellant as a public carrier.

There was evidence sufficient to warrant a finding that appellant was negligent in furnishing an insecure place for the shippers to use in turning in the cattle for immediate shipment. The evidence shows that the fastening on the gate was insecure, and that appellants agent was notified of the insecure fastening and requested to furnish a lock with which to fasten the gate.

On the other branch of the case the only contention made is that, under the undisputed evidence, the stipulation of exemption from liability on account of strikes furnished a complete defense. That question was submitted .to the jury on proper instructions, and we do nofi think that the evidence shows that the delay was caused on account of a strike, at least it cannot be said that the undisputed evidence is to that effect.- There was a delay of twenty-four hours at Bald Knolb, the point of shipment. There was a train due -about nine o’clock in the morning of August 19, which might have carried the carloads of cattle shipped by appellees, but the cars were not, in fact, taken out until about the same hour on the morning of August 20. This delay is not explained, except by the general statement of one of appellant’s witnesses that there was a strike of employees which interfered with schedules. There was no testimony introduced tending, directly, to show that the delay in this instance was caused by a strike. It was not sufficient merely to show that there was a disarrangement of schedules, but, in order to take advantage of this exemption, -it devolved upon appellant to show that the particular delay was caused by a strike.

Our conclusion is that there was evidence to sustain liability on either branch of the case, and that the issues were properly submitted to the jury. Affirmed.


text:
    McDonald v. Thompson.
    Opinion deivered February 9, 1925.
    1. Evidence — blank indorsement op note — parol evidence.— Parol evidence is inadmissible to show that a blank indorsement of a note was intended to be qualified or restricted.
    2. Evidence — parol evidence as to blank indorsement. — Evidence that a note traded by the payee for a team of mules and indorsed by him in blank was in fact indorsed with the understanding that he assumed no personal liability held inadmissible in an action on the note.
    3. Reformation of instruments — sufficiency of evidence.— While parol evidence is admissible in an action to reform an instrument, such evidence must be clear and convincing.
    Appeal from Grreene Chancery Court, J. M. Fwtrell, Chancellor;
    affirmed.
    STATEMENT OE EAOTS.
    Orville Thompson sued at law H. T. Cazort, Gr. W. Bichburg and Bill McDonald, Jr., to recover the sum of $382.17 and the accrued interest, alleged to be due him upon a promissory note.
    Bill McDonald, Jr., filed a separate answer, in which he set up the defense that he had indorsed the note without any consideration, and also set up facts entitling him to a reformation of the note to show that it was indorsed without recourse.
    The cause was transferred to equity, without objection, and heard there.
    The original note was introduced in evidence. It was dated Paragould, Arkansas, January 29, 1921, and was payable nine months after date to the order of Bill McDonald, Jr. The note was for $382.17, bearing interest at the rate of ten per cent, per annum from date until paid. It was signed by H. T. Cazort and Gr. W. Bichburg as makers, and was indorsed in blank by Bill McDonald, Jr.
    According to the testimony of Bill McDonald, Jr., he traded the not© in question to Orville Thompson for a pair of mules, worth $300 or $325, and Thompson paid him the difference in cash. The note was delivered to Thompson by McDonald without being indorsed. A few days afterwards Thompson went to McDonald with the note and asked him to indorse it to enable him to get some money on it. Thompson told McDonald that he would see that he was never bothered about it and that he would not have to pay it. Upon this promise being made to him, McDonald indorsed the note in blank.

      According to the testimony of Orville Thompson, when the note was delivered to him by Bill McDonald, Jr., in exchange for the mules, he took the note down town to Bertig Bros., and, before he handed it to them, he saw that there was no indorsement on it. He immediately carried the note back to McDonald and told him that he had neglected to indorse the note. McDonald took the note, signed his name on the back of it, and handed it back to Thompson. Thompson denied that anything was said to the effect that he would never hold him liable as an indorser on the note.
    B. M. Kjitchens, an employee for Bertig Bros.,
    testified that Thompson told him that he did not want to bother McDonald about the note, and that he had told him at the time he indorsed it that he would see that he was held harmless on it.
    According to the testimony of Jeff Bratton, Bill McDonald, Jr., and Orville Thompson came to his office together, and told him that they wanted suit brought on the note. The note was handed to Bratton, and he noticed that McDonald was an indorser on the note. According to his recollection, Thompson said in substance, to McDonald, that he did not want him to pay it if the money could be made out of the makers of the note; but, if it could not, then McDonald would have to pay it. He did not remember that McDonald made any reply to this statement.
    On this point McDonald admitted that he and Thompson went to Bratton’s office together, and that Thompson asked him to bring suit on the note. McDonald also admitted that Thompson said something at the time to the effect that he wanted Bichburg and Cazort to pay the note and that he did not want McDonald to pay it, although the latter was good to him for it. McDonald also said that his recollection is that he told Thompson that he was not responsible, and that he would have to get his money from the others.
    The chancellor found the issues in favor of the plaintiff,' and entered a decree in his favor, adjudging that he recover from the defendants, or either of them, the amount of the note and the accured interest.
    The defendant, Bill McDonald, Jr., has duly prosecuted an appeal to this court.

      Huddleston £ Little, for appellant.
    The court erred in holding that appellant was restricted in his defense to the equitable remedy of reformation, as his answer raised every issue presented on this appeal. 93 Ark. 376; 15 Ark. 555. Transfer of the cause to equity cannot be questioned now, since no objection was offered at the time. 93 Ark. 376. The court erred in excluding paroi testimony as the evidence comes within recognized exceptions to the rule, and was admissible. 93 Ark. 376; 86 Ark. 82; 1 Daniel on Neg. Inst. §§ 720a and 722; 8 Cyc. 255; 21 N. E. 354; 77 N. W. 279; 38 Conn. 15; 9 Am. Rep. 353; 40 N. W. 57; 13 Atl. 420; 4 A. L. R. 764-804; 163 Ark. 471. The note was delivered to and accepted by appellee without indorsement, and title vested in him, but its negotiability was impaired by the lack of appellant’s indorsement. 99 Ark. 458. Appellant thereafter indorsed the note solely for the accommodation of 'appellee, and an action could not be maintained by appellant upon the indorsement. The contract of indorsement is not supported by any consideration, and is nudum pactum, 127 Ark. 410. The indorsement was procured.by appellee under such circumstances that its enforcement would be a fraud. 5 Serg. & R. (Pa.) 363; 9 Am. Dec. 376; 38 Conn. 15, 9 Am. Rep. 353.

      Jeff Bratton, for appellee.
    One who places his signature on the back of a note is deemed to be an indorser. Section 7829 C. & M. Dig. By § 7801 he may restrict his indorsement by a proper writing. This he did not do. Appellee could have compelled the appellant to indorse the note. 3 R. C. L. p. 984. An indorser without qualification undertakes that the note shall be paid. 3 R. C. L. p. 1153. This case does not come within the exception to the rule that oral testimony is not competent to qualify an unrestricted indorsement in the cases cited by appellant in 93 Ark. 378; 163 Ark. 471 etc.
   Hart, J.,

(after stating the facts). It appears from the record that the note sued on was payable to the order of Bill McDonald, Jr., and it was by him indorsed in blank and delivered to Orville Thompson in exchange for a pair of mules and some money, being the difference between the value of the pair of mules and the face value of the note.

According to the testimony of McDonald, the note was not indorsed by him at the time it was delivered to Thompson, but he indorsed it a few days after the delivery, at the request of Thompson, to enable him, to use it in borrowing some money.

The chancellor was of the opinion that oral testimony was not admissible to change a blank indorsement into a qualified or restricted indorsement. The chancellor was correct in so holding. The decided weight of authority is to the effect that a contract by blank indorsement is fixed by law, and should not be rendered uncertain by parol evidence any more than when written out in full. Case note to 4 A. L. R., at p. 765.

In Martin v. Cole, 104 U. S. 30, the general rule is clearly and fully stated by Mr. Justice Matthews, as follows:

“The contract created by the indorsement and delivery of a negotiable note, even between the immediate parties to it, is a commercial contract, and is not in any proper sense a contract implied by the law, much less an inchoate or imperfect contract. It is an express contract, and is in writing,’ some of the terms of which, according to the custom of merchants and for the convenience of commerce, are usually omitted, but not the less on that account perfectly understood. All its terms .are certain, fixed, and definite, and, when necessary, supplied by that common knowledge, based on universal custom, which has made it both safe and convenient to rest the rights and obligations of parties to such instruments upon an abbreviation. So that tbe mere name of tbe indorser, signed upon tbe back of a negotiable instrument, conveys and expresses bis meaning and intention as fully and completely as if be bad written out the customary obligations of his contract in full.”

This court has recognized the general rule and certain exceptions to it.

In Johnston v. Schnabaum, 86 Ark. 82, it was held that parol evidence was admissible to qualify an unrestricted indorsement on commercial paper by showing that the note was indorsed merely for collection and not for a sale of it.

Again, in First National Bank of Lake Providence, Louisiana, v. Reinman, 93 Ark. 376, it was held that parol evidence was admissible between the immediate parties to show that the indorsement was merely made for the purpose of transferring the title to the indorsee, who was the real owner of the note. In that case the testimony showed that Reinman sold the mules to the bank for a certain price, and then, as agent of the bank, sold the mules to a purchaser for an increased price, and, for convenience, took a note payable to himself, and indorsed it merely to transfer the title to it. This same exception was again recognized in Ellis v. First Nat. Bank of Fordyce, 163 Ark. 471. In that case Ellis owed the bank, and was unable to pay it. The bank insisted on him selling some lumber at a price lower than the usual market price for the purpose of paying its indebtedness, and, at the time, the bank agreed to take the acceptances of the purchaser of the lumber at the stipulated price as payment pro tanto of its indebtedness. We held that parol evidence was admissible to show that Ellis indorsed the acceptance to the bank merely to transfer the title to it. In each of these cases an agreement was made that the bank should take the commercial paper in payment of a debt of its customer, and the indorsement was made merely to transfer the title and thereby carry out the agreement between the parties. In each case the bank agreed to accept the commercial paper as payment of its indebtedness, and the indorsement was merely to transfer tbe title.

In the case before us, according to the testimony of McDonald bimself, he indorsed the note several days after he had given it to Thompson in exchange for a pair of mules. There was no condition attached to the delivery of the note at all. According to his own testimony, this condition was attached to it several days after its delivery. If parol evidence should be allowed to establish such a defense, then every promissory note as between the Immediate parties thereto, and, indeed, every contract in writing, would be open to parol proof that it did not correctly represent the agreement made, and oral evidence would be allowed to contradict, alter, or vary it. This would be contrary to the great weight of decisions of the courts of last resort, including the Supreme Court of the United States.

On .the question of reformation but little need be said. While parol evidence is admissible in an action to reform an instrument on the ground of fraud or mistake, the evidence must be clear and convincing to warrant a reformation of the instrument. Nakdimen v. Atkinson Imp. Co., 149 Ark. 448, and cases cited.

Tested by this rule, the chancellor was right in holding that McDonald was not entitled to a reformation of the note. It is true that McDonald at one time testified that it was understood that he was not to become liable on his indorsement, and another witness testified that Thompson said to him that he had told McDonald, at the time he indorsed the note, that he would see that he was held harmless on it. Thompson, however, denied this in positive terms, and his testimony is corroborated by that of Jeff Bratton.

According to the latter’s testimony, McDonald and Thompson came to his office together with the note, and Thompson requested him to bring suit on it. He noticed that McDonald was an indorser on the note, and thinks that Thompson told him, in substance, that he did not wqpt hiim to pay it if he could make it.out of the others; but, if he could not, then McDonald would have to pay it. McDonald, in detailing what happened on the same occasion, admitted the truth of Bratton’s testimony. He admitted that Thompson had told him in effect that he wanted Richburg and Cazort to pay the-note, and that he did not want McDonald to pay it, although he was good to him for it.

Under these circumstances the chancellor did not err in holding that McDonald had not shown that he was entitled to a reformation of the contract to show a qualified indorsement of the note, for the reason that he had not made out his case by that clear and convincing testimony which is required in such cases.

It follows that the decree will be affirmed.


author: Humphreys, J.

text:
    Purvis v. Erwin.
    Opinion delivered February 9, 1925.
    1. Frauds, statute of — necessity of pleading. — Where in a suit for specific performance, plaintiff based his suit on an alleged written contract, the making of which defendant denied, and plaintiff sought to prove an oral contract, he was required to show that such oral contract was binding, although defendant did not plead the statute of frauds.
    2. Frauds, statutes of — part performance. — In the case of a verbal contract to sell land, proof merely that $100 was deposited by defendant’s interest as earnest money, and that plaintiff mailed to him an abstract of the title to the land was insufficient part performance to take the case out of the statute of frauds.
    Appeal from Prairie Chancery Court, Northern District ; A. L. Hutchins, Chancellor;
    reversed.

      Craig & Wimmer, for appellant.
    Appellee failed to prove a contract in writing and the ease falls within the statute of frauds. Part payment of purchase money on an agreement for the sale of lands is not of itself sufficient ground to maintain a bill for specific performance. 21 Ark. 533; 44 Ark. 334; 136 Ark. 326; 141 Ark. 458. See also 102 Ark. 679; 144 Ark. 269.

      Cooper Thweatt, for appellee.
    Appellee did all that was required of him when he sent the abstract and stood ready to execute and deliver the deed. 13 C. J. 649. Tender of the deed was waived by the conduct of W. S. Griffith when he notified apellee that he would not perform the contract. 91 Ark. 30; 93 Ark. 269; 130 Ark. 378; 39 Cyc. 1542. The principle is similar to that in 53 Ark. 501; 77 Ark. 51, and 94 Ark. 95, insurance cases, holding that a defect in or failure to supply proof of loss is waived by denial of liability or refusal to pay, based on grounds other than failure to furnish the proof. An oral contract was proved without objection. The effect is a waiver of the statute of frauds. 27 C. J. 374; 92 Ark. 392.
   Humphreys, J.

This is a suit for specific performance of a-contract to sell land. It was alleged in the bill filed in the Northern District of the Chancery Court of Prairie County by appellee against ÍW. S. Griffith, in his lifetime, that he entered into a written contract with W. S. Griffith for the sale of certain real estate in said county, which contract was signed by both of them, whereby it was agreed that W. S. Griffith should pay appellee $1,600 for the tract of land, of which $100, as earnest money, was deposited in the bank at Des Arc; and that the balance was to be paid one-third cash, one-third in one year, and one-third in two years, with interest at the rate of 8 per cent, per annum; that W. S. Griffith breached the contract by refusing to perform same, and that appellee sustained damages in the sum of $600 on account of said breach. The bill contained an alternative prayer for specific performance or for damages.

W. S. Griffith was a nonresident, and had $600 on deposit in the Bank of Des Arc, which was attached in the suit. "W. S. Griffith died after the institution of the suit, and the cause was revived in the name of Y. -O. Purvis, as special administrator of his estate, who filed ail answer denying the execution of the contract and praying for the return of the $600 which had been paid.

The cause was submitted upon the pleadings and testimony introduced by the parties, which resulted in a decree for specific performance, or, in lieu thereof, a judgment for damages in the sum of $600.

Prom that judgment an appeal has been duly prosecuted to this court.

The record reveals that the contract of sale and purchase of the land was verbal; that $100 was deposited in the bank at Des Arc, as earnest money; that appellee was to mail Griffith an abstract of title to the land, which he did; that Griffith agreed to return to Arkansas and close up the deal by accepting a deed, paying one-third of the purchase price to appellee in cash and executing notes and mortgages to him for the balance of the purchase money; that subsequently he became ill, and refused to return and consummate the deal.

Appellant contends for a reversal of the decree upon two grounds: first, that the contract was within the statute of frauds and not enforceable; and second, that the partial performance did not take the case out of the statute of frauds.

Appellee contends that appellant waived the statute of frauds as a defense by failing to plead the statute or to object to the testimony proving an oral contract; and also contends that the partial performance was sufficient to take the case out of the statute® of frauds.

(1). It was unnecessary to plead the statute of frauds to obtain the benefit thereof in the instant case. Appellee based his suit upon a written contract, the execution of which appellant denied; however, it devolved upon appellee to prove a valid contract in order to recover. McCorkle v. H. K. Cochran Co., 144 Ark. 269; Cook v. Cave, 163 Ark. 407; Chicago Mill & Lbr. Co. v. Matthews, 163 Ark. 571. When appellee shifted the proof from the alleged written contract to the establishment of a verbal contract, it was incumbent upon him to show that tbe verbal contract was binding and enforceable upon appellant’s deceased.

(2). Appellee attempted to show that the verbal contract was binding and enforceable 'by showing a partial performance thereof. He introduced testimony revealing that $100 was deposited by appellant’s intestate, as earnest money, and that he mailed him an abstract of title to the land. This was not a sufficient partial performance to take the case out of the statute of frauds. Moore, v. Gordon, 44 Ark. 334; Stanford v. Sager, 141 Ark. 458.

On account of tbe error indicated the decree is reversed, and the cause is remanded.


text:
    Williams v. Williams.
    Opinion delivered February 9, 1925.
    1. Wills — “heirs of her body.” — In a devise to testator’s wife and to the heirs of her body, the term “heirs of her body” means her children, whether begotten of testator or not.
    2. Wills — 'Effect of devise. — A devise to “testator’s wife and the heirs of her .body to and for their absolute use and benefit for her lifetime” conveys to the wife only an estate for life, to be shared with her children, if any.
    3. Judgment — ex parte proceeding. — A decree in an ex parte proceeding on behalf of a testator’s widow does not bind the heirs of the testator who were not parties.
    Appeal from Sebastian Chancery Court; J. V. Bourland, Chancellor;
    affirmed.

      Hill $ Fitzhugh, for appellant.
    The chancellor’s holding that the clause of the will providing that the property should be for their absolute use and benefit for her lifetime limited the grant to a life estate in the widow, with remainder over to such children as might be born, and, on failure of issue, that the property would revert to the heirs of the testator, was erroneous. The property was given to the wife and unborn children for their joint nse during her lifetime. The absolute fee vested immediately in the m.other and children, and was not a gift to the wife for life with remainder over to the children. 90 Ala. 131; 98 Ga. 381; 58 N. J. Eq. 166; 99 N. C. 222; 100 Ya. 552. The will in this case vested the fee in the widow, subject to be opened up to let in after-born children, if any, and if children should be born, then the widow and children should share the property as tenants in common, or, on failure of issue, the fee vests in the widow. 56 S. E. 473; 3 Pick. (Mass.) 360; 21 Ala. 682; 7 Lea 207; 35 Ga. 40; 50 N. C. 88; 2 Stran. 1172. A will will always be construed so as to avoid intestacy, if the language will permit. 40 Cyc. 1410; 83 N. Y. 170; 7 N. Y. 725. The presumption is that the testator disposed of his entire estate and fixed the channel in which the property should pass. Life estates are not favored in law. There is no reason to believe that the testator intended to give only a life estate in his property, or that he was not making final disposition of his estate. The collateral heirs of M. A. Williams, if they ever had any interest in this property, are barred either by limitations or laches. In this case there was litigation in which the defendants agreed that the chancery court might determine the question of. the title to the property. The court passed upon that question in March, 1908, and its decree was never appealed from, the plaintiff holding under said decree since that time. The term “heirs of her body,” as used in the will, means children and not heirs in its technical sense. The words “heirs” or “heirs of her body” are primarily words of limitation and not of purchase; ordinarily “children” is a word of purchase and not of limitation. 21 C. J. 931; 2 Underhill on Wills, § 651; 21 Ala. 458; 13 Cyc. L. & P., 660; Devlin on Deeds § 864; Kerr on Real Property, § 335; Jones on Real Property, § 231. Further, on the question of the legal effect of the will as vesting an immediate estate in fee on the death of the testator in the wife, and such children as might then be in existence, and subject to be opened and let in other children that might be born to her at a later date, see 131 Ind. 381;' 91 Ala. 631; 150 Ala. 211; 99 Ala. 60 51 Cal. 352; 52 Ga. 425; 74 Ga. 467; 91 S. C. 300; 3 Baxter 370. A will will not be construed to create an estate tail where any other reasonable construction can be placed thereon. '21 C. J. 923; 260 Fed. 423. If the langmage of the will does not vest title in fee in Mrs. Williams and her children, then it vests the fee in her alone. 129 Ark. 155; 58 Ark. 303; 141 Ark. 484; 146 Ark. 160.

      Evans é Evans, for appellee.
    The testator was extremely careful to limit his wife’s interest in his property to her lifetime. In giving to her and the heirs of her body, he, under the law, gives her a life estate, and passes the fee to her descendants, and, in .the event she has no descendants, then the fee would pass to the general heirs of the testator. C. & M. Dig. § 1499; 67 Ark. 517;-72 Ark. 336; 98 Ark. 570; 140 Ark. 109. As a further evidence of the intention of the testator, he says, in the same sentence of the will, and not in a separate paragraph, that the absolute use and benefit of the property for the lifetime of his wife shall be for herself and any persons who, at her death will answer the description of heirs of her body, and that this use and benefit shall be subject only to the payment of his just debts, etc. If, after creating an estate, tail at common law, as this will does in Mrs. Williams and the heirs of her body, the will had further provided that the property conveyed should be for the absolute use of Mrs. Williams and the heirs of her body in fee simple forever, this would not enlarge the estate given her into a fee simple estate. 98 Ark. 570; 128 Ark. 149. Of the necessity to construe a will so as to give effect to the intention of the testator, where such construction is consistent with rules of law, see 141 Ark. 484; 143 Ark. 519; 146 Ark. 193 ; 151 Ark. 189; 153 Ark. 421; 148 Ark. 290; Id. 482; 145 Ark. 351; Thompson on Wills, § 236; 256 S. W. 355. Since the complaint shows that no persons have been born who can enjoy the property during the widow’s lifetime, it follows that the will conveys to her the property of the testator for her absolute use and benefit during her lifetime. The fact that no persons have come into being, and that in all probability none will come into being, who can or will take the fee of the estate, cannot enlarge the gift of a life estate into that of a fee simple estate. 112 Ark. 527; 126 Ark. 53. It is true that the term “heirs of her body” or “heirs of the body” is sometimes used in the sense of “children,” but, treating it so in this case, that does not help the appellant’s contention, for, failing issue, the property must pass at her death to the collateral kindred of Williams. 4 Words & Phrases, 1st series, p. 3269 ; 72 Ark. 579; 75 Ark. 19; 49 Ark. 125. The clause in the will “to and for their absolute use and benefit for her lifetime” etc., show that the testator only intended that, whatever use or benefit of the property be devised out and to whomsoever he devised, this devise was only to last for the lifetime of Mrs. Williams. 17 R. C. L. 620; 28 R. C. L.'250; 149 Hy. 787,149 S. W.' 1019, L. R. A. 1917-B, p. 45. As to the contention that, because there are no children of Mrs. Williams, there are no persons who can take as heirs of her body when she dies, for that reason the life ©state created by the language used in the will must be construed as giving her an estate in fee simple, in the language of the Supreme Court of Missouri, “to state that argument is to destroy it.” 258 S. W. 699 (Mo.). There may be partial intestacy. A testator may be intestate as to a portion of his property — may be intestate as to the fee in property— and where this appears from the will itself, no presumption against partial intestacy will be allowed to override and control the existing fact. 147 Ark. 568; 158 Iowa 759, 138 N. W. 911, 43 L. R. A. (N. S.) 562. See also, 43 Fed. 854; 145 TI. S. 56; 64 Ark. 330 ; Id. 447; 87 Ark. 418; 96 Ark. 451; 105 Ark. 86. The will created no trust relation, and the chancery court of Logan County was wholly without jurisdiction to make the alleged construction of the will in the ex parte proceeding brought by Mrs. Williams. 104 Ark. 444 and authorities cited.
    A life tenant cannot hold adversely to the reversioner or to the remainderman. 150 Ark. 607; 148 Ark. 219; 152 Ark. 452.
   Smith, J.

This suit was brought in the chancery court for the Fort Smith District of Sebastian County by Georgia R. Williams, widow of Mathew A. Williams, to confirm her title to certain lots in the city of Fort Smith owned by her husband at the time of his death. The complaint alleges that Mrs. Williams has title to the lots under the will of her husband, and that in an ex parte proceeding had in 190iS it was decreed that Mrs. Williams took a present absolute estate under said will. The present suit is an adversary one, the heirs at law of the testator being made parties by the service of process. These heirs appeared and demurred to the amended complaint, and their demurrer was sustained, and, as Mrs. Williams stood upon the sufficiency of the complaint, it was dismissed as being without equity, and-she has appealed.

It appears from the allegations of the complaint that, in 1887, M. A. Williams, the then husband of the plaintiff, made a will. At the time of the execution of this will the testator and. his wife had no children, although they had been married to each other for a number of years. The testator died in 1908, and no children had been born to him and his wife at the time of his death, and no children have been born to his wife since his death, and she has not remarried.

The will reads as follows: “This is the last will and testament of me, Mathew A. Williams, made this the thirtieth day of December, A. D. 1887, in Logan County, Arkansas, as follows:
“I bequeath all my lands, tenements and hereditaments and all household furniture, ready money, securities for money, goods, chattels and all other parts of my real and personal estate and effects whatsoever, unto my wife, Georgiaann R. Williams, and the heirs of her body, to and for their absolute use and benefit, for her lifetime, subject only to the payment of my just debts, funeral and testamentary expenses and the charge of proving and recording this my last will, and I appoint my said wife executrix of this my last will, and hereby revoke all other wills.
“In witness whereof I hereunto set my hand and seal the day and year above mentioned.
“Signed, sealed, published and acknowledged by the said Mathew A. Williams as and for his last will and testament in the presence of us, who, in his presence and at his request, and in the presence of each other, have subscribed our names hereunto as witnesses thereof.
“M. A. Williams (Seal)
“ J. L. Moffett, W. L. Loving. ’’

On behalf of appellant, Mrs. Williams, it is insisted that the words, “heirs of her body,” appearing in the will, meant children, and should be so interpreted. To this proposition we readily assent. It is further insisted that, when so read, the wifi should be construed as giving to Mrs. Williams, and any children born to her begotten by the testator, or 'born to her by a subsequent marriage after the testator’s death, the fee title, for their joint use during their life, that is, that it was not a devise to the mother for her life, with the remainder over to the children, but was a devise to the mother and her children for their joint use during her life, and that, failing issue born to her, she took the fee title.

The will is a short one, and we have read it many times in an effort to ascertain the meaning of the testator, for we must ascertain his intention from the language which he has employed. As aiding the court in the discharge of this duty, many cases have been cited and discussed in the able and excellent briefs filed by respective counsel. We do not review these cases in this opinion, although they have been very carefully considered by us, as there are points of difference as well as of similarity between the instruments construed in all these cases.

Certain rules of construction, which have become rules of property, have been called to our attention, and these we have endeavored to follow.

In the case of Watson v. Wolf-Goldman Realty Co., 95 Ark. 18, certain rules of construction were announced which are applicable here. It was there said that, in this State, no distinction is made between the meaning of the words “bodily heirs” and “heirs of the body,” and that a conveyance to a grantee and his bodily heirs .creates a life estate in the grantee, with the remainder in fee simple in his children who survive him and the issue of such as died during his life per stirpes. Such is the purport of § 1499, C. & M. Digest. In this opinion it was further decided that the addition of such phrase as “and assigns forever” to the words “bodily heirs” does not add to or take from the estate granted and do not operate to enlarge the estate granted to a fee simple.

Here the devise is to “my wife, Georgiaann R. Williams, and the heirs of her body.” If this was all the will said, it is clear, under the case cited and. numerous other cases cited in the briefs, that the wife would have taken only an estate for life, with remainder over to the heirs of her body, or her children, but, as no children were born to her, this life estate would expire, failing children, upon her death, and the remainder would pass in fee simple absolute to the heirs at law of the testator.

The will, however, does not end with the words quoted, but these are followed by the words “to and for their absolute use and benefit for her lifetime.” Do these last words enlarge the estate devised to the wife to a fee simple, subject to be opened up to let in children born to her who would share this fee simple title with her?

The decision of this question is determinative of the testator’s intention, and we do not answer it with the assurance of inerrancy.

We have concluded that only an estate for life was granted to the wife, and even this estate was to be shared by her children during her lifetime, if any were born.

It is argued against this construction that it contravenes the presumption against intestacy, and results in holding that the testator had disposed of nothing more than an estate for the life of his wife. In answer to this contention it may be said (1), that, if there is a partial intestacy, that fact results from a failure of birth of children. There would have been no intestacy had .children been born, for they would have taken the fee after the expiration of the life estate of their mother, and this would have been true had a child or children been born to Mrs. Williams by a subsequent marriage, for the testator did not limit the bodily heirs of his wife to those by himself begotten. (2). It may be further said that, while there is a presumption against partial intestacy, this is a mere presumption, to be invoked only when necessary to interpret a will. There may be partial intestacy, notwithstanding there is a presumption to the contrary.

In Thompson on Wills, § 236, it is said: “In jurisdictions where the rule in Shelley’s Case has been abolished, a life estate may be created by a gift to one for life, with remainder to his heirs. And even in jurisdictions where this rule prevails, a devise to one for life, and, on his death, to the ‘heirs of his body by him begotten,’ passes a life estate only to the devisee. Unless modified by some other provision of the will, a life estate only will pass by such expressions as, ‘during his life’ or ‘for the full term of his natural life.’ Where the words used show an intention on the part of the testator to give nothing more than a life estate, such estate will be created, especially where the remainder is given to others. If so expressed, a devise may be for life, even though there is no disposition of the fee. In such case the fee becomes a part of the residuary estate, or passes as in case of intestacy. A life estate may be created bv a gift of the use, possession, or enjoyment of the real estate for life; also by a gift for life of tbe rents, profits, or income. But an unlimited gift of tbe proceeds of real estate has been held to vest in the beneficiary an absolute estate in the corpus.”

Here the devise is to the “absolute use and benefit” of the testator’s wife and the heirs of her body for her lifetime, and, whether there be partial intestacy or not, we have concluded that no greater estate was given the wife than one for her life, in any view of this case that may be taken.

As to the ex parte proceeding, but little was said in the briefs, and but little need be said by us. This was an ex parte proceeding, and did not bind the heirs of the testator who were not parties thereto.

Upon a consideration of the whole case we have concluded that the demurrer to the complaint was properly sustained, and that decree is affirmed.