text:
    Baker v. Harris.
    Opinion delivered January 28, 1929.

      Robert Bailey and Robert F. Smith, for appellant.

      H. W. Applegate, Attorney General, Troy W. Lewis, and Adrian Williamson, for appellee.
   Humphreys, J.

This suit was brought in the circuit court of Faulkner County against appellees to enjoin them from enforcing three orders issued from the office of the Adjutant General of the State of Arkansas and Chief of Staff of the Governor as Commander in Chief of the Arkansas National Guard. The first order was issued on April 26, 1928, and is as follows:

“1. A detached officers’ list and a detached enlisted men’s list is hereby created for the Arkansas National Guard. Officers and enlisted men not assigned to duty with any branch or bureau shall be carried on the detached officers’ list and the detached men’s list, respectively. Officers and enlisted men may be transferred from duty with any branch and assigned to the detached officers’ list and the detached men’s list respectively.

“By order of the Governor:

“Joe S. Harris,

“Brig. Gen. A. G. D. Ark. N. G.

“The Adjutant General.”

The second order was issued on April 27, 1928, and is as f ollows:

“1. Colonel James H. A. Baker, infantry, Arkansas National Guard, is hereby relieved as. commanding officer 153rd Infantry, Arkansas National Guard, and is transferred and assigned to the detached officers’ list.

“2. Upon his request, the resignation of Brigadier General Heber L. McAlister, adjutant general’s department, Arkansas National Guard Reserve, is hereby accepted.

“3. Heber L. McAlister is appointed colonel infantry Arkansas National Guard, and assigned to commaud the 153rd Infantry, Arkansas National Guard, vice James H. A- Baker, transferred to the DOB.

“By order of the Governor:

“Joe S. Harris-,

“Brig. Gen. A. G. D. Ark. N. G.

“The Adjutant General.”

The third order was issued on April 28, 1928, and is as follows:

“1. Regimental headquarters, 153rd Infantry, Arkansas National Guard, is hereby transferred from Russellville, Arkansas, to Oonway, Arkansas.

“By order of Governor:

“Joe S. Harris,

“Brig. Gen. A. G: D. Ark. N. G.

“The Adjutant General.”

The gist of the complaint is that the orders, if not enjoined, will deprive appellant of his command as colonel in the Arkansas- National Guard, after being recognized by the Federal Government, and will effect his discharge from the Arkansas National Guard without a trial by court-martial or an efficiency board.

In addition to filing a demurrer attacking the jurisdiction -of civil courts in military matters, appellees filed an answer, denying that the orders will have the effect alleged, but, on the -contrary, their only effect' will be to relieve appellant of his assignment to duty as commander of the 153rd regiment infantry, without a trial by court-martial or an efficiency board.

The chancery -court heard the cause upon the pleadings and testimony adduced, and upon his own motion transferred the case to the circuit .court. There the appellees filed a motion to dismis-s appellant’s complaint, which was submitted and heard upon the pleadings and documentary evidence filed in the chancery court and transmitted to the circuit court, from which the trial court found:

“That the Governor of Arkansas, as commander-in-chief of the Arkansas National Guard, through the adjutant general as his chief of s-taff, had and has authority to issue and to enforce the orders complained of by plaintiff, creating the detached officers’ list for the Arkansas National Guard, and relieving plaintiff from command of the 153rd infantry regiment, and commissioning the defendant, Heber L. McAlister, as colonel in the Arkansas National Guard and assigning him to duty as commanding officer of said regiment, and transferring the headquarters of said regiment from Russellville, Arkansas, to Conway, Arkansas; and that defendant's motion should therefore be sustained.”

, Pursuant to the findings, the court dismissed appellant’s cause of action, from which he has duly prosecuted an appeal to this court.

Appellant contends for a reversal of the judgment upon the alleged grounds, that the Governor of the State, as commander-in-chief of the State forces, does not have discretionary power to create a detached officers’ list for the officers of the national guard, and to place active federally recognized officers upon said detached officers’ list.

There can be no doubt that the Governor, as commander-in-chief of the Arkansas National Giiard, is vested with discretionary authority to create a detached officers’ list for the Arkansas National Guard, under State and Federal statutes providing as follows:

“The Governor is hereby authorized, and it shall be his duty, to prescribe such regulations as he may see fit for the organization of the ‘Arkansas. National Guard’, and he shall from time to time, as he may deem for the best interests of the service, change such regulations, which shall be in accordance with this act, and shall conform as near as practicable to the organization of the army of the United States.” Section 7171, Crawford & Moses’ Digest of Arkansas.

“Organization of National Guard Units. Except as otherwise specified herein, the organization of the national guard, including the composition of all units thereof, shall be the same as that which is or may hereafter be prescribed for the regular army, subject in time of peace to such general exceptions as may be authorized by the Secretary of War.” Section 60 National Defense Act.

“Composition of the Regular Army. The regular army of the United States shall consist of the infantry, the cavalry, the field artillery, * * * detached officers; detached enlisted men; the-officers and enlisted men of the retired list;” etc. Section 2 National Defense Act.

“Detached Officers and Enlisted Men. All officers and enlisted men authorized by law and not assigned to duty with any branch or bureau herein provided for shall be carried on the detached officers’ list and detached enlisted men’s list, respectively.” Section 25, National Defense Act.

There is also no doubt that the Governor, as commander-in-chief of the Arkansas National Guard, is' vested with discretionary authority to transfer officers from one command to another or from any command to the detached officers’ list in the Arkansas National Guard, although such officers have been federally recognized, without a trial'by court-martial or before an efficiency board, provided no attempt is made to relieve them of their office. The only constitutional or statutory inhibition is that officers in either the army or national guard cannot be removed from office without a trial, either before a court-martial or an efficiency board. By reference to general orders numbers 7 and 67, heretofore quoted, it will be observed that the Governor did not attempt to deprive the appellant of his office and commission as colonel in the Arkansas National Guard. The only thing he did was to relieve the appellant of his. assignment to duty as commanding officer of the 153rd regiment infantry, and to assign him to the detached officers’ list. It is stated at page 676, 40 C. J., that: “The Governor may, in the exercise of the discretion vested in him, relieve officers (of the national guard) from command.” And on page 1058, par. 52, 18 R. C. L., that: “In disbanding a part of the organized militia and placing officers on the supernumerary or retired list there is no violation of the constitutional provision which forbids removal from office of any commissioned officers of the militia except through the sentence of the court-martial.” In the case of Grove v. Mott, 46 N. J. Law 328, 50 Am. Rep. 424, the court stated:

“The arg’ument that the section of the act under which 'Major General Mott placed the officers of the disbanded company on the retired list is in conflict with the Constitution of the State, is fallacious. It is contended that it violates article 7, § 1, paragraph 6, which forbids the removal from office of commissioned officers of the militia, except through a sentence of court-martial. The answer is that the officers of the disbanded company have not been removed from office. The framers of the national guard act knew the difference between taking away an officer’s commission and placing him> on the retired list. This court not having jurisdiction over the subject-matter brought here by the writ, it is dismissed. ’ ’

The Governor, as commander-in-chief of the national guard of Arkansas, is invested with authority to relieve officers (of the national guard) from any particular command and place them on the detached officers’ list under the following constitutional and statutory provisions, to-wit:

“The Congress shall have power: * * * To provide for the organization, arming and disciplining of the militia, and for governing such part of them as may be employed in the service of the United States, reserving to the States, respectively, the assignment of the officers, and the authority of training the militia according to the discipline prescribed by Congress.” Art. 1, § 8, of the Constitution of the United States.

“The militia shall consist of * * * and shall be organized, officered, armed and equipped and trained in such manner as may be provided by law.” Art. 11, § 1, of the Constitution of Arkansas.

“The Governor shall be commander-in-chief of the military and naval forces of this State, except when they shall be called into the actual service of. the United States.” Art. 6, § 6, of the 'Constitution of Arkansas.

“The Governor of this State, by virtue of this office, shall be the commander-in-chief of the military forces of ' this State.” Section 7169, Crawford & Moses’ Digest.

‘ ‘ The Governor is hereby authorized, and it shall be his duty, as soon as. practicable after the passage of this act, to establish and prescribe such rules, regulations, forms and precedents, not inconsistent with the Constitutions of the United States and of this State, as he may deem proper and necessary for the organization, government, discipline and instruction of the Arkansas National Guard and reserve militia. He shall from time to time issue such general and special orders as. may be requisite to render the military forces of this State efficient and its organization complete, * * * and shall have full control and authority over all matters touching the militia, its organization and discipline.” Section 7173, Crawford & Moses.’ Digest.

“All officers in the military service of this State shall be appointed and commissioned by the Governor, at his discretion.” .Section 7193, Crawford & Moses’ Digest.

No error appearing, the judgment is affirmed.


source: Caselaw Access Project

author: Humphreys, J. McHaney, J.

license: Public Domain

text:
    Fort Smith-Spadra Mining Company v. Shirley.
    Opinion delivered January 28, 1929.

      T. D. Wynne and Pryor, Miles & Pryor, for appellant.

      Jesse Reynolds, for appellee.
   Humphreys, J.

This suit Was brought against appellant to recover damages for a personal injury to his hand and arm, received while engaged in applying a dressing to a circular conveyor belt 20 inches wide and 70 feet long, which carried coal in preparation for market, upward at an angle of 30 degrees to receptacles or bins. In order to keep the belt from slipping on the driving-pulleys around which it circled it was necessary to apply a dressing, which was in the form of a stick, by rubbing the stick over the lower part of the belt, on the inside thereof. Appellee alleged in his complaint that the injury resulted from appellant’s negligence in failing to furnish him a safe place to work and safe instrumentalities with which to work, due to the worn condition of the belt, which had threads hanging down, that entangled appellee’s hand and pulled it between the belt and pulley, which was not covered by a guard. ■

Appellant filed an answer, denying the allegations of the complaint, and pleaded as an affirmative defense that appellee assumed the risk.

The cause was submitted upon the pleadings and testimony, which resulted in a verdict and judgment against appellant for $2,500, from which is this appeal.

The testimony was conflicting’ as to> the condition of the belt. According’ to the undisputed evidence there was no guard over the pulley, but none had ever been over it. The testimony does not reflect just how one could have been put over it nor that, in the proper construction of the plant, one should have been put over it.

Appellant contends for a reversal of the judgment because the court gave instruction number 5 as follows:

‘ ‘ The court tells you that the coal mining company is not an insurer of the safety of its employees, but it is obligated to furnish them with safe instrumentalities and a reasonably safe place to do their work, and if they fail to do that, they are guilty of negligence, and if their negligence caused the. injury, they are responsible in damages to the plaintiff. I say they are not the insurer of the safety of the employees, but they are required to furnish them a safe place and safe instrumentalities with which to do their work.”

This instruction is inherently wrong, 'because it placed the absolute duty on appellant to furnish appellee a safe place in which to work and safe instrumentalities with which to do his work. It in so many words told the jury that appellant was not an insurer of the safety of appellee, yet, in effect, instructed that it was. The instruction was conflicting within itself. Appellant was only required under the law to exercise ordinary care to furnish appellee a reasonably safe place in which to work and reasonably safe instrumentalities with which to do the work.

Appellant also contends for a reversal of the judgment because the trial court- refused to give its requested instruction number 2 as follows:

“You are instructed that, on the allegation of negligence that there was no guard to prevent plaintiff’s hand from being drawn between the belt and the pulley, your verdict must be for the defendant.”

This instruction should have been given, because the failure to cover the pulley with a guard was alleged as an act of negligence, and appellee testified that it had no guard over it. It is true that appellee abandoned the absence of a guard as an act of negligence by failing to request an instruction to that effect, yet it was in the case by allegation and proof of the fact, and appellant had a right to have that issue effectually eliminated by a declaration-of the court.

Appellant also contends for a reversal of the judgment because the court refused to admit the written statement made by appellee to the claim agent of the Home Accident Insurance Company as to the manner of his injury. There was a slight conflict between his testimony in the trial and the written statement he made, and the court should have admitted it in evidence on that account for what it might have been worth in weighing the evidence.

Appellant also contends for a reversal of the judgment because the attorney for appellee referred to the liability insurance company in the case as the real party in interest. This remark was improper, but we would not reverse the judgment for that reason alone, as appellee testified, without objection on the part of appellant, to having made the written statement to the agent of the liability insurance company. The remark should not be repeated on a retrial of the cause.

As the judgment must be reversed and remanded for a new trial on account of giving and refusing the instructions mentioned, and the' refusal to admit appellee’s written statement concerning the manner of receiving his injury, we refrain from passing upon the sufficiency of the testimony relative to the assumption of the risk by appellee.

The judgment is reversed, and the cause is remanded for a new trial.

Smith, J., concurs.

McHaney, J.

I dissent on the ground that the undisputed proof shows there was a space of- eight feet from the pulley in which appellee could have applied the dressing to the belt, and that, in choosing a place so close to the pulley as to make it dangerous, he assumed the risk. The danger was perfectly obvious, and on this question tbe case is ruled by Ward Furniture Mfg. Co. v. Weigand, 173 Ark. 762, 293 S. W. 1002. On tbe authority of that case the judgment should be reversed and the ease dismissed. I therefore dissent on the order reversing and remanding. I concur otherwise.


author: Kirby, J.,

text:
    McCulla v. Brown.
    Opinion delivered January 28, 1929.

      G. L. Grant and Starbird & Starbird, for appellant.

      W. H. Neal and C. M. Wofford, for appellee.
   Kirby, J.,

(after stating the facts). It is insisted that the circuit court erred in transferring the cause to equity, and likewise that the 'chancellor erred in not remanding to law, and also in sustaining the demurrer to the complaint. The relief sought was purely legal, an action for damages upon the statute allowing the injured party double damages for violation thereof. Rinehart & Gore v. Rowland, 139 Ark. 90, 213 S. W. 17. There was no ground for equitable relief alleged in the complaint nor in the defenses set up in the answer, consisting of specific denials of the allegations contained in the complaint.

The second alleged defense, that the order of the probate court directing the guardian to invest the minor’s funds in real estate was null and void, constituted no defense for appellee Brown, if the order was void, the deed conveying the lands from Brown to Nettie M. MeCulla was not affected by the invalidity of such order, so far as Brown was concerned, and certainly a deed from her to appellant conveyed the title to the lands, regardless of his infancy and the fact that the deed was not recorded, as was directed should be done. Tiedeman on Real Property, § 561; 3 Washburn, Real Property, 591.

The third ground of defense alleged that the minor’s guardian had never made a final settlement with the probate court of the estate, and that no suit had been brought against the guardian and her bondsmen to determine their liability, and that the bondsmen should have been made parties to the suit and an accounting had, pleading same as a complete bar to the suit. The liability of Brown, under the facts alleged in the complaint, if he was liable at all, was without regard to any liability of the guardian and her bondsmen. A tort-feasor cannot allege the liability of another as justification for his act nor for the purpose of contribution, each being jointly and severally liable for the tort, plaintiff having the right to join them all in his suit for damages for the injury or to sue them separately. Myers v. Linebarger, 134 Ark. 231, 203 S. W. 580; Coats v. Milner, 134 Ark. 311, 203 S. W. 701.

The bondsmen would have been liable only, in any event, ex contractu, while the liability of Brown was ex delicto for a tort, and they could not have been held for an accounting to appellee in the same action where appellee was held liable for the tort, and the plaintiff could sue either of the tort-feasors without joining the others, notwithstanding he was entitled to but one satisfaction. C. & M. Digest, § 1076.

The allegation that the final purchasers of the land were guilty of the same kind of offense charged to Brown did not constitute their action a part of the transaction for which it was alleged he was liable, and could have constituted no defense to the suit against Brown.

It follows that error was committed in transferring the cause to equity and also in not remanding it to the court of law. The chancellor likewise erred in sustaining the demurrer and dismissing the complaint after allowing the answer to be withdrawn. The allegations of the complaint were sufficient to constitute a cause of action under the sections of the statute, and the special demurrers were not well taken.

It appears, however, that, after part of the evidence had been heard, the cause was continued, and the sureties upon the guardian’s bond were ordered to be made parties to the action, and summons issued against them, and, the plaintiff refusing to amend his complaint to allege a cause of action against the new parties, the court sustained the demurrer and dismissed the complaint. Plaintiff had the right to select the defendants in this litigation against whom he would proceed, and if the court, at the instance of the party sued, decided that the cause could not be finally determined without joining these other parties, it could not require the plaintiff to proceed against them in any event, even though it held that they should be made parties in order to protect the defendant in any right the court thought him entitled to in the final determination of the cause. The court erred in sustaining the demurrer and dismissing the complaint.

The decree is accordingly reversed, and the cause remanded with directions to remand it to the circuit court for all further proceedings in accordance with law and not inconsistent with this opinion. It is so ordered.


author: Kirby, J.

text:
    Fidelity Union Casualty Company v. Posey.
    Opinion delivered January 28, 1929.

      John F. Park, for appellant.

      R. W. Wilson, for appellee.
   Kirby, J.

Appellant insists that the court erred in not giving its requested peremptory instruction directing the jury to find in its favor, the policy excluding recovery on account of accidents suffered by insured while driving a motor truck.

The undisputed testimony shows that appellee was injured while cranking the car or truck — was out on the ground attempting to start it by turning the crank when the injury was sustained. The policy expressly insures against accidental injuries sustained while operating, driving, riding in or on, demonstrating, adjusting or cranking an automobile. This language necessarily covers and insures against the risk attending upon cranking an automobile, unless, it is so limited by said part 4, § E, as not to do so. This exception relates only to injuries received while driving or riding in or on any motorcycle, automobile truck, tractor or aircraft, and is not in conflict with or repugnant to the insuring clause covering the risk of bodily injury sustained while cranking an automobile. Since the risk from cranking an automobile is covered expressly and since the exemption or exception is not broad enough or sufficiently specific to exempt the company from liability for injury received from cranking an automobile truck, it necessarily follows that the court did not err in refusing the request for a peremptory instruction. English v. Shelby, 116 Ark. 212, 172 S. W. 817.

We find no error in the other instruction complained of, and the evidence is sufficient to support the judgment, which must be affirmed It is so ordered.


author: Hart, C. J., Hart, C. J.

text:
    Lambie v. W. T. Rawleigh Company.
    Opinion delivered February 4, 1929.

      Jeff Bratton, for appellant.

      Horace Sloan, for appellee.
   Hart, C. J.,

(after stating the facts). It is first contended by counsel for appellants that the decree should be reversed because the special ichanoellor who rendered the decree in the foreclosure proceeding was not elected in accordance with the provisions of our Constitution relating to the election of special judges when the regular judge is absent or disqualified. On this point a nwnc pro tunc decree was entered of record which recited that on the 10th day o.f March, 1927, the regular chancellor failed to appear at the courthouse, at the time and place prescribed by law and by former adjourning order of the court, for the holding of an adjourned day of said court on March 10,1927. It further recites that the practicing attorneys met at the courthouse on said day and held an election for special chancellor to preside at such adjourned day, and Gordon Frierson, who possessed the requisite qualifications required by law, received a majority of votes, and was duly declared elected Among other cases tried was the'foreclosure proceeding in which a decree of foreclosure was rendered. It was not necessary that the record should affirmatively show" that the regular chancellor was absent, sick or disqualified, and that for one of these reasons a special judge was elected.

In Fernwood Mining Co. v. Pluna, 136 Ark. 107, 205 S. W. 822, it was held that, where the record of the circuit court shows that the regular judge was absent on the first and second days of the term, and that a special judge was elected in, accordance with the requirements of the Constitution, such record is impervious to attack on appeal, unless the facts, which would defeat the election are recited in the record itself.

The special chancellor in the present case was elected under the same section of article 7 of the State Constitution, and that case controls here. The nunc pro tunc order shows, that Cordon Frierson was duly elected special chancellor in accordance with the provisions of the Constitution, and that he entered upon the discharge of his duty as such special chancellor. Therefore it was not necessary that the record show that the regular chancellor was sick or unable to hold the court, or was disqualified to act in the case at bar.

Moreover, as we shall see, this is a collateral attack on the decree, and in such cases it is not necessary that the existence of the causes should appear on the face of the record. If the record is silent on the subject, and such an appointment of a special chancellor could have been made legally under any circumstances, the authority to make the appointment or election, and that the g’rounds therefor existed, will be presumed. This rule was recognized and approved in the case last cited.

Upon the merits of the case, it may be stated at the outset that there is a marked difference between the effect given a judgment or decree when it is attacked collaterally and when it is directly attacked, as upon appeal or by a complaint filed to set it aside for fraud or unavoidable casualty. If the judgment or decree is void upon the face of the record itself, it may be attacked collaterally; but if its invalidity is. not apparent on the face of the record, it ¡cannot be attacked collaterally. In the foreclosure suit the court had jurisdiction of the subject-matter and of the parties when the decree was rendered. Therefore it had jurisdiction; and no mere irregularity in the subsequent proceedings will avail to invalidate the decree and the sale thereafter, except upon appeal, or a motion to set aside the decree during the term it was rendered; or in a direct proceeding to set aside the decree for fraud or unavoidable casualty. An attack upon a judgment upon the ground that it was procured by fraud is a direct attack, since the establishment of the fraud shows that no judgment or decree has. been rendered. Fraud, however, from which such relief may be given, does not include a judgment or decree regularly obtained upon a fraudulent claim or by false testimony, but it is limited to fraud in procuring the judgment. Cassaday v. Norris, 118 Ark. 449, 177 S. W. 10; Ruddell v. Richardson, 140 Ark. 198, 215 S. W. 711; Road Imp. Disf. No. 4 v. Ball, 170 Ark. 522, 281 S. W. 5; Dunn v. Bradley, 175 Ark. 182, 299 S. W. 370; and Winfrey v. People’s Savings Bank, 176 Ark. 941, 5 S. W. (2d) 360.

Within the rule just announced there is no testimony in the record whatever tending to show that the decree was obtained by fraud. Mrs. Gr. W. Lambie admitted on cross-examination that she was served with summons in the cause, and it was her duty to keep up with the subsequent proceedings in the cause thereafter. G-. E. Lambie was also served with summons, and admitted that he knew of the pendency of the suit in the chancery court.

Neither does the record show any unavoidable casualty or misfortune that prevented the defendants from appearing and defending the action. As we have just seen, both parties were served with summons, and must thereafter take notice of the pendency of the suit. No misrepresentations were made by the attorneys for the plaintiffs in foreclosure proceedings. Gr. E. Lambie does state that it was understood between him and the attorneys. for the plaintiff in the suit that no decree was to be taken until the 15th day of May, 1927. He did not attend court on that day, however, or give any excuse for not doing so. He does state-that his boy was killed in a storm in the month of May, hut he does not state that the death 'Occurred on or about the day he thought the case was to be called for trial. He does not present any legal excuse for not attending court on the day he understood the decree was to be taken if no defense was made to the action. Neither of the appellants make any show of merit or give any reason whatever why judgment should not have been rendered against them for the amount sued for in the foreclosure proceeding. A party seeking relief against a judgment or decree on the ground of unavoidable casualty or misfortune must show that he himself is not guilty of negligence. Farmers’ Mutual Fire Ins. Co. v. Defries, 175 Ark. 548, 1 S. W. (2d) 19.

The commissioner appointed to sell the land gave notice of the time and place and terms of the sale, as required by statute and by the terms of the decree on the 25th day of August, 1927, that the sale would be had on the 17th day of 'September, 1927. The sale was had on that day, and the plaintiff in the case became the purchaser for $200. No exceptions were filed to the sale, and it was duly confirmed by the court on October 7,1927. The land was bid in for the sum of $200, and was worth at least $1,500. During all this time the defendant, Gr. E. Lambie, who was looking after the matter for himself and for his mother, had a sick wife and other sickness in his family. One of his boys had been killed by a storm in the spring, and, if a direct attack had been made on the sale, the confirmation of the sale would have been set aside, under the rule announced in Chapin v. Quisenberry, 138 Ark. 68, 210 S. W. 341, and other subsequent decisions of this court. In that case it was held that the chancery court properly refused to confirm a judicial sale where the property brought a grossly inadequate price and the sale was attended with circumstances working out a harsh result against the owner’s interest, although the purchaser himself was guilty of no fraud or misconduct.

In the present case, however, no attempt was made to prevent a confirmation of the sale by the defendant. Although Gr. E. Lambie denied receiving the letter of June 20, 1927, from Penix & Barrett, in which they notified him that they had been lenient with him, and would be forced to sell the land right away, he does admit writing to one of the attorneys on the next day a letter which shows that he knew the land was about to be sold, and that he was trying to borrow money with which to redeem it. In this connection it may be stated that Joe C. Barrett testified positively that Gr. E. Lambie knew that a decree of foreclosure would be taken on the 10th day of March, 1927, and that he would be given thirty days within which to pay off the decree before the land would be advertised for sale. However, as we have already seen, no appeal was taken from the decree, and no grounds for setting aside the decree on the ground of fraud or unavoidable casualty has been shown.

Therefore the present suit can only be considered as a collateral attack on the decree. In a case-note to 1 A. L. R. 1446, the general rule is. stated to be that, where the sale has been confirmed, matters between the decree and the sale cannot be collaterally attacked, and many cases are cited in support of the rule. It is also said that an order confirming a sale of real estate, where the court has jurisdiction, cures all defects and irregularities in the proceedings, and that the judgment cannot be attacked collaterally. This rule has been recognized by this court. In Byers v. Fowler, 12 Ark. 399, 54 Am. Dec. 271, the court said that, admitting all the irregularities alleged to exist, they could not be brought up collaterally to affect a sale made under a valid execution. It was said that the parties had a right to question the proceeding, but that they must do it directly, and not collaterally.

In Lawson v. Jordan, 19 Ark. 297, 70 Am. Dec. 596, there were some irregularities in the sale of the land under execution, and the court said this could only be taken advantage of by the debtor himself in a direct proceeding for the purpose, and not in a collateral proceeding. In Field v. Dortch, 34 Ark. 399, the court had under consideration a sale under a special execution against the property seized, and the court said that the regularity of the exercise of the power depended upon an entire conformity with the statutorjr direction. Tlie defects in that case the court held „to be merely error, and that they could not be collaterally questioned. In Webster v. Daniels, 47 Ark. 131, 14 S. W. 550, the court had under consideration irregularities in a case where the execution was alleged to be based upon an insufficient transcript in the circuit court from the justice court, and the court said that this constituted at most an irregularity, and as such could only be taken advantage of by the defendant in a direct-proceeding to quash the process.

Again, in Stout v. Brown, 64 Ark. 96, 40 S. W. 701, it was held that a sale of attached property under a writ of venditioni exponas, after it had been reported to and confirmed by the court, could not be collaterally attacked upon the ground that such writ did not specify the property to be sold, or that the officer sold without authority, or that he sold without giving’ the notice required by law. Again, in Stout v. Brown, 64 Ark. 312, 42 S. W. 415, there were some irregularities in the sale that might have been attacked in regard to the price for which the lumber was sold, and the court held that, while the irregularities would not affect the validity of the sale in a collateral proceeding, yet, upon direct attack by appeal from the order confirming the sale, it could be set aside. In that case there was a direct attack 'by appeal, and the sale was set aside and a renewal order of sale was ordered. The same principle applies to judicial sales where they have been confirmed and are attacked collaterally.

In Cassady v. Norris, 118 Ark. 449, 177 S. W. 10, the court said that mere errors and irregularities are not grounds for vacating a judgment by way of collateral attack, and that the judgment must be assailed only in a direct proceeding. The court further held that, after a confirmation of a sale has been made -by order of the court, all defects and irregularities in the conduct of the sale are cured, and every presumption will be indulged in favor of its fairness and regularity.

Before the confirmation of the commissioner’s sale, irregularities may be shown, that the sale was not made in accordance with the provisions of the decree; or any misconduct or unfairness may be shown in order to set aside such sale. All these matters are passed upon by the chancellor when he confirms the sale. After the confirmation of the sale by the court, all defects and irregularities in the conduct of the sale are cured, and every presumption will be indulged in favor of its fairness and regularity. Bank of Pine Bluff v. Levi, 90 Ark. 166, 118 S. W. 250.

In the application of these principles to the case at bar, we are of the opinion that, by the order of confirmiation, the chancery court adjudged that the decree and the subsequent proceedings of the sale were executed in conformity with the terms of the decree, and were valid. The proceedings are not impeached by anything apparent on the face of the record, and upon a collateral attack the sale must be regarded as valid in fact and in law. Therefore the decree will be affirmed.

Mehaffy, J., dissents.

ADDITIONAL OPINION.

Hart, C. J.

Counsel for appellants, in their motion for rehearing, insist that they have appealed from the foreclosure decree and that this constitutes a direct attack on it. Conceding, without deciding the question whether they have appealed from the foreclosure decree within the time prescribed by the statute, this does not help their case any. On cross-examination Mrs. G-. W. Lambie admitted that she had been duly served with summons in the case, and the record shows that fact. The record shows that Gr. E. Lambie, her son, was duly served with summons, and he admitted that he knew of the pendency of the action. He admitted talking with attorneys for the plaintiff in the foreclosure suit. One who is aggrieved by a judgment rendered in his absence must show, not only that he was 'not summoned, but also that he did not know of the proceedings in time to make a defense. Karnes v. Ramey, 172 Ark. 125, 287 S. W. 743. See also Fore v. Chenault, 168 Ark. 747, 271 S. W. 704; and C. A. Blanton Co. v. First National Bank, 175 Ark. 1107, 1 S. W. (2d) 558.

Again, this court has held that one who seeks to be relieved from a judgment upon the ground of unavoidable casualty, preventing a defense to the action, must show that he has a meritorious defense. Smith v. Globe & Rutgers Fire Insurance Company, 174 Ark. 346, 295 S. W. 388. See also Minnick v. Ramey, 168 Ark. 180, 269 S. W. 565; and American Investment Co. v. Kennehan, 172 Ark. 832, 291 S. W. 56.

We adhere to the views expressed in our original opinion, and feel that we cannot grant the relief asked for by appellants without unsettling principles of law which have been uniformly followed and ápplied by this court. Therefore the petition for rehearing will be denied.


author: McHaney, J.

text:
    Childers v. Pollock.
    Opinion delivered January 28, 1929.

      D. H. Howell and C. M. Wofford, for appellant.

      Starbird ■& Starbird, for appellee.
   McHaney, J.

This case was submitted to the circuit court on appeal from the probate court on the following agreed statement of facts:

“ (1) The plaintiff was the wife of the decedent at the time of his death, and he left one child, a boy, James Perry Childers, his only heir at law, who is now about ten years of age. (2) That said Perry Childers, before his death, was a soldier in the World War, and, as such soldier, carried a policy of insurance in the War Risk Insurance Department of the United States Grovernment, for $10,000. (3) That Perry Childers departed this life intestate about the 13th day of October, 1918. That the insurance was payable as follows to the following beneficiaries: To Dess Pollock, then Dess Childers’ wife, one-half; to James Perry Childers, his son, one-fourth; and to his mother, Mrs. James Childers, one-fourth. (4) That Mrs. Childers, his mother, died upon the 19th day of February, 1927, and this plaintiff and said son, James Perry Childers, survived her. (5) That at the time of her death Mrs. James Childers had not drawn nearly all of the payments provided for her in said policy, and the United States Government paid the balance of said payments, $1,650, to James Childers, as administrator of the estate of Perry Childers, deceased. (6) That plaintiff was married to Wib Pollock four or five years after the death of her husband, the said Perry Childers, and continues to draw one-half said insurance in monthly payments. (7) That Mrs. James Childers, mother of the deceased, held a life estate only in one-fourth of said insurance, and at her death the commuted value of the remainder, amounting to $1,650, reverted to the estate of the said Perry Childers, deceased. (8) The question to be decided by the court is whether ;or not the estate reverted to the estate of Perry Childers, deceased, is such an estate as would entitle plaintiff to a dower interest therein.”

Appellant is the administrator of the estate of Perry Childers, deceased, and appellee is his widow. The court held that appellee is entitled to dower in this part of decedent’s estate. We agree that this is correct. At common law the widow took dower in the real estate of her husband only, but the term ‘real estate’ included both corporeal and incorporeal hereditaments. R. C. L., p, 578. Under our statute, § 3535, C. & M. Digest, “a widow shall be entitled, as part of her dower, absolutely and in her own right, to one-third part of the personal estate, including cash on hand, bonds, bills, notes, book accounts and evidences of debts, whereof the husband died seized or possessed.” This court has held that a widow is entitled to dower in a gift causa mortis of the husband. Hatcher v. Buford, 60 Ark. 169; and in Tatum v. Tatum, 174 Ark. 110, it was held that “the inchoate right of dower is more nearly like the interest of a contingent remainderman,” and that “the inchoate rights of the wife are as much entitled to protection as the' vested right of the widow. ’ ’ In that case it was held that, where the husband had conveyed land by deed, in which the wife did not join to convey her inchoate right of dower, and the grantees had discovered oil therein, the wife had a contingent interest which should be protected. Here the husband died leaving a policy of insurance, one-fourth of which was made payable to his mother in installments so long as she might live, and at her death the balance, if any, to his estate. On his death his estate was immediately seized of the possibility that a portion of that fund would come to his estate, not as a remainder or reversion, but as a certainty, provided the fund was not consumed by the payment of installments during the lifetime of the mother. In other words, this possibility was an asset of the estate — personal property belonging to the estate, in which the widow was entitled to her dower interest when realized. If the mother had predeceased her son, and no change had been made in the beneficiary, it could hardly be said that appellee would not be endowed in that part going to the estate. Or, had she died one day thereafter, before any installments had been paid to her, the result would be the same. Being personal property of the estate, the appellee is entitled to dower, and the judgment is affirmed.


text:
    Barton Lumber & Brick Company v. Caraway.
    Opinion delivered January 28, 1929.

      Caraway, Baker & Gautney, for appellant.

      Smith & Blackford, for appellee.
   McHaney, J.

This is a suit by appellant to enforce a mechanic’s lien for $618.30 on the building and improvements located on land described in the complaint against appellees, E. A. Caraway and wife, and Mrs. Bell Townsend. Caraway was the owner of the land. The Federal Land Bank, not a party to this suit, held a first mortgage, and Mrs. Townsend a second mortgage. A house insured for $600 was destroyed by fire, and that sum was paid to the Federal Land Bank and by it turned over to Caraway to erect a new house. He bought the material from appellant for the new house, and filed an answer to this suit, admitting that he purchased the material therefor from appellant, and that the balance due as claimed was correct.

There was a decree for appellant against Caraway and wife, but the court refused to declare and enforce a lien on the improvements.

No lien was sought upon the land, and correctly so, for both mortgages were filed prior to the furnishing of material. Only a lien on the new building or dwelling house was claimed, and it was superior to the second mortgage of appellee, Mrs. Bell Townsend, by virtue of § 6909, O. & M. Digest. Her mortgage lien covered the land and improvements at the time the mortgage was filed, but, when the dwelling house was destroyed by fire, her security was decreased by the value of the house. The erection of a new house thereafter would have been additional security had it been paid for. But the erection of a new house entitled the material furnisher to a mechanic’s lien superior to the mortgage, in so far as the house was concerned, but not as against the land. See Judd v. Rieff, 174 Ark. 362, 295 S. W. 370, where it was held that a mechanic’s lien for material furnished to build a garage was superior to a vendor’s lien in so far as the garage is concerned. This court there said:

“In Imboden v. Citizens’ Bank, 163 Ark. 615, 260 S. W. 734, we held that, under § 6909, supra, a mechanic’s or materialman’s lien is superior to a prior mortgage only on a separate building constructed with the labor and material furnished or such addition as is separable from the original building, without injury thereto. And in Gunter v. Ludlam, supra, we held that § 6911 of C. & M. Digest ‘gives priority to liens for labor or material only against other incumbrances created after the commencement of the improvement, and in effect subordinates the lien to.prior incumbrances by way of mortgage or otherwise.’ ”

It makes no difference, so far as Mrs. Townsend is concerned, that the house was burned and the insurance money used in part to erect a new house. She is in the same position she would have been had there never been a house on the property prior to the erection of the new one. The Federal Land Bank is not a party, and no priority is claimed as to it.

The court erred in not decreeing a lien on the building for the material bill. Reversed, and remanded with directions to enter a decree in accordance with this opinion.


author: Mehaffy, J.

text:
    Connelly v. Beauchamp.
    Opinion delivered January 28, 1929.

      J. A. Tellier, for appellant.

      Wallace Townsend, for appellee.
   Mehaffy, J.

The appellees brought suit in the Pulaski Circuit Court, alleging that they had entered into a contract with appellant Connelly to construct certain improvements in said district; that said contract provided for the appellant laying a sheet asphalt surface on certain streets, and provided for him to give a maintenance bond, guaranteeing said work. Connelly completed the improvement on the 13th day of June, 1924, and on the 27th day of June, 1924, gave a maintenance bond which mentioned the construction contract, and provided for keeping the street in repair for a period of five years, and that, if repairs became necessary, the contractor was required to make good any damage to the work, or any defect in the workmanship, materials or condition of the work which may have occurred during that period. The guaranty period was to date from the final acceptance of the work by the board. The bond also provided that the contractor should keep the work in good repair during the time of the guaranty period and make all repairs at such times as directed by the board. The bond also provided that it should make all repairs growing out of the imperfection or unsuitability of material or composition, all defects in workmanship, and should cover all other excessive deterioration more especially described as follows: Any holes or cracks in the pavement, and any defects resulting from the deterioration of the wearing surface or foundation. It also provided that the pavement, at the expiration of the guaranty period, should be in good condition, etc. It was stipulated that the determination of the necessity for repairs should rest entirely with the board.

The bond was in the sum of $5,000. It was provided in the 'bond that Connelly should not be liable for damage due to the defects in old base used by the district.

Within the five-year period it was alleged that a part of the work was defective; notice was given to the contractor to malte the repairs, which he declined to do, and the repairs were made by the district in accordance with the terms of the bond, and the repairs amounted to $5,000, and the district had paid this snm for repairs. Judgment was prayed against 'Connelly and the Maryland Casualty Company, surety.

The defendants filed answer, denying that the work was defective, and denying any liability on the bond. They also stated in their answer that if any defects appeared, or if any of the material used was imperfect or unsuitable, or defective in composition, or if any defects in workmanship appeared, or if there had been any excessive deterioration in the wearing surface, or holes had developed, or ridges, or if the material had not worn as contemplated, all of the said defects, imperfections, etc., were due to and were occasioned by the acts of the plaintiffs themselves, their agents, employees and servants, in doing things contrary to the .judgment and advice of Connelly. They also alleged that any damages that were caused were due to defects in the old base, and that they were expressly absolved from liability therefor by reason of the terms of the maintenance bond.

The parties entered into the following stipulation:

“It is stipulated and agreed by and between Wallace Townsend, attorney for plaintiffs, and J. A. Tellier, attorney for defendants, in the above entitled cause, as follows:

“(1) That the plaintiffs and defendants entered into a work contract on the 7th day of December, 1923, by the terms of which defendants agreed to construct certain street improvements in the city of Little Bock; that a true copy of said contract, which included a proposal and plans and specifications, is hereto attached, and marked Exhibit A to this stipulation. (2) That the defendants carried out said contract in accordance with the plans and specification contained in said contract, Exhibit A, and said defendants furnished the materials of the quality and kind as required by said specifications, and performed the work of said improvement in accordance with said specifications. (3) That a construction bond was executed by defendants in connection with said improvement, a true and correct copy of which is attached to this stipulation, and marked Exhibit B and made a part hereof. (4) That on the 27th day of June, 1924, the defendants executed a maintenance bond in connection with said improvement, with surety thereon; that said maintenance 'bond was executed in accordance with the provisions of the work contract, Exhibit A hereto, at the request of the plaintiffs, their agents or attorneys; that a true copy of said maintenance bond is hereto attached, marked Exhibit C and made a part of this stipulation. (5) That the improvement, when completed by the defendant, was accepted by the plaintiffs on June 14,1924, and paid for in full by the plaintiffs. (6) That the contract was carried out by the defendants under the supervision of the Pittsburgh Testing Laboratory and an engineer, both of whom were employed by the plaintiffs, and the ' defendants, in all respects, complied with every requirement demanded of them by said laboratory and said engineer. (7) That no demands were made upon defendants by the Pittsburgh Testing Laboratory or the engineer employed by the district to do anything other than in accordance with the terms of the contract, Exhibit A to this stipulation. (8) That the extent and precise locations of the defects in the streets of the district, as claimed by plaintiffs, are correctly stated in paragraph 2 of plaintiff’s response to defendants’ motion to make more definite and certain. (9) That plaintiffs have in fact expended the sum of $5,000' in making repairs where said defects have occurred. (10) That paragraphs numbered 8 and 9 above shall be construed only as-admitting the extent and cost of repair of defects, and not that said defects have been caused by the defendants or that said defendants are liáble therefor under the contract, Exhibit A, bond, Exhibit B, or maintenance bond, Exhibit C, referred to in this stipulation. ’ ’

The construction contract and bond and maintenance bond were all introduced in evidence, and the defendant Connelly offered to prove certain things, to which attention will be called later.

The appellants asked the court to make certain declarations of law, which were refused, and the court, sitting as a jury, by agreement of parties, found for the plaintiff in the sum of $5,000.

Motion for new trial was filed and overruled, exceptions saved, and this appeal is prosecuted to reverse the judgment of the circuit court.

Appellant’s first contention is that the court erred in refusing to grant its declaration of law No. 2. That declaration was to the effect that the burden was on plaintiffs to show by a preponderance of the evidence that the damage was occasioned by defects in the materials, etc. The bond itself provides that the determination of the necessity for repairs shall rest entirely with the board, or, after it has turned the street over to the city of Litttle Rock, with the city engineer of said city, whose decision upon the matter shall be final and obligatory upon the contractor. That necessarily means a determination by the board of the necessity of repairs, which, under the contract and bond, appellants were required to make. And defendant agreed, in the stipulation filed, that “the plaintiffs have, in fact, expended the sum of $5,000 in making repairs where said defects have occurred.”

Appellants call attention to the case of District of Columbia v. Clephane, 110 U. S. 212, 3 S. Ct. 568. In that case, however, the contract provided that: “Unless the pavement becomes defective from the causes mentioned, within three years, no liability arises.” In that case there was no evidence offered that any of the material was imperfect or improper or that the construction was improperly or defectively done. And the bond in that case did not provide for maintaining the street for three years; and, among other things, the court said: “It is too plain for argument that the defendant did not agree that, if this pavement should need repairs within three years, the authorities of the District, because he failed to repair, could change the entire character of the pavement from wooden to stone, or concrete, or vulcanite, or any other pavement, and place it where it once had been constructed by him, and .charge the entire cost of the new and better class of pavement to him.”

We have no such question in the instant case. On the contrary, the construction contract expressly provided for a maintenance bond for five years. And the maintenance bond in the instant case provided, among other things: “Said contractor shall keep said work in good repair during the time of the guaranty period, and shall make all repairs at such times as. directed by the board or city engineer of the city of Little Bock. ’ ’

The bond also provided: “It is understood and agreed that this guaranty shall cover all repairs growing out of the imperfection or imsuitability of material or composition, all defects in workmanship., and shall cover all other excessive deterioration more especially described as follows: Any holes or cracks in the pavement, and any defects resulting from the deterioration of the wearing surface or foundation. The pavement, at the expiration of the guaranty period, shall be in good condition, present a surface so true and even that it will in no way be an obstruction to travel.”

And then the bond provides that the determination of the necessity shall rest entirely with the board. Necessity, of course, in making repairs required by the contract and bond to be made by the contractor. The determination of the board, according to the agreement of the parties, was final.

Appellant does, not contend that there was any fraud or bad faith in the determination or decision of the board, and, having agreed that the decision should rest with the board, that is final, unless there was some fraud or bad faith.’ Hayes Grain & Commission Co. v. Federal Grain Co., 169 Ark. 1072, 277 S. W. 521; Hot Springs Ry. Co. v. Maher, 48 Ark. 522, 3 S. W. 639; Blytheville Courier v. McCall, 169 Ark. 148, 273 S. W. 368.

Since the parties agreed that the determination of the board was final, and there is no allegation of fraud or bad faith, there was no burden on the board, as suggested in appellant’s declaration of law. The determination of the board settled the question.

Appellant’s contention that the contract must be construed as a whole is correct. The cardinal rule in the interpretation of contracts is to ascertain the intention of the parties and to give effect to that intention, if it can be done consistently with legal principles. The parties should always be bound for what they intended to be bound for, and no more. The intention of the parties means, however, the intention as shown by the contract, and not what they may have had in mind but did not express. The law presumes that the parties understood the import of their contract and that they had the intention which the terms of the contract manifest. If there are conflicting clauses in a contract, the intention of the parties is ascertained by a consideration of the whole contract.

“It has been laid down as elementary law that, if two .clauses of a contract are so totally repugnant to each other that they cannot stand together, the first shall be received and the latter rejected. It has also been declared that, while clauses in a contract apparently repugnant must be reconciled if this can be done by any reasonable construction, yet a proviso utterly repugnant to the body of the contract and irreconcilable with it will be rejected, and that the rule that a proviso limiting a previous clause of a contract, without destroying it, is not void, but must he considered as incorporated into and forming a part of the .clause which it limits, applies only where the proviso is not repugnant to the previous clause.” 6 R. O. L. 847.

To be sure, words in a contract are to be given tbeir ordinary meaning, but tbe original contract provided for a maintenance bond. That meant that a bond .should be given to maintain the street, and the maintenance bond, when given, contained the provisions which necessarily meant that the street should be kept in repair ■ for a period of five years. Among other things, the bond stated:

‘ ‘ The work shall be done in such a substantial manner that no repairs will be required for the period of five years. Should repairs become necessary, however, during any such period, then the contractor will be required to make good any damage to the work, or any defect in the workmanship, materials or condition of the work which may have occurred during that period, and which made such repairs necessary.”

That expresses the intention of the parties. The proviso relied on by the appellant, we do not think, is in conflict with that; the proviso is merely that Connelly shall not be held liable for damage due to defects in the old base used by the district. Neither in the argument nor in the evidence offered in the circuit court is it claimed that' there was any defect, in the sense that it is used in this contract, in the old base. The testimony is to the effect that the old base was smooth, and that, for that reason, the damage occurred to the surface. But certainly that was not a defect in the base meant by the parties when they made the contract. It is perfectly plain from a reading of the entire contract that the parties meant if the old base gave way, or a defect appeared in it, that the contractor would not be liable for damages caused by this defect. Of course, all the parties knew at the time they made the maintenance bond exactly what the condition of the old base was.

We agree with the appellant that it is proper to consider both the construction contract and the construction bond together with the maintenance bond. And, when so considered, it is too plain for argument that the parties meant in the maintenance bond a defect occurring in the old base after the completion of the road. It is true the witnesses testified that the damage was caused by putting the asphalt surface on a smooth base, but the contractor knew all about this before and at the time he executed the maintenance bond. He testifies that he talked to the engineer of the district and to some other parties. There is no evidence, however, showing that he ever suggested to the commissioners that the old base should not be smooth, and, so far as the record discloses, they knew nothing about it. But, if they had known about his suggestions, it would not relieve him from liability on the bond. If appellant’s contention is true, the maintenance bond is practically meaningless.. The construction bond provided for the proper sort of material and the proper construction, and it is agreed by all parties that the construction contract was performed. But the evident intention of requiring a maintenance bond was that the contractor should keep the street in repair for five years, unless some defect not then known appeared in the old base, and it is not contended by appellant that there is any defect, except he contends that the base being smooth was a defect.

We think it clear from an examination of the contract and bonds that the defect mentioned in the maintenance bond did not mean the smooth surface of the base, but it meant a defect thereafter happening. There is no ambiguity about the bond or any of its. terms, and no evidence was necessary as to what was meant. But, even if it were doubtful when the bond was considered alone, taken in.connection with the construction bond, and the condition of the street, and the circumstances surrounding the making of the bond, there can be no question about its meaning.

This court has said: “In the construction of any instrument, where doubt arises as to its meaning, we may consider the contemporaneous agreements of the parties with respect to the same subject-matter, and, when that is done in the instant case, we find that .the bond sued on was executed in compliance with the contract under which the improvement was constructed. The material part of that contract is set out in the statement of facts, and there appears to be no. doubt as to the character of the bond then contemplated. The language there employed appears to be susceptible of only one construction. And if, in fact, such a bond was executed as that contract required, then we may be assured of the proper construction to give it. There was no other purpose in executing this bond. When the work was completed there was no controversy about its having been done as required by the plans, and there is no such controversy now, and if this bond is to be given a construction which makes its execution of value to the district, we must hold that it intended to guarantee the work against the necessity for repairs for a period of five years. The trouble with the street was that holes and cracks appeared in it, and there was a wearing away of its surface, and its foundation was defective. These defects appear to be covered by the terms of the guaranty. Appellees insist that no liability should be imposed upon the contractor, because the foundation used was approved by the engineer. The foundation was, indeed, thus approved; but it was within the terms of the contract, and was used without protest on the part of any one.” English v. Shelby, 116 Ark. 212, 172 S. W. 817.

The language of the above case is peculiarly applicable to the facts in this case. The bond would be absolutely of no value if the construction contended for by appellants was put on the bond. Such was not the meaning or intention of the parties, as gathered from the bond itself and the construction contract.

Appellant testifies that he wanted the engineer to change the plans, but the engineer declined to do so. Nothing was said to anybody connected with the district except the engineer. After the engineer declined to do so, appellant continued and completed the work on the old base, and, so far as the proof in this case is concerned, there is no defect now in the old base. It is exactly as it was when the work was completed. The work having been completed in that way, and tbe maintenance bond given, tbe appellants are liable for tbe amount paid out by tbe district for repairs.

We find no error, and the judgment of the circuit court is therefore affirmed.


author: Hart, C. J.,

text:
    Covington v. Little Fay Oil Company.
    Opinion delivered February 4, 1929.

      J. B. Milham, for appellant.

      T. D. Wynne and Chas. A. Miller, for appellee.
   Hart, C. J.,

(after stating the facts). The modification complained of by the plaintiff in instruction No. 1 is shown 'by the brackets as the instruction is copied in our statement of facts. The first modification consists in the addition of the words in the brackets, “to exercise ordinary care, ’ ’ in defining the duty of the defendant to furnish plaintiff a reasonably safe ladder. There was no error in this. It is well settled that a master is only required to exercise ordinary care to supply a safe place for the use of his servants, and in the discharge of his duty is bound to exercise reasonable diligence in informing himself that the working place is safe. St. L. S. W. Ry. Co. v. Gant, 164 Ark. 621, 262 S. W. 654; Western Coal & Mining Co. v. Burns, 168 Ark. 976, 272 S. W. 357; and St. Louis-San Francisco Ry. Co. v. Rogers, 172 Ark. 508, 290 S. W. 74.

The second modification ‘ ‘ [that rendered it defective and dangerous]” was also proper. As we have already seen, the defendant would not be guilty of negligence unless he failed to exercise ordinary care to furnish his servant a safe working place, and this carried with it the duty to make proper inspection to satisfy himself as to whether or not the working place continued to be safe. The words contained within the brackets made plain the meaning of the instruction, and there was no error in adding them. Texas Pipe Line Co. v. Johnson, 169 Ark. 235, 275 S. W. 329.

It is equally well settled that, unless the negligence of the defendant is proved to be the proximate cause of the injury to the plaintiff,. there can be no recovery. Meeks v. Graysonia N. & A. Rd. Co., 168 Ark. 966, 272 S. W. 360; and Standard Pipe Line Co. v. Dillon, 174 Ark. 708, 296 S. W. 52.

The court also correctly instructed the jury that the burden of proof was on the defendant to establish contributory negligence or assumption of risk, unless this was shown by the plaintiff’s own evidence. Sun Oil Co. v. Hodges, 173 Ark. 729, 293 S. W. 9; Central Coal & Coke Co. v. Lockhart, 161 Ark. 97, 256 S. W. 37; and Eureka Oil Co. v. Mooney, 168 Ark. 479, 271 S. W. 321.

Counsel for the plaintiff also ask for a reversal of the judgment on the ground that the court refused to give instruction No 5 requested by him. This instruction is copied in our statement of facts, and need not be repeated here. The matters embraced in the first part of the instruction are covered by instructions Nos. 1 and 2, given as modified by the court, which are also copied in our statement of facts. The last part of instruction No. 5 was properly refused by the court. It was calculated to mislead the jury. There was no com tention by the defendant that the plaintiff was required to ^inspect the ladder for the purpose of ascertaining that there was no danger in climbing it. It is well settled in this State that the court is not required to give abstract instructions or instructions which tend to confuse or mislead the jury because they are argumentative in form.

Counsel for the plaintiff also asks us to reverse the judgment because of the action of the court in giving several instructions for the defendant. We do not deem it necessary to set out these instructions or to review them at length. We have examined them carefully, and, for the most part, they contain matters which had already been submitted to the jury in the instructions given at the request of the plaintiff. They cover practically the same ground, and differ only in the language used. The court might have refused them, because the matters contained in them were already covered by oilier instructions given, but there was no error in giving them.

Finally, it is insisted that the judgment should be reversed because the court allowed the foreman of the defendant to testify that the plaintiff had told him that the reason he fell was that his gloves were oily, and this caused his hand to slip when he grasped the rung of the ladder. The record shows that the workmen carried 1wo pairs of gloves, because 'one of them would become oily in doing their work, and the dry pair then could be used by them in going up and down the ladder. There was no error in allowing the testimony complained of to go to the jury. The plaintiff had a right to speak for himself, and the jury might have found that he was bound by the declarations he made. It is well settled that any statements made by a party to a suit against his interest, bearing on material facts, are competent as original testimony. Collins v. Mack, 31 Ark. 684; St. L. I. M. & S. R. Co. v. Dallas, 93 Ark. 209, 124 S. W, 247; Jefferson v. Souter, 150 Ark. 55, 233 S. W. 805; and McCormack-Reedy Lumber Co. v. Savage, 169 Ark. 192, 273 S. W. 1028.

We find no prejudicial error in the record, and the judgment will therefore be affirmed.


author: Hart, C. J.

text:
    Nimmo v. Sims.
    Opinion delivered February 4, 1929.

      Emmet Vaughan, for appellant.

      J. R. Linder, O. E. Williams and Guy E. Williams, for appellee.
   Hart, C. J.

Frank Nimmo prosecutes this, appeal to reverse a judgment of the circuit court against him in a proceeding to affiliate a bastard child and to compel him- to aid in the support of said child. The proceeding was begun in the county court, and appealed to the circuit court. The record shows that the trial in the circuit court was had on the 7th day of September, 1928.

Gladys Sims was the prosecuting witness. According to her testimony, she was twenty years of age in January, 1928, and was a single woman. She was the mother of a child, which she held in her lap, and which was born near Cabot, in Lonoke County, on October 4, 1927. His father was the defendant, Frank Nimmo, who was a married man. He began going with the prosecuting witness in March, 1926. She had sexual intercourse with him on the 29th day of December, 1926, and on the first, second, third and fourth days of January, 1927. He slept with her during all these nights, and was the father of her child. She had never had intercourse with any other man during her whole life.

The defendant admitted having intercourse with the prosecuting witness in December, 1926, but denied such intercourse -on the first, second, third and fourth days of January, 1927. He also admitted writing to her three love letters during the early part of 1927, which letters had been introduced in evidence as exhibits to the testimony of the prosecuting witness.

Harry Eaton was also a witness for the defendant. According to his testimony, he went to the room of the prosecuting witness two different times during the latter part of December, and had intercourse with her. He paid her two dollars each time, and the last time was right close to Christmas.

The evidence of the prosecuting witness was sufficient to warrant the jury in rendering a verdict against the defendant. No corroboration of her testimony was necessary. Proceedings to affiliate a bastard child are of a civil nature, and the jury may find that the accused is the father of the child upon the testimony of the mother alone. Qualls v. State, 92 Ark. 200, 122 S. W. 498; Belford v. State, 96 Ark. 274, 131 S. W. 953; and Scott v. State, 173 Ark. 625, 292 S. W. 979.

It is urged that the judgment should be reversed because the circuit court erred in allowing the prosecuting witness to exhibit her child to the jury. The child was sitting in her lap during the time that she was testifying, and she was asked if the child in her lap was- the one which she accused the defendant of being the father of. She replied in the affirmative, and; before the case was submitted to the jury, the child was formally exhibited to it, that they might examine it to see if there was any resemblance between it and the defendant. As we have already seen, the -child was born on the 4th day of October, 19*27, and the trial was had on the 7th day of September, 1928. This court has held that it is not error in a bastardy case to permit the child to be exhibited to the jury. This is done for the purpose of enabling the jury to view the child and determine whether there is any resemblance between the features of the child and those of the putative father, or whether there may he other corporal traits of sufficient development to permit a comparison between them and those of the defendant. Land v. State, 84 Ark. 199, 105 S. W. 90, 120 Am. St. Rep. 25, and Hogan v. State, 170 Ark. 1143, 282 S. W. 984. This rule seems to be supported by the weight of authority, and is admissible for what the jury may think it may be worth in attempting to fix the responsibility for the paternity of a bastard 'child. ‘Case-note to 40 A. L. R., at page 97.

■ It is next urged that the court erred in refusing to permit the introduction of testimony tending to prove acts of intercourse of the mother of the child with others than the defendant. The court did permit.the introduction of the testimony of Harry Eaton, the only witness who was offered by the defendant, to testify that he had intercourse with the prosecuting witness on or about the time of conception. This court has held that the introduction of ‘such testimony is admissible when confined to a period of time when, in the course of nature, the child could have been begotten, but that testimony as to acts of intercourse had at other times was not admissible. The court also said that such testimony was not competent to impair the credibility of a witness by proof o.f specific acts of immorality. Belford v. State, 96 Ark. 274, 131 S..W. 953, and Thomas v. State, ante, p. 381. Testimony as to acts of intercourse with other men at the time not within the period of conception would lead to an investigation of collateral matters, and might take the jury away from the real issue to. be determined by it, which is the paternity of the child.

Finally, it is insisted that the court erred in allowing the prosecuting witness to exhibit to the jury the love letters which had been written by the defendant to her. The record shows that, after the prosecuting witness had testified that the defendant was the father of the alleged bastard child, and that he had first commenced going with her two years before, she was asked if he was not a married man, and had not made love to her. Objection was made to this last testimony, and counsel for the defendant then admitted that the defendant was a married man and that he had intercourse with the prosecuting witness within the period of gestation. The defendant denied having intercourse with her on the four days in January, 1927, testified to by the prosecuting witness, or that he slept with her on these nights. Under these circumstances we think the testimony was admissible. His love letters might be considered by the jury for what they were worth as affecting the credibility of the prosecuting witness as to the number of times the defendant had slept with her on or about the time of conception, and as shedding some light as to the paternity of the child.

We find no reversible error in the record, and the judgment will therefore be affirmed.


text:
    Phillips v. Phillips.
    Opinion delivered February 4, 1929.

      Combs & Johnson, for appellant.
   Hart, C. J.,

(after stating the facts). It is earnestly insisted by counsel for appellants that the decree should be reversed because, under our statute of frauds, parol evidence could not hie introduced to create an express trust in a deed absolute in form, and that there could be no trust ex maleficio in favor of A. J. Phillips against Charles M. Phillips. On this latter proposition we cannot agree with counsel for appellants. It is true that in order to establish a trust ex maleficio there must be an element of positive fraud accompanying the promise, by means of which the acquisition of the legal title is wrongfully obtained. Fraud in the procurement of the conveyance for the benefit of the grantor takes the case out of the statute of frauds. The reason is that a rule intended as a protection against fraud ought not in a court of equity to be changed into an instrument for the procuration of the fraud. Of course, the misrepresentation which will create a trust ex maleficio must be made before or at the time the legal title is acquired by the promisor. Barron v. Stuart, 136 Ark. 481, 207 S. W. 322; Bray v. Timms, 162 Ark. 247, 258 S. W. 338; Davidson v. Edwards, 168 Ark. 306, 270 S. W. 94; and Coleman v. Wigman, 172 Ark. 132, 288 S. W. 376.

Now, it is-the contention of A J. Phillips that the conveyance made by him to Charles M. Phillips and his other four children, in 1913, subject to the Kelso mortgage, was for the purpose of preventing his creditors from levying on the land in question. On the other hand, it is the contention of Charles M. Phillips that the deed was an advancement to him and to the other children. The conclusion we have reached makes this immaterial.

On the 8th day of June, 1920, a written contract was entered into between Charles M. Phillips and two of his brothers and A. J. Phillips relative to the land. In that contract it was agreed that the children should convey to their father their undivided interest in the land and that he should dispose of it for a consideration of not less than $13,000, nut of which he would pay all indebtedness against the land and also some indebtedness against his home place, and that the balance of the proceeds of the sale should 'be divided equally between A. J. Phillips and three of his children, including Charles M. Phillips. Pursuant to this agreement, the parties entered into possession of said land and sold the products of the orchard annually for the purpose of paying off the Kelso indebtedness. Their testimony is in irreconcilable conflict as to the amount of work and money contributed by each of them for this purpose. Be that as it may, the testimony shows that all the parties did some work towards cultivating the orchard and gathering and marketing the apples, and peaches grown thereon. Charles M. Phillips seems to have had charge of marketing the products. A. J. Phillips is shown to have worked in the orchards, to some extent, at least. This shows, that the parties were continuing to operate under their agreement of June 8, 1920, and that Charles M. Phillips and his brothers recognized that their father had an interest in the land under their written agreement. This continued until 1924, at which time, according to the testimony of Judge Lee'Seamster, Charles M. Phillips and A. J. Phillips employed him to bring a suit in the chancery court to have the deed to Kelso declared a mortgage. A. J. Phillips and Charles M. Phillips both consulted him about the matter and gave him directions about the conduct of the suit. It was finally agreed that the legal title under the decree should be taken in the name of Charles M. Phillips for the benefit of all interested parties. This was done in order to enable him to borrow money from a bank with which to pay off the Kelso indebtedness, which was a lien on the land. The money with which to pay the greater part of the indebtedness had been secured by the sale of the crops from the orchard on the land in question and from the one which is known as the Ed Smith orchard, in which the undisputed proof shows that A. J. Phillips had an equal interest with his son, Charles M. Phillips.

A. J. Phillips in all respects corroborates the testimony of Judge Lee Seamster. On the other hand, his testimony is flatly contradicted by that of Charles M. Phillips and Jay Phillips.

"While the rule is well settled in this State that, in order to impose a trust ex maleficio, the evidence must be clear, convincing and satisfactory, we think that requirement has been met in the present case. Judge Seamster had no interest whatever in the matter. He was employed by A. J. Phillips and Charles M. Phillips. Both of them consulted him about the management of the case. His testimony is strongly corroborated by the attendant circumstances. As we have already seen, the parties admitted the execution of the agreement of June 8, 2920, and the evidence clearly shows that all the parties at that time considered themselves interested in the orchards and the land itself as tenants in common. Charles M. Phillips and his brothers are shown by a preponderance of the evidence to have recognized that their father had some sort of an interest in the land. He could have had none except through this agreement.

We are of the opinion that the parties recognized that the agreement was entered into for the purpose of enabling them to make some kind of arrangement to pay off the Kelso indebtedness and to divide the land or the proceeds thereof equally between A. J. Phillips on the one hand and Charles M. Phillips and his brothers on the other.

It is claimed that A. J. Phillips never had any money at all during this period of time, bat it is- shown that he executed a mortgage on the land to a bank for $1,300, and that he paid off this mortgage. It seems clear to us that the parties, when they 'brought'the suit in the chancery court against Kelso and his wife to have their deed declared a mortgage, recognized the binding force of the agreement of June 8, 1920. It is true that A. J. Phillips was not made a party to the suit, but this was not necessary, 'because the legal title was in Charles M. Phillips and his brothers from 1913 until their conveyance to Kelso and wife. No doubt A. J. Phillips thought that, as soon as the title was vested in his children, they would carry out their agreement with him, made on the 8th day of June, 1920, and give him an undivided one-half interest in the land. It was contemplated under that agreement that the children should deed the land to A.' J. Phillips, who had a prospective purchaser for it, and that the proceeds should be divided between them according to the terms of the agreement, after paying off the mortgage indebtedness. The verbal agreement made during the pendency of the suit against Kelso and his wife was that the title should be vested in Charles M. Phillips for the purpose of enabling him to borrow money from a bank with which to pay off the balance of the Kelso mortgage, the greater part of which had already been paid by the proceeds arising from the sale of the crops of the orchards on the land in question and on the orchard on the Ed Smith land, owned jointly by A. J. Phillips and Charles M. Phillips. Thus it will be seen that the greater part of the consideration had been paid by Charles M. Phillips and A. J. Phillips at the time the legal title was acquired by Charles M. Phillips, and the chancellor was justified'in finding a trust ex maleficio in favor of A. J. Phillips against Charles M. Phillips.

Therefore the decree will be affirmed.


author: Smith, J.

text:
    Barnett v. Bank of Malvern.
    Opinion delivered February 4, 1929.

      Oscar Barnett, for appellant.

      Glover, Glover & Glover, for appellee.
   Smith, J.

This is the second appeal in this cause, the suit being one brought under §§ 7395 and 7396, C. & M. Digest, to recover damages for the alleged refusal and failure of a mortgagee to cancel the mortgage lien upon request so to do after the payment of the debt secured by the mortgage. Barnett v. Bank of Malvern, 176 Ark. 766, 4 S. W. (2d) 17.

The mortgagee, the defendant bank, had brought suit to foreclose a mortgage upon a lot which appellant bought subject to the mortgage. There was a decree of foreclosure, but, before the sale, appellant paid the mortgage debt, and the attorney for the bank caused a notation of that fact to be made upon the margin of the record of the chancery court in which the decree of foreclosure had been entered. When sued for the failure to satisfy the mortgage lien, under the provisions of the above numbered sections of Crawford & Moses’ Digest, the bank defended upon the ground that the cancellation of the decree of foreclosure by entering satisfaction on the margin of the record thereof was a substantial compliance ■ with the requirements of the statute, and the court so instructed the jury, and, under the directions of the court, the jury returned a verdict in the bank’s favor.

Upon the appeal from the judgment of the court rendered upon the verdict of the jury returned as aforesaid, we held that the statute had not been substantially complied with, and that the mortgagor, or his successor in interest, had the right to demand the indorsement of satisfaction of the mortgage upon the margin of the record where the mortgage was recorded, although satisfaction of the decree of foreclosure had been previously entered.

Upon the remand of the cause the bank defended upon the ground that it entered satisfaction of the mortgage upon the margin of the mortgage record within sixty days after being requested so to do, and that no request to satisfy had been made prior to the institution of the suit for damages for the failure to satisfy.

The case appears to have been submitted at the trial from which this appeal comes under proper instructions. The testimony on the part of the plaintiff was to the effect that the request to satisfy was made, and not complied with; while that on the part of the bank was to the effect that the request was not made until after the suit for damages had been commenced. The instructions made the determination of this issue of fact decisive of the question of liability.

Appellant insisted in the court- below, and insists here,'that he was entitled to a judgment upon the pleadings for the reason that the opinion on the former appeal is decisive of the issues joined at the trial from which this appeal comes. Appellant is mistaken in this contention. We did not undertake to decide any issues of fact raised in the case on the former appeal, but, inasmuch as a verdict had been directed at the first trial against plaintiff, we said on the appeal that, in determining whether he had a cause of action, we gave to the testimony in his behalf its highest probative value, and we merely decided that this testimony was legally sufficient to support a verdict in his favor.

We would therefore be constrained to affirm the judgment from which the present appeal comes, but for the fact that counsel for the defendant bank, in the course of his argument before the jury, said: “The satisfaction of the judgment record of the chancery court, where the mortgage was foreclosed by the defendant, and as Mr. Robert Smith (the cashier of the bank) told you, was a full and complete satisfaction of any and every claim that the Bank of Malvern had against that property by reason of that mortgage; and plaintiff should not ask for any further satisfaction here.” An objection to this argument was overruled by the court, and exceptions duly saved.

Tlie argument of counsel was an improper one, as it was directly contrary to the law as declared in the opinion on the former appeal and to the instructions given at the request of the plaintiff. It was expressly decided on the former appeal that, notwithstanding the satisfaction of the decree of foreclosure, plaintiff had the right to demand that the mortgage record be satisfied also, yet counsel asserted plaintiff had no such right.

In the case of Briggs v. Jones, 132 Ark. 455, 208 S. W. 118, it was held (to quote a syllabus) that “the refusal of the trial court to correct counsel, where he has made an improper statement of the law in his argument, is tantamount to the giving of an erroneous instruction on the subject.” The cases of Bird v. State, 154 Ark. 297, 242 S. W. 71, and Davie v. Padgett, 117 Ark; 551, 176 S. W. 333, are to the same effect.

For this error the judgment must be reversed, and it is so ordered.


text:
    London v. Kennedy.
    Opinion delivered February 4, 1929.

      I. S. Simmons and L. E. Lister, for appellant.

      George W. Dodd, for appellee.
   Smith, J.

Appellant seeks by this appeal to reverse a judgment against him, and the assignment of error relied upon for that purpose is that the court improperly denied his motion for a change of venue.

There appears in the body of the transcript a motion for change of venue in proper form, but the bill of exceptions contáins no reference to it. It will therefore be conclusively presumed that the court properly disposed of this motion.

In the case of Estes v. Chesney, 54 Ark. 463, 16 S. W. 267, it was said: “The appellants insist that the judgment should be reversed because the court improperly denied their motion for a change of venue. This is a question which we cannot consider, for the reason that the petition for a change of venue and supporting affidavits are not brought upon the record by bill of exceptions.”

The case of Adkisson v. State, 142 Ark. 34, 218 S. W. 167, is to the same effect.

The judgment must therefore be affirmed, and it is so ordered.


text:
    Moncrief v. Miller.
    Opinion delivered February 4, 1929.

      G. W. Botts, for appellant.

      J. M. Brice, for appellée.
   Smith, J.

Appellant brought suit at law against appellee to recover the possession of a certain two-acre tract of land upon which there stands a store building and a residence. Appellant claims title to the property through a deed to her from appellee, which she made an exhibit to her complaint. The deed recites that: “I, B. N. Miller, single, for and in consideration of the sum of $1, and the love and affection that I have for Sallie Miller, formerly my wife, do hereby grant, sell and convey unto the said Sallie Miller a life interest in and to the following lands” (describing them). The deed further recites that: ‘ ‘ The intention of this deed is to convey a life interest only to the said Sallie Miller, with the remainder vesting in my son, Charles Miller. ’ ’

Appellee filed an answer, in which he alleged that she and appellant were formerly husband and wife; that she obtained a divorce from him, and in the decree she was awarded as alimony $1,500, of which $500 was cash, and certain specific articles of personal property. Appellee gave appellant a note for $1,000 to cover the portion of the alimony not paid in' cash. This note was indorsed by C. P. Yittitow, an uncle of the appellee’s first wife. Later, according to the allegations of the answer, the parties entered into an agreement as follows: A copartnership was formed to conduct a mercantile business in the building on the above-described lot, the thousand-dollar note was to be canceled, and the above-mentioned deed was executed and delivered. This agreement was evidenced in part by a paper writing, which reads as follows. :

‘ ‘ This is to certify I, Sallie Bitner Miller, to me well known, came before me, a justice of the peace for Point DeLuice Township, in and for Arkansas 'County, Arkansas, to sign this agreement, giving B. N. Miller the right to conduct a mercantile business together with hers at the place which it is now located, without the paying of rent or compensation from the said B. N. Miller. And the said B. N. Miller agrees, to give to the said Sallie Miller, after all debts are paid, one-half of the net proceeds of the mercantile business.

“G. W. Trussell,

“Justice of Peace.”

“B. N. Miller,

“Sallie Bitner Miller.”

The defendant moved that the cause be transferred to equity, and prayed that the deed be canceled as having been executed without consideration, inasmuch as appellant had failed to perform the conditions in consideration of which the deed had been executed. After the cause had been transferred to equity, appellant filed an.amended complaint, in which, she asked a settlement o.f the partnership accounts.

The parties were married,in 1916, and divorced in September, 1919, and the deed was executed in December thereafter.

The court found the facts to be “that the deed, upon its face, is without sufficient consideration, there being no relationship between the parties,” and that “the contract of partnership has never been carried out.” Upon these findings the complaint was 'dismissed as being without equity, and the deed was canceled as having been executed without consideration, and this appeal is from that decree.

The testimony on the part of appellant was to the effect that, after she obtained a divorce from appellee, he urged her to remarry him, but she declined to do so. Appellee had a small child by a former marriage, and he requested appellant to keep the child for him, and, as a consideration for her agreement so to do, he executed to her the deed conveying, not only the store building, but the residence thereon, and a part of the agreement was that appellee should remain away from the home. The contract set out above evidenced the agreement covering the copartnership, which appellee by his misconduct towards her forced her to dissolve. She testified that' there had been no agreement to cancel the thousand-dollar note given her in part payment of the alimony allowance. She made proof of the fact, on the contrary, that, in a suit on the note which she was compelled to bring to collect it, appellee had defended upon the false ground that the note had been paid by the execution of the deed, the satisfaction of the note being the consideration for the deed.

The testimony on appellee’s part was to the effect that, after appellant had obtained the divorce, a single agreement was entered into between them, of which the writing relating to the copartnership and the deed were parts. This agreement contemplated the surrender of the thousand-dollar note, and that appellant should operate the store for the joint benefit of the contracting parties, bnt she refused to surrender the note. On the contrary, appellant enforced its collection by suit, and abandoned the partnership contract without cause.

The court was in error in-decreeing the cancellation of the deed. It was not contended that the execution of the deed was procured by fraud; the contention is that the consideration which induced the execution of the deed failed. It may be said that the testimony shows clearly that the consideration for the deed was not that expressed in the deed, to-wit, the sum of a dollar and the grantor’s love and affection for his former wife; but this fact cannot be shown for the purpose of canceling the deed.

Similar relief was sought in the case of Green v. Mulkey, 142 Ark. 124, 218 S. W. 20. The grantor in that case, as in this, sought to show that the real consideration for the deed was an unperformed agreement not recited in the deed, hut we said:

“Waiving the question whether or not appellant has proved his alleged ground for cancellation by a preponderance of the testimony, the law is well settled against his contention. He is not permitted to show, for the purpose of defeating the conveyance, failure to perform a consideration not expressed in the writing itself. (Citing authorities).” See also Tandy v. Smith, 173 Ark. 828, 293 S. W. 735; Tribble v. Tribble, 173 Ark. 561, 293 S. W. 705; Texas Co. v. Snow, 172 Ark. 1128, 291 S. W. 826; Sutton v. Sutton, 141 Ark. 93, 216 S. W. 1052; Sims v. Best, 140 Ark. 384, 215 S. W. 519; Hampton v. Haneline, 125 Ark. 441, 189 S. W. 638; Wallace v. Meeks, 99 Ark. 350, 138 S. W. 638; Davis v. Jernigan, 71 Ark. 494, 76 S. W. 554; Barnett v. Hughey, 54 Ark. 196, 15 S. W. 464.

The grantor in a deed may show what the consideration for the deed was, although it is not expressed in the deed, and he may show the value of this unexpressed consideration, but he cannot show that there was no consideration, or that the consideration failed, for the purpose of defeating the conveyance. So here appellee may show what the consideration for the deed was, and the value thereof, and may recover judgment for the value of such portion of the consideration as he failed to receive, hut the deed stands as a valid conveyance of the title to the land.

The decree of the court below will he reversed, and the cause will be remanded for further proceedings not inconsistent with this opinion.