author: Smith, J.

text:
    St. Louis Southwestern Railway Company v. Fulkerson.
    Opinion delivered June 25, 1928.

      Wooldridge & Wooldridge, Chas. 8. Jacobson, J. R. Turney and A. H. Kishaddon, for appellant.

      Coleman & Riddiclc, for appellee.
   Smith, J.

Appellant railway company has the record title to a right-of-way through the plantation owned by appellees, which plantation they inherited from their father, George F. Baucum. This right-of-way is 100 feet wide, 50 feet on each side of the center of the main track, but, for a distance of 1,600 feet opposite the depot at Baucum, the right-of-way south of the center of the track is 100 feet wide, making the total width of the right-of-way for this distance 150 feet. The right-of-way was acquired through two deeds from George F. Baucum, the last of which was executed in October, 1889.

The ordinary width of the right-of-way is 100 feet, and for a number of years the railway company maintained fences on each side of the track on the boundary lines of its right-of-way, and the fence through the Baucum land was a straight line, so that the strip of land here in controversy (50 by 1,600 feet) was inclosed as a part of the Baucum field and excluded from the remainder of the right-of-way. Baucum cultivated this strip as a part of his farm, and continued to do so until his death, which occurred twenty-five years before the institution of this suit, and since Ms death the strip of land has been cultivated by his heirs as a part of their field, and they testified that they did not know that the railway company claimed this land prior to the institution of this suit, and that they did at all times claim it.

Officers of the railway company testified that the railway company had at all times claimed this strip of land, and that all the maps and plats of their right-of-way showed their claim thereto, and that it was included in the railroad’s real estate holdings as. certified to the Interstate Commerce 'Commission for valuation of its property.

In 1903 the following contract was signed by an assistant engineer for the railway company and Mr. Baucum:

“Whereas, the St. Louis Southwestern Eailway Company contemplates fencing such portions of its railway, where the danger to travel and loss to the residents and to -the company on account of the killing of .stock renders it advisable and necessary to do so, it is therefore agreed by and between the St. Louis Southwestern Eailway Company, party of the first part, and G-. F. Baucum, party of the second part, that, for and in consideration of the mutual advantages to he derived and received by both parties hereto, and one dollar in hand paid by the party of the first .part to the party of the second part, the receipt whereof is hereby acknowledged, that the party of the first part will construct such private gates, road crossing’s or cattle guards upon the land occupied by the party of the second part as are shown by the diagram below; which arrangement is hereby agreed to by both parties, and will be followed and accepted strictly as a final settlement for their mutual advantage. ’

Attached to this agreement, as a part of it, was a plat of the railroad through Baucum’s land, showing the location of the gates, road crossings and cattle guards on the Baucum farm, and this plat shows the right-of-way to be wider opposite the depot than it is elsewhere through the farm, although the plat does not indicate its width at any place.

Officers of the railway company testified that they assumed, without inquiry, that appellees were occupying the strip of land in subordination to the deed of their ancestor, and that no objection was made to its use for the reason that the railway company did not require the use of this land for railroad purposes. A no-fence district was organized, at a date not given, when all fences in the district were removed, and since that time no fences had been maintained along the right-of-way therein. On April 1,1925, the railway company exe-mited a lease to a part of this strip to one KoMer, and when appellees asked Kohler to pay them the rent, the railway company inclosed with a fence, as a part of its right-of-way, the land in question, and when appellees removed the fence this suit was 'brought.

Appellees testified that they did not know that their father had ever conveyed the strip in question, to the railway company, and that their father had at all times cultivated it as a pairt of his field, and that they had done so since his death under a continuous claim of ownership.

Upon this testimony the court below decreed that appellees were the owners of the land in question, and dismissed the complaint, and this appeal is from that decree.

As appears from the facts stated, the question presented is one of fact, that fact being whether appel-lees have acquired title by adverse possession to land which their ancestor had conveyed.

The law of the case appears to be well settled. In the case of Graham v. St. Louis, I. M. & Sou. Ry. Co., 69 Ark. 562, 65 S. W. 1048, which is somewhat similar under the facts, Mr. Justice Biddioic said:

“Though the continued possession of the land by the vendor after conveyance executed is not, of itself, sufficient to show a holding adverse to the vendee, yet there is nothing in their relations which will prevent the vendor from acquiring a title by adverse possession. But, before the vendor or those claiming under him can acquire title in that way against the vendee, the intention to hold adversely must be manifested by some unequivocal act of hostility, such as to give notice to the vendee of the intention of the vendor to deny his right and hold adversely to him. Until this is shown, the statute does not commence to run. 1 Am. & Eng. Enc. Law (2d ed.), 818, 819; Connor v. Bell, 152 Pa. St. 444 ( 25 Atl. 802); Paldi v. Paldi, 84 Mich. 346 (47 N. W. 5); Sherman v. Kane, 86 N. Y. 68. The distinction between a vendor and a stranger in such a case relates to the character of evidence necessary to show that the possession was adverse. If the parties are strangers in title, possession and the exercise of acts of ownership are, in themselves, in the absence of explanatory evidence, proof that the holding is adverse; whereas if the vendor, after having executed deed, continues to remain in possession, the natural and reasonable inference, in the absence of evidence to the contrary, would be that he holds in recognition of the rights of the person to whom he has conveyed; it not being supposed, from mere acts of possession and ownership not inconsistent with the rights of the vendee, that the vendor intends to deny the title he has conveyed. ’ ’

While there is a presumption that the grantor who remains in possession after the execution of his deed does so in subordination to the title which he has conveyed, this is not a continuing, enduring presumption. On the contrary, the probative value of this presumption diminishes with the lapse of time, and may, if the possession of the grantor be long enough continued, cease to exist. In the case of Pullen v. Cowan, 163 Ark. 507, 260 S. W. 401, it was held (to quote a syllabus) that “retention of possession of land by a grantor, after conveyance thereof, is presumed to be for the grantee, but such presumption will not extend over an unreasonable length of time.” See also American Bldg. & Loan Assn. v. Warren, 101 Ark. 163, 141 S. W. 765.

We are of the opinion that the court below was warranted in finding the fact to be that appellees’ possession had been of such a character as to rebut the presumption that they were occupying the land in subordination to the grant of their ancestor, and that the railway company was charged with notice of that fact.

Appellees and their ancestor held continuous possession of the 'land for thirty-nine years, during all of which time they continuously cultivated it as a part of their field, and during most of this time the railway company bad itself, by building its fence, included the land in the farm and had excluded it from its right-of-way. It is true that, fourteen years after the execution of the deed conveying the land to the railway company, Bancum signed an agreement to which a plat was attached showing that the right-of-way through the farm was not of a uniform width, hut was wider opposite the depot, but this plat did not purport to show the width of the right-of-way at any place, and was not executed for that purpose. The purpose of its execution was to locate crossings, cattle guards and gates, and all of these were within the hundred-foot right-of-way, and the gates were in a fence fifty feet from the center of the right-of-way. Moreover, Baueum had been dead twenty-five years after the execution of this agreement before the institution of this suit, and during all this time appellees were in possession of the land, cultivating it as a part of their farm.

Under these facts we think the possession of appel-lees had ripened into title to the disputed strip of land, and the decree of the court below must be affirmed, and it is so ordered.

Kirby, J., not participating.


source: Caselaw Access Project

license: Public Domain

text:
    Indian Bayou Drainage District v. Dickie.
    Opinion delivered June 25, 1928.

      Chas. A. Walls, for appellant.

      Trimble <& Trimble, for appellee.
   Smith, J.

Appellee is a landowner and taxpayer in the Indian Bayou Drainage District of Lonoke County, and he brought this suit to restrain the commissioners of the district from issuing additional bonds. In his complaint, appellee alleged the organization of the district under act 279 of the Acts of 1909, which act appears as §§ 3607 et seq., C. & M. Digest.

The assessed betterments in the district amounted to $463,428, and against this assessment bonds were issued in the sum of $147,000 from the proceeds of the sale of which the construction cost of the improvement, in accordance with the plans upon which the betterments had been assessed, was paid.

During the year 1927 the commissioners of the district instructed the engineer of the district to formulate plans and estimates for widening, deepening and straightening the channel of the main ditch in said district, and to provide for improving the outlet thereof, to provide for clearing out the laterals, in said district, and for extending and otherwise improving the system of drainage in said district.

The estimated cost of the proposed work is $130,000, and there is outstanding and unpaid $64,000 of the original bond issue, and the commissioners of the district are proposing to refund the outstanding bonds, and to issue new bonds to pay the cost of the new work, a single bond issue to cover both items. Certain other facts are alleged in the complaint, which are reflected in'the decree of the court.

The court found: (1) That the district is not authorized to do the additional construction work until a reassessment of 'benefits had been made in said district, and until a petition signed by a majority in number, acreage or value of the owners of land in the district authorizing that action had been filed, as provided by act 203 of the Acts of 1927 (Acts 1927, page 680). (2) That the commissioners of the district are authorized to refund the outstanding bonds of the district and reissue them in a bond issue to embrace both the outstanding bonds and a new issue floated for obtaining money with which to widen, deepen, straighten or otherwise improve the system of drainage in the district. (3) That act 203 of the Acts of 1927 requires a majority in number, acreage or value of the landowners of the district, and not a majority in number, acreage and value of such landowners, before being- authorized to proceed under that act.

The commissioners of the district proposed to refund the bonded indebtedness of the district under the authority of act 16 of the Acts of 1927 (Acts 1927, page 43), which act confers that authority. They propose also to issue bonds to pay the cost of additional work, and, if allowed to do so, have a single- bond issue to cover both items.

The refunding act (act 16, Acts 1927) empowers drainage districts “to issue refunding bonds for the purpose of paying any bonds and interest upon any bonds, certificates of indebtedness, or unsatisfied judgments of such district outstanding” (§ 1, act 16, Acts 1927, page 43), and, where a district may also issue bonds to provide funds for additional work, we perceive no reason why a single bond issue should not be made for both purposes.. If separate bond issues may be authorized for each purpose, a single issue would suffice for both purposes.

The decision of the two remaining questions passed upon by the court below requires a consideration of act 203 of the Acts, of 1927.

Section 1 of this act provides that the commissioners of any district organized under the provisions of §§ '3607 et. seq., C. & M. Digest, shall have power, either before or after the completion of the plans for the work therein, to deepen or widen the drains in such district, and to build additional laterals, for the better drainage of its lands, and to borrow money by the issue of negotiable bonds for the purpose of securing the funds with which to complete the work of improvement in such district and of widening or deepening ditches, adding laterals, and for maintenance of the ditches and levees, and to secure the payment of such bonds by a pledge and a mortgage of the assessment of benefits in such district and of all reassessments thereof.

Section 2 of the act authorizes the commissioners to make a reassessment of the benefits not oftener than once a year, with the right on the part of the landowners to object to such assessments and to appeal therefrom.

Section 3 of the act provides that “if the commissioners shall have filed plans for additional work in the district, no proceeding shall be taken looking to a confirmation of the assessment of benefits based thereon until a petition has been filed with the county court, signed by a majority in numbers, "acreage and value of the owners of land within the district, praying that the work as provided for in said plans shall proceed, ’ ’ etc.

We think there is nothing in this act which deprives the commissioners of the power conferred by § 3630, 0. & M. Digest, of preserving the improvement by keeping the ditches clear from obstructions, etc. Hopson v. Oliver, 174 Ark. 666, 298 S. W. 489. But the act does provide that, “if the commissioners shall have filed plans for additional work in the district,” no proceeding shall be taken to that end until the landowners have filed a petition requesting that action. .In other words, the commissioners may preserve the improvement without a petition from the landowners so to do, provided the necessary funds are available; but, if it is proposed to do additional work, that is, work not contemplated by the original plans upon which the assessment of benefits was based, a petition by the landowners is required. The court below so held, and we affirm that holding'..

The third and last question presented by this appeal is whether the petition must be signed by a majority in number, acreage and value, or will a petition signed by a a majority in number, acreage or value suffice1?

Section 3 of the act, from which we have quoted, provides that the petition shall be signed by a majority in number, acreage and value of the landowners, and if the act contained only this provision we would be compelled to hold that the language was unambiguous, and nothing was left for construction .or interpretation, and that the commissioners could not proceed with the “additional work” unless authorized by a petition of a majority in number, acreage and value of the landowners. But in the same section provision is made for a hearing before the county court to determine whether the necessary majority has been obtained, and it is provided that “on the day named in said notice, it shall be the duty of the county court to meet and to hear all persons who wish to be heard, and first to determine whether a majority in numbers, acreage or value of the landowners have petitioned for the doing of the work under the revised plans, and, if it-finds that such majority have signed the petition,” the court shall then hear the complaints ag'ainst assessments, 'based upon the revised plans.

It is obvious that these provisions appearing in the same section are conflicting, and both cannot be given effect.' One provision requires that a majority in number, acreage and value of the landowners shall be obtained, while the other directs the court to proceed if the petition so to do contains, a majority in number, acreage or value of the landowners. Which provision shall be followed?

In deciding this question we have in mind the settled rule of construction that a statute must he read as a whole to ascertain its meaning, and courts must give effect to the meaning of the statute as thus, ascertained, and in the discharge of this duty courts are frequently required to eliminate or to substitute words for those employed by the Legislature. Clark v. State, 155 Ark. 16, 243 S. W. 865; Williams v. State, 99 Ark. 149, 137 S. W. 927, Ann. Cas. 1913A, 1066; McDaniel v. Ashworth, 137 Ark. 280, 209 S. W. 646; Ferguson v. Montgomery, 148 Ark. 95, 229 S. W. 30.

Another rule of construction equally as well established is that all new legislation must he construed with reference to existing legislation on the same subject. McIntosh v. Little Rock, 159 Ark. 607, 252 S. W. 605; Stewart-McGehee Construction Co. v. Brewster, etc., Co., 171 Ark. 199, 200, 284 S. W. 53.

In the construction of this legislation we cannot he unmindful of the practical difficulty — if not the utter impossibility — of securing a majority in number, acreage and value of the landowners for the construction of any public improvement, and no other legislation has. ever imposed a requirement so difficult to discharge.

On the contrary, § 2 of the act of 1909, supra, which appears as §§ 3608 et seq., C. & M. Digest, under which the district was organized, provides that: “If, upon the hearing provided for in the foregoing section (for the formation of the district), the petition is presented to the county court, signed by a majority, either in numbers or in acreage or in value of the holders of real property within the proposed district, praying that the improvement be made, it shall be the duty of the county court to make the order establishing the district without further inquiry/’ etc.

It is therefore our opinion that it is not only more probable, but more reasonable, to conclude that the Legislature did not intend to require a majority in number, acreage and value, but intended to require only that the petition contain a majority in number, acreage or value, and the statute will be so construed.

The decree of the court below accords with the views here expressed on all three of the questions presented for decision, and from this decree both the district and the' landowners have appealed; but, as the decree appears to be correct, it is in all respects affirmed.


author: Humphreys, J.

text:
    School Districts Nos. 14, 15, 44 v. County Board of Education.
    Opinion delivered June 25, 1928.

      Robert Bailey, for appellant.

      Ward & Gcmdle, for appellee.
   Humphreys, J.

Eighty-five electors in School Districts Nos. 15 and 44, in Pope C-ounty, signed and filed a petition, on the 18th day of June, 1926-, with the county board of.education, which reads as follows:

“To the county board of education of Pope County, Arkansas: Petition. Being’ desirous of further benefiting our children in public school advantages, wanting better buildings, better equipment, longer school terms and better prepared teachers; and knowing that these various needs cannot be had except by consolidating and increased' financial resources, therefore we, the undersigned electors residing’ in iSchool Districts Nos. 15 and 44, hereby petition the county hoard of education of Pope County, Arkansas, to abolish School Districts Nos. 15 and 44 and consolidate said territory now embraced in the said districts into one consolidated school district, as the law directs. Building for said consolidated district to be located about or near the Judge BullQck Farm, accessible to the pike road, said building to be a modern four-room structure, built on an economic plan.”

Notice was given, in accordance with the law, that the petition would be presented to the county board of education for action on the 23d day of July, 1927. In the interim a petition remonstrating against the consolidation of the two districts was signed by thirty-three electors in District No. 44, and same was filed with the county board of education and presented, along with the original petition, on the date fixed for the consideration of same in the notice. On the hearing it was shown anid found by the board of education that the majority of electors residing in the two districts to be affected had signed the original petition, and, based upon such finding, made an order attaching the territory of District No. 44 to District 15 and designated the consolidated district No. 15 of Pope County; and also found and ordered that it was for the best interest of the pupils residing in sections 32, 33 and west half and the northwest quarter of the southeast quarter of section 34, all in township 8 north, range 20 west, to be detached from Consolidated District No. 15 and attached to and made a part of Russellville Special School District No. 14. An appeal was taken from the order to the circuit court, where, on trial de novo, a judgment was rendered consolidating Districts Nos. 15 and 44 and detaching from Consolidated District No. 15 the particular territory detached therefrom by the board of education, and attaching same to Russellville .Special School District No. 14, from which is this appeal.

Appellant contends for a reversal of the judgment on two grounds; the first being that act No. 156 of the Acts of the G-eneral Assembly of 1927, under which the .petition was filed, required a majority of the electors in each district affected to sign the petition before the districts con'ld be consolidated; and the second being that the board and circuit court were without authority under said act to detach territory from the districts affected and attach ¡same *to a district not embraced in the petition.

•Said statute under which the proceeding was instituted was recently interpreted by this court, in the case of Manley v. Moon, ante p. 260, to mean that a majority of the electors in the districts to be affected, and not a majority of the electors in each district to be affected, was necessary in order to warrant the consolidation of the districts embraced in a petition. The trial court correctly -construed the statute to mean that a majority of the electors in the districts embraced in the petition were necessary to obtain an order consolidating same, but, in applying the statute as construed, erred in detaching certain territory from the consolidated district and attaching same to a district which was not embraced in the petition. Russellville Special School District No. 14 was not embraced in the petition and its territory was not in any wise affected by the petition to consolidate Districts Nos. 15 and 44, and, upon the petition being" presented, neither the board nor the circuit court had authority to detach territory in said Districts 15 and 44 after being consolidated and designated as District No. 15 and to attach same to Russellville Special School District No. 14. The county board of education is authorized by said act to form new school districts and to change the boundary lines between any school districts theretofore formed, when a majority of the qualified electors in the territory to be affected ¡sign and present a petition to the board for that purpose. In the petition presented to the board in the instant case the only territory described was that embraced in Districts Nos. 15 and 44. Neither Russellville Special School District No. 14 nor any territory embraced therein was mentioned in the petition, and therefore it was beyond the jurisdiction of the board or court, under the petition presented, to detach territory in the districts mentioned and attach same to Russellville Special School District No. 14. It may be that neither the hoard of education nor the circuit court would have consolidated Districts Nos. 15 and 44 without detaching- a part of the territory and attaching same to Russellville Special School District No. 14. Only one judgment was rendered. It cannot he said that one judgment was rendered on the petition and another rendered without authority. The whole judgment must he treated as one, and is erroneous for the reasons given above.

On account of the error indicated the judgment is reversed, and the cause is remanded for a new trial on the petition presented.

Mr. Justice Kirby dissents.


author: Humphbeys, J.

text:
    Shelby v. Union Life Insurance Company.
    Opinion delivered June 25, 1928.

      Liims A. Williams, for appellant.

      Duty & Duty, for appellee.
   Humphbeys, J.

Upon a trial of this canse in the circuit court of Franklin County a verdict was returned in favor of appellee, and a consequent judgment was rendered dismissing the complaint of appellants, from which is this appeal.

The suit was brought by the administrator of the estate of R. W. Shelby, deceased, and his widow and heirs at law against appellee to recover $10,000 on two life insurance policies issued to R. W. Shelby on his life, by which it was agreed to pay said amount “to the People's Bank of Ozark (creditor), as its interest may appear, and the balance, if any, to the insured’s executors, administrators and assigns, immediately upon receipt of due proofs of the fact and cause of death of the insured during the continuance of this contract, and the surrender of this policy.”

On the 11th day of March, 1925, R. W. Shelby died, and on the 17th day of March following the People’s Bank of Ozark, through its president and cashier, filed with appellee the following affidavit of his death and of his indebtedness to it at the time:

“State of Arkansas, County of Franklin — ss. We, L. L. Ford and Finis E. Stockton, president and cashier of the People’s Bank of Ozark, Arkansas, do hereby make oath as follows:

“We state that Robert W. Shelby of Mulberry, Arkansas, died on the 11th day of March, 1925; that he was the holder of policy No. 740, dated April 17, 1922, and policy No. 2491, dated May 16, 1924, issued by the Union Life Insurance Company of Rogers, Arkansas, in the sum of $5,000 each; and that the People’s Bank of Ozark was and is now a creditor of the said Robert W. Shelby, and was named beneficiary in said policies of insurance as its interest may appear.

“We further state that, at the death of the said Robert W. Shelby, he was indebted to this bank in the sum of $10,000 or more, or the full face value of said policies'of insurance, and that said bank is justly and legally entitled to the proceeds of said policies of insurance, and that said indebtedness was and is valid and subsisting and a bona fide indebtedness against the said Robert W. Shelby, said indebtedness being evidenced by' the following promissory notes, described as follows, to-wit:

“One note date 12-31-24, $1,694; one note date 3-31-22, $4,000; one note date 12-28-23, $860; one note date 12-1-21, $4,000; total $10,564.

“Witness our hands this 17th day of March, 1925. L. L. Ford, president People’s Bank of Ozark. Finis E Stockton, cashier People’s Bank of Ozark.”

“Acknowledgment — State of Arkansas, County of Franklin — ss. On this the 17th day of March, 1925, personalty appeared before me, the undersigned, a duly commissioned and acting notary public for and in the State and county aforesaid, L. L. Ford and Finis E. Stockton, respectively, and, after being sworn by me, state that the facts set forth in the above and foregoing affidavit are true and correct. (Seal).

“Witness my hand and seal the day and year above written. My commission expires December 31, 1926. Yint Addy, clerk circuit court. ”

Based upon this proof of death and indebtedness, appellee paid $10,000, the amount of the policies, to the People’s Bank of Ozark, and received a beneficiary receipt from the bank for said amount.

The grounds upon which the recovery was sought were set out in the fourth and fifth allegations of the amended complaint, which are as follows:

“Fourth: That Finis E. Stockton, cashier of said bank, and L. L. Ford, president of said bank, induced said insurance company to pay said policies to said bank by false and fraudulent representations, by filing a false affidavit with the insurance company, representing to said company that, at the time of the death of the said R. W. Shelby, he was indebted to said bank in the sum of $10,554.80.

“Fifth.: That in truth and in fact said R. W. Shelby was not indebted to said bank in any sum.”

Appellee filed an answer, denying the fourth and fifth allegations in the complaint, and admitting* that it paid the face of the policies to the bank upon proof of the death of R. W. Shelby and his indebtedness to the bank shown by the affidavit filed' by its president and cashier, heretofore set out in full.

At the conclusion of the evidence the court instructed the jury relative to the burden of proof as follows, over the objection and exception of appellants:

‘ ‘ Gentlemen of the jury, I instructed you awhile ago that the burden of proof is on the defendant, Union Life Insurance Company, to prove the indebtedness of R. W. Shelby to the People’s Bank at the time of his death, but I have changed my mind, so I am now instructing you that the burden of proof is on the plaintiff (appellant) to establish this.”

The controlling question involved on this appeal is whether the court properly instructed the jury with reference to the burden of proof. There is no ambiguity in the clause designating the beneficiaries in the policies. The People’s Bank of Ozark was primarily made the beneficiary in case R. W. Shelby was indebted to it at the time of his death, to the extent of such'indebtedness, and the executors, administrators or assigns of R. W. Shelby were made the beneficiaries of any surplus remaining after paying said indebtedness. It was clearly the duty of the insurance company to pay such indebtedness as. existed out of the insurance money to the People’s Bank of Ozark first. The clause designating the beneficiaries made no particular requirement as to the character of proof that should be made of the death of the insured and the existence of his indebtedness to the bank. We think the affidavit of the death and indebtedness was sufficient showing to warrant the appellee in making the payment. There is no testimony in the record tending to show that it made the payment in bad faith. It is alleged in the fourth and fifth paragraphs of the complaint, upon which a recovery was sought, that the payment was made in had faith, and that R. W. Shelby owed the hank nothing- at the time of his death. It was. necessary, in order to recover, to sustain the allegations by weight or preponderance of the evidence. The record fails to reflect any evidence tending to establish either of the allegations. Appellants contend and argue that the burden rested upon appellee to show that R. W. Shelby owed it the amount of $10,000 at the time of his death. In other words, appellants treated the answer of appellee as an acknowledgment of the debt and a plea of payment. The real issues, according to the pleadings, were the allegations contained in the complaint, to the effect that no debt existed, and that payment was made by appellee to the bank in bad faith. If no proof had been taken, necessarily, under the pleadings, the appel-lee would have prevailed. Section 4113 of Crawford & Moses’ Digest provides:

“The burden of proof in the whole action lies, on the party who would be defeated if no evidence were given on either side.”

This court ruled in the case of Looney v. Potts, 163 Ark. 310, 260 S. W. 23 (quoting syllabus):

“A suit to recover a sum alleged to have been obtained fraudulently by procuring plaintiff, who could not read, to sign a check for more than the intended amount, was not a suit on the check, but for deceit, and the burden of proof was on the plaintiff, under Crawford & Moses’ Digest, § 4113, placing the burden of proof on the party who would be defeated if no evidence was given on either side.”

The court correctly instructed the jury, in the instant case, that the burden of proof rested upon appellants.

No error appearing, the judgment is affirmed.


text:
    Ferrell v. State.
    Opinion delivered June 25, 1928.

      Sellers & Eddy and E. A. Williams, for appellant.

      E. W. Applegate, Attorney General, and Darden Moose, Assistant, for appellee.
   Humphreys, J.

Two indictments were returned against appellant -on the 6th day of March, 1928, by the grand jury of Conway County, one charging him with unlawfully and feloniously running over and injuring Tom Hunter, within the corporate limits of the city of Morrilt-on, and the other charging- him with unlawfully and feloniously running over and injuring Mrs. Tom Hunter, within the corporate limits of said city. By agreement the cases were submitted and tried together, resulting in a conviction and sentence in each case to serve two and one-half years in the State Penitentiary, from which is this appeal.

Before the trial, appellant filed a motion for a continuance in each case, which was heard by the court on testimony introduced by appellant and the State. Appellant requested that the witnesses be excluded from the room while the motion was being' heard. The court refused to grant the request, over appellant’s objection and exception. After hearing the testimony the court overruled the motion, to which ruling appellant objected and excepted.

The record reflects that on the 13th day of November, 1927, at about 8:30 or 9 o’clock p. m., some one in a Ford coupe ran over Mr. and Mrs. Tom Hunter, who were walking along the shoulder of a hard surface road, within the corporate limits of the city of Morril-ton, and in doing so caught the feet of Mrs. Hunter under the car in some way and dragged her down the road two or three blocks, to where it turns at a little grocery store toward the north in the direction of the compress; that the car continued to drag her until the driver reached the southeast end of the compress, where he turned into an alleyway, at which time her feet came loose from the car; that the car was being driven so rapidly its number could not be obtained by the children of Mr. and Mrs. Hunter, who were in front of them at the time they were run down, or by those who were attracted to the scene by the screams of Mrs. Hunter; that Mrs. Hunter was skinned and bruised all over, some of her ribs broken, and her limbs so badly injured that she could not walk for some time; that, as a result of the injury, Mr. Hunter’s mind was so badly affected he could not remember anything about the occurrence; that he labored under the delusion that a icycilone had injured them; that the driver did not stop the car at the time he struck the Hunters nor when Mrs. Hunter’s feet became extricated therefrom; that, a few minutes after a witness by the name of Bob Cross heard Mrs. Hunter scream, he met a Ford coupe with a First 'State Bank’s sign on the side thereof coming from the direction where the parties were injured; that, the next morning, the Ford coupe was in a damaged condition at the TrFService Station; that, about 7:15 p. m., in the neighborhood of about one hour before the injury occurred, appellant was seen driving a Ford coupe with the First State Bank’s sign thereon; that, at about that time he stopped at Charlie Baker’s restaurant and ate a lunch, after which he asked Charlie if he ever drank beer, and, when informed that he did, told him that they could get some about a mile or a mile -and a half out on the road; that Charlie joined him, and went to the place and ¡got some beer; that a number of witnesses were introduced who testified to circumstances tending to connect appellant with the commission of the offense. As no contention is made that the evidence is insufficient to .sustain the verdicts and consequent judgments, the circumstances thus detailed by the several witnesses will not be set out.

Appellant objected and excepted to the introduction of the testimony of Charlie Baker concerning his visit to his restaurant and their trip in search of beer. Appellant also objected and excepted to the following-statement made by Mr. Ramsey, the deputy prosecuting attorney:

“Now, gentlemen, we just want to be fair. If I knew Frank Ferrell was innocent in this crime I would say it, but the circumstances, ¡gentlemen of the jury, that we have introduced here before you have not been denied.”

Appellant also objected and excepted to the following statement made by Mr. Ragsdale, the prosecuting attorney, in his closing argument:

“I ask you if, in the argument by any one of the three distinguished gentlemen on the other side of the house, if anywhere in their argument they showed you an avenue, if they gave you one iota of reason, anything that would-lead you out to arrive at any other verdict than a verdict of guilty in this case?”

Appellant first assigns as reversible error the refusal of the court to exclude the State’s witnesses from the room before hearing the motion for a continuance. Nothing is reflected by the record indicating that the court abused its discretion in refusing to grant appellant’s request. 'The matter of putting witnesses under the rule when requested is within the sound discretion of tlie trial court. Unless some abuse in the exercise of the discretion is shown, the judgment will not he reversed on appeal. Marshall v. State, 101 Ark. 155, 141 S. W. 755; Oakes v. State, 135 Ark. 221, 205 S. W. 305; Harris v. State, 171 Ark. 658, 285 S. W. 367.

Appellant next assigns as reversible error the admission of Charlie Baker’s testimony to the effect that, at about 7 or 7:15 p. m., before the injury occurred, he went with appellant about a mile or a mile and a half on the pike road and got some beer, and that he was driving a Ford coupe advertising the First State Bank. We think this testimony admissible as a circumstance tending to identify appellant as the driver of the car that struck Mr. and Mrs. Hunter.

Appellant next assigns as reversible error the statement made by the deputy prosecuting attorney to the jury in the opening argument. The contention is that the effect of this statement was to comment upon the failure of appellant to testify in the case. This court ruled, in the case of Markham v. State, 149 Ark. 507, 233 S. W. 676, that a statement of a prosecuting attorney to the effect that the testimony introduced by the State was undenied and uncontradicted was not tantamount to a comment upon the failure of an accused to testify.

Lastly, appellant assigns as reversible error the statement heretofore set out, made by Mr. Bagsdale, the prosecuting attorney, in his closing argument. There is nothing objectionable in the statement. It was a legitimate argument.

No error appearing, the judgment is affirmed.


author: Mehaffy, J.

text:
    Stone v. Morris.
    Opinion delivered June 25, 1928.

      Eugene Cypert, for appellant.

      Morris & Barron, for appellee.
   Mehaffy, J.

The appellee, G-. W. Morris, brought suit in the White Chancery Court against Sam Wexman for $1,000 and interest at the rate of 10 per cent, per annum, and alleged that, as collateral security, Wexman had deposited with him a note of Mr. and Mrs. T. L. Tyson for $'2,800, with interest at 8 per cent, per annum, which was secured by a second mortgage on the land in controversy, and the plaintiff alleged that defendants, W. A. Stone and Ethel Stone, his wife, were in possession of the land without right, and that said land was not of sufficient value to pay the indebtedness, and asked for a receiver to take charg'e of the same. Appellee also alleged that Tyson was a nonresident, and asked that Wexman, Tyson and wife and Stone be made parties defendant.

Sam Wexman filed answer, admitting the indebtedness mentioned, and asking the foreclosure of the mortgage originally executed to him, and joined appellee in prayer for receiver, and judgment was asked in the original suit in the name of G. W. Morris.

W. A. Stone and Ethel Stone filed their answer, claiming title to the land by virtue of a deed of trust executed by the defendants, Mr. and Mrs. T. L. Tyson, to C. B. Tucker as trustee, to secure indebtedness due to W. N. Harlan. This deed of trust was executed on the second day of December. 1921, prior to the mortgage executed to Wexman. The' property described in the deed of trust given to Tucker to secure the indebtedness to Harlan was sold under the power in the mortgage, and Harlan became the purchaser. Harlan then sold to Mrs. T. L. Tyson, and Mrs. Tyson sold to the defendant, W. A. Stone.

Appellee filed an amendment to Ms complaint, alleging fraud and collusion on the part of Harlan and Stone and wife, and alleged that Harlan had sold to Mrs. T. L. Tyscm, and that the mortgage to Wexman became a prior •lien on the land in controversy. He also denied that Stone was an innocent purchaser.

Sam Wexman’s mortgage, which was given to Morris as collateral security, was a second mortgage, W. N. Harlan having a first mortgage amounting to $1,500, and the note made by Wexman included not only the amount that he borrowed from Wexman, but the $1,500 that he owed Harlan, and Wexman agreed to pay this $1,500. He did not pay it, however, 'because Harlan did not want him to do so. But, after he had offered to pay it, Harlan, through the trustee in his mortgage, without notice either to Wexman or Morris, had the land sold under the terms of the first deed of trust, and purchased the property at the sale. After the time for redemption had expired, Harlan resold the land to Mrs. T. L. Tyson. The deed from Harlan to Tyson does not appear in evidence, but the record shows a joint deed of trust given by Mr. and Mrs. T. L. Tyson to secure an indebtedness of $675 to W. N. Harlan. This deed of trust is dated February 24,1926.

•Stone alleged in his answer that in February, 1926, he received a deed from Mr. and Mrs. Tyson to the lands involved in the suit. The deeds were not introduced in evidence. There is rib evidence as to the consideration.

The chancellor found from the exhibits; - pleadings and testimony taken orally that Mr. and Mrs. T. L. Tyson, as joint mortgagors, conveyed by mortgage the lands in controversy to Sam Wexman for the purpose of securing an indebtedness of $1,300.45, with interest at the rate of 8 per cent, per annum until paid, and that this mortgage was subject to a prior lien by Harlan. That Harlan foreclosed Ms lien, purchased the property himself, and, a year thereafter, resold it to Mrs. Tyson, retaining a lien thereon to secure $675; that, by reason of the covenant of warranty contained in the mortgage given to Sam Wexman, his mortgage became a valid lien upon the real property when it was repurchased by Mrs. T. L. Tyson, subject to a lien in favor of Harlan in the sum of $67'5. That appellee, O. W. Morris, has a lien on said lands, prior and paramount to all claims of the defendants, in the sum of $1,458.38. Also that cross-complainant, Sam Wexman, has a lien on said land, subject to appellee’s lien and the lien in favor of W. N. Harlan, in the sum of $360.44.

The court decreed that, if said lien be not paid off within ten days from the date of the decree, the commissioner should advertise and sell said real property.

There is very little of the testimony abstracted by the appellant, and from the testimony abstracted it very clearly appears that the Tysons had mortgaged the land to Harlan and afterwards to Wexman. That Harlan’s mortgage was a prior lien. They transferred the note and mortgage from the Tysons to the appellee, Morris, as collateral security for Wexman’s indebtedness to Morris. Wexman took a note and mortgage and, it appears from the abstract, agreed to pay Harlan. It also appears that he offered to pay Harlan, and Harlan did not want the money. 'But afterwards, without notice to Morris or Wexman, Harlan caused the land to be sold by the trustee under the power of sale in the mortgage, and became the purchaser, kept it for about a year, until the time for redemption had expired, and then conveyed the land to Mrs. Tyson.

'Section 1498 of Crawford & Moses’ Digest provides: “If any person shall convey any real estate by deed, purporting to convey the same in fee simple absolute, or any less estate, and shall not, at the time of such conveyance, have the legal estate’ in such lands, but shall afterwards acquire the same, the legal or equitable estate afterwards acquired shall immediately pass to the grantee, and such conveyance shall be as valid as if such legal or equitable estate had been in the grantor at the time of the conveyance. ’ ’

The Tysons conveyed this land to Wexman, permitted it to be sold nnder the prior mortgage, purchased by Harlan, and then Harlan reconveyed to Mrs. Tyson.

In construing the above statute, which was § 734 of Kirby’s Digest, this court said: “In this case the appel-' lant’s defense was that they purchased the land from the Broadways, who conveyed the land to them on the 4th day of 'September, 1895. They previously, on the 2d day of December, 1894, conveyed the land by mortgage to Sidway. The statute in such cases provides.” Then the court copies the statute, which is above copied as § 1498 of Crawford So Moses’ Digest, and continues:

“In this case the estate acquired by purchase from the Broadways vested in Sidway by virtue of the mortgage. ’ ’ Broadway v. Sidway, 84 Ark. 527, 107 S. W. 63.

Chief Justice Cockrill, speaking for the court, in passing on this statute, said:

“We have no reported case in which the statute has been held to apply to a mortgage, but, as the mortgage is with us, as at common law, the conveyance of a conditional estate, and the statute by its terms applies to any conveyance purporting to convey a fee simple or any less estate, the provisions must ¡be held to apply to mortgages equally as to conveyances absolute in form.” Kline v. Ragland, 47 Ark. 111, 14 S. W. 474.

Continuing, the court in the above case said:

“The prevailing doctrine of the after-acquired title inuring to strengthen the mortgage lien, in the absence of a statutory provision, is that, in order to have that effect, the conveyance must contain a covenant of warranty or something nearly akin to it. The usual covenant of warranty is not found in the mortgage in this case, but in the habendum clause it is recited that the land shall be held by the mortgagees, their heirs and assigns, ‘against the lawful claims and demands of all persons whomsoever.’ * * * Without the aid of the statute referred to, which, as we have heretofore held, modified the rule as to the character of deed required to enable the grantee to take the after-acquired title, this convey-anee appeal's to 'be sufficient to have that effect, but under the statute there can be no doubt of it.”

Under this and other decisions of this court, this statute applies to mortgages as well as to conveyances absolute in form. If the Tysons had made a deed to Wexman without having' a title, and afterwards acquired title, no one would contend that the after-acquired title would not pass to the grantee, in this case to the mortgagee. See also Grayson-McLeod Lumber Co. v. Duke, 160 Ark. 76, 254 S. W. 350; Wyman v. Johnson, 68 Ark. 369, 59 S. W. 250; and Turman v. Sanford, 69 Ark. 95, 61 S. W. 167.

In the last case the court said:

“The .statute in reference to the grantor’s after-acquired title was enacted to prevent fraud and effect justice, but, under the circumstances here, it would be neither right nor just to compel Turman to pay his mortgage debt a second time to one who had given him no notice of his claim until after the payment of the debt. For these reasons we think the plaintiff, under the facts stated in the record, cannot recover.”

In the instant case there is no question of the Tysons paying' their debt twice. They had never paid Wexman. They did not claim to have paid him, but permitted Harlan to sell the property under his mortgage, purchase it himself, and then deed it to Mrs. Tyson, without paying or offering to pay Wexman. If this statute was enacted to effect justice, as this court has held, it would certainly be unjust and inequitable and a violation of the spirit of this statute to permit one to acquire title from a -mortgagee who had-bought under a prior mortgage, and then defeat the payment or hold that the land was not subject to the lien of the second mortgage.

It is contended, however, by appellant, that Mrs. Tyson sold to the defendant, -Stone, and that Stone holds the title to the land both in law and equity, and that Wex-man is estopped. The purchasers from Mrs. Tyson purchased with notice of Wexman’s mortgage. There can be no doubt about their actual knowledge of Wexman’s mortgage, and they are in no better position than the Tysons.

It is contended also by the appellant that the defendant, Stone, holds under the foreclosure of the Harlan mortgage. As a matter of fact, he holds under a conveyance from Mrs. Tyson, one of the original mortgagors, who acquired the title after the execution of the mortgage to Wexman and with notice of Wexman’s mortgage.

It would be unjust and inequitable to permit the sale under the power of the mortgage, a purchase by Harlan, the mortgagee, and a conveyance to Mrs. Tyson, and thereby defeat or prevent Wexman from resorting to the land to collect his debt. We think the statute was enacted for the purpose of preventing injustice of this sort.

Appellant, however, contends that Wexman knew of the prior mortgage, and turned down the check or draft when the deed was tendered to him, and that Wexman therefore is estopped. But the testimony abstracted by both appellant and appellee shows tiiat Wexman agreed to take up the first mortgage of $1,500, but that he did not take up the note held by Harlan because Harlan did not want his money; that he never refused to pay Harlan. That he did not refuse to pay any draft for the amount of the first mortgage, but he testified the reason he did not take up the mortgage was that there was no release deed. If there is any testimony anywhere in the record that there was a release deed sent to Wexman, or that he refused to pay Harlan, it is not abstracted.

There is not much conflict in the testimony, and it cannot be said that the finding of the chancellor is against the preponderance of the evidence.

The decree of the chancellor is correct, and is affirmed.


author: Mehaeey, J.

text:
    Miller County v. Magee.
    Opinion delivered June 25, 1928.

      Shaver, Shaver & Williams, for appellant.

      John N. Cooh and Pratt P. Bacon, for appellee.
   Mehaeey, J.

F. F. Magee, as sheriff of Miller County, filed two claims in the county court, each for fees charged and services rendered by himself and deputies in felony cases in the municipal court at Texarkana, Arkansas. Both claims were disallowed, and from the order of disallowance Magee appealed to the circuit court, where the claims were allowed and judgment entered in favor of appellee. The facts are undisputed.

The appellant first contends that there is no law authorizing any fee for serving a warrant of arrest by the sheriff of Miller County. It is contended that § 4587 of Crawford & Moses’ Digest and amendments thereto, enumerating sheriffs’ fees, do not specify any fee for serving a warrant of arrest. And appellant further contends in this connection that § 2034 of Crawford & Moses’ Digest expressly prohibits the county court from allowing constructive fees to be paid officers by any county in this State. Appellant alleges that its main contention involves the construction of act 138 of 1917, at page 734, creating the municipal court of Texarkana, Arkansas.

If appellant is correct in his contention that there is no law authorizing any fee for serving a warrant of arrest by the sheriff of Miller County, the sheriff would not be entitled to any fees for serving* a warrant. The right of a sheriff to change fees is derived from and dependent upon statute, and he is not entitled to any compensation except such as is given him by law, and he can recover no compensation or fees where the law provides none. 35 Cy'c. 1547.

This court, speaking through Chief Justice Cockrill, said: “Observance of a few general rules deducible from the statutes and decisions will serve to simplify the questions. Three things must be found to concur before the county court is authorized to allow a claim against a county in favor of an officer for fees: (1) There must be specific statutory authority to the officer to make a charge for the service rendered; (2) he must be required by the statute, or by the rules of practice or order of the court, to perform the service; (3) the statute must indicate expressly or by fair intendment the intention to permit the fee allowed by the statute for the service to be charged ag'ainst the county.” Logan County v. Trimm, 57 Ark. 487, 22 S. W. 164; McHenry v. Hot Spring County, 57 Ark. 565, 22 S. W. 175; Hempstead County v. Jones, 62 Ark. 272, 35 S. W. 230.

In all these cases the court held that the sheriff was not entitled to fees as against the counties, unless there was specific statutory authority to the officer to make a change for the services rendered. It is therefore settled by the decisions of this court that no claim for fees can be allowed against a county unless authorized by statute.

Appellant’s contention is that there is no authority in the statute for charging a fee for .serving a warrant, because it states that § 4587 of 'Crawford & Moses ’ Digest enumerates the fees allowed sheriffs, and that no fee for serving a warrant of arrest is specified therein.. It is then insisted that the several amendments do not apply to Miller County, and that act No. 35 of the session of 1923 amends the act, and does not except Miller County, but contends that it does not specify any fee for serving a warrant of arrest.

Act No. 35 of the special session of 1923 provides for sheriff’s fees, and is an amendment of act No. 386 of the Acts of 1923, and, while it is admitted that it does not except Miller County, it is contended that it does not specify any fee for serving a warrant of arrest. The title of the act itself malees it applicable to Miller County and provides for serving* every capias, summons, scire facias or attachment for each defendant and garnishee, 75 cents.

Act 220 of the 1925 Legislature is an act to regulate fees for sheriffs of Arkansas, and provides, for serving every warrant of arrest, $1. This act, however, excepts Miller 'County, or rather provides that this act shall not apply to a number of counties, including Miller County.

Act 100 of the Acts of 1927 is an act to amend § 3 of act 220 of the Acts of the General Assembly of 1925. Section 3 is the section which contains the proviso that the act shall not apply to Miller County. This act, 100, provides also that its provisions shall not apply to Miller County, and that would leave act No. 35 of the special session of 1923 in force as to Miller County. It is true that the acts other than act 220 of 1925 did not specifically mention by name “warrants of arrest” and fix a fee for serving same, but it does provide for a fee for serving* every capias.

'Capias is defined in Corpus Juris as a writ directing the sheriff to take the person of defendant into custody. And the note in Corpus Juris, taken from Bouvier’s Law Dictionary, among other things says, after describing its origin: “It came to denote the whole class of writs by which defendant’s person was to be arrested.” ‘9 C. J. 1276. The object of the writ is to arrest the defendant, or, as stated in the text, “a writ directing the sheriff to take the person of the defendant into custody.”

The Kentucky court has said: “But the court had made no order of this sort, and there was no sentence of imprisonment. They had a right at any ‘time to pay or replevy the fine'and costs. It is equally clear that they were not held under a capias or mittimus, for the word 'capias’ here is used in a broad sense, and includes a writ for the holding of the person. No writ of any kind had issued.” Saylor v. Commonwealth, 122 Ky. 776, 93 S. W. 48.

Byrnes’ Law Dictionary defines capias as follows: “Capias (that you take) is the generic name for several writs directing the person to whom they are addressed to arrest the person therein named. They are, or were, usually directed to the sheriff, and are, or were, of the kinds mentioned in the seven titles next following.”

'Cyclopedic Law Dictionary is as follows: “A writ directing the sheriff to take the person of the defendant into custody. It is a judicial writ, and issued originally, only to enforce compliance with the summons of an original writ, or with some judgment or decree of the court. It was originally issuable as a part of the original process in a suit only in case of injuries committed by force or with fraud, 'but was much extended by statutes. Being the first word of distinctive significance in the writ, when writs were framed in Latin, it came to denote the whole class of writs by which a defendant’s person was to be arrested. It was issuable either by the court of common pleas or King’s bench, and bore the seal of the court.”

We therefore think the word capias in the statute is broad enough to include, and does include, warrant of arrest.

Appellant, however, ,says that its main contention is that act 138 of 1927 was intended to and did provide that all the work and service for1 which the appellee has charged in this case should be done by the constable of Garland Township, who received a salary of $1,200 a year. There is nothing in this act that justifies the conclusion that the sheriff should not thereafter make arrests in felony cases or that, if he did make them, he should have no pay for it.

Sectioil 46 of’art. 7 of the Constitution provides that the qualified electors of each county shall elect one sheriff, who shall be ex-officio collector of taxes, unless otherwise provided by law. Section 9147 of Crawford & Moses’ Digest provides for the election of a sheriff for a term of two years, with such duties as are now or may be prescribed by law.

Section 9156 of Crawford & Moses’ Digest provides: “ Every sheriff shall be a conservator of the peace of his county, and shall cause all offenders against the laws of this State, in his view or hearing, to enter into recognizance to keep the peace and appear at the next term of the .circuit court of the county; and, on failure of the offender to enter into recognizance, to commit him to jail.”

Section 9160 provides that the sheriff shall execute all process directed to him by legal authority.

And we think it perfectly clear that it was not the intention of the Legislature to prohibit the sheriff from serving warrants of arrest in Garland Township or elsewhere in Miller County, but that he is not only authorized to -serve them, but, if issued and directed to him, he is bound under the statute to serve them, and is entitled to fees provided by statute.

Appellant insists that it was not contemplated by the Legislature that double costs should be charged against the county. We think that is correct, but that paying the sheriff for services performed does not amount to charging the county with double costs. It was evidently the intention of the Legislature in passing the act to provide as nearly as it could for a proper and equitable distribution of the costs between the city and the county. And the fact that the act makes it the duty of the constable to serve the court’s process does not of itself prohibit the sheriff from serving warrants when called upon to do so. If, under the provisions of the act, the county is called upon to pay more than it should, this is a matter that can be corrected and regulated by the Legislature, but not by the courts.

The judgment of the circuit court is affirmed.


author: McHaNey, J.

text:
    Coca-Cola Bottling Company v. Shipp.
    Opinion delivered June 25, 1928.

      B. R. Lynn, Jume P. Wooten, Lee & Moore and Robinson, Rouse >& Moses, for appellant.

      Bogle & Sharp, Sam T. Poe, Tom Poe and McDonald Poe, for appellee.
   McHaNey, J.

This is the second appeal of tbis case. On tbe former appeal the judgment was reversed and dismissed on the ground that appellee was guilty of contributory negligence as a matter of law, which prohibited a recovery. On rehearing, the cause was reversed and remanded for a new trial for the error of the court in permitting the city ordinance of North Little Rock, relative to lights on automobiles, to be introduced, and for giving instructions 1 and 5 referring thereto. In the opinion on rehearing, the former judgment of this court, holding appellee guilty of contributory negligence as a matter of law, was set aside, the final judgment being that the question of contributory negligence was one for the jury, in that such negligence was a question about which fair-minded men might honestly differ as to the conclusion to be drawn from the facts in the case. The former opinion will be found reported in 174 Ark. 130, 297 S. W. 856.

As to the question of the negligence of the appellant, both the original opinion and that on rehearing conceded that the facts were sufficient to take that question to the jury, and were sufficient to justify a finding by the .jury that appellant was guilty of negligence, and, as heretofore stated, the opinion on rehearing held that the question of the contributory negligence of the appellee was one for the jury. The facts in the case now before us are substantially the same as those on the former appeal, both with reference to the negligence of appellant and the contributory negligence of appellee, and we will not repeat them here. The opinion of the court on the former appeal, both as to the negligence of appellant and the contributory negligence of appellee, including the question of the proximate cause of the injury, constitute the law of the case so far as this appeal is concerned. It is now urged on this appeal that the proximate qause of the injury was the bright lights of the approaching automobile, which caused appellee to turn his car to the right, thereby striking the parked truck of appellant, but this matter was necessarily concluded against appellant on the former appeal. We there said:

“In the case at bar the question of the contributory negligence of the plaintiff, as well as the question of the negligence of the defendant, was a question that should have been submitted to the jury under proper instructions, because his contributory negligence was a matter about which fair-minded men might honestly differ.”

Again, in the same case it is said:

‘‘This court therefore recognizes that it is a question for the jury to determine whether the injured party was in the exercise of due care; whether he was guilty of contributory negligence. And certainly it will not be contended that any person wonld intentionally run into a truck where injury would certainly follow. But the disposition of every rational person, as said by the California court, is to avoid injury. And whether he exercised ordinary care is a question of fact.”

Therefore, in determining and holding that the question of contributory negligence of appellee was a question to be submitted to the jury, on proper instructions from the court, necessarily carried with it the question of the proximate cause of the injury. For if this court, on the facts then before it, which are the same in this regard as the facts in the case at bar, had decided that the bright lights of the approaching car were the proximate cause of the injury, there could have been no question of contributory negligence to submit to the jury. Hence this point has already been decided against appellant, and is the law of the case on this appeal.

In St. Louis, I. M. & S. Ry. Co. v. York, 92 Ark. 554, 123 S. W. 376, this court said:

“The matters which were adjudicated by this court upon the former appeal cannot be retried in the circuit court, nor can they be reviewed upon this second appeal by this court. The questions of law there determined became the law of this case on this subsequent trial and appeal, whether we may now believe them to be right or wrong. The finding of the facts upon the former appeal cannot be binding- as to the finding of the facts in this second trial, because the testimony on the second trial might be different from or additional to that given on the first trial. But the principles of law determined and announced upon the former appeal are binding, and must stand as the law of this case; and if the testimony upon this second trial is substantially the same as on the first trial, then the former decision of this court upon all questions of law involved in this case must be followed on this appeal” ('Citing- oases).

The only question in this case that has given us much concern is the alleged excessiveness of the .judgment and verdict. . On the first trial of this case appellee was awarded a verdict of $7,500, and on the second trial he was awarded a verdict and judgment of $17,500. Appel-lee, on the former appeal, earnestly urged an affirmance of this judgment, and apparently felt satisfied with, the amount of the recovery. Immediately after the injury he was taken to the hospital, where he remained ten days, then went home for ten days, and back to the hospital for another ten days. The second trip to the hospital was for an operation for hemorrhoids. He lost only thirty days then from his work, and was paid half time for that. His injuries were severe and painful. He received a cut in the right thigh or hip, and an injury to his right side. He received a blow on the forehead from which there is a slight scar and a slight bony protuberance, which may be removed by an operation. Some of his teeth were knocked out, from which he is wearing a bridge. He testified that he now has a tired feeling, is nervous to a certain extent, is easily exhausted; that he doesn’t sleep well without taking aspirin, is almost completely deaf in his right ear, and that he has a deafness in his left ear; has to wear ear-drums; and that he is troubled with dizziness to a certain extent; that his memory has been impaired, and that he is irritable. At the time of his injury he was working for the Texas Company as a salesman, and his earnings averaged approximately $145 per month, including salary and commissions on sales. Mr. Paul, his superior officer in the Texas Company, testified that at the time of the accident he was drawing a salary of $100 per month and commissions, which would probably average $35 per month, and that he continued to work for the Texas 'Company until December 15, 1926, but that his commissions on sales didn’t average quite as high after the accident as they did before. He was promoted from salesman to1 local agent after .the accident. Immediately after leaving the Texas Company, appellee worked for another oil company at a salary of

$110 per month with a car furnished. Appellee is now in the employ of the Transcontinental Oil Company at a salary of $150 per month, without commissions, and is allowed $2.50 per day for his car. Mr. Peak, manager of the Transcontinental, testified that appellee had been working for his company since June 1,1927, in a position requiring experience and intelligence, as agent for Little Book and North Little Book; that he saw appellee every few days, and that no complaint had been made to him about his physical condition. Neither did Mr. McCoy, who was the agent for the Texas Company, and appel-lee’s immediate superior, know anything about any physical ailments, or any deafness of appellee, and he noticed nothing about appellee that showed him to be unfit for his work; that after his injury appellee was able to drive a truck 100 miles a day. Dr. N. E. Murphey, a reputable physician of Monroe Ctounty, was appointed by the judge of the court to make a physical examination of appellee. He testified that he was physically all right, and that he was not suffering from deafness. He testified that the bump on appellee’s forehead could be removed by a simple surgical operation. Appellee admitted that he was able to drive his automobile, and had driven it from Little Bock to Clarendon with his family to attend court.

It therefore appears from the undisputed evidence that appellee’s earning capacity is as great or greater now than it was at the time of the accident; that he is occupying a more responsible position with his employers, and drawing a larger salary, although his total compensation is only slightly higher than it was at the time of the accident. We are therefore of the opinion that the verdict is excessive, and that it should be reduced to $10,000. If the appellee will, within fifteen days from this date, enter a remittitur of $7,500, the judgment will be affirmed for $10,000; otherwise the cause will be reversed and remanded for a new trial.


author: Mehafry, J.

text:
    Holt v. Ring.
    Opinion delivered June 25, 1928.

      Sam M. Wassell, for appellant.

      Wallace Townsend, for appellee.
   Mehafry, J.

Suit was brought in the Pulaski Chancery Court by appellants, owners of real estate within the boundaries of Street Improvement District No. 465 of Little Rock. The suit is an attack on the proceedings in the city council and also an attack on the validity of the district.

The complaint, as abstracted, shows that appellants contend that there was no proper and legal certification, as provided by law, covering the value of real estate within the district. (2) That there is no legal certification from the county clerk’s office that a majority in value signed said petition. (3) That the city council and the street improvement district committee, to which the city referred the matter, refused to consider any protests that property was included which should be excluded, and contended that the council would only consider whether the lump amount certified to by the Little Rock Abstract and Guaranty Company of $1,315,490 was more than 501 per cent of $2,161,465, and refused to consider any other fact. (4) That there has been no examination of protests whatever. That the inclusion of certain property in the petition is arbitrary, and should be excluded, and that the committee of the city council, and the city council itself, refused to hear proof on said contention; that for the purpose of ascertaining the value of the property signed for in the district, certain property should be excluded. (5) That said petition does not contain a majority in value of legal signers within the district. (6) That certain property values within the district have not been considered in determining the total values. (7) That the bounds of said district are improperly stated, and petitioners are unable to determine what property is in the district and what property will be taxed.

The appellees filed answer, denying all the allegations of the complaint.

Appellant’s first contention is that the city council should have heard the proof which was offered to show that certain property included in the' district should be excluded, and that certain property excluded should be included, and that the city council was wrong in deciding that' it would go into nothing except the question whether the majority favored the district.

It is earnestly insisted that the ordinance should have denied the establishment of the district instead of granting it. The petition of the property owners is not abstracted, but it is not contended that the first petition did not comply with the law. The first petition was presented to the city council on March 7, and on the same day the city council passed the ordinance establishing the district. There were no protests against the property included in the district or the purpose for which the district was created, and it is.therefore contended by the appellee that, since the petition was in proper form and properly presented and signed by' more than ten property owners, it became the duty of the city council to lay off the portion of the city included in the petition into the improvement district.

'Section 5649 of Crawford & Moses’ Digest provides that, when any ten owners of real property shall petition the city or town council to take steps toward making any such local improvements, it shall be the duty of the council to at once lay off the portion of the city or town into an improvement district, designating the boundaries of such district so that it may be easily distinguished. And it provides that the district shall he designated by number.

It therefore appears from the above section that the Legislature has prescribed the manner in which the improvement district may be organized, and has made it the duty of the city council to at once lay off the district. The foundation of the improvement is the petition of the owners of real property situated in the proposed district. There must be ten owners of real property. It is the duty of the city council to pass an ordinance in substantial compliance with the terms of the petition upon which it is based.

This court has said: “Special limited jurisdiction is conferred upon the city council to lay off the district as designated by the property owners in the first petition. And the council must conform strictly to the authority conferred upon it.” Smith v. Improvement District No. 14, 108 Ark. 141, 156 S. W. 455, 44 L. R. A. (N. S.) 696.

Appellant quotes from and relies on the case of Lipscomb v. Lenon, 169 Ark. 610, 276 S. W. 367. That case construes an act which was passed by the Legislature of 1923, authorizing the formation of improvement districts for the building of auditoriums for public meetings. And the court there held that the building of an auditorium would be for the benefit of the whole community who may be served by it individually and collectively, and that it cannot and does not confer any peculiar or special benefit upon the real estate assessed and taxed for its construction and maintenance. The court also held that, if it could be said that such an improvement is essential to the progress and prosperity of the city and suburban communities, the contribution which an auditorium malíes to such prosperity is general to the entire community, and not peculiar and special to the real property in the city and outlying contiguous territory. In that case the court said:

“'But, unless the land embraced in a local improvement district is peculiarly and especially benefited by the improvement contemplated, there is no justification, under our Constitution and laws, for the creation of such districts, whether the lands constituting* the district be. entirely rural or urban territory, or both. No better definition has ever been' given of a local improvement than that by Judge Riddick, speaking for the court, in Crane v. Siloam Springs, 67 Ark. 30, at page 37, 55 S. W. 956, where he said: ‘If we look for the technical or legal meaning of the phrase “local improvement,” we find it to be a public improvement, which, although it may incidentally benefit the public at large, is made primarily for the accommodation and convenience of the inhabitants of a particular locality, and which is of such a nature as to confer a special benefit upon the real property adjoining or near the locality of the improvement.’ ”

The improvement must be public, and at the same time the property taxed must be peculiarly and especially benefited. Unless there is peculiar and special benefit to the property embraced within the district, it cannot be taxed. The whole theory of taxing real estate for making improvements is that the property taxed is benefited especially, and the benefits must equal or exceed the tax. No tax can be collected on property in an improvement district for the purpose of making the improvements unless the property taxed is benefited at least as much as the tax.

Appellant does not contend that, after the filing of the first petition and passing of the ordinance, notice was not given, as required by law, advising the property owners within the district that, on a day named, the council would hear the petition and determine whether those signing the same constitute a majority in value of the owners of real property.

The statute provides: “At the meeting named in the notice, the owner-s of real property within such district shall be heard before the council, which shall determine whether the signers of the said petition constitute a majority in value, and the finding of the council shall be conclusive, unless, within 30' days thereafter, .suit be brought to review its action in the chancery court in the county where such city or town lies. In determining whether those signing the petition constitute a majority in value of the owners of real property within the district, the council and the chancery court shall be guided by the record of deeds in the office of the recorder of the county, and shall not-consider any unrecorded instruments.”

It was the duty of the oouncil, in determining whether or not a majority in value had signed the petition, to be guided -by the record of deeds in the office of the recorder of the county. It might be, in the formation of an improvement district, that persons own considerable property but their deeds had not been recorded. And, of course, this property, if within the district, would add to the value. And if the owners of the property signed the petition, it would add to the real value of the property owned by the petitioner. But the Legislature has seen proper to provide the method by which the council and the chancery court must determine whether or not a majority in value have signed the petition. This method must be followed both by the city council and the chancery court. And it would not be competent to introduce unrecorded deeds or show the value of property in any other way except that provided by law.

The appellant offered to show in the chancery court that he had offered testimony before the city council; that he had offered to prove certain facts. He offered to prove by several witnesses that they attended the first meeting of the special improvement district committee, and offered to show that certain property was arbitrarily included within the bounds of Street Improvement District No. 465; that said property was in no wise benefited, and should be excluded; and offered to show that the chairman of the street improvement district committee stated that they were to go by the abstracter’s certificate alone to see whether a majority had petitioned for the improvement, and, if so, they must recommend to the council that the district be established.

The suggestion that this proof was offered in the city council is not equivalent to offering it in the chancery court. But the city council, as well as the chancery court, was required to be guided by the record of deeds in the office of the recorder of the county in determining whether those signing the petition constituted a majority in value. And the evidence offered was not competent in determining whether or not the petition was signed by a majority.

It may be that appellants are correct, that there should be some method of procedure where the conclusions of the city council should be based on some fact. But the method is provided by law, and neither the city council nor the court can change the law. And the law is that they must be guided by the record of deeds in the office of the recorder of the county.

When the first petition is presented to a city council for an improvement district, the statute says it shall be the duty of the council to at once lay off the district. And the law makes it the duty of the city clerk of the city or town, within 20 days after the designation of such district, to publish the ordinance establishing’ the district. And thereafter, within the time limited by law, the persons claiming* to be a majority in value must present their petition, and, when that is done, the law provides that the city council shall determine whether or not there is a majority, in the manner above mentioned.

It is next contended by appellant that the district is void 'because it divides lots. Certainly, in the formation of an improvement district, the property owners forming the district can fix the boundaries, and it has been decided by this court that the boundary line may divide lots. If a lot is divided, a portion of it being within the district and another portion without, this does not invalidate the district. But, in determining whether the petitioners have a majority in value, the value of a lot so divided cannot be considered. And the reason it cannot be considered is that the council and the court must be guided, in arriving at the value, by the deeds in the office of the recorder of the county, and cannot take other and additional evidence to determine the value. It might he better if the law authorized the taking- of testimony showing the value of the portion of the lot included within the district. But such is not the law, and this court has held that the value of such lots cannot be considered, and the chancery court did not consider them in this case.

It is also contended that, where improvement or a building is situated on two lots and only one of them is in the district and the other one without the boundaries of the district, this makes the district void. This does not affect the validity of the district. If one lot was benefited and the other was not, it would be entirely proper to include the lot which was benefited, although a building might cover it and the one that was excluded. It would be practically impossible to form an improvement district that did not in some measure benefit a great deal of property outside of the district. But this benefit is the benefit received by the lands generally and not a special and peculiar benefit. To justify an assessment of benefits^ for any local improvement, it is necessary that the improvement be public and at the same time specially and peculiarly benefit the property taxed.

It is next contended by appellant that certain mortgaged property cannot be included because the mortgagor has parted with the legal title. This court has held that the mortgagor was the owner in the meaning of the law when he had conveyed his property by mortgage, if he was still allowed to redeem. There is no property mentioned in this suit where the owner has mortgaged it and does not have the right to redeem, so this case is settled outright by former decisions of this court. And the same may be said about leased property. However, the complaint made about property that is leased would be unavailing anyway, because both the lessor and lessee signed the petition. See Ahern v. Board of Improvement Dist. No. 3, Texarkana, 69 Ark. 68, 61 S. W. 575.

As to the property where one lot is included and another not included and the building or improvement is on both lots, it appears that the assessment record carries separate assessments for the separate lots.

The appellant also complains about the manner of proving the value, and insists that the clerk himself would have to make the proof. We do not agree with appellant in this. While the value is fixed according to the deeds in the office of the recorder of the county, it does not necessarily follow that the clerk is the only person, who can testify to those. They are public records, and any person who examines them might testify. To he sure, the appellant could introduce the clerk if he wished to do so, if there was any dispute about the correctness of the testimony.

The court did not exclude any testimony or refuse to permit any competent testimony offered to be introduced in the trial in the chancery court. The chancery court, of course, did not determine whether the council heard proper evidence or not, but it did determine from evidence introduced in the court whether the district was valid or not.

Practically all of the questions involved herp have been settled by numerous decisions of this court, and it would serve no useful purpose to review them here or comment on them at length. And the finding of the chancellor on questions of fact we think are sustained by a preponderance of evidence, and the decree is affirmed.


author: Hart, C. J.,

text:
    Johnson v. Guaranty Bank & Trust Company.
    Opinion delivered July 2, 1928.

      Scott & Cooper, for appellant.

      Robert S. Keehler, for appellee.
   Hart, C. J.,

(after stating the facts). A stipulation in a mortgage that, if the mortgagor shall flail to pay any note or installment of interest, or neglect to pay taxes or special assessments, the entire indebtedness shall become due and.payable, or that the mortgagee may, at his option, declare it to be due and payable, is a legal and valid provision. Hume v. Indiana Nat. Life Ins. Co., 155 Ark. 466, 245 S. W. 19; Marble v. Fallin, 161 Ark. 504, 256 S. W. 841; and McCormick v. Daggett, 162 Ark. 16, 257 S. W. 858. In the case last cited it was held that an acceleration clause in a deed of trust which matures the debt matures it for all purposes. In the case at bar, the mortgagee exercised its option to declare the mortgage debt due for failure of the mortgagors to pay the taxes and the past due purchase money note and the accrued interest, by filing a complaint to foreclose the mortgage for the whole indebtedness. In other words, the mortgagee in its complaint declared the whole debt due, and asked for a foreclosure for the whole of the mortgage indebtedness.

The stipulation for accelerating the time of payment of the whole debt may be waived by the mortgagee, especially when it is made to depend upon his option. A court of equity will also relieve against the effect of such provision, where the default of the debtor is the result of accident or mistake, or when it is procured by the fraud or other inequitable conduct of the creditor himself. Pomeroy’s Equity Jurisprudence, 4 ed. vol. 1, § 439.

Under our decisions, the stipulation in a mortgage for the whole debt to mature upon default of a part of the debt is not treated as a forfeiture clause, but rather as a stipulation for a period of credit on condition. A breach of the clause can only be relieved against when some one of the equitable grounds above stated are established. It was not shown that the failure of the mortgagors to make the payments as stipulated in the mortgage was attributable to the plaintiff or its officers. No excuse was offered for the nonpayment of the levee taxes except that the defendants were short of money, and this not sufficient. It is claimed that the failure to pay the purchase money note and the accrued interest on January 1,1927, was due to the fault of the mortgagee, and an effort was made to place the blame upon its officers who represented it in the transaction, but in this the chancery court was justified in finding that the defendants have failed.

On this point T. P. Johnson testified that he was led to believe, from a conversation had with the vice president of the plaintiff, in December, 1926, that a reasonable extension of time would be given .them after note due January 1, 1927, became due, to pay it, and that no effort was made by plaintiff to foreclose until after the Legislature of 1927 had passed an act relieving the lands of Crittenden 'County from road taxes, which had the effect to greatly enhance them in value.

Dickey said that Johnson reported to him that an extension of time had been granted them to meet the payment of the note due January 1,1927, and the accrued interest. Otherwise he said that he would have paid the note. On the other hand, the vice president of the plaintiff bank and his assistant denied in positive terms that any extension of time of payment was granted. On the contrary, they asserted that payment was at all times demanded, and that an extension of the time of payment was specifically refused.

It was the duty of the defendants to pay the installments as they fell due, and they could not rely on any confusion that resulted from a misunderstanding on their part, which was not the result of any inequitable conduct of the plaintiff or its officers, and which was not caused by any misrepresentations made by them. The chancery court made an express finding that plaintiff did no act amounting to a waiver by it of its rights under the acceleration clause, and, under our familiar rules of practice, the finding of facts by a chancellor must - be upheld upon appeal, unless clearly against the preponderance of the evidence. 'Such is not the case here.

Neither are we able to afford relief' to the defendants because the Legislature passed an act which had the effect to relieve the lands in connection with other lands from the payment of road taxes. So far las the record discloses, plaintiff had nothing to do with the passage of this act, and did not make any promises to defendants 'based upon it. Nothing whatever was said or done by the parties in reliance on the passage of such an act. Defendants only claim that they were misled by promises made by the officers of the plaintiff bank,-bnt the promises relied upon in the testimony of T. P. Johnson, even if true, are too vague and indefinite to be made the subject of a waiver of the acceleration clause, and to amount to such inequitable conduct as to relieve defendants from the enforcement of the accelerating clause.

It follows that the decree of the chancery court was correct, and it will therefore be affirmed.


text:
    Snoddy v. Paving Improvement District No. 4 of Monticello.
    Opinion delivered July 2, 1928.

      P. Henry, for appellant.

      Williamson & Williamson, for appellee.
   Hart, C. J.,

(after stating the facts). The first ground upon which it is sought to reverse the decree is that the 'ordinance creating the district embraces more than one improvement. In making this contention, counsel point to the fact that it embraces four separate areas of land disconnected, except that the areas are connected or joined together by streets which have already been paved by the commissioners of Paving District No. 2 of Monticello. Under our former decisions the determination of the city council as to the singleness and unity of the proposed improvement, as well as the selection of the property to be benefited thereby, is conclusive, except for fraud or demonstrable mistake. Little Rock v. Katzenstein, 52 Ark. 107, 12 S. W. 198; Cooper v. Hogan, 163 Ark. 312, 260 S. W. 25; and Paving Districts Nos. 2 and 3 of Blytheville v. Baker, 171 Ark. 692, 286 S. W. 945. Under the holding o'f these cases, it cannot be said that the action of the city council in grouping together into a single district the improvement of the streets named in the petition for the organization of the district is invalid. In other words, lack of unity in the proposed improvement is not so apparent from the map and the face of the other record in the case as to show a demonstrable mistake, such as to make the organization of the district void. In this connection it may also be stated, while this is a direct attack on the organization of the district, no proof was introduced to show that this is true in point of fact.

"While streets and parts of streets which are not immediately and directly connected with each other are embraced in one improvement, yet they are connected together through other paved .streets, and this, under the decisions above cited, constitutes them the same improvement. The streets are to be improved with the same material. Tlie similarity of the improvement proposed to be made and the situation of the property with respect to each street or part of street to be improved make as satisfactory a test as to whether they might all be embraced in one improvement as their actual physical connection with one another. To the same effect see Fry v. Poe, 175 Ark. 375, 1 S. W. (2d.) 29, and Portis v. Ballard, 175 Ark. 834, 1 S. W. (2d.) 1; Brown v. Board of Commissioners of Paving Dist. No. 3, 165 Ark. 585, 265 S. W. 81.

It is next urged that the assessment of benefits is illegal because made in an arbitrary manner. It is alleged that they were made upon a front foot basis. In their answer the defendants “deny that said assessment has been made entirely on a front foot basis, but alleged that, in assessing, said benefits, the assessors of said district took into consideration the value, superficial larea, frontage, location, improvements on the property, and the relation to business and other centers, and every other factor entering into the benefits to be received by each and every parcel of land in the dis1 trict, and adopted the system for assessment of all such benefits which they believed to fairly and equitably estimate the benefits to be actually received by each land every lot,, block and parcel of land in the district by reason of all the improvements to be made therein.”

The plaintiffs demurred to the answer, and, upon their demurrer being overruled, elected to stand upon it, and, in addition, expressly conceded the truth of the allegations of the answer in this respect. In Lewellyn v. Street Improvement Dist., 172 Ark. 496, it was-said that the fact that the assessment of benefits was made on a front foot basis did not necessarily condemn the assessment, even on a direct attack, 'for such a basis of assessment might coincide with the actual benefits. In a direct attack the court said that it becomes a question of proof whether or not the assessments are correct, but in a collateral attack the court must indulge the presumption that the assessors considered all the elements of enhancement of value or detriment which might result from the improvement. The same rule has been expressly declared and followed in the following cases: Moore v. Paving Imp. Dist. 20, 122 Ark. 326, 183 S. W. 766, 1 Ann. Cas. 1917B, 599; Ford v. Plum Bayou Road Imp. Dist., 162 Ark. 475, 258 S. W. 613.

It follows that the decree was correct, and it will be affirmed.


author: McIIaney, J.

text:
    Johnson v. Barrett.
    Opinion delivered June 25, 1928.

      R. W. Wilson, for appellant.

      A. F. Triplett, for appellee.
   McIIaney, J.

Appellants in each case were tenants on the farm of Mrs. J. B. Pierce, in the year 1926, Jefferson County, Arkansas. Appellee agreed to furnish them certain supplies for that year, and on the 18th day of February, 1926, took from each a note for advances already made and to be made, which notes were secured by a mortgage on certain personal property, which were filed in the recorder’s office at Pine Bluff. On the 18th day of March, 1926, appellee assigned the notes and mortgages to the Bank of .Sherrill as collateral security for indebtedness owed by him to the bank. Part of this indebtedness was paid in the fall of 1926, and the remainder in the spring of 1927, when the notes were turned over to the makers by the bank, and it later reassigned the mortgage to appellee.

Each of the mortgages, in addition to reciting the indebtedness for which the note was executed, for which the mortgage was security, contained this further provision: “And also the further sum of $.more or less, for goods, merchandise or supplies, live stock, advances or acceptances furnished and which may be furnished by the second party or parties to the first party or parties, the exact .amount to be determined by the books of the second party or parties, and due and payable on the 15th day of October, 1926.” Other provisions in the mortgagee contemplate that the appellee might furnish additional supplies, or make additional advances, and that the mortgage given should be security therefor. Appellee made advances in addition to that represented by said notes, and, these advances not having been paid, he brought suit in the justice court to replevin the property covered by such mortgage. Appellants did not deny the indebtedness, but contended that the mortgages were not security for these supplemental debts. A judgment was rendered against appellants in the justice court, and an appeal was taken to the circuit court, where like judgments were rendered. The case is here on appeal.

The only question necessary for us to determine is stated by appellants as follows: “'Could Mr. Barrett transfer the notes and mortgages on the personal property involved in this suit and yet retain a lien on the same property for the money, goods, wares and merchandise furnished after the transfer?” It is appellant’s contention that the mortgage is not divisible; that appellee could not transfer same and yet retain a lien on iit; that by transferring the mortgage and notes to the Bank of iSherrill, appellee had no further security for whatever advances he made thereafter under the mortgage. We cannot agree with appellant in this contention. While it is true that each mortgage was an indivisible instrument, the debts it secured were divisible. In other words, the mortgage secured a definite, certain sum, represented 'by the. notes, and by its own language, heretofore set out, it secured, in addition, any advances thereafter to be made in addition to the sum mentioned in the note. As stated in 19 R. C. L. 389: “The indivisibility of a mortgage does not render indivisible the obligation secured, and the divisibility of a debt does not necessarily import the divisibility of the mortgage securing it.”

The assignment of the mortgage and notes in these cases was not an absolute one, but was collateral security for the appellee’s debt to the bank.

In the case of Hughes v. Johnson, 38 Ark. 285, quoting the first syllabus, it is said: “A mortgagee does not lose his interest in the mortgage by assigning it to his creditor as collateral security for his own debt, though he stipulates in the assignment to forfeit all interest in the mortgage i'f he fail to pay his debt by a specified day, and fails to pay it. The agreement for forfeiture amounts to nothing in a court of equity.” Ford v. Black, 50 Ark. 256, 7 S. W. 131; Penzel v. Brookmeyer, 51 Ark. 105, 10 S. W. 15, 14 A. S. R. 15.

When appellants paid their notes at the bank which the mortgage secured, this operated as a redemption from the pledge of the mortgage to the bank made by appellee. On the mortgage being re-assigned to appellee by the bank, he was in the same situation as if no assignment had been made, and appellants are in no position to complain. They do not dispute the indebtedness, but only claim that the mortgage did not secure same. We find no error, and the judgments are affirmed.