text:
    Martin v. Dale.
    Opinion delivered November 11, 1929.

      Jones $ Jones, for appellant.

      Henry Moore, Jr., for appellee.
   Smith, J.

In 1925 Lenz, as agent for Martin, trustee, obtained from Mrs. May B. Dale an oil lease, which expired November 18, 1928. As a consideration for this lease, a substantial sum of money was paid, and an interest in any oil which might be produced was reserved. Lenz began his search for oil and gas, and put down half-a-dozen or more wells, all of which proved to be dry holes. Notwithstanding all these failures, Lenz’s faith continued, and in June, 1928, he commenced negotiations for a six months’ extension of the lease. These negotiations were had with Miss Lois Dale, the daughter and agent of the owner of the land.

Lenz used fuel oil in- connection with his drilling operations, which he transported in ¡barrels in a truck from Texarkana. In doing so he used a State highway known locally as the East Ninth Street Road, as the highway penetrated the city of Texarkana through Ninth Street. Mrs. Dale’s plantation was about eighteen miles east of Texarkana, and was adjacent to and north of this highway.

A drainage district had been organized a number of years ago, which dug a ditch on the property line of the Dale plantation, and parallel to the ditch was a public road known, as the Ditch Line Road. This road started at the East Ninth Street Road, and ran north and south, and furnished means of ingress into the Dale plantation. The ditch makes a Y, along the right prong of which the road extended to a point near an elevation known as the ‘ ‘ Mounds, ’ ’ which was from three to twelve feet higher than the surrounding land, and about six hundred acres in area. A portion of this elevated land was on the Dale plantation, and it was here that Lenz carried on his exploration for oil and gas. The Mounds was about half a mile north of the East Ninth Street Road.

During the years 1925, 1926 and 1927, and until November, 1928, ingress to the wells being drilled on the Mounds was had over the spoil bank on the west side of the main line ditch for a half a mile to a bridge which spanned the ditch, and it is a half a mile from the bridge to the Mounds, and for this distance Lenz used, first, an old public road built by the county, which ran inside of the Dale field, and later, a new public road built on the line between the Dale and the adjoining plantations.

In 1926 a private road was constructed from the East Ninth Street Road to a place on the plantation called the Dale headquarters, which was later graveled, and was thereafter known as the gravel road, and this litigation arose over the use of this road by Lenz in his. drilling operations.

Lenz asserted that the use of the gravel road was necessary to reach his wells 'after the Ditch Line Road became impassable; and he also contends that, after the controversy over its use arose, he made a contract giving him the right to use it, and, when the exercise of this right was denied him, he brought this suit to enjoin Mrs. Dale and her agents from interfering. A temporary restraining order was granted, which was dissolved on the final hearing, and damages were awarded on the dissolution of the injunction covering the use of and the damage to the gravel road.

The law of the case has been settled by prior decisions of this court, and is succinctly restated in the case of Vassar v. Mitchell, 169 Ark. 792, 276 S. W. 705. It was there said: “If one sells to another a tract of land surrounded by other land of the grantor, a right of way across such other land is a necessity to the enjoyment of the land granted, and is implied from the grant made. Belser v. Moore, 73 Ark. 296, 81 S. W. 219. The principle, from which the doctrine of implied grants of easements over other lands of the grantor springs, is said' to be found in the maxim that ‘ one shall not derogate from his grant,’ and the kindred one, that the purchaser takes the land bought, and whatever right in the hands of the grantor as is necessary to its enjoyment.”

It is not questioned that Lenz, as agent for the trustee to whom the lease was given, had the right of access to the lands covered by the lease; but this is.a right which arose out of necessity, and not as a matter of convenience. In other words, while the right of entry was implied, this rig’ht did not authorize Lenz to enter as he pleased; it was his duty to do so in the manner least injurious to his grantor, and if a means of ingréss existed when the lease was taken, and which continued to be available, this entry, and no other, should have been used, although it was not the most convenient.

It is undisputed that the gravel road was a private way, and there was therefore no right to use it if another was available, although not so convenient.

Prior to’ 1927, while Lenz was drilling under the original lease, there was a road along the ditch bank on the east side and parallel with the Ditch Line Eoad, but the evidence shows that this road was plowed into and made a part of the field, and a portion of it actually cultivated as such. There was a road leading from the East Ninth Street Eoad to the Mounds, which has been referred to as the Ditch Line Eoad, which was a public road; but this road was plowed up on December 18 by the county judge, and, while this was not done at Mrs. Dale’s request, it was not done over her protest. There is some conflict in the testimony as to the condition of the road after it had been plowed up, but we think it fairly appears that the road was thereafter impassable, and that it could not have been made passable without undoing what the county judge had ordered done, and this at a considerable expense. The reason for plowing up the road appears to have been that it was not located on the property line of the adjacent plantation, but, when it was so located, it became impassable, at least for the remainder of that winter. The testimony is to the effect that an unloaded wagon might have been driven over it, but not a loaded one.

The only other road was the gravel road, and Lenz used this for some time before he was forbidden to do so, but Miss Dale testified that she was not aware of that fact. No objection was made to the use of the gravel road by Lenz and others in their automobiles, but objection was made to the use of the road by the truck in which the oil was carried. This was a one ton Ford truck, and six barrels of oil was its load limit over a road of any kind.

An understanding of some kind was arrived at between Lenz and Miss Dale for the use of this road, but the testimony is in hopeless conflict as to the terms of this agreement. It is certain that Lenz paid $100 for the use of this road, but whether the payment was for past or future use is not certain. • The chancellor found there had been no agreement for the future use of the road, and we will not reverse that finding of fact, as we are unable to say that it was clearly against the preponderance of the evidence. But, even so, we are of the opinion that the gravel road had become a “way of necessity,” and that only by using it could the right to explore for oil granted by the lease be exercised before the lease had expired.

The court assessed the damages at $100 on dissolving the injunction, but we think this finding is against the preponderance of the evidence. In addition to paying the hundred dollars, Lenz maintained the road by dragging it after every rain, and by regraveling it when this became necessary, and we think the testimony shows the road was in as good condition when the injunction was dissolved as it was when Lenz began to use it. Of course, the. use of the road itself was a valuable right, but this use, as we have shown, became an incident to the lease, and was presumably compensated by the consideration inducing the lease. The restraining order should not therefore have been dissolved before the expiration of the renewed lease.

It will be unnecessary to remand the cause to order theylissolution of the temporary restraining order, as the lease has now expired, and no present rights are claimed under it, but the decree for the hundred dollars will be reversed, and that cause of action dismissed.


source: Caselaw Access Project

author: Smith, J.

license: Public Domain

text:
    Wade v. Deniston.
    Opinion delivered November 11, 1929.

      Saxon, Wade ■<$> Warren and R. K. Mason, for appellant.

      Arthur D. Chavis, for appellee.
   Smith, J.

Drucilla Newton successfully prosecuted a suit to cancel a deed which she had executed to Robert Deniston. The deed canceled conveyed an interest in oil royalties, and, as an incident to this relief, judgment was rendered against Deniston for $686.98, covering the amount of royalties collected prior to the cancellation of the deed. Deniston v. Newton, 175 Ark. 1169, 300 S. W. 929.

An execution issued upon this judgment, directed to the sheriff of Ouachita County,, but a return nulla bona was made. Later a second execution was also directed to the sheriff of Ouachita County, which was levied upon a one sixty-fourth interest owned by Deniston in the royalty derived from a two-acre oil lease, and at the sale under this execution Mrs. M. L. Wade became the purchaser of the interest sold for $50. The costs incident to the sale, amounting to $26.50, were first deducted, and the balance of $23.50 was paid to the plaintiff by the husband of the purchaser, who was the plaintiff’s attorney, and the amount thereof was credited on the judgment. The property' sold under this execution was in Ouachita 'County, and Deniston resided in Jefferson County, and had no notice of the sale until after it had been made.

A third execution issued, which was directed to the sheriff of Jefferson County, and a stay bond was given in satisfaction of it, and, when this bond was not paid at its maturity, a fourth execution issued, which was directed against the sureties on the stay bond, and this execution was satisfied by paying the amount of the third execution, and all costs and interest.

Upon selling the royalty interest in the two-acre lease the sheriff executed, on the date of the sale, a certificate of purchase, but, having concluded that a deed was necessary to convey the interest sold, he declined to acknowledge the instrument until the year allowed by law for redemption from execution sales of real estate had expired, and, a year and two days later, he acknowledged the instrument as a deed, after changing the date thereof.

Deniston brought this suit to cancel the execution deed, and to recover royalties from certain oil companies. The court found the fact to be that Deniston’s interest in the two-acre lease was worth as much as $500, and we think this finding is not contrary to the preponderance of the evidence, as Deniston’s interest in the royalties amounted to about $20 per month. The court also found that there were ‘ ‘ other circumstances ’ ’ which rendered it inequitable for the sheriff’s sale to stand, and the execution deed was canceled. The court ordered Mrs. Wade to pay “all costs accruing in and about the issuing of the execution and the sale of the royalty under the same,” but adjudged all other costs against Deniston, who does not complain of the assessment of these costs against him, as the relief which he prayed against other defendants (but which need not be here recited) was denied.

As we have said, the interest of Deniston in the two-acre lease sold for a grossly inadequate consideration, and there was, as the court found, “other circumstances” which made it inequitable for the sale to stand. The statute contemplates that the judgment debtor shall have notice of the levy upon his property, and he is given the right to select the property upon which the levy shall be made, “and, if he give to the officer a list of the property so selected, sufficient to satisfy such execution, the officer shall levy upon such property, and no other, if it be sufficient, in his opinion, to satisfy such execution, and, if not, then upon such additional property as shall be sufficient. ” Section 4277, C. & M. Digest. This opportunity was not afforded Deniston, and the property was sold, without notice to him, to the wife of the attorney for the plaintiff.

In the case of Huffman v. Gaines, 47 Ark. 226, 1 S. W. 100, it was held (to quote a syllabus) that: “An attorney of the plaintiff, who purchases property sold under the plaintiff’s execution, is charged with notice of the vices and infirmities of the judgment and process, and stands in no better attitude than a stranger who buys with actual knowledge of the same facts.” It is an application of familiar principles of equity to apply the same rule to the wife of the plaintiff’s attorney. See also Woods v. Hayes, 85 Ark. 163, 107 S. W. 387; 23 C. J. 765, and 10 R. C. L. 1309, and the cases cited in the notes to those texts; vol. 3, Freeman on Executions (3 ed.), § 310, p. 1958.

Of course, as was said in the Huffman case, supra, the judgment debtor may waive an improper sale of his property; but we think Deniston has not done so under the facts of this case, as he has never received any benefit under its sale. It does appear, however, that the net proceeds of the sale of the two-acre tract were credited upon the original judgment, but the amount of Mrs. Wade’s bid will be repaid her out of the royalties due from an oil company made a defendant in the suit, which were impounded, and held subject to the final decree in this case, and the decree of the court will be modified to this extent.

As thus modified, the decree will be affirmed, but no change will be made in the order of the court affecting costs.


text:
    Central Bank v. Jacobson.
    Opinion delivered November 11, 1929.

      Rose, Hemingway, Cantrell <& Loughborough, for appellant.

      Frank Bird, for appellee.
   Smith, J.

On June 21, 1921, Charles Jacobson indorsed the note of C. E. Becker, payable to the order of the Central Bank, Little Rock, in the sum of $5,421.80, due and payable ninety days after date. The note was not paid, although frequent demand was made, and on September 29, 1922, the president of the bank wrote Jacobson that an auditing committee of the directors had ordered the note to be collected, and that it would be placed in the hands of an attorney for collection.

On November 8, 1922, Jacobson conveyed the undivided interest which he had inherited from his father in certain lands to his sister, Laura. This deed recited that it was executed in consideration of the sum of $1,000 cash in hand paid by Miss Jacobson, and in satisfaction of an existing indebtedness of $9,500 due her by the grantor.

'Suit was not brought immediately, as the letter of September 29 advised would be done, but such delay as occurred appears to have been occasioned by an effort to make the debt out of Becker; and, while it does not appear just when the suit was commenced, judgment on the note was rendered January 25, 1924. After recovering this judgment, further correspondence was had and negotiations conducted in an effort to make as much of the debt out of Becker’s collaterals as possible, but, when only a portion of the judgment had been collected, this suit was begun July 16, 1927, to cancel the deed from Jacobson to Ms sister as a fraud upon the rigMs of Ms creditors. Separate answers were filed by both the Jacobsons, which alleged the bona fides of the conveyance.

The apparent consideration for the deed was $10,500, of which $9,500 was preexisting debts. The chancellor found, after hearing the case on oral testimony, that the ■deed was in fact a mortgage, and it was so construed, and reformed accordingly. The court also found that the actual indebtedness due Miss Jacobson from her brother amounted to oMy $4,500, and that the reformed instrument secured only that amount. In arriving at these figures the court disallowed the $1,000' recited as having been paid upon the delivery of the deed, and the $5,000 item which will be further discussed. From this decree the bank has appealed, and the Jacobsons have prosecuted a cross-appeal.

The deed from Jacobson to his sister conveyed all the unencumbered property owned by him at the time of its execution, and Ms equity in the encumbered prop,erty appears to have been of but little value, and it is certain that this deed rendered Jacobson insolvent, and, if it is allowed to stand, the bank will be unable to collect its judgment.

The law of this case is clearly stated in the case of Wilks v. Vaughan, 73 Ark. 174, 83 S. W. 913, where it was said: “It is thoroughly settled in eqMty jurisprudence that conveyances made to members of the household and near relatives of an embarrassed debtor are looked upon with suspicion and scrutinized with care; and when they are voluntary, they are prima facie fraudulent; and when the embarrassment of the debtor proceeds to financial wreck, they are presumed conclusively to be fraudulent as to existing creditors.” This exact language has been quoted with approval in a number of subsequent cases.

There remains therefore only a question of fact for our consideration, and that is, was the conveyance voluntary? And, if not entirely so, what valid indebtedness subsisted between the parties?

Jacobson admitted that the deed was intended as a security for debt, and no one denied that fact, and it was therefore a mortgage, notwithstanding it was in form a deed, and the chancellor properly construed it so to be.

Jacobson undertook to state the transactions between himself and his sister which eventuated in this indebtedness, but, as has been said, the chancellor disallowed items of $1,000 and $5,000, and it is earnestly insisted on behalf of the appellant bank that Jacobson’s testimony was insufficient to support the finding that there was, in fact, any indebtedness to be secured. It may be said that there was no note, or check, or other writing, evidencing any indebtedness, but Jacobson testified that his sister earned and saved money which she permitted him to' use; and we are unable to say that the chancellor’s finding that these transactions amounted to $4,500 is clearly against the preponderance of the evidence. We are also of the opinion that the finding that the loans did not exceed this amount is not clearly against the preponderance of the evidence. Jacobson testified that the loan of $5,000 was made to pay a mortgage on his home; but it appears that this mortgage was not paid until thirteen months after the alleged loan was made; and the evidence as to the $1,000 loan is not more certain.

Miss Jacobson did not testify, but the explanation was offered that her failure to do so was due to the fact that she was ill at her home in Texas; but no continuance was asked upon this account, nor was her deposition taken.

Upon a consideration of the case in its entirety we are unable to say that the chancellor’s finding, that the indebtedness due Miss Jacobson equaled, but did not exceed, $4,500 is contrary to the preponderance of the evidence, and the decree must therefore be affirmed, both on the appeal and the cross-appeal, and it is so ordered.


author: Humphreys, J.

text:
    Neal v. State ex rel. Attorney General.
    Opinion delivered November 11, 1929.

      Fred A. Fsgrig and Owens & Ehrman, for appellant.

      Hal L. Norwood, Attorney General, and Walter L. Pope, Assistant, for appellee.
   Humphreys, J.

Frank Neal, road foreman of Pulaski County, refused to deliver thirty-five State prisoners in his custody to the sheriff and keeper of the penitentiary on demand, whereupon this petition for a writ of mandamus was filed in the circuit court of Pulaski County, Third Division, on relation of the Attorney General, against him to compel the delivery of said prisoners, naming each and the crime for which he had been sentenced, to the sheriff of Pulaski County, for delivery to the keeper of the penitentiary, basing the proceeding upon a violation of act No. 281 of 1929, approved March 29, 1929, in words as follows:

“Be it enacted by the General Assembly of the State of Arkansas:
“'Section 1. That § 5394 of 'Crawford & M-oses’ Digest be and the same is hereby repealed.
“Section 2. Within thirty (30) days after the approval of this act, all persons who have been convicted and sentenced to- the penitentiary, but have been delivered to the foreman as provided in said section, shall be delivered by said foreman to the sheriff of the county in which such conviction was had, who shall immediately deliver said prisoner to the keeper of the penitentiary in the same manner as other prisoners are now required to -be delivered.
“Section 3. It is hereby ascertained and declared that the present manner in some counties of handling prisoners convicted of a felony has brought about many abuses, is hindering law enforcement, and is a blot upon our statutes, and the change contemplated by this act is necessary for the correction of such abuses, so that the immediate operation thereof is essential for the preservation of the public peace, health and safety; an emergency is therefore declared to exist, and this act shall take effect, and -be in force from and after its passage.”

The defendant, Frank Neal, one of the appellants herein, filed an answer and an amendment thereto, in substance, to the effect that act No. 281 of 1929 was void: (1) Because it increased and changed the method of punishment prescribed by § 5394 of Crawford & Moses’ Digest in force at the time said -prisoners were convicted, sentenced and delivered to him to serve out their respective terms, and that in its retroactive feature ex post facto, because in violation of the provisions of article 1, § 10-, of the Constitution of the State of Arkansas, and article 2, § 16, of the Constitution of the United States; and (2) because it changed the several judgments of the circuit courts ordering said prisoners to be delivered to him to serve their respective terms, under § 5394 of Crawford & Moses’ Digest, which section is in words as follows: ‘The said board shall have the power, if it shall vote to do so, to work all persons convicted of felonies and sentenced to the penitentiary for not more than five years in any of the counties entering into said agreement as herein provided; and if said board shall so vote, all such convicts as the road foreman thinks he can control shall be delivered to him, instead of being delivered to the warden of the penitentiary, as now provided; provided that, if any such convicts so delivered to him shall become unruly, or it shall be thought by such road foreman that he is likely to escape, he shall be carried to the penitentiary by the sheriff, and delivered to the warden thereof, upon the request of such road foreman.”

Pulaski County, also an appellant herein, filed an intervention, attacking the validity of act No. 281 of 1929, upon the ground that it deprived the county otf its property without due process, in contravention of both the Constitution of the State and United States, for the reason that it spent large sums of money for road machinery and equipment, and in building stockades for the use of said prisoners delivered to its foreman under the provisions of § 5394 of Crawford & Moses’ Digest set out above.-

J. S. Hill, also an appellant herein, filed an intervention and amendment thereto for himself and the other prisoners similarly situated, in substance to the effect that he was convicted in Pulaski Circuit Court upon a plea of guilty, on September 29, 1927, and was sentenced to three years ’ imprisonment on the road district, which plea of guilty was induced under the promise of the prosecuting attorney and court that he would be adjudged to serve his term on the road district, instead of in the State Penitentiary, and that since that day he has been confined in the stockade built -and maintained by Pulaski County for the sole purpose of earing for and keeping prisoners convicted of felonies and sentenced to labor in said district for less than five years, where he would not have to wear stripes, where health conditions were better than they were at the penitentiary, where he could see his friends and relatives often, where the hours of service were not as long, and where he would not be compelled to serve with criminals convicted of graver offenses and sentenced to longer terms than five years; that he had served approximately two years of the sentence, and would within a few months be entitled to discharge; that at the time he entered his plea of guilty 'he was given a sentence of less than five years and sentenced to labor in the district, and that he relied upon the court and the officers of the court to carry out the same in the steps designated; that the sentence was given to him by the court, and could not be altered or changed by the Legislature; that act No. 281 of 1929 is unconstitutional and void, so far as it attempts to change the terms and provisions of sentences, judgments and decrees theretofore made and entered by a court of competent jurisdiction; that said act was in violation of article 4, §§ 1 and 2, of the Constitution of the State of Arkansas; that the judgment entered in his case was entered by the judicial department of the government, and that the passage of act No. 281, so far as its retroactive aspect was concerned, was an attempt by the legislative department of the government to invade the powers of the judiciary; that act No. 281 of 1929 is unconstitutional and void as an ex post facto law because in violation of article 2, § 16, of the Constitution of the State of Arkansas, and article 1, § 10, of the Constitution of the United States.

Demurrers were filed by appellee to the answer and interventions and amendments thereto, upon the grounds that the facts set out therein did not constitute any defense to the cause of action set out in its petitions.

The cause was submitted upon the pleadings, with the result that the demurrers to the answer and intervention were sustained, and, upon the election of appellants to stand upon their respective pleadings as amended theretofore, the court dismissed the answer and interventions, and directed that a writ of mandamus issue requiring the delivery of said prisoners to the warden or keeper of the penitentiary, over the objection and exception of appellants, from which is this appeal.

On motion of appellant, the court superseded the judgment during the pendency of the appeal to this court, over the objection and exception of appellee, from which order appellee also appealed.

Appellants contend for a reversal of the judgment upon the grounds: (1) That act No. 281 of 1929, in its retroactive aspect, is void as contravening article 1, § 10, of the Constitution of the United States, and article 2, § 16, of the Constitution of the State of Arkansas, both of which forbids the passage of ex post facto laws; and (2) that the effect of the act was to change the judgment of courts under the passage of such act.

It is argued first that the facts set out in the answer and intervention and admitted 'by the demurrers bring the instant case within the definition of ex post facto laws, inhibited by both constitutions, in the case of Kring v. Missouri, 107 U. S. 221, 2 S. Ct. 443; United States v. Hall, 6 Cranch. 171; Ex parte Medley, 134 U. S. 160, 10 S. Ct. 384; and, inferentially, in the case of Rooney v. N. D., 196 U. S. 319, 25 S. Ct. 264. The definition of an ex post facto law, as gleaned by appellants from the cases cited albove in support of their contention, is any law “which inflicts a greater punishment than the law annexed at the time it was committed, or which alters the situation of the accused to his disadvantage.” Appellants insist that the situation of Hill and the other prisoners will be changed to their disadvantage within the meaning of this definition if act No. 281 of 1929 is declared constitutional, and they are transferred to the penitentiary, the change wrought in their condition being that they will have to wear prison stripes, be subjected to health conditions not as good, to longer hours of service, prevented from seeing their friends and relatives often, and compelled to serve with criminals convicted for much longer terms and graver offenses.

The majority of the court hold to the opinion that none of these things will change their condition to their disadvantage, within the meaning of the definition set out above, but that these changes had to do with prison regulations or prison discipline only, and that the instant case is governed by the rule laid down in Cooley’s Constitutional Limitations, 459, 8th ed., as follows:

“Any change which should be referable to prison discipline or penal administration as its primary object might also be made to take effect upon past as well as future offenses; as changes of manner in the kind of employment of convicts sentenced to hard labor, the system of supervision, the means of restraint, and the like. Changes of this sort might operate to mitigate or increase the severity of the punishment of the convict, but would not raise any question under the constitutional provision against ex post facto laws.”

The rule finds support in the following authorities:

Bill’s Encyclopedia of Criminal Law, vol. 1, p. 131; Commonwealth v. Hall, 97 Mass. 570; Ex parte Bethurum, 66 Mo. p. 545; Black’s Constitutional Law, p. 513; Marion v. State, 20 Neb. 233, 29 N. W. 911; In re Storti, 180 Mass. 57, 61 N. E. 759; Murphy v. Commonwealth, 172 Mass. 264, 52 N. E. 505, 43 L. R. A. 154, 70 Am. St. Rep. 266; vol. 2 Supplement to R. C. L., p. 91; Liebowitz v. Warden of N. Y. County, 174 N. Y. Supp. 823.

It is next argued that act No.' 281 of 1929 is an invasion of the judicial department of the government, because it had the effect of changing" judgments entered by the circuit courts ordering said prisoners to be delivered to the road foreman. It will appear, by reference to the orders and judgments made by the circuit court, that each of the prisoners was sentenced to the penitentiary of the State of Arkansas, and this judgment then recited that a road and convict district had 'been formed in Pulaski and Perry counties, and adjudged that each prisoner be remanded into the custody of the sheriff of Pulaski County, and by him safely and without delay delivered to the warden or foreman of said road and convict district or system, there to be worked for the period of years which was adjudged against him as a penalty for the crime he had committed. The statute under which these orders or judgments were made by the circuit courts did not authorize the circuit courts to sentence the convicts to be worked upon the county road, as will be seen by reference to § 5394 of Crawford & Moses’ Digest, copied at length in this opinion. The section of the statute provides that, upon vote of the board, felons sentenced to the penitentiary for not more than five years, as many of them shall be delivered to the road foreman as he thinks he can control, instead of being delivered to the warden of the penitentiary. The only provision of the section for a sentence to be adjudged by the courts is a sentence to the penitentiary. As no power was given under the section to sentence a convict to be worked upon the county roads, that portion of the judgments was and is mere surplusage

The writer is of the opinion that act 281 of 1929 is, in its retroactive provisions, unconstitutional, because to that extent same is an ex post facto law inhibited by both the Constitution of the United States and the State of Arkansas.

No error appearing, the judgment is affirmed.


text:
    Liberty Life Insurance Company v. Olive.
    Opinion delivered November 11, 1929.

      R. L. Searcy, Jr., G. T. Whatley and Neill Bohlinger, for appellant.
   Humphreys, J.

Appellee brought suit against appellant in the circuit court of Lafayette County to recover damages for discontinuing two life insurance policies for $1,000 each, issued by it to her, alleging- that it wrongfully doubled the maximum premium provided for in the policies, and, upon her refusal to pay same, lapsed the policies; that she was ready, able, willing- and anxious to carry out the contract by making the payments as provided in the policies, but that appellant refused to accept same, and had violated its contracts.

Appellant filed an answer, denying the alleged breach of its contracts, and this formed the issue in the case.

On March 2'2,1929, the cause proceeded to a hearing, and at the conclusion of the testimony, which was conflicting upon the issue joined, appellant tendered and inserted in the record the following written proposal and request:

“The Liberty Life Insurance Company (appellant here), not admitting, 'but specifically denying, that it has unjustly raised any rates, hereby offers to reinstate the policies sued on at the rate of $1.28 per month, without examination or formality on the part of the insured at all, and put them in force at this date. ’ ’

Appellee thereupon asked permission to strike out of her complaint the statement that she was “ready, able, willing and anxious to carry out the contract by making the payments as provided in the policy.” The trial court refused her request to strike, over her objection and exception; refused to peremptorily instruct a verdict for appellant, over appellant’s objection and exception; and, over the objection and exception of appellant, submitted the cause to the jury under the following instruction relative to the issue joined:

“If you find from a preponderance of the evidence in this case that the defendant company demanded of the assured the payment of more money as premiums than was due under the policies, and that the assured refused to pay the same, and that, because of the failure of the assured to pay the same, defendant company lapsed the policies, then your verdict will be for the plaintiff. ’ ’

The submission of the case to the jury resulted in a verdict and consequent judgment in favor of appellee for $376.16, the amount of which is not questioned by appellant, if appellee was entitled to recover anything.

Appellant contends for a reversal of the judgment upon the sole ground that it was appellee’s duty, under the law, to accept its proposal to reinstate the policies at the maximum rate of $1.28 per month, without examination or formality on her part. In support of this contention, it is argmed that this duty rested upon her because she stated in her complaint that she was “ready, able, willing and anxious to carry out the contract by making the payments as provided in the policies * * *;” and because she was alive, and for that reason no damage had accrued to her at the time it offered to put the policies back in force.

The arguments are not sound. In the first place, appellee’s statement had reference to the time of the alleged breach of the contract. It was in no sense a continuing offer on her part to carry out the contract after the breach, if permitted to do so. The common form of pleading by one who alleges a breach of a contract for which he seeks damages is to state that, at the time of the breach, he was ready, able, willing and anxious to carry out the contract on his part. In the next place, at the time appellant offered to reinstate the policies it had not offered to pay the costs of the litigation, and, even if the court had adjudged the costs against the appellant, such judgment would not have included an attorney’s fee for appellee nor any remuneration to her for the loss of time in the preparation of the case. The rule applicable to tihe present case is that announced in 13 Cyo. 057, in the following words:

“Where the renunciation of a contract is treated by the adverse party as a breach, the party cannot, according to some authorities, withdraw his renunciation and offer to perform, although the time for actual performance has not arrived.”

This rule is sustained by the cases of Mutual Loan Soc. v. Stow, 15 Ala. App. 293, 73 S. 202; Waterman v. Bryson, 178 la. 35,158 N. W. 466; Quarterman v. American Law Book Co., 143 Iowa 517, 121 N. W. 1009, 32 L. R A. (N. S.) 1; Ault v. Dustin, 110 Tenn. 366, 45 S. W. 981.

No error appearing, the judgment is affirmed.


author: Mehaffy, J.

text:
    Kory v. Less.
    Opinion delivered November 11, 1929.

      Robert C. Powell, W. E. Beloate and Horace Chamberlin, for appellant.

      Smith & Blackford and G. M. Gibson, for appellee.
   Mehaffy, J.

This suit was begun 'by appellees in the Lawrence Chancery Court on August 6, 1927, praying for reformation of a deed from Jake Less and others to Alec M. Less for the forfeiture of life estate of Ida Less Kory, and that appellees be declared the owner and entitled to the immediate possession; that a lien be declared in favor of Gussie Less for $140 a month; to restrain Ida Less Kory and W. E. Beloate from permitting and committing further waste; and for judgment against Ida Less Kory and W. E. Beloate for damages, for taxes paid, together with interest, and for damages done to the farm and lands constituting the life estate, and also for damages to the homestead; and the complaint also prayed that Ida Less Kory and W. E. Beloate be restrained from further managing and controlling the property, pending the suit, and that a receiver be appointed for the purpose of'taking charge of the property and repairing the buildings, fences, improvements, etc., and placing the same in cultivation; for an order fixing the amount due. Gussie Less from Ida Less Kory, and for an order directing the sale of the life estate of Ida Less Kory for the satisfaction of the judgment;

The record consists of more than 1,200 pages, and it would make this opinion entirely too- long to set out even the substance of all the pleadings and proof. The issues, however, may be stated briefly as follows:

In 1905 Isaac Less, who is now deceased, and appellee, Gussie Less, were divorced. They had been married a number of years, and were the parents of six children, all of whom are of age. The property rights of Isaac Less and Gussie Less were settled by agreement, prior to the granting of the divorce. By this settlement Gussie Less was to receive $140 pr month during the term of her natural life, or until she should remarry, and the payment of this sum was secured by a first lien on practically all the property owned by Isaac Less.

Some years after the divorce was granted, Isaac Less married a second time. In 1917 Isaac Less died intestate, leaving surviving him his widow Ida Less, who later married a man by the name of Kory, and who is now Ida Less Kory, the appellant. His first wife, Gussie Less, also survived him and all the children, who are the appellees here.’

After the death of Isaac Less, Ida Less made a contract with W. E. Beloate, whereby she employed him as attorney in the management of her estate, the setting off of her dower and homestead. Beloate was also given an option to purchase the dower lands.

Ida Less filed her petition asking that dower and homestead be assigned to her, and this was done. It would serve iio useful purpose to set out a description of the property here. The property was taken by Ida Less subject to charge of $140 a month in favor of Gussie Less, her portion of which amount was $46.66 per month. The property was also subject to a mortgage to the Commonwealth Farm Loan Company. When the mortgage to the Commonwealth Farm Loan Company matured, Ida Less refused to pay any portion of it, and the heirs paid the mortgage debt, and filed suit against Ida Less for contribution. She paid her part, which was $8,166.40. In the same suit the amount due Gussie Less by Ida Less was fixed at $4,209.22, with interest. This was declared a lien on the lands set aside to Ida Less as dower. 'She was, however, given the privilege to pay this amount due Gussie Less at $46.66 a month.

One of the buildings which was assigned to Ida Less as part of her dower was a two-story brick business building, which was destroyed by fire. Ida Less had no insurance, but the reversioners were protected, and collected $3,000.

Ida Less did not reside on the homestead after the death of Isaac Less. The homestead consisted of more than a block of ground with a two-story frame house and outbuildings. It is alleged by appellees that the houses and barns and fences upon the farming lands were permitted gradually to disintegrate, with very little if any repairs or replacements, and several of the houses and barns, at the time this suit was filed, were completely gone. All of them were practically uninhabitable and unfit for use. That the ditches on the farming lands had been permitted to grow up and fill up, were not cleared out, and thickets were permitted to grow up all over these lands, and about 300 acres of the 835 acres of land, at the time suit was filed, was laying out, waterlogged, covered with thickets and trees, some of them as large in diameter as a stovepipe, and the entire farm was rapidly reverting back to its natural state. Appellees also alleged that the garage building was likewise neglected. The windows were knocked out, and same was in had repair in a great many ways; that this condition was progressing, and getting worse each year. They also alleged that Ida Less had ceased to make her monthly payment of $46.66 per month to Gussie Less, and that, in order to save their properties and other lands, the appellees were compelled to make these payments, because it was a lien on their land as well as on the life estate. Ida Less had also failed to pay the taxes, and appellees redeemed the land themselves.

'The testimony was voluminous and conflicting. The chancellor appointed a receiver, and, after hearing the evidence, entered a decree reforming the deed; second, rendered judgment in favor of Gussie Less against Ida Less Kory for $4,209.22, with interest from March 24, 1922, at 6 per cent, per annum, less payments made by Ida Less Kory to Gussie Less, and less all payments made to Gussie Less by the other appellees; and, after crediting these amounts, he found against Ida Less Kory in favor of Gussie Less in the sum of $1,430.21, and held that this sum should bear interest from the date of the decree until paid at 6 per cent, per annum.

The chancellor also entered a judgment in favor of the appellees other than Gussie Less against Ida Less Kory for the sum of $1,999.04, with 6 per cent, interest, and also found against Ida Less Kory in favor of the appellees other than Gussie Less in the sum of- $415.41 for taxes paid on the dower lands of Ida Less Kory, June 8, 1926, and also the sum of $195.65, taxes paid on said dower lands December 27, 1927, said sums amounting to $685, with interest at 6 per cent, from the date of the decree.

The court also said that the appellees should pay eight-ninths of the improvement district taxes, and fixed the amount in his decree, which was $135.04, the part that appellees should have paid, and decreed that this sum, having been paid by appellant, should be deducted from the $685, leaving a balance due plaintiffs by Ida Less Kory for taxes of $549.96, with interest thereon from the date of the decree. He also decreed a lien, and provided that the amount should be paid out of the funds in the hands of the receiver within 60 days from the date of the decree, and, if payment was not made, the property should be sold by a commissioner.

Ida Less Kory denied the allegations of plaintiff’s complaint as to waste and as to all other matters, except the amount due Ghissie Less and the taxes,-and alleged that they had offered to pay the taxes, but refused to pay illegal penalties. She also resisted the appointment of a receiver.

The court entered a decree against the appellant for $5,112.85 in favor of the appellees, other than Gussie Less, for waste, and decreed that the amounts found against the appellant should be credited with the amounts that appellees were due appellant, and made a finding, after making said deduction, for damages to houses, barns and farm lands of $4,211.51.

The chancellor also found that the receiver, after making the disbursements mentioned, had approximately $5,000 on hand,' and that exceptions had been filed to the report by the appellant, and that these would be considered later. He provided that, if the net amount found against Ida Less Kory for waste was not paid within 60 days, the lien should be enforced by a sale of the dower property. He also decreed that there should be no forfeiture of the life estate, and that no decree should be rendered against Beloate. He also decreed that appellees were entitled to no damages by reason of waste to the fences, and that they were not entitled to any damages for loss of rental during the period of alleged rehabilitation of the lands.

The court held thát, except the judgment for improvement district taxes, the cross-complaint of Ida Less Kory should be dismissed, and that the cross-complaint for rental claimed on the Mozier house should be dismissed without prejudice. He directed Ida Less Kory to pay the sum of $65.50 for stenographic services, and that the parties should pay their own costs, except the cost of receivership, and that that should be paid by the appellant. He also denied the petition of the receiver to be permitted to employ counsel, and allowed the receiver the sum of $600 additional for his services in full. He dissolved the receivership, and directed the receiver to tile his report within 60 days. He also directed the receiver to pay into the registry of the court moneys collected in the receivership not heretofore paid out, and directed the clerk to issue his receipt to the receiver and hold the moneys and properties subject to the further orders of the court.

The decree also provided that Ida Less Kory might appeal from any portion of the judgment she desired, but that, if she desired to appeal from the entire judgment, she should give a surety bond in the sum of $7,125.41; and if she desired to appeal from the judgment of waste only, that she should give a surety bond for not less than the principal sum, said bond to cover interest and costs. It was further provided in the decree that, if the appeal is from the judgment for waste only, the clerk should pay the sum of $1,430.21 to Gussie Less, and $1,483.69 to the other appellees.

It is contended by the appellant that the receivership was illegal. After a careful consideration of all the evidence, we have reached the conclusion that, under § 8600 of Crawford & Moses’ Digest, the court was justified in the appointment of a receiver. That section reads as follows:

“Whenever it shall not be forbidden by law, and shall be deemed fair and proper in any case in equity, the court, judge or chancellor shall appoint some prudent .and discreet person as receiver, who shall take an oath faithfully, impartially, diligently and truly to execute the trust reposed in him, and shall also give bond with good and sufficient security, to be approved by the court or judge or chancellor, in such sum as may be deemed sufficient, to the State of Arkansas, for the benefit of ail persons in interest, conditioned that he will faithfully discharge the duties incumbent on him, and faithfully account for and pay into court, at such times as the court or law may prescribe, or according to the order of the court, all moneys or assets which shall come to his hands as such receiver in the case, which shall be filed, and a certified copy thereof shall be received as evidence in all courts. ’ ’

We agree with the statement quoted by appellee from the case of Franklin v. Myer, 35 Ark. 101, that: “It is a power to be exercised by judges in vacation with great circumspection, as it is harsh and dángerous, but one within their discretion. ” It is harsh and dangerous, but it was within the discretion of the court to make the appointment, and we think, from a careful consideration of all the evidence on this subject and the result of the receiver’s management, that the action of the court in making the appointment was justified.

The appellant had failed to pay the taxes, and failed for approximately two years to pay the $46.G6 a month due Gussie Less, and it is admitted by the appellant that she permitted the lands to become delinquent, although she says she had no intention of permitting the lands to get beyond her. It is also admitted that she had failed to pay the amounts due Mrs. Gussie Less, but they say they tendered this amount, or agreed to pay it into the Federal court. It is shown that the receiver so managed the property that he secured tenants for all of it except about 20 acres, and he testified he would have a tenant for that, whereas, according to the proof, there were about 300 acres vacant without tenants when he took charge.

The appellant next contends that the evidence does not show that appellant was liable for waste.

“The general rule of law, however, in respect to waste, is that the act must be prejudicial, or work a substantial injury, to the inheritance, or to those who are entitled to the reversion or remainder, and it may be committed of houses, gardens, orchards, lands, or woods. Such injury to the inheritance may be committed by diminishing the value of the estate, although it need not consist of loss of market value, but may also be caused by increasing the burdens upon the estate, destroying its identity, or impairing the evidence of title; and if the acts committed substantially injure the inheritance, they may constitute waste, although they increase the pecuniary value of the estate. The refusal or neglect of a tenant to pay current taxes, which he is under an obligation to pay, whereby the premises are sold, or are subject to sale, constitutes waste. But mere injury to the reputation of real estate, or the supposed diminution of its value resting 'on whimsical or emotional grounds, or arising from dictates of custom or taste, do not constitute waste; nor ordinarily will the consequences of waste attach where the injury to the inheritance is trifling or inappreciable.” 40 Cyc. 501 et seq.; 27 R. C. L. 1011.

It will be seen that, in order to constitute waste, the life tenant must be guilty of some act or omission to the injury of the persons entitled to the inheritance; a wrongful act or omission on the part of the life tenant which results in permanent injury to the inheritance. It is a violation of the obligation of the tenant to treat the premises in such manner that no harm be done to them, and that the estate may revert to those having the reversionary interest without material deterioration.

In the instant case there were numbers of witnesses who testified for both appellant - and appellees on the question of the condition of the premises at the time the appellant got possession and at the time suit was brought. There was a hopeless conflict in the testimony. Appellant contends that a greater number of witnesses testified that there was no waste, or rather that the condition of the property was as good as when she took charge of it, and contends that this constitutes a preponderance of the evidence. The number of witnesses alone does not necessarily constitute a preponderance of the evidence. The evidence in this case, as we have said, is in hopeless conflict, but the strongest testimony probably with reference to waste is that of the receiver, and yet in the short time that he had the management of the property he was able to rent the entire property, except about 20 acres, and we think, when this evidence is considered with all the other evidence, the preponderance clearly shows that there was no waste so far as the property was concerned. We think the clear weight of the evidence shows that the interest of the reversioners was not injured. - In other words, that in this respect the testimony clearly shows that there was no waste.

Chancery cases are tried de novo here, and while, unless we can say that the findings of the chancellor are against the preponderance of the evidence, his finding will be affirmed, yet when we find that the preponderance of the evidence is against the finding of the chancellor, then his finding must be set aside.

After a careful consideration of the entire testimony, we have reached the conclusion that the chancellor’s finding against the appellant as to waste consisting in damage to the property is against the preponderance of the evidence. As to all other issues, we think the finding of the chancellor is supported by a preponderance of the evidence. It would be impracticable to set out the evidence on these issues at length, and, as to the finding against the appellant on the amount due the appellees for what they had paid G-ussie Less and the amount still due Gussie Less, there is no dispute. Appellant admits she owes' these amounts, and the chancellor correctly found against her in the amount mentioned in .the decree as to these items.

The appellees contend that the court erred in adjudging that no forfeiture of the life estate of the defendant Ida Less Kory should be declared. Their contention is that the life estate should have been forfeited, and they call attention to § 10054, C. & M. Digest. That provides, however, that if the tenant shall neglect to pay the taxes so long that such lands shall be sold for the payment of taxes, and shall not redeem within one year after such sale, such person shall forfeit to the persons entitled to the remainder or reversion of the estate that he may have in such lands. A sufficient answer to the contention here is that the tax sales were void, as found by the court.

Appellees also call attention in this connection to the case of Magness v. Harris, 80 Ark. 583, 98 S. W. 362. Among other things, the court said in that case: “In Swan v. Rainey, 59 Ark. 364, [27 8. W. 240], the facts were that the life tenant, while in possession of the land, failed to pay the taxes, and purchased it at the tax sale, and the court held that the purchase amounted only to a payment of the taxes, that the sale was therefore void, and that no forfeiture of the estate of the life tenant was worked under the statute in question. The court there said: ‘The sale being void and the taxes paid, there was nothing to redeem, and consequently no redemption was required.’ ”

Continuing, the court said: “It follows from this that a void sale does not work a forfeiture to a remainder-man of the estate of the life tenant. The statute in question manifestly has reference only to a valid sale. And it is a sale for taxes, not a mere failure to pay taxes within the time prescribed by law, which works a forfeiture, as the statute provides that if the life tenant ‘ shall neglect to pay taxes thereon so long that such lands shall be sold for the payment of taxes, and shall not, within one year after such sale, redeem the same according to law, such person shall forfeit * * . * an the estate which he or she, so neglecting as aforesaid, may have in said land.’ The manifest purpose of the statute is to afford the remainderman an opportunity to redeem during the last of the two years allowed by law for redemption of lands from a valid tax sale,, and to canse a forfeiture of the estate of the life tenant for failure to redeem from such sale within the first year. ’ ’

We therefore think the court was correct in holding that there should be no forfeiture of the life estate.

It is next contended by appellees that the court erred in adjudging that eight-ninths of the special improvement taxes paid by appellant upon the dower lands should be adjudged against the appellees.

We said in a recent case: “Obviously, the question whether the life tenant or the remainderman must ultimately bear the cost of a public improvement may be determined by the provisions of the instrument by which the life estate is created. We hold that the assessments for premanent improvements must be ratably and equitably apportioned between the life tenant and the remainder-man.” Hicks v. Norsworthy, 176 Ark. 786, 4 S. W. (2d) 897.

In the above case the authorities were reviewed, and the rule was announced that the life tenant must pay the ordinary taxes, and, if improvements are made that are temporary and benefit the life tenant only, the life tenant must pay these assessments. But where the improvements are of a permanent character, the assessments must be ratably and equitably proportioned between the life tenant and the remainderman.

The court in this case evidently undertook to determine, and did determine that the improvements for which taxes or assessments were paid were permanent, and, considering the age of appellee and the character and permanency of the improvement, arrived at what seemed to him to be a just and equitable adjustment. We think the finding of the court was correct. Appellant argues, however, that in the case of Hicks v. Norsworthy we laid down no rule for the proportionment. No rule could be laid down that would of itself determine the proportion or percentage that each party should pay in all cases. The rules called attention to by appellees themselves are stated in 21 C. J. 958, 17 R. C. L. 639, and Bobb v. Wolff, 54 Mo. App. 515.

Appellees are correct when they state that the question whether it must be borne by the life tenant or the remainderman or proportioned between the two depends to a large extent upon the circumstances of the particular case, and especially on the probable duration of the improvement as compared with the expectancy of the life tenant.

Appellees have cited a great many authorities, which we do not think it necessary to review, because the rule in this State has already been settled, and we think the chancellor undertook to séttle the matter, and did settle it in the instant case in accordance with the rule announced by this court.

It is next contended by the appellees that the court erred in adjudging that no damage should be allowed to appellees for the item of $7,555 loss of rental during the period of rehabilitation of the lands. We think the court’s finding as to this item is correct, and supported by the great weig'ht of the evidence.

Appellees state that the uncontradicted testimony on the part of the appellees shows that it will take at least five years to rehabilitate the dower lands under the best of husbandry, and during that time there will be a loss of rent of $7,555. It is true that there was such testimony, but it was contradicted by other evidence, and, in addition to that, the undisputed proof shows that the receiver was able to rent all the lands of the dower estate. We think the preponderance of the testimony supports the finding of the chancellor as to this item.

It is next contended by the appellees that the court erred in not adjudging damages to the appellees by reason of waste to fences. The testimony does show that some of the fences were not repaired and kept up, but the undisputed testimony also shows that a fencing district was established which included the lands in controversy, and there was no occasion to have fences. The chancel-lo-r’s finding as to tliis item is supported by the preponderance of the evidence.

It is next contended by the appellees that .judgment should have been rendered against W. E. Beloate, as well as Ida Less Kory, and that the court erred in dismissing the complaint as to W. E. Beloate. Without setting out the testimony, we think that the testimony shows that Beloate had-no such interest in the land as would entitle appellees to judgment against him, and that the court correctly dismissed the cause of action as to him.

The cost of the receivership should be divided, each party paying one-half.

It follows from what we have said, that the decree of the chancery court awarding damages against appellant for waste must be reversed, and the decree otherwise affirmed. The case is therefore reversed, and remanded with directions to enter a decree in accordance with this opinion.


author: Mehaeey, J.

text:
    Maners v. Walsh.
    Opinion delivered November 11, 1929.

      John W. Moncrief and M. F. Elms, for. appellant.

      W. A. Leach, for appellee.
   Mehaeey, J.

The appellee, plaintiff below, brought this suit against the appellant and Ida R. Williams, alleging that on the 9th day of July, 1928, she and the defendants entered into the following contract:

“This contract, made and entered into this 9th day of July, 1928, by and between Ida R. Williams and W. H. Maners, parties of the first part, and Edyth Walsh, party of the second part, is as follows, to.-wit: Parties of the first part have this day sold to party of the second part the following described property, lying in the Northern District of Arkansas County, Arkansas, to-wit: Lot 14, and 10 feet off the north end of lot 15, all in block 6, Bordfeldt’s Addition to Stuttgart, Arkansas, for and in consideration of the sum of $9,762.50, paid and to be paid as follows: $2,000 by transfer of the following property lying in the Northern District of Arkansas County, Arkansas, to-wit: Lots 11 and 12, block 17, Reinsch’s Addition to Stuttgart, Arkansas, in Arkansas County, Arkansas. The -balance of $7,762.50 shall be divided into 115 installments of $67.50 each, which shall be payable monthly hereafter, the first of which installments shall mature and become due and payable on the 15th day of August, 1908, and. one each month thereafter until the entire series of payments or installments is fully paid. The said monthly installments shall bear interest at the rate of eight per cent, per annum after maturity thereof. It is agreed that said monthly installments or payments hereinbefore mentioned are to be paid directly to W. H. Maners until the balance due the said W. H. Maners from Ida R. Williams in accordance with the terms of a certain decree rendered by the chancery court of the Northern District of Arkansas County, Arkansas, on or about the i.lth day of June, 1928, in a cause therein pending, wherein B. L. Williams and others were plaintiffs and B. L. Metsker and others were defendants, and the said W. H. Maners was an intervener therein, said decree being for the principal sum of $2,018.01 in favor of the said W. H. Maners, with costs thereon, and interest thereon at the rate of ten per cent, per annum from the rendition of said decree. After the amount herein mentioned due the said W. H. Maners is fully paid, then the balance of the consideration hereinbefore expressed shall be paid by the said party of the second part unto Ida B. Williams.
“It is understood and agreed among the parties hereto that a mortgage foreclosure upon the above property is now pending in the Chancery Court for the Northern District of Arkansas County, Arkansas, upon which a decree has been rendered, and that it is necessary for the property herein described to pass through a commissioner’s sale to the end that the title may be completed, and, after that has been done, the party of the second part agrees to procure a loan from some building and loan association, and pay the proceeds thereof to the said parties of the first part, or unto W. H. Maners, in case said Maners has not been paid in full the amount due him as herein set forth.
“The party of the second part hereby agrees and binds himself to obtain and carry such insurance to protect against the hazards of fire, tornado, windstorm, etc., upon the buildings upon said property, to equal the balance she should at any time owe the parties of the first part, and to have inserted thereon proper mortgage clauses or loss payable clauses in favor of the parties of the first part.
“It is also further agreed that should any one of the said monthly installments or payments herein provided become due and then remain unpaid for a period of ten days, then in that event parties of the first part shall have the privilege of electing to declare all of the remaining payments then past due and payable, and in such case all payments that have been made shall be taken in consideration as rents for the use and occupancy of said building, the possession of which shall be delivered unto the party of the second part upon the execution of this contract. And, in event that the said party of the second part should 'become delinquent in her payments, and the said parties of the first part should then elect to declare the said contract breached, the said party of the second part agrees to vacate and deliver up possession thereof without the necessity of any legal proceedings to oust her.
“During the period of time through which this contract runs the party of the second part agrees to keep and maintain said ¡buildings in good repair, and to see that same is cared for and preserved against all abuse of every kind and nature, save ordinary wear and tear and the acts of Grod or the public enemy.
“In witness whereof said parties have hereunto set their hands on this the 9th day of July, 1928.
(Signed) “Ida E. Williams.
(Signed) “W. H. Maners.
(Signed) “Edyth Walsh.”

Plaintiff further alleged that she paid $2,000 on the purchase price, and that the possession of the property was delivered to her, and that on the 15th of August, 1928, she paid the first installment in keeping with the contract. That she owned and operated a cleaning and pressing establishment, and was preparing to move in the purchased property, and that she made lasting improvements upon said property at an expense of $1,000, which improvements enhanced the value of said property in that amount. That on the 4th day of August, 1928, defendants permitted the property purchased by her to be offered for sale by the commissioner in chancery, and permitted said property to be sold to a party other than themselves. That she was notified by the purchaser, and, for that reason, withheld further payments. On October 3, 1928, the sale was approved, and thereafter plaintiff was ejected from the premises by virtue of a writ of assistance. That defendants permitted the property to be sold and title passed to other persons, and breached their contract, and that performance is now impossible, and asks for damages in the sum of $3,000.

•Separate answer was filed by W. H. Maners, denying each material allegation in plaintiff’s complaint, and alleging that the interest that he had in the property mentioned in the contract was a mortgage to secure him in a loan he had made to the defendant Williams and her husband; that he was engaging in foreclosing at the time the contract was made; that his mortgage was for an indebtedness of $2,018.01 and interest, and was a first lien on the property; that he had secured a decree of foreclosure; that said property was owned by the defendant Williams, and her title was only subject to a mortgage indebtedness’due to Maners; that on the 9th day of July, 1928, the plaintiff, Walsh, and the defendant, Williams, sought Maners out, and informed him that plaintiff Walsh was about to purchase the property from defendant Williams, but Walsh was not in a position to make full payment of a mortgage indebtedness held by Maners. He was informed by the plaintiff and the defendant that they were not able to make the deal unless he would agree to accept payment of indebtedness in installments from plaintiff Walsh. Plaintiff, Walsh, had agreed to convey to defendant Williams lots 11 and 12, in block 17, for the price of $2,000, which, it later developed, was incumbered by mortgage indebtedness, thereby constituting a breach of her contract. That plaintiff Walsh agreed to pay Maners in 115 monthly installments of $67.50 each; that she and defendant Williams represented to Maners that Walsh would make payment of monthly installments until the mortgage indebtedness due him was fully paid. It was understood that he had no interest in the property other than stated. He was not selling said property, and only for the purpose of accommodating plaintiff Walsh and defendant Williams to the end that they might make the deal, and only for the purpose of collecting the indebtedness due him in installments, instead of all immediately, or within a period of 30 days, which he could have done and which he had a right to do under his foreclosure decree, and for the purpose only of securing indebtedness due him, upon a thorough understanding of all these facts with plaintiff, Walsh, and defendant Williams, he signed the contract. He was to receive no part of the consideration or profit of the contract other than the indebtedness due him, and did not receive any part of the consideration or profits, and had no interest in the property, nor did he expect to receive any more than the indebtedness that plaintiff Walsh and defendant Williams sought to secure to him by said contract. That he did not propose in said contract, nor did he at any time agree, to purchase said property at said commissioner’s sale, nor was any duty cast on him by the contract to purchase same or to take other steps toward affecting sale or title, as plaintiff Walsh expected to receive title to property from plaintiff. Plaintiff, Walsh, knew that Maners had no title or interest in or to the property other than mortgage indebtedness thereon, and was fully possessed with knowledge of all facts concerning same, and was fully informed that defendant Maners’ only interest in same was to secure and collect mortgage indebtedness due him. That the contract, in so far as defendant Maners is concerned, is constituted a mortgage on said property to secure the indebtedness due him, and it was intended by all parties that it should only constitute a mortgage to secure to him the indebtedness due him, and was executed with the understanding of all parties and with that intention of all parties, and defendant Maners tenders back the sum of $67.50 paid by Walsh, with interest.

Defendant Maners filed a demurrer before filing answer, and then with his answer repeated the demurrer, which was to the effect that the plaintiff’s complaint did not set forth facts sufficient on its face to constitute or state a cause of action against Maners. The court overruled the demurrer, and defendant excepted, and then filed a motion to transfer to equity.

The court instructed the jury that the verdict should he against hoth defendants for such damages as might be shown by the testimony. The jury returned a verdict against both defendants for $1,000 as damages for the property conveyed to Ida L. Williams and $400 damages against both of them for improvements. The property conveyed by Walsh to Williams was in part payment of the property alleged to have been purchased by plaintiff, and it is alleged that the property purchased by her was worth something more than $9,000. Judgment was entered against Maners and Williams for $1,400, with interest and cost.

Williams did not appeal. Maners filed a motion for a new trial, and has prosecuted his appeal to this court.

We deem it unnecessary to set out any of the evidence, because the majority of the court have reached the conclusion that the court erred in not transferring the case to equity. Mr. Justice Smith and the writer do not agree with the majority that the case should have been transferred to equity.

The undisputed proof in the case shows that Maners had a mortgage on the property mentioned in the contract set out above, to secure an indebtedness of something more than $2,000; that the property was worth approximately $9,000. The only interest, as shown by the pleadings, that Maners had in the property mentioned in the contract was a mortgage to secure the indebtedness due him, and he alleges that all parties knew this, and that the contract was signed with that understanding, and that the only interest he had in it at all was to collect the indebtedness due him; that it was understood by plaintiff Walsh that this was the only interest he had, and that he signed the contract as an accommodation to Walsh and Williams, and agreed to take the money due him in installments of $67.50 per month, instead of getting it all, as he might have done, by a sale of the property. Maners contends that as to him the instrument or contract was intended to be a mortgage, and nothing more.

A majority of the court are of the opinion that the cause should have been transferred to equity, because it is a settled doctrine of equity that the form of a transaction will never preclude inquiry into its real nature, but in all eases the intention of the parties must control, irrespective of the form; and consequently, if a conveyance is made as a security for money, in whatever form the conveyance is made or whatever cover may be used to disguise the transaction and hide its real character from others, as between the parties and as to all persons' who have notice that the property is merely held as collateral security, it will be held and treated as a mortgage. 27 Cyc. 991.

“Another maxim of equity is that equity regards the substance rather than the form, or that equity regards the substance and intent, not the form. This principle is well established, and is expressed in more or less similar language in many oases. * * * This maxim is as applicable at the present time as it was when it was first formulated. By force of principle equity goes behind the form of a transaction in order to give effect to the intention of the parties, either to aid an act abortive at law because formally defective, or to impose a liability as against an evasion by a formal concealment of its true character. In the construction of a written instrument, equity, always attempts to get at its substance and to ascertain, uphold, and enforce the rights and duties that spring from the real intention of the parties. In doing so, while it will of course not change the words of the instrument, the court of equity will look into all the circumstances under which it was made, in order to determine the proper meaning of the transaction. It will do this not only to sustain a just claim but to defeat an unlawful demand.” 21 C. J, 204-5.

Equity looks beyond the mere form in which the transaction is clothed and shapes its relief in such way as to carry out the true intent of the parties to the agreement, and to this end all the facts and circumstances of the transaction, the conduct of the parties thereto, and their relations to one another and to the subject-matter, are subjects for consideration. Vance v. Anderson, 113 Cal. 532, 45 Pac. 816; Crisman v. Kingman Plough Co., 106 Ark. 166, 152 S. W. 989; Petty v. Gacking, 97 Ark. 217, 133 S. W. 832, 33 L. R. A. N. S. 175; Lane v. Walker, 77 Ark. 103, 91 S. W. 22.

The defendant Williams not having appealed, the judgment entered in the lower court against her is not affected by the appeal.

The court having reached the conclusion that the case should have been transferred to equity, it becomes unnecessary to discuss either the evidence or the instructions.

The judgment of the circuit court is reversed, and the cause remanded with directions to transfer same to equity.


author: McHaney, J.

text:
    Edwards v. State.
    Opinion delivered November 11, 1929.

      Partain S Agee, for appellants.

      Nal L. Norwood, Attorney General, and Robert F. Smith, Assistant, for appellee.
   McHaney, J.

Appellants, who are brothers, were separately indicted, charged with assault with intent to kill one Marion King by shooting him with a pistol. The indictment against Lee Edwards contained a second count, charging him with accessory before the fact to assault with intent to MU the same person. On a joint trial by consent, Galvin was convicted of aggravated assault and sentenced to pay a fine of $500 and one day in jail. Lee was convicted of “ accessory to aggravated assault,” and sentenced to pay a fine of $100 and one day in jail.

For a reversal appellants urge the following errors:

1. That the court erred in overruling their motion for a continuance on account of the absence of two witnesses, Harrison Sanders and Troy Boyd, who, only a day or two before the return of the indictments, had left their homes at Piney, Arkansas, and gone to Oklahoma. The indictments were returned on July 2. Sanders left June 30 and Bóyd on July 2. The subpoenas were issued on July 5, and an effort to serve them on the 9th disclosed their absence. The motion is in statutory form, but we do not think the court committed reversible error in refusing the continuance. The general rule, as announced by this court in many cases, is that continuances in both civil and criminal cases are addressed to the sound discretion of the trial court, and that this court will not reverse a case on such ground unless it clearly appears that the court has abused its discretion, and that such refusal manifestly operates as a denial of justice. Allison v. State, 74 Ark. 444, 86 S. W. 409; Wood v. State, 159 Ark. 671, 252 S. W. 897; Eddy v. State, 165 Ark. 289, 264 S. W. 832. There has been no denial of justice in this case. It is not shown, except in the unsupported motion of appellants, that these witnesses could have been served for the next term of court, as no evidence was offered or received as to why they were gone or when they would return. .’We do not review the evidence it is alleged Sanders would give, or that of Boyd, as it would serve no useful purpose. The court did not err in overruling the motion.

2. It is next said the court erred in refusing to permit Lee Edwards to detail a difficulty between King and Harrison Sanders which occurred some days before Galvin shot King. This testimony was irrelevant to the matter before the court, and was properly excluded.

3. Instructions 7 and 8, of which' appellants complain, are as follows:

“Gentlemen of the jury, if you find from the testimony in this case that the defendant, Lee Edwards, stood by, aided and consented to his brother, Galvin Edwards, to assault the prosecuting witness, Marion King, with a deadly weapon, with intent to Mil, he would be guilty the same as if he had committed the crime himself.
“If you find that he advised and encouraged Galvin Edwards to make an assault upon the prosecuting witness, Marion King, -with the intent to take his life, he would be guilty as if he had committed it himself.”

It is said they assume the guilt of Gálvin Edwards, and omit the rig’ht to act in necessary self-defense. No specific objection was made to these instructions on these or any other grounds. As to the omission of the self-defense plea, the next instruction fully covers the subject, and we do not think the .jury could have been misled on either proposition. If appellants had thought' the instructions assumed the guilt of Galvin, they should have specifically objected on this ground, and the court might have so worded it to eliminate the objection.

4. It is finally insisted there should have been a directed verdict for Lee Edwards. We cannot agree with this contention. Taking the evidence in its most favorable light to the State, we cannot say there is no substantial evidence to support the verdict. It shows that appellants were driving toward town in their car, and met King in a wagon; that Galvin told King to get out, that he, King, had been mistreating his brother Lee; that Galvin got out of the car, and shot him twice; that Lee said: “Don’t shoot the son of a bitch any more. You have done killed him, I guess.”' Lee, who is small and deformed, had a row with King that morning, and the jury was justified in finding that he had reported the tiouble to Galvin, and that the two of them got in the car to hunt him down and shoot him. We cannot say therefore that the verdict as to Lee was without any substantial evidence to support it.

No error appearing, the judgments are affirmed.


author: M cHaney, J.

text:
    Simms Oil Company v. Durham.
    Opinion delivered November 11, 1929.

      Gaughan, Sifford, GodwinS Gaughan, for appellant.

      McNalley & Sellers, for appellee.
   M cHaney, J.

Appellee brought this action against appellant to recover damages for personal injuries received while in its employ as a pumper on one of its oil leases in Ouachita County. His duties were to keep the pumps”going from twelve o’clock midnight until twelve o’clock noon, when he was relieved by another pumper. The pumps were operated by 4-cycle Superior gas engines burning natural gas. On account of the weakness of the gas pressure, at times, the engines would stop, and it was his duty to start them running again. On the night of his injury, January 15, 1928, while making his rounds of the wells that were pumping, appellee discovered that one of the engines had stopped running, and undertook to start it, in the usual and customary way, if not the only way, which was to throw out the clutoh, set the gas, set the spark, or wyco, as it is called, and kick the engine off by placing the left foot on a spoke of the fly-wheel and pulling forward with both hands hold of the spokes of the wheel until it fired. Appellee did all this in the usual way, but, instead of firing and running forward, the engine backfired with such force that it threw him up against the ceiling of the engine house, from whence he fell back on the engine, thence to the floor, resulting in serious, painful and permanent injuries to him.

The ground of negligence alleged and relied on was that the lug bolts which pass through oblong slots in the attachment plate of the wyco into threaded holes in the engine plate or bed, and which were intended to attach the wyco firmly and immovably to the bed of 'the engine, were old, and the threads thereon had become broken or stripped, so that the wyco was not held firmly in place, but would drop down slightly, causing the driving bar of the wyco to come in contact with the cam or eccentric sooner than intended and sooner than is indicated by the set lever controlling the spark, which caused the engine to backfire.

There was a trial to a jury, resulting in a verdict and judgment for appellee for $25,000.

Appellant first says that its request for a directed verdict should have been given for two reasons: (a) “Appellee failed to show that his injury was due-to the negligence of appellant, and (b) appellee clearly assumed the risk.” We cannot sustain appellant in this assignment for either of these reasons. The evidence was ample to support the finding of the jury that appellant was negligent in that the threads of the lug bolts which fasten the wyco to the engine had become worn, the bolts loose, and the wyco unstable. It was further shown that in this condition the vibration of the engine would cause the wyco to drop or sag slightly, which brought the instrumentality for making and breaking the spark closer to the cam or eccentric, thereby causing the spark to be emitted too soon, and that this would cause the engine to backfire. Appellee knew that the wyco was somewhat loose a few days before the accident, notified appellant thereof, and received a promise that it would be repaired at once. A day or two before the accident he saw a repairman working on this engine, and was assured by bim that he would have no more trouble with it.

Appellant says that appellee is uncertain as to what caused the engine to backfire; that this kind of engine will backfire if the wyco slips down, or if the timing gear comes loose. But we fail to find any evidence that there was anything wrong with the timing gear. On the contrary the evidence is quite definite and certain that the backfire was occasioned because of the condition of the wyco. Therefore the case of St. L. S. F. R. Co. v. Smith, 179 Ark. 1015, 19 S. W. (2d) 1102, has no application against appellee. We there said that: “Juries are not permitted to base verdicts on mere conjecture or speculation. There must be substantial testimony of essential facts, or facts which would justify a reasonable inference of such essential (facts, on which to base a verdict, before it will be permitted to stand.” But in this case we have the essential facts, testified to by many witnesses, on which to base a verdict. Moreover, the proof shows that the defects in the lug bolts were such as would require an inspection to discover. They were not patent, but hidden. True, appellee knew the wyco was somewhat loose, but had been promised that it would be repaired, and a repairman had worked on the engine, and advised him it would give no more trouble. The law in this State, and generally, is that the employee does not assume the risk of injury caused by a defective piece of ¡machinery or appliance in cases where the master has promised to repair and during a reasonable period of time in which to •make repairs, or until the lapse of such a period of time after the promise as would preclude all reasonable expectation that it would be done. Western Coal & Mining Co. v. Burns, 84 Ark. 79, 104 S. W. 535. Of course, if the machinery or appliance is so obviously dangerous that a reasonably prudent person would not use it at all, the master is relieved of liability. Newport Mfg. Co. v. Alton, 130 Ark. 542, 198 S. W. 120; Pekin Coop. Co. v. Duty, 140 Ark. 135, 215 S. W. 715. In Newport Mfg. Co. v. Alton, supra, appellee was injured by his hand coming in contact with a saw with two defective saw teeth which he had been operating four months on a promise to install a new saw as soon as possible. It was held that appellee had not as a matter of law assumed the risk.

In this case appellee had worked only a few days after promise to repair, did not know it had not been repaired, but, on the contrary, was justified in believing it had been repaired.

Appellant complains of instructions 4 and 6 given at appellee’s request. We do not set No. 4 out, as it would unduly extend this opinion. It is a correct declaration of the law relative to the rights, duties and liabilities as between employer , and employee in working with defective machinery where there has been a promise to repair. As we read the instruction, it is in exact accord with the principles of law already stated, and we will not repeat them. We find no error in this instruction.

Instruction No. 6 is short, and is as follows:

“You are instructed that the law furnishes you no measure of damages for physical pain and suffering, and the amount to be assessed by you, if you find for the plaintiff, on account of physical pain a,nd suffering, if any, must be left to your sound discretion and good judgment, based upon the evidence in the case.”

In St. L. I. M. & S. R. Co. v. Dallas, 93 Ark. 209, 124 S. W. 247, an instruction was given as follows: “The law furnishes you no measure of damages for pain and suffering. The amount to be assessed by you, if any, must be left to the sound judgment and fair discretion of the jury.” This was assigned as error. In disposing of it against appellant’s contention it was there said: “The instruction is to some extent ambiguous and misleading in this, that it might he inferred from it that the .jury should render a verdict for any amount they deemed right for pain and suffering, regardless of the evidence. But the defect could have been cured by a specific objection.

“While, as we have said, it is difficult to fix a meas-' ure of damages for pain and suffering, for the reason that none would be an acceptable inducement to suffer it, yet, in determining the amount of compensation for it, the jury must be governed by the evidence in the case.”

While there was a specific objection here, the last words of the instruction, “based upon the evidence in the case,” save it from the error pointed out in St. L. I. M. & S. R. Co. v. Dallas, supra. We conclude therefore that no error was committed in giving this instruction.

It is finally insisted that the verdict is excessive. There is nothing in the record to show that the jury was influenced against appellant by passion or prejudice. On the other hand, appellee is only twenty-five years old, with an expectancy of nearly thirty-nine years, based on American experience tables, and was working seven days per week at $5.50 per day. The evidence given on his behalf showing the nature and extent of his injuries was evidently accepted by the jury. It shows that he has not only suffered great pain and anguish, but that he will continue to so suffer. It shows that he is totally and permanently injured in both the muscular and nervous systems. We will not undertake to set out in detail the evidence on the subject. We have examined it carefully, and it has given us no little concern. If appellee is totally and permanently disabled, and the evidence is sufficient to sustain the jury’s finding and verdict that he is, then the verdict is not excessive.

We find no error, and the .judgment is affirmed.