author: Wood, J. Wood, J.,

text:
    Sadler v. Campbell.
    Opinion delivered November 28, 1921.
    1. Quieting title — common source of title. — Where plaintiff and defendants derive their titles to land from a common ancestor, defendants cannot challenge the source of plaintiffs’ title, though she acquired possession of the land by virtue of a void decree in partition.
    2. Descent and distribution — ancestral estate. — On the death of an heir intestate and without issue, lands descended from the mother ascend to the mother’s heirs, under Crawford & Moses’ Dig. § 3480.
    3. Curtesy — nature of estate. — Curtesy at common law is a life estate which a husband acquires, upon the birth alive of lawful issue of the marriage, in all the lands of which his wife was seized in fee; the estate being initiate upon marriage, seizin and birth of issue, and becoming consummate upon the death of the wife.
    4. Adverse possession — possession of life tenant. — Since the deed of a life-tenant, though purporting to convey the fee, conveys merely the right to possession and to the rents and profits during the grantor’s life, the possession of the grantee thereunder during the grantor’s lifetime cannot become adverse to a remainderman.
    5. Equity — laches.—One who seeks relief in equity to which he is entitled at law, and which is not barred by the statute of limitations, is not barred by laches.
    6. Appeal and error — presumption.—Where the answer to a bill to quiet title alleged the making of improvements by defendants, but there was no evidence as to such improvements, a decree was rendered quieting title in plaintiff without awarding the value of such improvements, it will be assumed on appeal either that the issue as to the improvements was abandoned or that there was no proof to justify a judgment for such improvements.
    7. Quieting title — allegation of improvements. — A denial of allegations of the answer as to improvements is not necessary, but such allegations are in issue without a formal denial and must ■ be proved by the defendants.
    8. Judgment — res judicata. — A decree in a former suit to which the parties to a pending suit were strangers is not binding on them.
    9. Quieting title — title of plaintiff. — Where the parties to a suit to quiet title do not deraign title through a common source, the plaintiffs, to recover, must deraign title from the government.
    Appeal from Yell Chancery Court, Dardan elle District; Jordan Sellers, Chancellor;
    reversed in part.

      Dmis & Bohlinger, Parker c& Lee and Evans dc Evans, for appellants.
    Mrs. Wooten never acquired any title to the lands involved. On the death of Ruth Ann Keywood, these lands, inherited by her from her father, ascended to the nearest lineal ancestor in the paternal line, if living, and if dead, to his collateral heirs, and did not vest in the heirs of Ruth Ann’s mother. Therefore, neither the Price nor the Vicker heirs inherited any interest. Kirby’s Digest, § 2645; Id. § 2636, clause 3; Id. § 2646; 15 Ark. 555.
    She acquired no title by the order of the circuit court allotting to Sarah Price half of the land involved in this suit, because, first, the land in section 14 was never mentioned in the partition proceedings; second, the title never having been put in issue, that order did not vest title nor color of title in her. 96 Ark. 89; Thompson, Title to Real Property, § 670; 70 Ark. 432; 71 Id. 544. Third, Mrs. Wooten was dead at the time the allotment was made in the name of Sarah Price, and the allotment was therefore a nullity. 36 Ark. 456. Fourth, the order of partition was void, and no title conld be based upon it. 15 Cye. 42, note 61; 3 Johns 459; 26 Barb. 499; 12 S. W. 784; 23 Cye. 926, 931; 5 Am. Eng. Enc. of L. 1st Ed., 432; 17 Id. 1st Ed., 810; 23 Cye. 919; Id. 963; Id. 1073, 1074; 48 Ark. 151; 101 Ark. 390; 60 Id. 369; Kirby’s Digest §§ 5771, 5772.
    At no time during the life of Mrs. Wooten was she seized of an estate of inheritance in the Keywood land, nor had she at' any time a right to the possession of the freehold. Her husband, therefore, acquired no curtesy right in that land. 64 Ark. 357; 4 Am. & Eng. Enc. of L. 1st Ed., 961, 963.
    Appellee is barred by the statute of limitations. Her right of action, if any, accrued at the date of the death of Newton Wooten, and, that right not having been asserted within seven years of his death, it is barred. Kirby’s Digest, § 5056.
    Appellee is not an heir of Newton Wooten. If he inherited from his mother, the title ascended at his death to his mother’s heirs as prescribed by § 2645, Kirby’s Digest. As to Mrs. Wooten’s heirs see Kirby’s Digest §§ 2636, clause 3, 2646, 2648. The nearest lineal and paternal ancestor of Mrs. Wooten was Isaac Price, her father. He being dead, the estate, if any, was transmitted through him to his only daughter, Mrs. Mc-Crackin, and not to the heirs of James Vickers nor to the heirs of the mother, Mrs. Vickers. 15 Ark. 555, 591. Mrs. Campbell, the appellee, being of the half blood in the maternal line, is postponed to. the paternal line. Id.

    The burden was on appellee to show her title. Kirby’s Digest § 2742. It is not true, as she alleged, that both parties trace title to the same source.
    Perry, who held under color of title, by virtue of a warranty deed from Mrs. McCrackin and her husband and W. P. Wooten, acquired title by adverse possession, and Sadler likewise acquired title by adverse possession from the date.of Perry’s deed in 1891 to the time this suit was instituted.

      ' If appellee was entitled to judgment, then, under the allegations of the answer, not denied by the plaintiff:, the defendants were entitled to judgment for improvements, and possession should not have been awarded until said cost was paid. Kirby’s Digest, § 2754; 48 Ark. 183; 120 Id. 620; 64 Id. 645.

      Says & Ward, for appellee.
    It having been proved that the plaintiff and the defendants deraign title from the same, source, to-wit: Sarah Price Wooten, defendants cannot assail that title, and plaintiff is not bound to trace title beyond the common source. Even if the partition proceeding in the circuit court was a nullity, defendants cannot question it. 41 Ark. 21; 44 Id. 517; 109 Id. 500; 137 Id. 170; 106 N. C.' 553; 11 S. E. 322; 54 Gfa. 6,89; 7 A. L. R. 860; 145 IT. S. 36.7; 21 S. W. 299.
    •Appellants are concluded by the judgment in partition. C. & M. Dig. § 8108.
    Even without a judgment of court dividing the lands, the parties themselves having agreed upon the partition, and-each having gone into possession, and the same having been acquiesced in for fifty years, appellants are now estopped to deny such division. 84 Ark. 584; 121 Id. 197; 77 Id. 309. ■
    Notwithstanding the deed of W. P. Wooten to J. K. Perry purported to carry the fee simple title in the lands, Perry acquired thereby only the right of possession thereof for the lifetime of Wooten. "35 Ark. 84; 43 Id. 427; 58 Id. 510; 117 Id. 371; 126 Id. 1; 60 Id. 74.
    Appellee is not barred. The statute does not run against the reversioner until the death of the life tenant. 35 Ark. 90; 44 Id. 490; 58 Id. 510; 60 Id. 7. The possession of the life tenant or his grantee is not adverse to the reversioner or remainderman. 5i8 Ark. 510; 128 Id. 342; Smith v. Maberry,. 148 Ark. 216.
    W. P. Wooten held the lands, not adversely to, but in subordination to, the rights of appellee. 97 Ark. 33; 33 Id. 633; 42 Id. 118; 58 Id. 142.

      As to the heirs of Newton Wooten and of his mother, the statutes referred to by appellants are not applicable; but the inheritance goes in accordance with § 2645, Kirby’s Digest, being § 3480, O. &' M. Digest; 129 Ark. 7; Id. 573.
    Appellants, without having made proof supporting the allegations as to betterments, were not entitled to judgment therefor. 13 Ark. 88; 41 Id. 394.
   Wood, J.

This is an appeal from a decree of the Yell Chancery Court in favor of the appellee against the appellants. The decree adjudged that the appellee was the owner and entitled to the possession of an undivided one-fourth interest in the S% of the SE14 of section 15, (designated in the record and hereafter called the “Key-wood Place”) and the SW14 (fr.) of section 14 in township six north, range 19 west, and the accretions thereto. The decree also awarded the appellee judgment in the sum of $700 as her portion of the rents and profits with interest thereon at the rate of six per cent, per annum from the rendition of the decree, less $19.50, taxes for the years 1919 and 1920. While the decree awards to the appellee an undivided one-fourth interest in the SW fr. 14 of section 14, and the accretions thereto, the appellee, in her brief, has abandoned here her claim to this tract, for she says that “by the judgment of the circuit court of Yell County rendered in 1870 to Evaline Vickers and James Vickers jointly were set apart the NV2 of the SW% of section 36, T. 6 N. R. 20 W. This was the Tipton tract, being seventy-four acres, * * * * and to Laura McCrackin and Sarah Price, sisters, jointly, the commissioners set apart the S1/^ of the SE14, section 15-6-20, known as the “Iveywood tract, being sixty-six acres. ’ ’ Again she says: “This Keywood tract is the land involved in this suit.”

The appellee instituted separate actions against the appellants, one in the chancery court, September Í9,1919, and the other in the circuit court of Yell County. The purpose of these actions was to have the appellee adjudged the owner and entitled to the possession of the lands in controversy. The action at law was transferred to the chancery court and consolidated with the cause pending in that court, and the consolidated cases proceeded to a trial and decree in the chancery court.

The appellee alleged in her complaint, among other things, that she and the appellants deraigned title from a common source as follows: “That the original owners of said lands from whom plaintiffs and defendants deraigned title were Laura Vickers and Miss Ruth Ann Keywood; that Laura Vickers was the mother of the following children, who were her heirs at law, her husband being dead at the time of the partition of her lands: 1st. Lavina Price, who married E. L. McCrackin. 2nd. Sarah Price, who married W. P. Wooten. 3rd. James Vickers, who died without issue. 4th. Evaline Vickers, this plaintiff, who married W. S. Campbell in January, 1874, and since and now is, a married woman. 5th. Ruth Ann Keywood, who with her mother was the owner of said lands; that Ruth Ann Keywood was never married, died in 1867, about eighteen years of age, without issue, leaving the first four children, her sisters and brother of the half blood on her mother’s side as her only heirs at law; that, on the death of Laura Vickers and Ruth Ann Keywood, said- lands descended in equal parts to Lavina McCrackin, Sarah Price, James Vickers, and plaintiff, who held same as tenants in common.

That at the November term, 1870, of the chancery court of Tell County, Arkansas, Lavina McCrackin, Sarah Price, James Vickers and Evaline Campbell filed a petition for the partition and division among them of said lands, and other lands, alleging that they were the only heirs at law of Laura Vickers and Ruth Ann Keywood, both deceased, who at the time of their death were owners of raid lands, end the court appointed commissioners to partition said lands among the four tenants in common. ’ ’

Then follows an allegation that the lands were partitioned by the circuit court of Tell County, and the title to the lands vested in fee simple in Lavina McCrackin and Sarah Price, giving to each an undivided one-half interest. The complaint then alleged that Sarah Price married W. P. Wooten after the lands had been set apart to her as above ; that one child, Newton Wooten, was born to them; that Mrs. Wooten died in 1871 intestate, leaving surviving an infant son, Newton Wooten, and her husband, W. P. Wooten; that at the time of her,death she was the owner of an undivided half interest in the lands which descended to her son, Newton Wooten, subject to the curtesy of her husband, W. P. Wooten; that Newton Wooten lived three days after the death of his mother, and at his death his interest in the lands vested in fee simple subject to the curtesy rights of W. P. Wooten, his father, in his material aunts’ and uncle as above; that his uncle James Vickers, died intestate and without issue, leaving as his only heirs at law his sister of the half blood on his mother’s side, Lavina McCrackin and plaintiff, his father being dead; that James Vickers at the time of his death was the owner as the heir of Newton Wooten of an undivided one-sixth interest in said lands, which thereupon became vested in Lavina McCrackin and plaintiff, subject to the curtesy of W. P. Wooten; that in 1883 W. P. Wooten and his then wife, Mary E., and Lavina McCrackin and E. L. McCrackin executed a deed to J. K. Perry; that, at the time,of the execution of this deed, W. P. Wooten had a life estate only in an undivided one-fourth interest in the lands, and by said deed conveyed such interest to J. K. Perry; that Perry in 1891 conveyed the lands to Elizabeth C. Sadler and Rufus Sadler under whom appellants claim; that W. P. Wooten died in 1919, and upon his death the plaintiff was entitled to immediate possession of an undivided one-fourth interest in the lands. She prayed that the lands be partitioned, and, if this could not be done, that, they be sold; that she have the portion of the lands or the proceeds of the sale to which she was entitled, and have judgment for rents and profits.

In their answer the appellants denied all the material allegations of the complaint. They deny that they were tenants in common with the appellee; deny that she had any right, title, or interest in the lands; deny that she had ever been in possession of same with or without color of title. They admit the appellants claim the lands by virtue of the will of Elizabeth C. Sadler. Among other things, they allege that John T. Keywood died seized and possessed of the lands; that he left surviving him his widow, Laura Keywood, who afterwards married James Vickers, and had by him two children, plaintiff and her brother, James Vickers, Jr.; that Keywood, at his death, left surviving him his daughter, Ruth Ann, his only child and heir at law, and his widow, Laura Key-wood; that the only interest Laura Keywood, afterward Vickers, had in the land was a dower interest; that at the death of Keywood the lands descended to his daughter, Ruth Ann Keywood; that Mrs. Laura Keywood Vickers died- before Ruth Ann Keywood, and that at the death of Ruth Ann Keywood the lands vested in her paternal uncle, and aunts, to-wit, Jeff Keywood, and -others, and not in the half sisters and half brother of Ruth Ann Key-wood.

The appellants set up that the partition under which the appellee claims title through Ruth Ann Keywood was void and was obtained by fraud practiced on the court. They allege that at the time of the approval of the report of the commissioners appointed to partition the lands’under that judgment, Mrs. Sarah Price, then Wooten, and her son, Newton Wooten, were dead; that the title of the heirs of John T. Keywood who inherited the lands from him was not put in issue and was not divested by that judgment of partition, and that Sarah Price Wooten acquired no title or right of possession to the lands, and hence none descended from them to the plaintiff (appellee.) They deny that Sarah Price Wooten obtained title by purchase from Ruth Ann Keywood, but say that, if so, then on the death of Newton Wooten the lands would vest in the father of Sarah Price Wooten and descend at his death to his daughter, Mrs. Lavina McCracldn. They deny that the plaintiff obtained title by the statute of limitations. They deny that the plaintiff and the defendants claim under the same source of title, and allege that Wooten and Lavina McCrackin obtained title through the heirs of Ruth Ann Keywood; that they entered into possession of the same and held the same adversely for more than seven years, and had title by limitation in 1883, when they conveyed the same to James K. Perry; that if Newton Wooten, at his death June 15, 1871, owned an undivided interest in the lands and the plaintiff and her half brother inherited such interest, they were at that time entitled to the possession, and plaintiff,being at that time a single person, the statute of limitations began to run against her in favor of Wooten and Lavina McCrackin, who were then in possession of the lands; that they acquired title by such adverse possession, which title was conveyed by them to Perry and by him to Mrs. Elizabeth C. Sadler, who willed the lands to appellants.

The appellants set up title by adverse possession and pleaded the statute of limitations and laches. Such are the issues. The evidence adduced at the trial established the following facts', which are uncontroverted.

Miss Laura Tipton was thrice married; first, to Isaac Price, then to John T. Keywood, and then to James Vickers. By her first husband she had two daughters, Lavina, who married E. L. McCrackin, and Sarah, who married W. P. Wooten. By Keywood she had one daughter, Ruth Ann, and by Vickers she had two children, James Vickers, Jr., and Evaline, who married W. S. Campbell in the year 1874. John T. Keywood, the owner in fee of the “ Key-wood place” died about the year 1852. Laura Price Keywood Vickers died in 1864, and Ruth Ann Keywood died in the year 1868 intestate and without issue. At the November term in the year 1870 Lavina McCrackin and her husband, Sarah Price and James and Evaline Vickers, minors, through their guardian, filed in the circuit court a petition for the partition of the “Keywood pláce” and other lands, alleging that they were the only persons interested therein, and no others were made parties. The court entered a judgment at that term for a partition of the lands described in the petition and appointed commissioners and directed them to make a partition and report at a subsequent term of the court. The commissioners made the partition and set aside the “Keywood place” to Lavina McCrackin and Sarah Price. Their final report was made November 8, 1871, and the same was approved by the court on that day.

After the judgment for partition, but before the final report of the commissioners was made to and approved by the court, Sarah Price married W. P. Wooten. To them was born a son, Newton Wooten. The mother died about the 12th of June, 1871, in childbirth, leaving her son and only issue Newton Wooten, who survived her only three days. James Vickers died in the year 1882 without issue.

The appellants contend that Sarah Wooten did not during her lifetime take possession of the lands set apart to her by the commissioners under the partition decree.

The appellee testified that, after the land w;as divided, Lavina McCrackin and Sarah Price Wooten took possession of the Keywood farm; that they were in possession and renting the same at the time of Mrs. Wooten’s death; that after her death her husband, W. P. Wooten, took possession of Mrs. Wooten’s part and controlled it until he sold it to Perry.

By agreement between the parties evidence contained in a transcript of the record before the Supreme Court in an action between Mrs. James K. Perry and R. C. Sadler was considered by the chancery court herein. In that case W. P. Wooten testified that he was a joint owner with E. L. McCrackin and Lavina McCrackin of a tract of land in Yell County known as the “Keywood Place,” (describing it). “I was,” he says, “joint owner of the above-described land. Said lands were inherited by my wife and the wife of E. L. McCrackin. At the time of the conveyance made by McCrackin and myself, my wife was dead, and my interest in the land at that time was the interest of a child born during the marriage, who died soon after its mother’s death. In 1883 McCrackin and his wife and myself sold the ‘Keywood Place’ to James K. Perry.”

In that case a warranty deed dated May 16, 1883, was also in evidence conveying the “Keywood Place” as above described to James K. Perry from E. L. Mc-Crackin and wife and W. P. Wooten and wife. Perry took possession under said deed and held the same until the 9th of June, 1891, when he (Perry) conveyed to R. C. and Elizabeth Sadler, under whom the appellants claim, and the Sadlers have been in possession ever since.

The first question'for our consideration is: Do the appellee and the appellants deraign title from a common source? The testimony of the appellee shows that Mrs. Sarah Wooten and Mis'. McCrackin took possession of the “Keywood Place” that was set apart to them by the commissioners appointed by the court to make the partition of this and other lands; that they were in possession of the same and owned it at the time of Mrs. Wooten’s death. The testimony of Wooten was to the effect that the Keywood farm was inherited by his wife and the wife of McCrackin, and that at the time of the conveyance made by him and McCrackin and wife to Perry, his (Wooten’s) interest in the land was that of a child born during his marriage to Sarah Price, which child died soon after his mother’s death. While Wooten was mistaken as to the nature of the estate he held in the land, his testimony shows unmistakably that the estate he claimed was derived from his wife, Sarah, at the time of her death. . The .undisputed testimony shows that James K. Perry went into possession of the land under the warranty deed executed to him by E. L. McCrackin and wife and W. P. Wooten. We conclude, therefore, that the appellee and the appellants trace their title to the land in controversy to a common source, to-wit, Sarah Price Wooten. Such being the fact, even though the judgment in partition, under which Mrs. Wooten obtained possession of the land, be void, and even though she acquired no title thereunder, nevertheless appellants cannot challenge the source of her title. Stafford v. Watson, 41 Ark. 18, 21; Freisler v. McKennon, 44 Ark. 517; Wood v. Freeman Lumber Co., 109 Ark. 499; Eichoff v. Scott, 137 Ark. 170, 173, 174; Cox v. Hart, 145 U. S. 376; Bonds v. Smith, 106 N. C. 553; Scott v. Singer, 54 Ga. 689, and numerous cases cited in note to Jenkins v. Marston, 7 A. L. R. p. 860. Since the appellee and appellants claim from a common source, it was only necessary for the appellee to prove that her title was superior to that of the appellants. This she has done, for when Mrs. Sarah Wooten died intestate, her son Newton inherited her interest in the “Keywood Place,” and at his death without issue this interest in the lands ascended or passed to his material aunts and uncle. Sec. 3480, C. & M. Digest; Kelley’s Heirs v. McGuire, 15 Ark. 555; West v. Williams, 15 Ark. 682; Oliver v. Vance, 34 Ark. 564; Campbell v. Ware, 27 Ark. 65; Coolidge v. Burke, 69 Ark. 238; Carter v. Carter, 129 Ark. 7 and 573.

Although Wooten, in his testimony, designated the interest he held in the land as that of' a child bom during his marriage to Sarah Price, this was a mistake' of law on his part, for Wooten did not inherit any interest from his wife, nor, as we have seen, did he inherit any interest from Ins son. The interest which'Wooten acquired in the Keywood Place was that of curtesy. Curtesy at the common law is an estate for life which the husband acquires upon the birth of lawful issue of the marriage born alive and capable of inheriting, in the lands or tenements of which his wife is seized in fee simulo or in tail. Owens v. Jabine, 88 Ark. 468. See also Smith v. Maberry, 148 Ark. 216. Curtesy becomes initiate upon marriage, seizin, and the birth of issue, and becomes consummate when added to tie above requisites is the death of the wife. 1 Washburn on Real Estate, Sec. 313; 17 C. J. 413 et seq_. 416-421; 8 R. C. L. p. 387, Secs. 1-6 inclusive. “Seizin is either in deed or in law. Seizin in deed in actual possession. ’ ’ Tate v. J ay, 31 Ark. 576. See also McGuire v. Cook, 98 Ark. 118.

Mrs. Sarah Wooten and Mrs. McCrackin took possession of the “Keywood Place” in 1870, and Mrs. Sarah Wooten was in possession when she married W. P. Wooten and remained in possession until she died in 1871. As we have seen, Mrs. Sarah Price Wooten was the common source of title, and at the time of her marriage to W. P. Wooten was in actual possession of the land in controversy, and after her marriage a son was born alive and capable of inheriting from her. This all occurred before the married woman’s statute (1873) and the Constitution abolished the curtesy initiate. Therefore, W. P. Wooten had such curtesy, which, upon the death of his wife, Sarah, in 1871, became consummate. Loyd v. Planters’ Mutual Ins. Co., 80 Ark. 486; Neeley v. Lancaster, 47 Ark. 175; Hampton v. Cook, 64 Ark. 353. As the estate of curtesy in W. P. Wooten was only a life estate, it was inferior to the estate which the appellee inherited upon the death of Newton Wooten.

This brings us to the consideration of the questions as to whether or not the appellants have acquired title by the seven years statute of limitations, and whether or not the appellee is barred by that statute and by laches, all of which questions we will consider together. Although the deed from W. P. Wooten purported to convey to J. K. Perry the fee in the Keywood place, nevertheless he could not convey a greater estate than that of which he was possessed. Therefore, the deed of W. P. Wooten purporting to convey the fee to Perry in fact conveyed to him the right to the possession and rents and profits of the lands during Wooten’s life only. Morris v. Edmunds, 43 Ark. 427; Smith v. Maberry, supra. W. P. Wooten having the right to the possession of the lands during his life, the appellee could not institute an action to recover her interest which was inherited from Newton Wooten until the death of the life tenant, W. P. Wooten.

It is well established by the decisions of this court that “neither the possession of the life tenant nor his grantee by any possibility can become adverse to the reversioner or the remainderman for the reason that such possession is not an interference with the rights of the latter.” Smith v. Maberry, supra, The appellee instituted an action to recover her interest in the “Keywood Place” in less than one month after the death of W. P. Wooten, the life tenant. She is seeking relief to which she is entitled at law, and is therefore neither barred by the statute of limitations nor by laches. Smith v. Maberry, supra. Lesser v. Read, 142 Ark. 320; Galloway v. Battaglia, 133 Ark. 441; Anders v. Roark, 108 Ark. 248; Neeley v. Martin, 126 Ark. 1; LeSieur v. Spikes, 117 Ark. 366; Ogden v. Ogden, 60 Ark. 74; Moore v. Childress, 58 Ark. 510; Padgett v. Norman, 44 Ark. 490; Morris v. Edmund, supra; Banks v. Green, 36 Ark. 84.

There is an allegation in the answer to the complaint in the chancery action that the appellants, ■ believing themselves to be the owners, had made valuable improvements on the land to the value of $1,000, and that plaintiff had not tendered one-fourth thereof nor offered to pay for the improvements nor the taxes paid thereon by the defendants before instituting her action against them. There is no allegation of this kind in the answer to appellee’s action at law. The answer concludes with a prayer that the judgment of the court in partition rendered in 1870 and the approval of the report of the commissioners in that action be cancelled and set aside, and that the appellee’s complaint be dismissed, and that the appellants have judgment for costs and for such other relief as in equity and good conscience they are entitled to. We do not find that the appellee denied the allegations of the answer as to the improvements and taxes. But there is no evidence in the record as to the amount appellants expended for improvements. It does appear that the court in its decree rendered judgment in favor of the appellee in the sum of. $700 less $19.50, taxes for the years 1919 and 1920. Since the court had under consideration the amount claimed for rents and taxes and rendered a decree in favor of the appellants, the court, we must assume, did not render any decree in favor of the appellants for the improvements claimed because that issue was abandoned, or because there was no proof in the record to justify a judgment in appellant’s favor for improvements. A denial of the allegations of the answer as to the improvements and taxes was not called for under the betterment statute. That allegation was in issue without a formal denial thereof, and it was incumbent on the appellants to prove the allegations in order to entitle them to a judgment thereon. Sections 3703-3704, Crawford & Moses’ Digest.

As we view the statements made in brief of counsel for the appellee concerning the land in section 14 and the accretions thereto for which appellee obtained a decree against the appellants, the appellee has abandoned her claim to those lands.

• Therefore, the decree as to the lands in section 14 should be reversed, and remanded, and appellee’s complaint as to that tract dismissed, and appellant’s title to that tract quieted. It is so ordered. The decree in all other respects is correct, and it is affirmed.

Justice Hart not participating.

Wood, J.,

(on rehearing). On reading the petition and brief of the appellee for rehearing, we are convinced that we were in error in holding that the appellee had abandoned her rights in the decree to the SW frl. % °f Sec. 14-6-20, and this conclusion makes it necessary to consider whether or not the decree of the court was correct in awarding the appellee an undivided one-fourth interest in the SW frl. % of section 14-6-20. Upon an examination of the record as to this tract we find that the appellants and the appellee do not trace their title to this particular tract to a common source. The appellee traced her title to the Key wood place to a suit in partition in which, by the judgment of the circuit court of Yell County at its November term, 1870, the court awarded to Lavina McCraekin and Sarah Price, sisters jointly the S% of the SE 14 of section 15-6-20, known as the “Keywood tract,” .being 66 acres. It will be observed that this decree, from which the appellee deraigns her title, did not adjudge to Mrs. Sarah Price Wooten, through whom the appellee claims, any title whatever in any lands in section 14.

After the judgment for partition, but before the final report of the commissioners was made and approved, W. P. Wooten married Sarah Price. Sarah Price Wooten took possession of the lands awarded her under the partition decree. She died about June 12, 1871, after the birth of a son by Wooten. After her death, W. P. Wooten again married. On May 16, 1883, Lavina McCraekin and her husband, E. L. McCraekin and W. P. Wooten and his then wife, Mary E., joined in a warranty deed in which they conveyed the “SV2 of the SEi/j, of Sec. 15, township-N., and range 20 west, containing 66 acres more or less” to James K. Perry. On the 9th of June, 1891, James K. Perry and wife conveyed to Mrs. Elizabeth C. Sadler for her natural life and Rufus C. Sadler, and his heirs and assigns forever in remainder after the death of Elizabeth C. Sadler, the following described land in the Dardanelle District of Yell County, Arkansas, to wit: “The S— of the E fr. containing 68 acres more or less, and 32 acres off of the south side of the N% of the SE fr. all in Sec. 15, tp. 6 N. of base line, and range 20 west of the fifth principal meridian, making in the aggregate 100 acres more or less.”

It will be noticed that the deed from McCraekin and wife and Wooten and wife does not convey to Perry any lands in section 14, but only 66 acres in section 15, describing it; nor does the deed from Perry to the Sadlers convey any land whatever in section 14. After these deeds passed, the Sadlers claimed that Perry should have conveyed to them, and intended to convey to them, a small tract of .62 of an acre described as the SW fr. 1/4 of section 14, Tp. 6 N., R. 20 W., and its accretions, and in a snit between Perry and the Sadlers it was so held. Perry v. Sadler, 76 Ark. 45. In that snit it was shown that Perry and Sadler entered into a written contract containing, among others, the following clause: “Said Perry to deed unencumbered to said Sadler, the Keywood place, say about 618 acres more or less, and 32 acres off lower side of Brown place along the upper side of the Keywood place.” The court, in that case, said: “It is indisputably shown that it was an unintentional oversight in the conveyance to Perry and from Perry to Sadler that said fractional quarter' section of section 14 was not included. It was a small wedge-shaped tract running almost to the dwelling house on the Keywood place, including part of the yard and garden. This part of it was enclosed with other land, and all of it under control of the owner of the Keywood place. The parties did not know that this fraction did not pass under the deeds, as they supposed all of this land was in section 15, and it was clearly shown that it was intended to be conveyed.” After quoting the above, counsel for the appellee say: “The Supreme Court has held and declared that the SW fr. % of section 14 is a part of the Keywood place.” But the appellee was not a party to that suit, and neither she nor the appellants in this case are bound by that decision. That decision could not settle the rights of the parties to this litigation, and the appellee could not use that decision as proof that the lands in section 14, which she now claims, were embraced in the “Keywood place” which was partitioned to Sarah Price and Lavina McCrackin. The decision of Perry v. Sadler, supra, was not competent to show that Mrs. Sarah Price Wooten ever acquired any possession to tlm lands in section 14. She and Mrs. McCrackin, so far as the parties to this suit are concerned, must be held under the partition decree to have taken possession of the “Keywood place” described as in section 15 and not in section 14. Wooten, by his curtesy rights, acquired only such possession as his wife, Sarah Price Wootm, had. lie and Mrs. McCrackin conveyed the lands to Perry in section 15 and not in section 14, and Perry likewise conveyed to the Sadlers the land in section 15 and not in section 14. So, as far as the record evidence of title is concerned, there is an utter absence of proof to show that the parties to this lawsuit deraigned title to the lands in section 14 from a common source. Such being the case, before the appellee could have her title quieted and dispossess the appellants of the lands in section 14, it devolved upon her to show that she had perfect title by tracing same back to the government. This she has wholly failed to do. It follows that the decree of the chancellor as to the lands in section 14 was erroneous and must be reversed for the reason now given. The appellee’s motion for a rehearing as to this tract is therefore overruled.

The appellant’s motion for rehearing as to the lands in section 15 is overruled. Mrs. Sarah Price Wooten was the common source of title as to this tract. Therefore, appellants are not allowecl to challenge her title or to inquire of its source. When she died, her son Newton inherited her estate. His estate was ancestral from her, and at his death, intestate, and without issue, his estate ascended to the line of the mother from whom he inherited, as stated in the original opinion.

The trial court, having rendered a decree in favor of the appellee for both the lands in section 14 and in section 15, awarded a judgment in favoh of the appellee in the sum of $700 as rents for both tracts. Since our conclusion is that the appellee is not entitled to a decree for the lands in section 14, it follows that she is not entitled to a judgment for rents as to this tract. There is no proof in the record from which we can enter a satisfactory decree as to the betterments, rents and profits when same are apportioned between the lands in sections 14 and 15. The decree of the chancellor in favor of the appellee in the sum of $700 for rents must therefore be reversed.

The decree therefore will be reversed as to the lands in section 14, and the cause remanded with directions to dismiss the appellee’s complaint for want of equity as to that tract and quiet appellants’ title thereto; and also with directions, if the parties are so advised, to allow'them to further develop the cause on the issue as to betterments, rents, 'and taxes. In all other respects the decree is affirmed.


source: Caselaw Access Project

author: Hart, J.

license: Public Domain

text:
    McHenry v. Vaught.
    Opinion delivered November 28, 1921.
    Usury — bonus paid to lender’s agent. — Where a lender’s agent, with the borrower’s knowledge, exacted from the borrower a bonus in addition to the highest lawful interest charged by the lender, this rendered the transaction usurious, and the contract is void.
    Appeal from Polk Chancery Court; J ames D. Shaver, Chancellor;
    affirmed.
    STATEMENT BY THE COURT.
    Carrie McHenry brought this suit in equity against Frederica Vaught and J. J. Vaught to foreclose a mortgage on 120 acres of land in Polk County, Ark., given to secure a note for $900. The defense was usury.
    According to the testimony of J. J. Vaught, the husband of Frederica Vaught, they resided on their farm comprising 120 acres in Polk County, Ark., during the year 1916, and ever since that time. E. S. Cox resided in Ft. Smith, Ark., and came to see them with regard to a loan on their.farm. They made an agreement with Cox to borrow $900 and give a mortgage on their farm to secure the same. Cox represented that he was lending money for F. B. Collins. Early in January, T. M. Miller came to inspect the farm and brought the note and mortgage for the Vaughts to execute. They signed a note for $900, dated January 7, 1916, payable to the order of F. B. Collins with interest at the rate of 6 per cent, per annum from January 15, 1916, until maturity, payable semi-annuallv, according to the tenor of the fourteen interest notes. The first of the interest notes was for $24.75, and the remaining thirteen interest notes were for $27 eaoh. They signed the mortgage on their farm to secure the principal and interest notes on the same day. Miller also presented to them a loan contract, which they also signed on the 7th day of January, 1916. This contract recites that R. S. Cox is appointed their agent to negotiate a loan of $900 for seven years. It was agreed to pay him as commissioner the sum of $252. $126 of this amount was in cash, and the remaining $126 was payable by two notes for $63 each due respectively January 1, 1917 and 1918. It was also agreed that these two notes should be secured by a second mortgage on their farm. Two or three months after the execution of these instruments, J. J. Vaught received $774. Several months thereafter F. B. Collins sent an additional $36 to Vaught, stating that a mistake had been made in that amount in the mortgage. This made $810 which was received 'by J. J. Vaught, and the whole amount was sent through the office of the F. B. Collins Investmen'- Company. Cox was not present when the noto and morfg’agn were executed. Cox transferred the loan contract signed by J. J. Vaught and wife to F. Gr. Tompkins.
    R. S. Cox was a witness for the plaintiff. According to his testimony, he assigned the loan contract to F. Gr. Tompkins, paid him the $126 cash, and retained the two notes for $63 each. During that year Cox was not an .agent for F. B. Collins, or for the F. B. Collins Investment Company. Since 1917, he had been inspector for F. B. Collins and for the F. B. Collins Investment Company on a salary. Cox admitted that he was not present when the note and mortgage were executed, but said that he had instructed F. Gr. Tompkins as to the nature of the contract he had with the Vaughts.
    F. B. Collins was also a witness for the plaintiff.. According to his testimony, in January, 1916, he was engaged in making farm loans. He agreed to purchase the loan made by F. Gr. Tompkins and R. C. Cox on a farm in Polk County, Ark., belonging to Frederica Vaught and J. J. Vaught. The loan was for $900. Collins did not have any interest in the second mortgage given to F. G. Tompkins to secure the $126. Collins sold his loan to the plaintiff, Carrie McHenry.
    T. M. Miller was the inspector of Collins, and approved the loan in question after it had been submitted to Collins by F. Gr. Tompkins. It was Miller’s custom to .follow the instructions of the agent for the borrower in drawing the notes and mortgages and looking after the execution of the same. Collins carried an account with F. B. Collins Investment Company, and in closing out his loans the proper officer of that company was authorized to pay out the money and charge the same to his account. This method of procedure was followed in this case. Neither R. S. Cox nor F. Gr. Tompkins were his agents in the premises. Collins had bougm, some loans submitted to him coming from Cox. F. G. Tompkins was treasurer of the F. B. Collins Investment Company at the time.
    The court found that Cox and Tompkins were the agents of Collins, and that the note sued on was void for usury. It was therefore decreed that the complaint of the plaintiff should be dismissed for want of equity.
    The plaintiff has duly prosecuted an appeal to this court.

      Pearson & Baird and Minor Pipkin, for appellant.
    When a borrower employs an agent or broker to negotiate a loan for him, and the compensation paid for such services, when added to the legal rate of interest, exceeds the highest interest allowed by law, this does not make the loan usurious. 27 R. C. L. 236, Sec. 3; 51 Ark. 534.
    The fact that the agent who negotiated the loan divided the compensation with the agent of the lender does not render the transaction usurious. 27 R. C. L. 237, Sec. 38; 46 A. S. R. 197, note.
    A loan is not rendered usurious by the lender’s agent charging a commission for procuring the loan without the lender’s knowledge or consent. 27 R. C. L. 237, § 39. Innocence and ignorance on the part of the lender is immaterial. Ibid.

    Usury ydll not be inferred where from the circumstances the opposite conclusion can be reached. 68 Ark. 162; 74 Ark. 253; 67 Ark. 74.
    Where the agent of a borrower in making a loan, having no connection with the lender, demands a commission for himself, this does not render the loan usurious, even though in excess of the highest legal rate. 141 U. S. 384; 35 L. Ed. 786; 12 Sup. Ct. 1; 61 Ala. 507 ; 33 Conn. 81; 90 HI. 952; 6 Bradw. (111.) 523; 89 Mo. 375; 1 S. W. 359; 81 N. Y. 351; 16 Hun. 209; 81 N. Y. 293; 66 N. Y. 544; 32 N. Y. 165; 21 N. Y. 219; 78 Am. Dec. 137; 14' Hun. (N. Y.) 537; 84 N. Y. 627; 64 Ark. 662; 43 S. W. 507.
    Brokerage in excess of legal interest cannot affect the principal when paid without his knowledge or consent. 141 U. S. 384, 35 L. Ed. 786,12 Sup. Ct. 1; 33 Fed. 636; 92 Ala. 163; 9 So. 143; 92 Ala. 135; 8 So. 388; 54 Ark. 573; 16 S. W. 575; 82 Ga. 299 ; 9 S. E. 1092; 7 S. E. 265; 133 111. 291; 24 N. E. 428; 133 Iff. 199; 24 N. E. 414; 23 Am. St. 603; 132 HI. 550; 24 N. E. 573; 110 111. 390; 66 Miss. 365; 5 So. 239; 29 N. J. Eq. 454; 28 N. J. Eq. 568; 28 N. J. Eq. 345; 18 N. J. Eq. 481; 16 N. J. Eq. 537.

      J. I. Alley, for appellees.
    If the lender knew of the usury or had knowledge of it, he is bound by it, and the contract is void. 51 Ark. 534; 132 Ark. 374; 54 Ark. 40; 54 Ark. 573; 51 Ark. 548; 51 Ark. 546.
   Hart, J.

(after stating the facts). The defendant signed a note for $900 dated January 7, 1916, payable to the order of F. B. Collins on the 1st day of January, 1923. The note bore 6 per cent, interest per annum, and the defendant signed fourteen interest notes payable semi-annually. Cox and Tompkins received $252 as commission.

Counsel for the plaintiff concedes that the commission paid Cox and Tompkins added to the principal and interest of the notes exceeds in amount the legal rate of interest and renders the contract usurious, provided Cox and Tompkins were the agents of Collins.

In Vahlberg v. Keaton, 51 Ark. 534, the court, in discussing whether or not a bonus paid to the agent of the lender constitutes usury, said: ‘‘The lender may receive for the forbearance of money ten per cent, per annum and no more. In'excess of that his agent can receive no bonus from the borrower. If the agent do receive from the borrower a bonus in excess of the highest lawful interest, either with his knowledge or under circumstances from which the law will presume he had knowledge, then the transaction is usurious; while, if the agent received the excessive bonus without his knowledge, and under circumstances from which his knowledge could not be reasonably presumed, the transaction would not be usurious. "What circumstances will raise the presumption of knowledge must be determined in each case in accordance with the principle by which knowledge is imputed to persons, in controversies generally. We will add now, that where a lender places money with an agent to be loaned, with the understanding that he must receive the highest lawful interest, and that the agent must look to the borrower for his commissions, the circumstances necessarily impute knowledge to the lender, of an usurious bonus received by the agent upon each loan.”

This rule has been steadily adhered to by the court ever since. Habach v. Johnson, 132 Ark. 374.

In Jones v. Phillippe, 135 Ark. 578, the court held that, where a loan of money was made at the highest rate of interest, and the lender, contemporaneously with the contract and as part consideration of it, received part of a bonus paid by the borrower to a broker for procurring the loan, the loan is usurious.

Here the lender did not receive the highest rate of interest, but it is conceded that the commission received when added to the interest amounted to more ■I han ten per cent, per annum on the amount received by the borrower. The question then is, were the commissions paid to Cox and Tompkins a part of -the interest? As we have just seen, to render a loan usurious on account of a commission paid to a broker or intermediary, it must appear that he was the agent of the lender and took the commission under authority, express or implied, from his principal.

• In the present case the borrowers agreed to pay Cox $252 as commission. Although Cox and Collins deny that Cox and Tompkins were the agents of Collins, the attending circumstances contradict them. Collins furnished the money directly to the borrowers. He was engaged in the farm loan business and paid all his loans to the borrower through the F. B. Collins Investment Company. Tompkins was treasurer of that company. Neither Cox nor Tompkins prepared or had anything to do with the note and mortgage in question. The note and mortgage'were prepared by T. M. Miller, the agent of F. B. Collins, who was sent to inspect the farm. At the same time he prepared the loan contract in which it was agreed to pay Cox $252 commission. Miller had never seen Cox, and did not have any instructions from him as to preparing this loan contract. If Tompkins and Cox were not the agents of Collins, neither Collins nor Miller were interested in securing the signature of the Vaughts to the loan contract to Cox. This contract was executed simultaneously with the execution of the notes and mortgage. Tompkins was the treasurer of the company through which the payment to the Vaughts was made, and, as such treasurer, it was his duty to keep the account of Collins as to farm loans. When the relationship of Tompkins and Collins is considered in connection with the attending circumstances, we are of the opinion that the transaction was a cloak for usury, and that the chancellor did not err in finding for the defendants. 1

Tompkins took a second mortgage on the land in question to secure his commission in the sum of $126. He brought suit to foreclose his mortgage, and the testimony was practically the same as in the present case. The chancery court held that the contract was usurious and void. Upon'appeal to this court the decree of the chancery 'court was affirmed. Tompkins v. Vaught, 138 Ark. 262.

It is true, as pointed out in that opinion, that neither Collins nor his assignee was party to the suit, and the decree in that case did not affect their rights. However, the substance of the transaction is the same. In that case the court said that the evidence justified the conclusion that the notes in controversy were executed purely as a bonus to the lender, or his agent, for making the loan, and that the contract was usurious.

No reason has been given for making a different holding here, and we can perceive none. Therefore, the decree will be affirmed.


author: Humphreys, J.

text:
    McGehee v. Oxner.
    Opinion delivered November 28, 1921.
    1. Partition — procedure.—While the statutory procedure in partition cases must he followed in a suit at law, such is not the case in equity, the statutory remedy being cumulative only.
    2. Partition — order op sale — validity.—Chancery courts may order a sale of property if necessary to effect an equitable division thereof among the owners upon evidence other than and wholly independent of a report of commissioners.
    3. Partition — conclusiveness op commissioners’ report. — Where partition is by equitable proceeding, the court may appoint commissioners, but their feport as to the necessity of sale for partition or as to the possibility of partition in kind is advisory merely, and not binding on the court.
    Appeal from Grant Chancery Court; J. P. Henderson, Chancellor;
    affirmed.

      Isaac McClellan, for appellant.
    The second report of the commissioners was set aside by the court for the same reason as the first, in direct conflict with C. & M. Dig., § 8107.

      The court has no authority to direct the commissioners to make partition until after hearing the evidence. The situation of the property, and not the circumstances of the parties, must control the court in determining whether there should he a partition in kind or1 sale: 54 Fed. Rep. 961; 40 Wis. 357. The commissioners act as judges, the whole power of the court being delegated to them for this purpose, and their action should be ratified or new commissioners appointed when their report is set aside. Every presumption is indulged in favor of the fairness of the report of the commissioners. 56 W. Va. 185; 19 N. J. Eq. 133.
    The court can make partition only on recommendation of the commissioners. In this case they did not recommend partition. Where this recommendation is based on evidence to support it, the court is absolutely justified in making the sale. 99 S. E. 325.
    A part of an estate can be partitioned and the balance sold, which might include timber. 52 W. Va. 559; 223 S. W. 376.
    The report of commissioners is conclusive unless based on erroneous principles or shown 'by clear preponderance of the evidence to have been grossly unequal and unjust, and the report can be impeached only for fraud, partiality or gross error of judgment. 191 Tex. 567.

      W. D. Browse and D. E: Waddell, for appellees.
    Authority for the sale is found in § 8110, O. & M. Digest, even though the prayer was for partition.
    The burden is upon appellant to show the necessity for the partition. 30 Cyc. 268, 269, 270; 81 Ark. 440; 76 Ark. 146; Freeman on Cotenancy and Partition, No. 543; 77 Ark. 317. The proof does not show that appellant would be damaged by partition of the land in kind. In fact appellees offered him the appraised value of his share.
    Appellant acquired his interest, which was a minority one, by purchase, and he therefore does not come within the provisions of the statute.
   Humphreys, J.

Appellant instituted suit in the Grant Chancery Court against appellees for partition of the northeast quarter of section 21, township 5 south, range 12 west, in said county, alleging that he owned an undivided one-twelfth interest, Minnie Miller an undivided one-sixth interest, and Oneal Oxner, Fannie Boyd and Martha Oxner an .undivided one-fourth interest each in said real‘estate; that appellees inherited their several interests, and appellant acquired his by purchase. The prayer of the bill was for a decree of partition if it could be made without prejudice to the owners thereof, and, if not, that the land be sold and the proceeds divided according to said interests.

Appellees filed answer, admitting the allegations of the bill as to ownership of the land by appellant and appellees in the proportions alleged, stating that the lands could be partitioned, praying for partition and the appointment of commissioners to divide same in kind among them according to the value of their respective shares.

Pursuant to the pleadings, and by consent of the parties, the court rendered a decree of partition in kind, if the land could be divided without great prejudice to the parties, and appointed W. D. McDonald, S. F. Fielding and Geo. V. Griffith commissioners to divide the lands.

After a view of the lands the commissioners formally reported, in substance, that the land could not be partitioned in kind entirely, and recommended that the timber be sold and the proceeds divided among the owners in proportion to their several interests in the land; that the southwest quarter of the northeast quarter be assigned to Fannie Boyd, the southeast quarter of the northeast quarter to Oneal Oxner, and that the north half of the northeast quarter be sold and the proceeds divided among Martha Oxner, Minnie Miller and F. O. McGehee, in proportion to their several interests in the land.

Appellees filed exceptions to the report upon the ground that the location of the timber on the land, the topography and quality of the land warranted a division of the land in kind among the owners, and that it was unnecessary to sell the timber or any part of the land in order to make a division thereof. At the same time the attorneys filed a motion to set the decree of partition and the report of the commissioners aside upon the ground that they had represented one of the appellees, Minnie Miller, through mistake. Thereupon the decree and report of the commissioners were set aside, and, after Minnie Miller was made a party and proper service was had upon her, a decree was rendered and the commissioners reappointed. The commissioners made a second view of the land and reported that, on account of the timber being located very thickly at some places and very scatteringly at other places upon the land, it was impossible to divide all the land in kind, and that in their opinion it was necessary to sever and sell the timber from the land and divide the proceeds, and that in that event the forty-acre tracts designated in the former report might be assigned to Fannie Boyd and Oneal Oxner and the north half of the’ tract sold and the proceeds divided among Martha Oxner, Minnie Miller and F. O. McGehee according to their several interests in the land; that, unless their original report was adopted, it was impossible to divide all or any part of the land in kind without great prejudice to the parties in interest; that the only other alternative would be to sell the land in 40-aere tracts and divide the proceeds, which would give each owner an opportunity to bid on the forty acres he desired to retain.

Appellees’ exceptions to the first report were renewed as to the second and sustained. The report was set aside, and the commissioners ordered to partition the land in kind according to the interests of each. Pursuant to the order, the commissioners valued each forty-acre tract, including the timber thereon, at $800, assigning to eacli .owner of a one-fourth interest 40 acres, to the owner of a one-sixth interest 26 2-3 acres, and to appellant, the owner of a one-twelfth interest, 13 1-3 acres. The report contained the following statement of the commissioners:

“We in making said partition have tried to divide the land and timber under instructions of the court to the best of our knowledge and ability as to value and location. We in making this partition as set forth above believe it would be prejudicial to small land owners ■and would recommend that all the land be sold in 40-acre lots and the proceeds thereof prorated among the respective owners as their interests appear.”

Appellant filed exceptions to that part of the report partitioning the lands in kind, alleging that the division in kind was contrary to the best judgment of the commissioners and prejudicial to the rights of the small land owners, especially to appellant, because in that locality a 13 1-3 acre tract was too small to possess a marketable value. Appellees filed an answer to the exceptions, and testimony was heard in support of and against the partition in kind, which resulted in a decree approving the division in kind and vesting title to the particular tract assigned to each in him or her. From that decree an appeal has been duly prosecuted to this court.

Appellant’s first insistence for the reversal of the decree is that the first and second reports of the commissioners were set aside for the same causes. Section 8107 of Crawford & Moses’ Digest is cited in support of the contention. That section is as follow: “Upon good cause shown by either party, on the report being made and . returned to the circuit court, it may be set aside by the court, who may appoint new commissioners, who shall proceed in like manner as hereinbefore directed ; but the court shall not set aside a second report for the same cause for which the first report was set aside.”

The section quoted relates to and is binding upon circuit courts in partition proceedings. This court ruled in the case of Moore v. Willey, 77 Ark. 317 (quoting syllabus): “While the statutory procedure in partition cases must be followed in a suit at law, such is not the case in equity, the statutory remedy being cumulative only. ’ ’

Appellant’s next insistence for reversal is that the partition in kind contained in the third report of the commissioners was a partition directed by the court and not a partition made in the exercise of the commissioners’ best judgment. This contention is based upon the assumption that a chancery court, in partitioning lands, is compelled to do so by the adoption of the report of the commissioners appointed by it to divide the land in kind. This is not the law. Commissioners appointed to divide lands in kind are arms or agents of the court for the purpose of rnaking a division under the order and direction of the court. It is the duty and province of chancery courts to partition lands among those interested therein justly and equitably upon proper petition and may use commissioners for that purpose, but are not required to accept as absolute a division made by commissioners. The division and report made by the commissioners can only be regarded as advisory to the court. Chancery courts may order a sale of property if necessary to effect an equitable division thereof among the owners upon evidence other than and wholly independent of a report of commissioners. Moore, v. Willey, supra; Glasscock v. Glasscock, 98 Ark. 151.

Appellant’s last insistence for reversal is that the partition in kind made by the commissioners under direction of the court was prejudicial to him for the reason that the tract assigned to him was so small it was not marketable at a fair value in that locality. The evidence is in conflict as to whether the 13 1-3 acre tract assigned, to appellant would sell on the market for as much per acre as it would sell for if sold as a part of the, ydiole tract, or if sold in 40-acre tracts. The entire tract was appraised at $20 per acre. There was much evidence tending to show that the 13 1-3 acre tract would readily sell upon the market for as much as the appraised value- per acre of the 160-acre tract. In fact, appellees offered in open court to pay appellant $20 an acre for the tract, which he refused to accept. We have read the evidence carefully bearing upon the market value of the 13 1-3-acre tract, and are convinced that the finding of the chancery court to the effect that no prejudice resulted to appellant in the partition in kind is sustained by a preponderance of the evidence.

The decree is therefore affirmed.


text:
    Lamberson v. Board of Commissioners of Drainage District No. 16.
    Opinion delivered November 28, 1921.
    1. Drains — enforcement of lien. — defenses.—In a suit by a drainage district to foreclose a lien for delinquent assessments, an answer attacking the validity of the assessment on the grounds that the county judge who created the district was disqualified, that an appeal was pending in the Supreme Court for abandonment of the district, that the assessment was confiscatory, that bonds had been issued for construction of an extension in territory not embraced in the district, and that the commissioners had failed to record contracts made by them for the improvements, was demurrable, as constituting a collateral attack upon the orders of the county court creating the district and confirming the the assessment of benefits.
    2. Drains — enforcement of lien — defenses.—Matters rendering a drainage district or the assessment of benefits void for jurisdictional reasons may be pleaded as a defense in suits for the enforcement of assessments.
    Appeal from Craighead Chancery Court, Western District: Archer Wheatley, Chancellor;
    affirmed.

      S. M. Mayes, for appellants.
    The declarations of facts set out in the answer are not demurrable, but, appellees having demurred, the facts thereby admitted are conclusive. 141 Ark. 8. In testing the sufficiency of a pleading on demurrer, every inference reasonably deducible therefrom must be considered. 142 Ark. 431. Indefiniteness and uncertainty should be reached by motion to make more definite and certain, rather than by demurrer. 134 Ark. 311.

      Basil Balter and Horace Sloan, for appellees.
    The answer does not state facts sufficient to constitute a defense.
    (1) The attempted denial of corporate capacity amounts to a mere negative pregnant. 84 Ark. 409; 3 Ore. 161; 5 C. B. 440; 57 E. C. 440; 136 Reprint 950; 12 Mont. 474; 31 Pac. 87; 19 L. R. A. 211; 65 Neb. 34; 90 N. W. 997; 36 Ore. 259; 59 Pac. 189.
    (2) The denial as to penalty and interest, and existence of lien raises no issue of fact. The statute prescribes the penalty and rate of interest.
    (3) The allegation as to disqualification of the county judge is a collateral attack on the order establishing the district. The remedy was by appeal, taken within 20 days. O. & M. Dig., § 3609; 117 Ark. 292. The issue as to disqualification cannot be raised collaterally. 139 Ark. 130; 213 S. W. 7; 43 Ark. 33; 80 Id. 57. His ownership of land in the district did not disqualify him. 94 Ark. 563; 43 Id. 324.
    (4) This court held, in the case referred to in the allegation with reference to a pending appeal, that the county court had no jurisdiction to- dissolve or1 abandon a drainag’p district. Wilson y. Matlix, 149 Ark. 23.
    (5) The allegations as to the validity of the assessments of benefits attempt to raise issues that cannot properly be invoked in this proceeding, (a) because their validity has already been settled by the order of the county court, and a collateral attack cannot now be permitted. O. & M. Dig. § 3165; 138 Ark. 131 Id. 471; 117 Id. 30, 32. (b) Their validity cannot be challenged without setting-out the facts rendering the assessments improper. 139 Ark. 277, 280; 139 Id. 153. (c) Their validity can be challenged only in the statutory mode. C. & M. Dig. § 3165; 125 Ark. 163,167; 49 Id. 518; 63 Id. 588; 90 Id. 413; 94 Id. 217; 105 Id. 450; 110 Id. 34; 52 Id. 529; 71 Id. 556; 98 Id. 543; 94 Id. 563; 90 Id. 29; ,84 Id. 257; 96 Id. 609.
   Humphreys, J.

This is an appeal from a decree of the Craighead Chancery Court, Western District, foreclosing a lien for delinquent assessments for the year 1920, with a penalty of 25 per cent, thereon, interest and costs, against lands owned by appellants in Drainage District No. 16, Craighead County. The complaint, in substance, alleged the creation of the drainage district, the appointment of commissioners, the assessment of benefits for the year 1920 against appellants’ lands, the delinquency in payment of the assessments and the accrual of penalty and interest on account of the failure to pay the same.

Appellants filed an answer denying the corporate capacity of the drainage district to sue, and any liability for a penalty and interest, or the existence of a lien on the land for the payment of same; and, as additional defenses, alleged the disqualification of the county judge who made the order creating the district, the pendency of an appeal to the Supreme Court from a suit instituted in the circuit court by a large number of the land owners in the district for the abandonment of said district, the confiscatory nature of the assessment, alleging that it amounted to more than the current cash value of the property of the owners in said district, the sale of bonds to the amount of $50,000 for the construction of an extension or outlet of the drainage district in Poinsett County which was in territory not embraced in the district, and the failure of the commissioners to record the contracts made by them for the improvements in said district.

A general demurrer was filed to the answer, which was sustained by the court. Appellants elected to stand upon their answer, whereupon the court rendered a decree declaring a lien upon each parcel of land for the tax, penalty, interest and costs thereon, and foreclosing the same, from which an appeal has been duly prosecuted to this court.

Appellants contend that the court erred in sustaining the demurrer to the answer. We think not. The defenses interposed were collateral attacks on the order establishing and creating the drainage district and assessing the benefits on account of the improvements against the several parcels of land within said district. In a suit to enforce a lien against lands for benefits assessed against them in a drainage district theretofore organized, all defenses except a plea of payment are necessarily collateral. It is not contended that the assessments were paid. The matters as set forth in the answer attacking the validity of the assessment cannot be inquired into in this proceeding because they constitute a collateral attack on the judgments of the county court creating the district and confirming the assessment of benefits. Mudd v. St. Francis Drain. Dist., 117 Ark. 30; St. L. I. M. & S. R. Co. v. Maple Slough Drain. Dist., 138 Ark. 131; Dickerson v. Tri-County Drain. Dist., 138 Ark. 471; Washington Fire Ins. Co. v. Hogan, 139 Ark. 130.

Of course, matters rendering a district or the assessment of benefits void for jurisdictional reasons might be pleaded as a defense in suits for the enforcement of assessments, but the matters pleaded in the answer in the instant ease do not go to that extent.

No error appearing, the decree is affirmed.


author: McCulloch, C. J.

text:
    McIlvene v. Warren.
    Opinion delivered December 5, 1921.
    Animals — stock laws — construction.—Under special act No. 510 of 1919, relating to a stock law for Columbia County, which provides by § 8 that it shall not be in force until adopted by a majority vote of the electors, and by § 10 that it shall not be construed to repeal special act No. 156 of 1915, until it has been adopted and put into full force and effect in Columbia County, held, that where the vote of the electors was adverse to adopting the act of 1919, the act of 1915 remained in force, and a stock district created under the act of 1915 was not affected by the later act.
    Appeal from Columbia Chancery Court; J. M. Barker, Chancellor;
    affirmed.

      Joiner S Harris- and Henry Stevens, for appellants.
    In cases of doubt as to the meaning of a statute, the condition and circumstances surrounding the enactment of the law may be considered. 76 Ark. 303; 102 Ark. 205; 169 U. S. 649; IOS S. W. 1095; 68 S. W. 588; Black on Interpretation of Laws, 285. The cumulative part of the act is the method of procedure. 35 N. W. 881; 115 Pac. 344; 73 S. W. 951.

      McKay & Smith, for appellees.
    The passage of an act to take effect only when favorably voted on by the people in the locality affected is not a delegation of legislative power. 131 Ark. 291.
   McCulloch, C. J.

Appellants are farmers and owners of livestock in Columbia County, and claim the privilege of permitting their stock to run at large in a certain territory. This territory, it is claimed by appellees, is embraced within a stock-law district created under a special act of the General Assembly of 1915 (Acts of 1915, p. 676), the validity of which was upheld in the ease of Harrington v. White, 131 Ark. 291. Appellants instituted this action in the chancery court to restrain appellees from impounding livestock pursuant to the provisions of the aforementioned statute. The court sustained the demurrer to the' complaint and dis missed the complaint for want of equity.

The act of 1915, supra, provides for the formation of stock-law districts in units of three or more townships in a county, to be adopted by a majority vote of the electors, at an election to be ordered by the county court on the petition of 25 per centum of said electors. The General Assembly of 1919 enacted another statute to provide, as stated in the caption, “a stock-law and to regulate the operation of same in Columbia County, Arkansas.” This statute, in its first seven sections, provides a complete method of impounding certain livestock found running at large, and for the punishment of the owners of such stock. The method of putting the law into operation is different from that prescribed in the act of 1915, supra, and also different livestock is mentioned.

Sec. 8 of the act of 1919 provides that upon the petition of 35 per centum of the electors of any township or any number of townships in Columbia. County, filed with the county court at least sixty days before a genera] election, the court shall order the submission of the question of adoption to the electors "of the county at such general election, and that the words “For Stock Law” and “Against Stock Law” shall be placed on the tickets at that election. Sec. 10 of that statute reads as follows:

“If it is shown by the returns of any election under this act that a majority of those voting for and against said law vote for stock law, four months thereafter this act shall become operative, provided, nothing in this act shall be so construed as to repeal any of the provisions of act No. 156 of the Acts of 1915 as it applies to Columbia County, until this act has been voted on and adopted and put into full force and effect in all of Columbia County, and until this is done this act will be considered cumulative.”

It appears from the allegations of the complaint in this case that at the general election in the year 1920 there was submitted to the voters of the townships composing the aforementioned district, formed under the act of 1915, sicpra, the question of the adoption of the stock law of 1919, and that in each of said townships [he majority vote was against the adoption. The contention of counsel for appellants, as we understand it, is that the vote upon the question of adoption of the stock law was determinative of operation under either of the statutes, and that either an affirmative or negative vote on that question suspended the operation of the act of 1915 and constituted a dissolution of a district formed under that statute. This contention is, we think, directly contrary to the express language of the statute itself, which provides that the act of 1915 is not repealed “until this act has been voted on and adopted and put into full force and effect in all of Columbia County, and until this is done this act shall be considered cumulative.” Whatever else the statute may mean- — and we do not deem it necessary to enter any further into a discussion of other provisions of the statute — it is clear that the statute of 1915 is not repealed or suspended until there is a complete adoption of the new statute in the whole of Columbia County, and that districts formed under that statute are not, until then, suspended. The last statute is declared, in express terms, to be merely cumulative and leaves the former statute in force until the provisions of the latter one are adopted in the whole of Columbia County.

It is further contended that there is an irreconcilable repugnance between the proviso in section 10 and the other sections of that statute, and 'that the proviso should be discarded, leaving the remainder of the act in effect,. To do this we would have to disobey the plain letter of the statute itself, which declares in the proviso that the former statute is not repealed but is to remain in full force until there be an adoption of the new statute by the whole county. It will be our duty, when the question of the validity of the new statute arises, to reconcile, if possible, the apparent inconsistencies in the different sections for the purpose of harmonizing them. It is unnecessary to do that in the present case, for we have reached the conclusion that, under the state of facts as set forth in the complaint, the act of 1915 has not been suspended, and that the negative vote on the question of the adoption of the new statute did not operate as a dissolution of the district thus formed.

The decision of the chancellor was therefore correct, and the decree is affirmed.


author: Woon, J.

text:
    Schaal v. State.
    Opinion delivered December 5, 1921.
    1. Abusive language — indictment—clerical misprision. — In an indictment under Crawford & Moses’ Dig., § 2774, which charges that defendant used abusive and insisting language toward and about the prosecuting witness “and in the presence and hearing,” the context shows that the use of the word “the” instead of “his” was a clerical misprision.
    2. Abusive language — sufficiency of indictment. — An indictment for using abusive and insulting language toward another and in his presence and hearing substantially follows the language of the statute and is sufficient.
    3. Abusive language — defense.—Though the prosecuting witness was a trespasser on defendant’s premises, this fact would not justify defendant in using profane and opprobrious language toward and about him.
    Appeal from Howard Circuit Court; A. P. Steel, Special Judge;
    affirmed.

      James S. MoCon-nell, for appellant.
    The indictment is bad and the demurrer should have been sustained. Either the letter or substance of the statute must be followed, and nothing is left to implication, intendment, or conclusion. 22 Cye. 336; 12 Ark. 608; 47 Ark. 488; 31 Minn. 207; 17 3ST. W. 344. The words of the indictment “and in the presence and hearing” mig'ht refer to Hodo-o. or Mrs. Schaal, who were nresent also, and wholly fail to allege that the language complained of was used in the presence of Walden.
    The indictment not having charged an offense under the statute, appellant’s motion to arrest the judgment should have been sustained. Defendant was entitled to have given an instruction on the legality of the service of the papers by Hodge and the prosecuting witnass.
    The evidence of the justice shows that the writ was issued March 21, 1921, and served the next day. The indictment charges the offense was committed on'March 3rd. .If this be true, the verdict was contrary to both the law and the evidence.

      J. 8. TJtley, Attorney General, Elbert Godwin and W. T. Hammock, for appellee.
    ■ The indictment is drawn in accordance with the statute. There is a clerical error, however, in the use of the word “the” for “his” in the following part of the indictment: “And in the (his) presence and hearing” but any person of common understanding would understand that the indictment alleges that the words were spoken to and in the presence of the prosecuting witness. Bad or awkward writing will not vitiate an otherwise good indictment. Stan. Euc. of Proc. Yol. 12, pp. 311-317; 94 Ark. ?15; 58 Ark. 47; 94 Ark. 327.
    The defect was not nn» which would tend +o the -nretn. dice of the rights of defendant in the trial and judgment. G. Rr, ]Vf. Dip*.. 'S 3014.
    Appellant’s instruction No. 2 is inapplicable to the cuestión at issue and was properly refused. It is not error to refuse to give an inapplicable instruction. 93 Ark. 20; 99 Ark. 648; 90 Ark. 570; 29 Ark. 17.
    ■ Provocation will not iustifv the use of opprobrious words. 8 R. C. L. Sec. 307, p. 286.
   Woon, J.

This is an appeal from a judgfnent of conviction for the crime of a breach of the peace. The indictment, omitting the formal opening and conclusion, as as follows: “The grand iurv of Howard Countv, in the name and bv the authority of the State of Arkansas, accuse P. W. Schaal of the crime of breach of peace commi'ted as follows, to-wit: The said G. W. Schaal in the county and State aforesaid, on the 3rd day of March, 1921, did unlawfully make use of violent, abusive, and insulting language toward and about one E. K. .Walden and in the presence and hearing, said language in its common acceptation being calculated to arouse to anger the said E. K. Walden and cause a breach of the peace, against the peace and dignity of the State of Arkansas.”

The court overruled a demurrer to the indictment and also a motion in arrest of judgment. Section 2774 of Crawford & Moses’ Digest reads in part as follows: "If any person shall make use of any profane, violent, vulgar, abusive, or insulting language toward or about any other pérson in his presence and hearing, which language in its common acceptation is calculated to arouse to anger the person about or to whom it is spoken or addressed, or to cause a breach of the peace or an assault, shall be deemed guilty of a breach of the peace, and upon conviction thereof shall be punished by a fine, etc.”

The indictment charges that the insulting language was "toward and about E. K. Walden and in the presence and hearing.” The use of the word "the” before the word "presence,” taken in connection with the other words in the sentence just quoted, could not have meant anything else -than that the insulting language was used in the presence and hearing of E. K. Walden. The context shows that the word "the” was intended for the word “his,” and the use of the word "the” instead was a mere clerical misprision. The indictment charges a public offense under the above statute. The indictment follows substantially the language of the statute and is sufficient. There was no error therefore in overruling’ appellant’s demurrer and motion to arrest. Blais v. State, 94 Ark. 327; State v. Perry, 94 Ark. 215; Evans v. State, 58 Ark. 47.

There was testimony on the part of the State tending to show that one Hodge was appointed to act as constable in a replevin suit to take possession of a machine whibh at the time was at the home of the appellant. Hodge was accompanied to appellant’s home by E. Ej. Walden. When they arrived at appellant’s house, Hodge showed appellant the writ in his hands-. The appellant objected to the service of the writ on the ground that it -did not show that Hodge had been legally appointed constable to serve the same, Hodge not being the duly elected constable. When this controversy arose, Hodge referred appellant to Walden, who was an attorney for the plaintiff in thp civil action. Walden stated he thought the papers were regular. Thereupon appellant said to Walden, “What in the hell have you got to do with it?” Walden replied, “I haven’t got a thing--only I am attorney in the case.” Appellant then said, “By Gr — , you will leave here; I am a good mind to take a billet of wood to you.” Walden remonstrated with him, and appellant further said, “By —, you will leave here. If you don’t, I will go in the house -and get my pistol.” This all occurred at appellant’s home outside the gate.

After defining the offense in the language of the statute, the court instructed the jury that the burden was on the State to prove the guilt of the defendant beyond a reasonable doubt, and further said, “The defendant. in this case claims the prosecuting witness, Walden, accompanied Mr. Hodge there for the purpose of serving the papers, and did not have legal authority for that purpose, and that E. K. Walden, after he reached the place to serve the papers, was the aggressor and caused the disturbance. If you find this to be the -case, you may take that fact in mitigation of the punishment of the defendant, if you find the defendant guilty.” The appellant duly excepted to that portion of the instruction which said, “you may find in mitigation only,” and asked the court to instruct the jury in effect that, if Hodge was not duly appointed special agent to serve the writ, then he was a trespasser, and the defendant would be justified in forcing them to leave the premises. The court refused appellant’s prayer, to which ruling the appellant duly excepted.

The court did not err in its ruling. The fact that Hodge was not legally appointed special agent to serve the writ could furnish no 'justification to appellant in using profane, abusive and insulting language toward and about Walden. 8 R. C. L. § 307, p. 286. Even though Walden and Hodge were proceeding illegally, and in that sense were trespassers, nevertheless such fact would not justify the appellant in using profane and opprobrious language toward and about Walden. The court correctly instructed the jury that they might consider the fact that Hodge and Walden were proceeding illegally in mitigation, if they found the appellant guilty as charged.

There is no error, and the judgment is therefore affirmed.