author: McCulloci-i, C. J.

text:
    Payne v. Orton.
    Opinion delivered October 31, 1921.
    1. Appeal and error — harmless error. — In an. action against a carrier for injury to goods in shipment, an instruction that the carrier was an insurer against all losses or damage “except those which arise from an act of God, of the public enemy, of public authority, of the shipper, or from the inherent nature of the goods shipped” is not prejudicial to the carrier, though there was no evidence tending to show that any loss or damage was due to the act of a public enemy or of public authority.
    2. Carriers — burden of proving exemptions. — The burden of proving exemptions of a carrier from liability as an insurer of freight rests upon the carrier claiming the same.
    3. Carriers — recital of bill of lading.— A recital in a bill of lading that certain cotton was received in apparent good order is prima fade evidence of that fact.
    4. Carriers — damage to freight — liability.-—An instruction to the effect that if the cotton alleged to have been injured in transit was in bad condition when received by the carrier, and if that bad condition was the cause of the damaged condition when the cotton arrived at destination, the jury should find for defendant,' was , properly modified by inserting the word “sole” before “cause”, as the carrier is liable where the damage results from negligence of the carrier concurring with the act of God or some other cause.
    B. Carriers — negligence—issues.—It was not error to refuse to permit a carrier, when sued for negligence in the transportation of cotton, to prove that unusual conditions existed which made it impossible to ship the cotton expeditiously where no such issue was raised by the pleadings.

      Appeal from Little River Circuit Court; James 8. Steel, Judge;
    affirmed.

      Jume R. Morrell and James B. McDonough, for appellant.
    1. The verdict was not sustained by sufficient evidence. That rain of ten hours’ duration on each of four days during which the cotton stood, ends of bales up, on the platform of the carrier, was not sufficient to rot it within twelve days, is a matter of which the courts should take judicial knowledge. 125 S. W. (Ark.) 428; 185 S. W. 768; 17 Am. & Eng. Enc. of L, 909-911; 16 Cyc. 854 et seq.; 3 Ark. 66.
    That cotton ginned damp and baled damp will heat and become damaged is a physical fact of which the courts will take judicial knowledge. 35 Ark. 169; 37 Id. 219; 60 Id. 409.
    2. Instruction 2 erred in leaving to the jury to determine the meaning of public authority.
    3. The evidence does not warrant the placing of the burden of proof as to damage from the inherent nature of the cotton upon the defendant, and an instruction on the burden of proof having that effect was erroneous. Fed. Cas. No. 2691, 3 Cliff. 184; 1 Michie on Carriers, § 1003 and cases cited.
    4. A bill of lading which recited that a shipment of cotton was received in apparent good order does not warrant an instruction fixing definite liability upon the carrier as having received the cotton in good order. 1 Michie on Carriers, § 1058 and cases cited.
    5. The court erred in modifying instruction 4 requested by the defendant so as to make it read “sole” cause, etc., and in refusing to give instruction 5 requested. The jury ought to have been told that plaintiff could not recover damage resulting from the wet, rotted or damaged condition in which it was received. 1 Michie on Carriers, § 1003.

      Johnson & Shaver, for appellee.

      1. In this case the evidence will be given its strongest probative force in favor of the plaintiff, the appellee, and in testing its legal sufficiency that view of the evidence will be taken which is most favorable to the plaintiff. 123 Ark. 619; 192 S. W. (Ark.) 182; 110 Ark. 182; 113 Id. 471; 194 S. W. (Ark.) 497; 129 Ark. 280; 131 Id. 593. ' ,
    2. Instruction 2 is a correct declaration of law approved by this court. 117 Ark. 455; 100 Id. 269; 99 Id. 363; 118 Id. 398, 400.
    3. A common carrier is an insurer of goods received by it for immediate shipment, and the burden of proof is upon it to show that loss or damage thereto was not caused by its negligence. 26 Ark. 3; 34 Id. 383; 35 Id. 402; 39 Id. 148; 50 Id. 397; 100 Id. 37; 47 Id. 97; 69 Id. 150; 85 Id. 562. Its liability as an insurer begins when it receives the goods for immediate shipment. 60 Ark. 333; 79 Id. 353; 89 Id. 178; 60 Id. 465; 46 Id. 222; 77 Id. 482; 111 Id. 550.
   McCulloci-i, C. J.

The plaintiff, H. H. Orton, shipped 75 bales of cotton from Ashdown to Texarkana over the line of the Kansas City Southern Railway Company, then operated under government control. The cotton was delivered to the agent at Ashdown by plaintiff in separate lots on .January 3 and January 5, 1920, and bills of lading were issued to plaintiff by the agent on those days. The first lot of cotton reached Texarkana and was delivered to the consignee on January 8, 1920, in undamaged condition, but the remainder of the cotton did not reach Texarkana until January 17 and 19, respectively, and, according to the evidence adduced in the case, it was, when delivered to the consignee, in damaged condition.

It is alleged in the complaint, and the testimony tends to show, that the cotton was in good condition when delivered to the carrier, and that the condition was so noted on the bills of lading, but that when it reached destination it was wet, partly rotted and had to be “reconditioned,” according .to the terms used by the witnesses, which means that the damaged portion had to be picked off and the cotton re-baled. According to the evidence of plaintiff, there was a total loss of 4247 pounds, of the market value of 26 1-2 cents per pound, making a total damage.of $1125.45.

The answer of defendant contains a denial of all the allegations of the complaint with respect to negligence on the part of those operating the railroad, and also with respect to the damaged condition of the cotton, and alleges that the damage was due entirely to the condition the cotton was in at the time it was delivered to the carrier.

The trial resulted in a verdict in favor of plaintiff for the sum above named, as shown by plaintiff’s testimony. It is earnestly contended that the evidence is insufficient to sustain the verdict.

There is a conflict in the evidence, but it is sufficient to sustain the verdict either way as to the extent of the damage to the cotton and the cause of the.damage, whether resulting entirely from the condition it was in when delivered to the carrier or from the delay in transportation. The plaintiff himself and other witnesses testified that the cotton was not wet nor in bad condition otherwise when delivered to the carrier, but that when received at Texarkana it was wet at the ends and rotten, and that a considerable quantity, aggregating 4247 pounds, had to be picked off and the remainder re-baled. There was also testimony showing that the cotton was shipped in open cars and was exposed to rain and snow which fell in unusual quantities and continuously during the period of delay in transportation. On the other hand, witnesses introduced by defendant testified that the cotton was very wet and in damaged condition when it was delivered to the carrier. There being a conflict in the testimony on all of the issues, we are not at liberty to disturb the findings of the jury.

The court gave instructions requested by plaintiff, and also gave a number of instructions requested by defendant, but refused to give three of the instructions requested by defendant, one of which was a peremptory instruction. The court also modified some of the instructions requested by defendant. Assignments of error are made in regard to each of the rulings of the court in giving, refusing or modifying instructions. The second instruction requested by plaintiff reads as follows :

“You are instructed that the defendant is in effect an insurer of all goods received for immediate shipment against all losses, or damage, except those which arise from an act of God, of the public enemy, of public authority,, of the shipper, or from the inherent nature of the goods shipped, and the burden of proving that the loss or damage arose from any of these excepted acts rests upon the defendant, and said defendant is still liable for any loss or damage arising from any of said excepted acts if the loss or damage would not have occurred if there had been no negligence on the part of the defendant or his employees.”

The criticism now made of this instruction is that it should have defined the term “public authority” or omitted the term from the instruction, and that likewise the reference to “the public enemy” should have been omitted for the reason that there was no evidence tending to show that the damage resulted from that cause. It is not possible that prejudice resulted to defendant from the inclusion of these terms in the instruction or in the failure of the court to give a definition of what constituted “public authority.” It is true that there is no evidence at all that the damage resulted either by the act of the public enemy or any public or governmental authority, but, inasmuch as these conditions would only have operated as an exoneration of defendant from liability, there was no error in referring to them in the instruction, even though there was no evidence to justify it. These conditions were stated as exemptions or exonerations from liability, and, if the terms had any controlling influence with the jury, they could only have been for the benefit of the defendant in submitting to the jury a defense about which there was no testimony.

Again, it is urged that this instruction is erroneous in placing on defendant the burden of proof as to the exemptions from liability. It is a correct statement of law to say that the burden of proving exemptions from liability as an insurer rests upon the carrier claiming such exemptions. St. L. I. M. & S. Ry. Co. v. Pape, 100 Ark. 269; J. L. C. & E. R. R. Co. v. Dunavant, 117 Ark. 455. But the contention is that the instruction placed the burden on defendant to prove that the cotton was in undamaged condition at the time it was delivered to'the carrier. Such is not, however, the effect of the instruction, for it deals with the question of loss or damage occurring while the cotton was in the possession of the carrier for transportation, and correctly states the law to be that the burden is upon the carrier to prove that such damage resulted from some of the causes mentioned which exempted it from liability.

Instruction No. 3, given at the request of plaintiff, told the jury that the notation on the bill of lading-showing that the cotton was received in apparent good order made out a prima facie case, and this was correct.

The court gave instruction No. 4, requested by defendant, after modifying it by inserting the italicized word “sole,” and the same reads as follows:

“If the cotton in question at the time of its delivery to the carrier was damp or ptherwise in bad condition, and if that bad or wet condition, if it existed at the time, was due 'to excessive rains or moisture, or other causes, or to exposure before same was delivered to the carrier, and -if that bad condition of the cotton, if it existed, was the sole cause of the damaged condition of the cotton when it arrived at Texarkana, if it was then in a bad condition, then the jury must find for the defendant.”

A similar modification was made in another instruction requested by defendant on the sanie subject. It is contended that the modification was erroneous, but we are of the opinion that it brought the instruction into line with decisions of this court in regard td the liability of a carrier in case of concurring causes of damage; that is to say, where the damage results from negligence of the carrier concurring with the act of G-od or some other cause, it makes the carrier liable. C. R. I. & P. Ry. Co. v. Miles, 92 Ark. 573; St. L. I. M. & S. Ry. Co. v. Hudgins Produce Co., 118 Ark. 398.

Finally, it is urged that the court erred in refusing to give instruction No. 5, which reads as follows:

“If the cotton was in a damp, wet or bad condition, as suggested in the last instruction, at the time of its delivery to the carrier, and if that bad or damp or wet condition, if it existed, in part caused the damage to the cotton, and if the carrier failed to transport said cotton to Texarkana within a reasonable time, and if such failure also in part caused damage to said cotton, and if the carrier at the time of receiving thte cotton did not have knowledge of the wet or damaged condition of the cotton, if it existed, then it will be the duty, of the jury to ascertain the amount of damage, if any, due to the wet or damaged condition of the cotton at the time of its delivery to the carrier, and also the amount of damages, if any, due to the failure of the carrier properly to transport and deliver the cotton. If the jury find that the total damage is, therefore, due in part to the nature and condition of the cotton, and if the same was wet or damaged at the time of its delivery, and if that wet or damaged condition was unknown to the carrier, and if, in addition to that damag°e, if such existed, the carrier by failure to transport also caused damage, the jury will ascertain the amount of damage due to each cause, and in that event will find for the plaintiff only the damage done to the cotton arising from the fault of the carrier, if said fault existed.”

This instruction,, it is argued here, has the effect of expressing the view that the carrier was not liable for damage resulting prior to its acceptance of the cotton for shipment. Such, however, is not the necessary meaning of the ■ instruction, and the court was correct in refusing to give it. The instruction was in line with No. 4, requested by defendant, and they were both erroneous as requested. The court corrected the error in No. 4 by a modification, but did not attempt to correct No. 5. It was manifestly too long and involved in its statement to be corrected merely by the insertion of a word, as was done in No. 4. The instruction is open to the objection that it could be, and doubtless would have been, understood to mean that if the damage was caused by the negligence of the defendant' concurring with the condition the cotton was in at that time, there would be no liability on the part of the carrier. As we have already seen from the authorities cited, such is not the law. If the defendant had asked an instruction telling the jury that the carrier was not liable for damage to the cotton occurring before delivery to the carrier, but was only liable for damage which resulted after delivery, such instruction should have been given, but that is not the effect of instruction No. 5; at least it was susceptible to another interpretation, and the court properly refused to give it.

It is also contended that the court erred in refusing to permit defendant to prove that unusual -conditions existed which made it impossible to procure cars for more expeditious transportation of cotton. The pleadings raised no such issue, even if it be held that a carrier can, after accepting a commodity for immediate transportation °and issuing a bill of lading, excuse itself on such a plea.

There are other assignments of error which we do not deem to be of sufficient importance'to discuss.

The judgment is affirmed.


source: Caselaw Access Project

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

license: Public Domain

text:
    American Insurance Union v. Manes.
    Opinion delivered October 31, 1921.
    1. Insurance — wager contract. — An agreement between plaintiff and his father-in-law that the latter should become a member of a benefit society, and that plaintiff should be the beneficiary and should pay the assessments and all other expenses necessary to obtain and maintain the membership, is a wager contract and void in its inception.
    2. Insurance — wager contract.' — Only the insurer can take advantage of the ineligibility of the beneficiary in a benefit certificate or policy of insurance.
    3. Insurance — wager contract — who may question. — Though a benefit certificate was void as being a wager contract, and not binding upon the society which issued it, a society which subsequently entered into a contract to perform the original contract of insurance cannot question its validity.
    Appeal from Searcy Circuit Court; J. M. Shmn, Judge;
    affirmed.

      Basil Baker, for appellant.
    Tbe application upon which the policy was issued was a wagering contract, and against public policy. 98 Ark. 52; 222 S. ,W. 1067; 132 Ark. 458; 119 Ark. 498.
    The act of 1917, p. 2091, does not apply to mutual benefit associations not having a lodge system; neither is it retroactive. Mutual Benefit Association v. Keller, 148 Ark. 361; 226 S. W. 525; 2 Joyce on Insurance, Secs. 1066 to 1071, inclusive; 104 U. S. 775-778, with Rose’s notes thereon; Ann. Cas. 1917C, p. 155; 14 R. C. L. 905 to 919, inclusive.

      W. F. Beeves, for appellee.
    ■ The application upon which the policy was issued was written by the agent of the company, with full knowledge of the relationship, and the company is now estopped from denying liability. 64 Hun (N. Y.) 534; 19 N. Y. Suppl. 432; 25 Cyc. 711-712 and cases cited.
    The appellant having, without question, assumed the contract in all particulars, and by rider thereto attached, to carry out the provisions thereof, is hound by the original contract. 28 S* C. 431; 6 S. E. 286; 32 Ark. 346; 36 Ark. 248 ; 42 Ark. 500.
   McCulloch, C. J.

This is an action instituted on a life insurance policy or certificate of membership issued by the Home Protective Association, a domestic corporation, to Jesse Welborn, the plaintiff, J. H. Manes, being named as beneficiary. Welborn lived nearly four years after the policy was issued, and all of the premiums or assessments were paid up to his death. During his lifetime the defendant, American Insurance Union, a foreign corporation, entered into a contract with the Home Protective Association, whereby it took over all the memberships of the latter association and assumed its obligations to its members, and issued to Welborn a certificate in the form of a rider to the original benefit certificate, certifying that the obligations of the original insurer were assumed by defendant.

Defendant denies liability on the ground that plaintiff, the specified beneficiary in the certificate, had no insurable interest in the life of Welborn, and that the certificate constituted a wager contract and unenforceable on grounds of public policy. This is the sole defense offered in the case. According to the evidence adduced, plaintiff was the son-in-law of Welborn at the time the latter became a member of the Home Protective Association, and was not dependent in anywise on Welborn. Welborn was solicited to join the association, and declined, but stated that he was willing for any of his children to take a policy on his life. Thereupon the agent of the Home Protective Association procured an application from Welborn, an'd plaintiff was present and signed Welborn’s name to the application. It was agreed in advance between Welborn and plaintiff that the latter should pay the assessments and all other expenses necessary to obtain and maintain the membership. This evidence establishes the fact that the contract was, under our decisions, a wager contract, and void in its inception. Langford v. National Life & Acc. Ins. Co., 116 Ark. 527; Cotton v. Mutual Aid Union, 132 Ark. 458; Home Mutual Benefit Assn. v. Keller, 148 Ark. 361.

In Langford v. National Life & Acc. Ins. Co., supra, we held that “a person may take ont insurance on Ms own life, and name any one that lie pleases as beneficiary,” even though tbe beneficiary has no insurable interest at tbe time tbe policy is taken ont; but that “an agreement between tbe assured and tbe beneficiary, having no insurable interest, to the effect that the latter shall pay the premiums, and that the policy shall be taken ont in his name, * * * * and shall be assigned to the person having no insurable interest,” will render the policy void as a wagering contract.

The above declaration of the law is applicable to the present policy in its inception.

However, it has been ruled by this court, in line with the weight of authority, that Only the insurer can take advantage of the ineligibility of the beneficiary in such a certificate or policy of insurance. Johnson v. Knights of Honor, 53 Ark. 255; Longer v. Carter, 102 Ark. 72. Defendant is not the original insurer, but entered into a contract to perform the original contract of insurance entered into between Welborn and the Home Protective Association. This contract contains some of the elements of one for re-insurance, in which both the'original beneficiary and the insurer are interested. The contract with defendant is, in other words, one to pay the amount of the policy according to its terms, and constitutes an absolute obligation on the part of defendant which precludes inquiry as to the validity of the original contract, which the original insurer alone could question. There is great diversity among the authorities on the various phases of liability or non-liability under a wager contract, and no case similar to the one at bar has been brought to our attention; but we think that the rule that only the insurer can take advantage of the fact that the policy is invalid applies with full force to the defendant in the present case, who, having obligated itself to perform the contract, is in no attitude to take advantage of a defense which the original insurer alone could have asserted.

For these reasons the judgment was correct upon the undisputed facts, and the same will be affirmed. It is so ordered.

Hart, J.,

(concurring). I do not think that this case is controlled by the rule announced in Home Mutual Benefit Association v. Keller, 148 Ark. 361. There the policy did not show the relationship between the parties. Here it does. The difference is vital.

In the application Jesse Welborn, the insured, designated the relationship between himself and J. II. Manes, the beneficiary, as father-in-law and son-in-law. The company conducted a co-operative mutual life insurance business. By his application Welborn made a proposition to become a member of the association upon the distinct understanding that J. H. Manes should receive the insurance in the event of his death while a member, The application is a part of the policy. The association received the proposition, and it was accepted by the directors of the association, and a certificate of membership was given to Welborn. Thereafter the association accepted the dues for a period of more than four years until the death of Welborn.

There was no misrepresentation and no 'mistake. This is no case of waiver by an unauthorized agent. It was the act of .the association itself, and it ought to be estopped to say that the acceptance was upon a condition utterly at variance with the proposition for membership, and one which would render the certificate wholly inoperative as regards the express intent of the insured. The association had a right to make a contract with Welborn to become a member and to designate his son-in-law as the beneficiary, provided the latter had a pecuniary interest or expectation in his life. Home Mutual Benefit Association v. Keller, supra.

The act of the association under the circumstances must be held to have constituted an agreement between itself and Welborn that Manes had an insurable interest in his life and, having received his dues under this presumption, it cannot now introduce proof to show that Manes had no insurable interest in his life. Smith v. People’s Mutual Benefit Society, 64 Hun. (N. Y.) 534.

Therefore, I concur in the judgment.


author: Wood, J.

text:
    Williams v. Williams.
    Opinion delivered October 31, 1921.
    Divorce and alimony — repeal op statute. — Crawford & Moses' Dig. §§ 3508-3510, relating to the allowance of alimony, were not expressly or impliedly repealed by § 3511, Id., relating to the division of property upon granting divorces.
    Appeal from Jackson Chancery Court; L. F. Reeder, Chancellor;
    affirmed.

      Pope & Bowers, for appellant.
    The chancery court was without jurisdiction to order the payment óf alimony. Sec. 3511, C. & M. Digest, repealed prior provisions in our law in regard to alimony (sec. 9, chap. 51, Revised Statutes), so far as they affected the rights of the wife who obtained the divorce. 64 Ark. 519; 87 Ark. 175; 101 Ark. 522; 121 Ark. 64. In 88 Ark. 302, the court recognized the Revised Statutes as still being in force to grant alimony to the wife where the husband was granted the divorce, but the decision is not out of harmony with the above-cited cases, wherein the wife was granted the divorce.
    Where the wife has sufficient means to support herself in the rank of life to which she belongs, no alimony can be allowed. 29 N. E. 826.

      Boyce <& Mach, for appellee.
    The alimony allowed to appellee was very reasonable under the circumstances. 19 C. J. pars. 578,. 590, 594.

      Secs. 3508, 3509, 3510, C. & M. Digest, were not repealed 'by sec. 3511, as they do not relate to the same subject, and the authorities cited by appellant do not sustain his case.
    Alimony is incidental to a suit for divorce, and properly allowed by the courts. Ann. Cas. 1912 A, p. 893; 88 Ark. 307; 1 R. C. L. “Alimony,” Sec. 15.
   Wood, J.

This action was instituted by the appellee against the appellant for divorce and permanent alimony. The appellee alleged that she and the appellant were married in August, 1901, and lived together until February, 1919; that during their married life she had been a faithful and dutiful wife and gave the appellant no cause to desert her; that in February, 1919, appellant, without reasonable cause, wilfully deserted the appellee and has continuously absented himself from her since that time, and had not since his desertion contributed anything toward her support and maintenance. She prayed for absolute divorce, costs and attorney’s fees, and a reasonable amount of alimony.

The appellant answered, and did not deny the allegations of the complaint as to the desertion and only contested the appellee’s claim for alimony. He set out in detail allegations as to his own financial condition and hers, and prayed that the complaint be dismissed, in so far as it asked judgment against him for the support and maintenance of the appellee.

Upon the testimony adduced, the court made the following findings: “That the plaintiff and defendant were lawfully married in Wright County, Missouri, on the 25th day of August, 1901, and lived together as husband and wife continuously thereafter until on or about the 16th day of February, 1919; that on the 16th day of February, 1919, the defendant wilfully and without cause deserted the plaintiff, and ever since said time has continuously and without cause absented himself from the plaintiff and has not lived with her as his wife The court further finds that the plaintiff and the defendants moved to Jackson County, Arkansas, in the month of September, 1913, and lived together ■ and resided continuously in said county until February, 1919, at which time the defendant left Jackson County and went to Randolph County, Arkansas, and that the plaintiff has resided continuously in Jackson County from September, 1913, up to the filing of this suit. The court further finds that the defendant is without property, but from the time he deserted plaintiff he was receiving a salary of $150 per month up to October, 1920, as a bookkeeper, at which time his salary was reduced to $100 per month; that the defendant has formerly for a number of years received a salary as public school superintendent and a teacher in the public schools of from $2,000 to $2,400 per year; that he is forty years of age; physically strong and in good health and is capable of earning a salary of $1,800 to $2,400 per year, The court further finds- that the plaintiff is without property except the sum of $800 in money which she has saved and a library consisting ' mostly of school text books of the value of about $500; that she is now earning a salary of $85 per month as a teacher in the public schools during the school term; that she is now past the age of forty-one years and has probably attained her greatest earning capacity, and that the defendant should contribute something from his earnings for her support and maintenance.”

Upon these findings the court entered a decree of absolute divorce in favor of the appellee and awarding her alimony in the sum of $30 to be paid -monthly. From that part of the decree awarding the appellee alimony is this appeal.

As to whether the appellant was financially able to pay to the appellee the sum of $30 per month for her support and maintenance was purely a question of fact. It could serve no useful purpose to set out and discuss the testimony bearing upon this issue in detail. We are convinced that the finding of the chancellor1 on this issue of fact is not clearly against the preponderance of the evidence. On the contrary, the preponderance of the evidence sustains the finding of the chancery court.

Counsel for appellant contend that §§ 3508, 3509, and 3510 of Crawford & Moses’ Digest have been repealed by the act of March 28, 1893, p. 176 (§ 3511, C. & M. Digest). Sections 3508, 3509 and 3510 contain provisions relating to the allowance of alimony, the care and maintenance of children, and the enforcement of the court’s decree for alimony. These sections are taken from the Revised Statutes. The act of March 28, 1893, relates to an entirely different subject, and, although it contains a clause repealing all laws and parts of laws in conflict therewith, the sections above quoted concerning alimony are not in conflict with it. The act of March 28, 1893, relates entirely to the disposition and division of property upon a final judgment of absolute divorce granted to the husband or the wife, as the case may be. The act provides that where the divorce is granted the wife “the court shall make an order that each party be restored to all property not disposed of at the commencement of the action which either party obtained from or through the other during the marriage and in consideration or by reason thereof; and the wife * * * '* shall be entitled to one-third of the husband’s personal property absolutely, and one-third part of all the lands whereof her husband was seized of an estate of inheritance at any time during the marriage for her life, unless the same shall have been relinquished by her in legal form, and every such final order or judgment shall designate the specific proprety, both real and personal, to which such wife is entitled.” The concluding portion of the act relates to the sale and disposition of the property according to their respective rights under the act where the property is not susceptible of division and providing that the decree of the court making the division shall be a bar to all claims of the wife to dower in the lands and personalty of the husband.

In Beene v. Beene, 64 Ark, 518, we said: “As to the question of alimony, that is settled by statute, see. 2517 of Sand. .& Hill’s Digest, (corresponding’ to sec. 3511 of Crawford & Moses’ Digest). The Legislature seems to have enacted the statute (act of March 28,1893) for the purpose of putting an end to all after-con troversies as to dower rights and to settle the matter when a divorce is granted dissolving the marital bonds. Hence the allowance to the divorced wife who’ is entitled at all, is exactly or substantially the same as would be her dower interest in case of the death of her husband; that is to say, one-third for life of all real estate of which he has been seized of an estate of inheritance at any time during the marriage, except such as she has relinquished in due form.” While the court in the opinion in the above case spoke of the amount allowed the divorced wife as “alimony,” it is obvious from the division that was made of the- property by the decree of the lower court that that court designated the amounts allowed as “alimony,” and this court inaptly referred to the allowance made as “alimony.” But it was clearly not the purpose of the court, by the use of the above language, to intimate that the sections of the revised statutes- concerning alimony above had been repealed by the act of March 28, 1893, (sec 2517, S & H Digest; sec. 3511, C. & M. Digest). No such issue was raised in the above case, and hence could not have -been properly decided. Nor do the later -cases of Shirey v. Shirey, 87 Ark. 175; Leonard v. Leonard, 101 Ark. 522; Crosser v. Crosser, 121 Ark. 64, (upon which appellant also relies) hold that the provisions of the law concerning alimony have been repealed by the act of March 28, 1893. On the contrary, our decisions show that there is a clear distinction between alimony and the statutory disposition of property made to the respective spouses under the provisions of the act of March 28, 1893. (sec. 3511, C. & M. Digest). See Pryor v. Pryor, 88 Ark. 307.

The latter act was not intended as a substitute, nor does it expressly repeal the former provisions concerning alimony, nor are these provisions impliedly repealed by anything contained in the act of March 28, 1893. “Alimony is not a sum of money, nor a specific proportion of the husband’s estate, given absolutely to the wife, but it is a continuous allotment of sums payable at regular intervals for her support from year to year. And it continues only during the joint lives of the parties, or when there is a divorce from the bonds of matrimony until the wife married again.” Brown v. Brown, 38 Ark. 328; Kurtz v. Kurtz, 38 Ark. 119; Pryor v. Pryor, supra. That part of the act of March 28, 1893, under review here, has reference peculiarly to an allowance made in favor of a divorced wife out of the property of her husband in lieu of the unrelinquished dower rights that she would have had therein in case of the death of her husband, the divorce in her favor in such cases being treated as tantamount to his death. In other words, he is civilly dead to her when, without any fault on her part, he wilfully deserts and abandons her for the statutory period, and she, by reason of such abandonment, has obtained a decree of absolute divorce. See Beene v. Beene, supra. In such cases the act of March 28, 1893 (sec. 3511,o C. & M. Dig.) makes provision for her in the nature of dower, giving her an interest absolute in the personal property of her husband and one-third for life of all the lands of which he was seized of an estate of inheritance during the marriage. In determining whether or not the court shall grant alimony, and, if so, the amount thereof, the court may take into consideration the property that comes to the wife by the above statutory -provision, but it was never the design of the lawmakers, in the enactment of the above statute, to do away with the ancient and inherent common-law jurisdiction of chancery courts ovetr the subject of alimony, which jurisdiction is brought into our Revised Statutes and is preserved and digested under the sections, supra, concerning alimony. Reynolds v. Reynolds, 68 W. Va. 15; Ann. Cases, 1912-A 889; Stewart v. Stewart, 27 W. Va. 167; Carr v. Carr, 22 Gratt. (Va.) 168; 1 R. C. L. 877-878, Secs. 15, 16, 17.

The decree is in all things correct, and it is therefore affirmed.


text:
    Eminent Household of Columbian Woodmen v. Simmons.
    Opinion delivered October 31, 1921.
    1. Insurance — estoppel to deny payment of assessment. — Where the local secretary of a benefit society adopted the plan of collecting the monthly benefit assessments from its members by drawing a draft each month for such assessments and neglected one month to draw a draft for- that month’s assessment until the following month, when he remitted to the society the full amount due for both months, the society will -be estopped to claim a forfeiture for nonpayment of such monthly dues, though the constitution and by-laws of the society provide that the policy shall be void unless such installments shall be paid on or before the tenth, and that the local secretary is the agent of the insured.
    2. Insurance — estoppel by efforts at reinstatement. — Where the insured had paid premiums due on the policy through the insurer’s local secretary, she is not estopped because under a misapprehension she made efforts at reinstatement.
    Appeal from Woodruff Circuit Court, Northern District; J. M. Jackson, Judge;
    affirmed.

      E. M. Carl Lee, and G. H. Moses, for appellant.
    1. It was error to exclude tbe testimony of tbe physician touching the condition of Mrs. Simmons’ health a few days prior to her application for reinstatement. In her application she expressly waived the right to claim privilege disqualifying the physician from testifying. 103 Ark. 201; 133 Id. 411.
    2. The court erred in directing the verdict for the plaintiff. There is no similarity between this case and the Bates case, 144 Ark. 345, and the Newsom case, 142 Ark. 132, differs materially from this in that there was nothing in the constitution and by-laws of that order stating whose agent the local clerk was, whereas by the constitution and by-laws of this order the local secretary is the agent of the insured. 133 Ark. 441; 130 Id. 12; 135 Id. 65; 104 Id. 538; 80 Id. 419; 145 Id. 313; 1 Bacon on Benefit Societies, § 80; C. & M. Digest, § 6076; Id. § 6095. The insured and beneficiary are chargeable with notice of the provisions of the constitution and by-laws, one provision of which was that the liability of the household and its guests should not be satisfied until the remittance should actually be in the hands of the Eminent Secretary. 104 Ark. 538; 136 Id. 355; 142 Id. 145; 1 Bacon on Benefit Societies, § 81; 11 R. C. L. § 17, p. 1198.
    Appellee is bound by the application of the insured for reinstatement regardless of forfeiture. If deceased did not acknowledge the local secretary to be her agent in transmitting payments, and admitted that she was delinquent, and thereby suspendéd, there was a dispute between the insurance company and insured relative to her suspension for non-payment of dues, and this would have supported a compromise and settlement between the parties. 74 Ark. 270; 99 Id. 588; 43 Id. 172; 105 Id. 638; 68 Id. 82; 14 S. W. 769.

      B. M. Hutchins, for appellee.
    1. There was no forfeiture under the covenant of insurance, and the court properly directed the verdict in favor of the plaintiff. 142 Ark. 132; 144 Id. 345; Illinois Bankers Life Association v. Dowdy, 149 Ark. 72; W. O. W. v. Kay, 148 Ark. 562. The issue in this case and in the Neivsom case, 142 Ark. 132, is identical in the two cases, no substantial difference in the material facts. The dues of the insured, correctly speaking, were paid in advance, and it was the duty of the society to see to the proper application of the money so paid or deposited. 48 Ñ.T. Supp. 649; 151 111. 254; 37 N. E. 882; 29 Cyc. 177. Appellant is estopped to set up the neglect of its agent, the local secretary, in bar of recovery by appellee.
    '2. The alleged application for re-instatement cannot be an issue here. It is not known who signed it, and the insurer cannot take advantage of the false statement of its agent in respect thereto. 14 E. C. L. 1174. The agent’s knowledge of the facts to which he certified is imputed to his superiors. It is estopped to deny liability. 122 Iowa 260; 98 N. W. 105; 121 Iowa 528; 63 L. E. A. 603; 29 Cyc. 187; Id. 194.
    3. The testimony of the physician was properly excluded.
   Wood, J.

This is an action brought by the appellee against the appellant -to recover on an insurance policy insuring the life of Seddie L.« Simmons, in which policy the appellee was named as the beneficiary. The appellant is a fraternal benefit society and a corporation authorized to and doing business in this State. The appellee set up the policy, and alleged that the insured died on March 21, 1918; that at the time of her death all the premiums due on the policy had been paid; that appellee had complied, with all the conditions of the policy. The appellant defended on the groupd that the insured had failed to pay the monthly installment due for the month of December, 1917. The facts on this issue are substantially as follows:

I. J. Stacey was president of the Bank of Augusta and Trust Company. He testified that he was the Worthy Secretary of the Local Household, being one of the subordinate and constituent lodges of the appellant, whose Eminent Household was located at Atlanta, G-eorgia. Witness countersigned the policy issued to Seddie L. Simmons on July 26, 1915. He had been local secretary since that time. Mrs. Simmons died March 21, 1918. The witness, as local secretary, adopted the followiilg plan for the collection of monthly premiums: During the first years he presented monthly receipts to the Augusta Mercantile Company, and it paid the installments. Later on Mr. Simmons opened an accoxmt at the Bank of Augusta, and witness made a check each month on Simmons’ account, making the same payable to Columbia Woodmen, specifying the amount of the monthly dues in dollars and cents and signing Simmons’ name, by witness, and marked on tbe check what month the dues were being collected for. During the life of the policy the premiums were paid in the above manner. During the month of December, 1917, witness was away sick and didn’t make a ‘ check for that month. The witness instructed the cashier of the bank to make the monthly remittance, and for some cause he neglected to check on Simmons’ account for the dues for that month. On January 14, 1918, witness remitted the December, 1917, and the January, 1918, dues for Mrs. Simmons in a check for $2.60 covering these months, which the appellant accepted. Witness also drew a check for $1.30 for the February dues and a check for $1.30 for the March dues, both of which were accepted by the ap'pellant. On October 31, 1918, he received a check from the Eminent Household payable to the order of the appellee in the sum of $4.33 with instructions .to deliver same to-the' appellee. At the time witness forgot to forward the monthly premium on Mrs. Seddie L. Simmons’ policy, there was in the Bank of Augusta the sum of $539 subject to witness’.draft for the payment of the premiums on the policy of Mrs. Simmons. Witness further testified that it was his duty as Worthy Secretary to collect the dues from the members of the Worthy Household, the local lodge, and forward the same to the Eminent Household..

The appellee testified that from July 26, 1915, to February of 1916 he presented receipts to the Augusta Mercantile Company and got the money necessary to pay the premiums on his wife’s policy, and from the fall of 1916 to March 21, 1918, the day of his wife’s death, Stacy, the local Worthy Secretary, checked on witness’ account at the bank. Stacy asked witness if he could pay the premiums on his wife’s policy in that manner, and witness told him that it was all right. Between December 1 and December 10, 1917, witness had the sum of $539 in the bank on which Stacy could draw to pay the premiums.

The application of the insured and the constitution and by-laws of the society expressly constitute a part of the contract of insurance. In the application the insured agreed, among other things, as follows:

“If I neglect to pay all installments and dues on or before same become due, this shall render my cove-nant null, void and of no effect, and all my rights and benefits thereunder to myself or beneficiaries, shall be forfeited thereby without notice, and all payments made thereon by me shall be forfeited 'by liquidation. * * * I understand that no agent, officer or member can alter the requirements of the society in any way.”

Among other provisions in the constitution are the following:

“All installments are due and payable to the Worthy Secretary on the first -day of the month, and, when not paid on or before the tenth, the worthy guest shall thereby stand suspended, and his covenant shall be null and void. No agent, deputy, worthy secretary or any other person shall have the power to in any wise alter or change the above provisions nor any of the rules or regulations of the fraternity.”
“Every beneficiary guest who shall fail to pay the beneficiary installment and the general expense and field fund installment on or before noon of the tenth day of the month, shall, by the fact of such non-payment, or any such non-payment, become and be suspended, and during such suspension the beneficiary covenant shall be null and void, and shall remain so absolutely until reinstated by compliance with the prescribed conditions, and during suspension a guest shall be without rights of any kind whatever in this fraternity.”

The constitution and by-laws contain these further provisions: “The Worthy Secretary shall keep records, attend to the correspondence, accounts, literature, and the general labors of the Household; keep minutes of the Feasts, and shall notify the Household and Eminent Household of all guests in arrears. ***** He shall receive and receipt for all money due the Household, turn the same over at once to the Banker; attest all orders drawn on the Banker. * * * * He shall make reports, post all notices required by the officers of the Eminent Household. He shall remit all funds due the Eminent Household to the Eminent Secretary, by postoffice or express money order or New York Exchange, payable to the order of the Eminent Banker (personal checks not acceptable), on or before the 12th of each month, and malee full and complete reports as required by the Eminent Household. * * * * The Worthy Secretary shall not make representation or waiver’s by the authority not delegated to him, or to 'the Household under the Constitution and Laws of the Fraternity, and no act exceeding the power thereby con■fe'rred or in conflict therewith shall be binding upon the Eminent Household. The Worthy Secretary is the agent of the guest of the Household.”

Another provision reads in part, “No agent, deputy, Worthy Secretary or any other person, shall have the power to in any wise alter or change the above provision, nor any of the rules or regulations of the fraternity.” And further, “The Worthy Secretary of each Household shall remit on or before the 12th day of each month to the Eminent Secretary, * * * * all funds derived from the installments last levied, and arrearages, together with the full report, showing also the name of every guest not in good standing. The liability of the Household and its guests shall not be satisfied until the remittance shall be actually in the possession of the, Eminent Secretary. Without notice, the Worthy Secretary shall, on or before the 12th day of each month, forward full report as above, and the required installments from each guest.”

Another provision reads as follows: “The liability of the Eminent Household of Columbian Woodmen for payment of benefits in the event of death or total disability of a guest shall not accrue nor exist on any covenant unless all conditions thereof, as recited and referred to therein, and in this constitution and by-laws, be fully complied with.”

On the back of the policy is an endorsement admonishing the Worthy Secretary to “pay on the first of the monith. Insure your loved ones against loss by accident lapse, as your failure to pay on or before the tenth of the month will render this covenant void. Hence be watchful.”

Upon the above facts the appellant prayed the court to instruct the jury to return a verdict in its favor, which the court refused, to which ruling appellantsduly excepted. The court thereupon instructed the jury to return a verdict in favor of the appellee, to which ruling appellant also duly excepted. The jury returned a verdict in favor of the appellee in the sum of $840.80 with interest. Judgment was rendered in the appellee’s favor for that sum, from which is this appeal.

In the case of Sovereign Camp Woodmen of the World v. Newsom, 142 Ark. 132-145, we said: “It appears from the undisputed facts of this record' that money was on deposit in the Bank of Portland for the purpose of paying the assessments of Newsom at the time when they became due under the laws of appellant. The laws of the order nowhere prescribe the method which the clerk should pursue in collecting the assessments. That was left entirely with him, and he adopted the method of collecting same, as we have shown, by draft, with his,receipt attached, on the bank where the money was deposited to pay the same. He also adopted (for his own convenience, not Newsom’s) the custom of making his remittance and report after the fifth of each month. It occurs to us that the case is precisely the same in legal effect as if Newsom had tendered to the agent of the appellant, duly authorized to collect monthly assessments, the amount of such assessment at the time the same was due, and that the agent failed or refused, for some reason, no matter what, to receive the same and report to his principal, as was his duty to do on the fifth of each month. * * * *

“As we view the facts, it must be held as a matter of law that, so far as Newsom was concerned, he had .paid his March dues, which is but another way of saying that the appellant is estopped by the conduct of its .duly authorized agent acting within the scope of his authority from asserting that such assessments was not paid.”

And on rehearing, at page 158, we said: “This doctrine of equitable estoppel is as applicable to fraternal societies as to old line companies. Now here there was something more than a single act of the local clerk in not collecting the dues of Newsom on or before the first of each month. The clerk through a period of years had adopted the method set forth in the original opinion which was clearly calculated to induce the belief upon the part of Newsom that his dues had been paid according to the method adopted by the local clerk for collecting the dues and reporting the same, and that the society had accepted such payments and would, therefore, not insist upon a forfeiture because of the failure of the clerk to comply, in this respect, with its laws and constitution. This conduct of appellant’s agent under the authorities above cited clearly estops appellant from denying that the March dues were paid as required. ’ ’

The facts in the case at bar are similar in all essential particulars concerning the payment of dues to the case of Soverign Camp W. O. W. v. Newsom, supra. The cases cannot be distinguished in principle on the facts. We do not care to travel over the same ground on the questions of payment and estoppel as were covered in the hTewsom case. See also Soverign Camp W. O. W. v. Key, 148 Ark. 562; Illinois Bankers Life Assn. v. Dowdy, 149 Ark. 72; and Security Life Ins. Co. v. Bates, 144 Ark. 345.

Appellant contends that there is a clear distinction .between the facts of this case and those of the Newsom case in that the constitution and by-laws of the appellant in the case at bar contain this provision: “The Worthy Secretary is the agent of the guest of the Household;” whereas no such provision was found in the constitution and by-laws under review in the Newsom ■case. But in the Newsom ease we quoted with approval from Supreme Lodge K. of H. v. Davis, 26 Colo., 252, holding as follows: “In a mutual benevolent order composed of a supreme lodge and subordinate lodges, an officer of a subordinate lodge charged with the duty of notifying the members of assessments made by the supreme lodge for the purpose of paying insurance certificates of deceased members, and of collecting and forwarding to the supreme lodge such assessments, is an agent of the supreme lodge, notwithstanding a rule or by-law of the order recites that such officer in collecting or fonvarding assessments shall be the agent of the members of the subordinate lodge, and the supreme lodge is charged with all knowledge possessed by the agent in making the collection.”

The recital in the constitution and by-laws of the appellant that “the worthy secretary is the agent of the guest of the Household” can only mean that such secretary is the agent of the guest of the Household in those matters wherein he could perform some act or discharge some duty for the individual member or guest. The provision clearly could not relieve the local Household of the duties it had to perform as the agent or the representative of the Eminent Household. The local lodge as well as the Eminent Household could only act through its own agent in the matters of the countersigning of policies, the collecting of premiums, making reports as to the standing of members to the Eminent Household, posting notices, remitting dues, and various other duties-prescribed for the worthy secretary in the constitution and by-laws of the order. The. worthy secretary could not be the agent of both the insurer and the insured concerning matters wherein there might be a conflict in their respective interests. Here the uncontroverted facts show that, so far as Mrs. Simmons is concerned, her dues were paid. .She had met all the requirements of the contract according to the methods which the appellant had adopted for collecting the installments. When the local secretary failed to send in the installments and make the correct report as to the payment of her monthly dues, in these particulars he was representing the appellants, and could not at the same time he representing- Mrs. Simmons.

Having paid the installments and thus preserved her rights under the policy, she would not be estopped by any misapprehension that she may have had .as to her standing and the efforts toward reinstatement'growing out of such misapprehension. Therefore, as the insured was never in fact in arrears, the issue of invalid reinstatement raised by the appellant cannot avail. Under the uncontroverted facts it has no place in the case. The judgment is in all things correct, and it is therefore affirmed.

McCulloch, C. J., and Smith, J., dissenting.


author: Hart, J.

text:
    Missouri & North Arkansas Railroad Company v. Chapman.
    Opinion delivered October 31, 1921.
    1. Eminent domain — remedy of landowner — limitation.—Where a corporation authorized by law to appropriate land to its use has entered upon and appropriated land for its use, without condemnation, the owner’s statutory remedy to sue for damages (Crawford & Moses’ Dig., § 3930) is exclusive, and such action would be barred when an action to recover the land would be barred.
    2. Eminent domain — remedy of owner — limitation.—Under Crawford & Moses’ Dig., § 3930, the owner of land taken by a railroad for right of way has a right to bring suit for damages at any time within the period of seven years after the land was taken.
    3. Eminent domain — statute construed. — Under Crawford ■ & Moses’ Dig., § 3930, providing in effect that the owner of property taken by a eorporation authorized to appropriate it for its use may bring suit for damages for such taking within the statutory period, the word “owner” may be construed to apply to every person having an interest in the property taken, including tenants for life and lessees for years.

      4, Eminent domain — damages for taking. — In an action by landowners to recover for the taking- of their land by a railroad com- ' pany, the value of the land should be proved as of the time of the filing of the suit, instead of the date when the land was taken.
    Appeal from White Circuit Court, J. M. Jackson, Judge;
    reversed in part.
    STATEMENT OE EAOTS.
    Appellees filed their suit in the circuit court against appellant to recover damages for the appropriation of a part of their land for a railroad right-of-way.
    Mrs. R. D. Chapman owned block 34, in the town of Kensett, White County, Ark. Mrs. Chapman died on February 22, 1904, while living on the block above referred to with her family. At the time of her death she was survived by her husband, J. H. Chapman, and appellees, who were their children and sole heirs at law. Two of the children, viz: Charles Chapman and William Chapman, were adults when the land was appropriated by the railroad for a right-of-way.
    On the 6th day of February, 1908, J. H. Chapman, the father of appellees, executed a right-of-way deed to .the Missouri & North Arkansas Railroad Company, conveying to it a strip of land 100 feet in width across said block above mentioned for a right-of-way for its railroad. The railroad company then took possession and constructed its railroad across said strip of land. It has operated its railroad across said strip of land ever since, and has not paid the appellees any compensation for said right-of-way. J. H. Chapman, the father of appellees and the husband of Mrs. R. D. Chapman, deceased, remained in possession of said land, except the strip conveyed to the railroad for a right-of-way, until his death, which occurred in July, 1918. The present suit was filed on December 29, 1919.
    The jury returned a verdict in favor, of appellees, and the case is here on appeal.

      Shouse & Rowland, for appellant.

      1. It was error to try the case and charge the jury upon the theory that appellees’ damages were to ¡be measured upon the value of the lands at the time of the trial, and to exclude testimony offered by appellant as to the value of the lands in the year 1908, when it was taken.
    2. Appellees’ cause of action accrued when tlhe railroad company entered upon the land in 1908, under the deed from their father. 45 Ark. 252; 67 Id. 84.
    3. In assessing the damages it must be determined from the market value of the land at the time it was taken. 10 R. C. L. § 183, p. 214; 20 Corpus Juris § 262 p. 826 citing 49 Ark. 381; 15 Neb. 231; 18 N. W. 51; 98 Fed. 789, 790; 67 Ark. 84; 129 Ala. 577; 29 So. 985.

      Brundidge £ Neelly, for appellees.
    1. Until the death of appellees’ father, who had an estate by the curtesy in the property, the possession of the appellant under its deed from him was not hostile, but permissive. 42 Ark. 361; 1 R. C. L. 758; 71 N. Y. Rep. 192. There was no entry here without right so as to set the statute of limitation to running from the date of entry; neither did the railway company elect to proceed under the right of eminent domain and bring both the life tenant and the remaindermen into court in one action.
    The property was a part of the homestead qf appellee, hence the statute of limitations did not begin to run until the youngest child became of age. 53 Ark. 400.
    2. Appellees were not entitled to possession until after the death of their father, the life tenant, and the value of the land at the time they were entitled to possess it is the correct date from which to measure their damages. There was- no error in permitting witnesses to testify as'to present market value of the property. The question as to who are competent to give testimony as to the value of land taken and to give their opinions thereon, is one of which is left largely to the discretion of the trial court. 103 Ark. 409; 88 Ark. 132.
   Hart, J.

(after stating the facts). Appellant filed a plea of the statute of limitations, and claims that Charles Chapman and William Chapman, who were adults at the time their father executed the right-of-way deed and the railroad company took possession of the land for a right-of-way, are barred by the seven-year statute of limitations. The railway company entered into possession of the land under its right-of-way deed in 1908, and the present suit was not filed until in December, 1919.

See. 3930 of Crawford & Moses’ Digest provides that whenever any corporation, authorized by law to appropriate private property for its use, shall have entered upon and appropriated any property, the owner of the property shall have the right to bring an action against such corporation for damages for such appropriation at any time before an action at law or in equity for the recovery of the property so taken, or compensation therefor, would be barred by the statute of limitations.

In construing this statute, the court has held that it supersedes the comiüon-law remedies afforded the owner, and that the statutory remedy for damages is exclusive. McKennon v. St. L. I. M. & So. Ry. Co., 69 Ark. 104. The statute fixes the time for bringing the action at any time before the action at law or in equity for recovery of the property so taken, or compensation therefor, would be barred by the statute of limitations.

At common law the owner would have had the right to have brought his suit at any time before the company had acquired the right to the property taken by adverse possession for the statutory period of seven years. Organ v. Memphis & Little Rock Rd. Co., 51 Ark. 235. Thus it will he seen that under the statute the owners of the land had a right to bring suit for compensation for the land taken by the railroad company for its right-of-way at any time within the period of seven years after the land was taken.

In a case note to 2 A. L. R. at p. 786, it is said that the word, “owner” as used in statutes relating to condemnation proceedings, may be construed to apply to every person having any interest in the property taken.

Again, it is said that it embraces not only the owner of the fee, but a tenant for life and the lessee for years and any other persons who have an interest in the property which will be affected by the condemnation. This is in accord with our own decisions relating to the question.

As we have already seen, before the passage of the statute giving the landowner a remedy to sue for compensation, he might resort to his common-law remedy for damages. In Bentonville R. R. v. Baker, 45 Ark. 252, the owners sued under the common law to recover damages for the taking of their land by a railroad company for a right-of-way. The court held that a tenant for life and the remainderman may each recover compensation for the injury he sustains by the construction of a railroad over his land. The court said, however, that the remainderman can only recover such damages as affect his expectant estate. In that case the life tenant and owners of the inheritance joined in an action against the railroad company to recover damages for constructing its railroad across their land, and each was allowed to recover. The remainderman could not have brought suit unless his cause of -action had accrued; and where a cause of action has once accrued, the remedy must be pursued within the time given by the statute, or else the bar of the statute will ¡attach.

This is in accord with the general rule that persons holding distinct interests in the same tract of land may proceed jointly to recover damages or compensation for its taking under the law of eminent domain. 15 Cyc. 1003; Lewis on Eminent Domain, 3 Ed. Yol. 2, §§ 716 and 976.

This is especially true under our Constitution, which provides that no property shall be appropriated under the right of eminent domain until compensation shall be first made to the owner. Compensation precedes the appropriation, and it was the evident intention of the framers of the Constitution to require compensation to be made to all persons interested in the land.

It follows that the court erred in holding that Charles and William Chapman were not barred of recovery under the seven-year statute of limitations, and for that error the judgment in their favor will be reversed; and, inasmuch as the testimony with regard to the statute of limitations running against them is undisputed, their cause of action will be dismissed.

It'is next contended by counsel for appellant that the value of the land should have been found by the jury as of the date when it was originally appropriated by the railroad company, and not of the date when this suit was brought.

We do not agree with counsel in this contention. In Newgass v. Railway Company, 54 Ark. 140, condemnation proceedings were instituted by the railway company for the assessment of damages for the right-of-way of its railroad previously built without license across land belonging to Newgass. The court held that the value of the land taken for the right-of-way should be estimated as of the time the petition was filed. The court said:

“As the filing of the petition is the attempt to assert the right of condemnation, and subsequent delay is without fault of either party, it seems fair to each alike that the assessment should be made with reference to value as of that date.”

As we have already seen, where the railroad does not institute condemnation proceedings, the statute gives the landowner the right to sue for compensation, and the court has held that the statutory remedy thus given the landowner is exclusive. Hence the-action by the landowner should be viewed in the same light as a condemnation proceeding, which the law allows the property owner to commence, because the corporation has not done so.

Our Constitution provides that no property shall be appropriated to the use of any corporation until full compensation therefor shall be first made to the owner in money, or first secured to him by a deposit of money. The railroad company could not acquire any rights or fix any liability as between itself and the landowner by wrongfully taking possession of the land.

The appellees remained the owners of the property until proceedings were taken to enforce their claim for the value of the property taken. Therefore, the compensation to be paid the owner when he brings suit under the statute should be determined under the same rule as though the railroad company itself had begun condemnation proceedings at the date of the beginning of this action. Such a rule prevents confusion of rights and remedies and affords a definite and invariable rule for the assessment of damages. Such a rule prevents the railroad company from reaping any reward for its own wrongful action. Otherwise it might take possession of the property and build its road across it without first making full compensation to the owner, and then wait for the owner to sue because it might reap an advantage by not bringing the suit itself.

It follows that the court did not err in holding that the value of the property should be proved as of the time of the filing of the suit, instead of the date the property was actually appropriated by the railroad company.

The result of our views is that the judgment in favor of Charles Chapman and William Chapman will be reversed, and their cause of action dismissed.

The judgment as to the other appellees will be affirmed.


text:
    Woodson v. McLaughlin.
    Opinion delivered October 31, 1921.
    1. Master and servant — relation op landlord and share cropper. —Where a landlord employed one as a share cropper to cultivate and gather a crop for one-half of it, this constituted the relation of landlord and laborer, and not that of landlord and tenant.

      2. Master and servant — discharge—surrender of premises.— Where, as part of the contract price for cultivating and gathering a crop, the share-cropper was furnished a house, he had no interest in the premises, and when his contract of employment was terminated by his discharge, it was his duty to vacate the premises, regardless of whether the discharge was rightful or not.
    3. Master and servant — wrongful discharge — damages.—Where a land owner, having contracted with another to allow him to cultivate his farm on the shares for a year, orders him off the farm before the end of the year, and refuses to let him gather the crop, the share- cropper can maintain an action at once against the land owner and recover as damages the value of such cropping contract, but not any’ injury done to his person or that of his wife.
    Appeal from Pulaski Circuit Court, Third Division; A. F. House, Judge;
    affirmed.
    STATEMENT OE FACTS.
    J. P. Woodson and Mrs. Mollie Woodson, his wife, •brought this action in the circuit court against C. L. McLaughlin and M. W. Davis, and for cause of action states that said defendants wrongfully, maliciously, and forcibly compelled them to remove from a tenant house on the farm of McLaughlin which they were occupying while gathering a crop on said farm.
    J. P. Woodson was a witness for himself. According to his testimony, in 1919 he was a share cropper on the farm of McLaughlin. McLaughlin furnished Wood-son the land and a tenant house, to live in while he cultivated and gathered the crop, and Woodson was to receive one-half of the crop in payment for his services in making and gathering it. Woodson was delayed in gathering his cotton on account of the excessive rains in the fall of the year. McLaughlin asked Woodson to move out of the house in which he lived so that he might roll it to another part of the farm. Woodson refused to do this. McLaughlin hired M. W. Davis, his.co-defendant, to move the house for him, and, under the directions of McLaughlin, he first tore the kitchen .away from the main part of the house and rolled it some distance away. This left large cracks in the dwelling house. It commenced to rain and snow and by reason of the open places left in the wall the rain and snow beat into the main dwelling house and' caused Mrs. Woodson to become ill. Woodson and his wife then moved out of the house and brought this suit for damages.
    The circuit court directed a verdict in favor of the defendants, and from the judgment rendered the plaintiffs have appealed.

      Geo. M. Heard and Jno. D. Shackleford, for appellants. -
    . The court erred in peremptorily instructing a verdict for defendants. 126 Ark. 31.
    The contract was for the cultivation of land on shares, defendant to have exclusive possession and to pay plaintiff certain portions of the crop as rent, which created the relation of landlord and tenant. 70 Ark. 79. Title to the crop was in the tenant. 54 Ark. 346; 30 Ark. 359.
    When landlord and tenant are tenants in common. 54 Ark. 349; 32 Ark. 436.
    When the relation between the owner and tenant constitutes master and servant. 54 Ark. 349; 25 Ark. 327; • 32 Ark. 436; 34 Ark. 687.
    Tenant may for injury to person or goods in wrongful eviction, recover damages. 64 Ark. 453.
    Appellee was guilty of assault and 'battery. 2nd Am. & Eng. Ency. p. 953; 115 Ark. 461; 106 Ark. 4; anid he should respond in damages. 2nd Am. & Eng. Ency: p. 992; 75 Ark. 232; 64 Ark. 613.
    Landlord cannot take possession by force a,gainst the will of the tenant. 55 Ark. 360. But he may’ take possession peaceably. 32 Yt. 82.

      Hendricks & Snodgress, for appellees.
    Appellant was not a tenant. 79 Ark. 430; 34 Ark. 139; 34 Ark. 687; 32 Ark. 436; 48 Ark. 264; 54 Ark. 346; 70 Ark. 601; 16 Am. Rep. 780; 34 Ark. 179; 73 N. O. 320; 73 N. GY 384; 34 Ark. 687; 10 C. B. N. S. 227; 151 Pa. 351; 17 L. R. A. 213; 24 Atl. 1062.

      In such case an action for damages will not lie for forcible eviction. 132 Ga. 323; 16 Ann. Cas. 723; 3 Moore & S. 790; 44 111. App. 19; 17 Times L. B. 362; 1 Irish Jur. 313;'6 Scott, L. B. 301.
    He may eject the servant without process of law. 1 Irish Jur. N. S. 313; 1 Cal. 450; 6 Scott, L. B. 369, or without notice to quit. 4 El. & Bl. 347; 1 Jur. N. S. 303; 24 L. J. Q. B. N. S. 54.
    An action for trespass will not lie ag'ainst the master for breaking and entering premises.' 10 C. B. N. S. 227; 7 Jur. N. S. 948; 30 L. J. C. P. N. S. 253; 3 Frost & F. 49; 151 Pa. 351; 17 L. B. A. 213; 24 Atl. 1062.
    Servant is not entitled to time to remove his goods. 10 Barn & C. 721.
   Hart, J.

(after stating the facts). The decision the court was right. According to the plaintiff’s own testimony, J. F. Woodson was a share cropper on McLaughlin’s farm. He was to cultivate and gather the crop for one-half of it, and McLaughlin allowed him to occupy a tenant house on the farm in order to cultivate and gather the crop. This constituted the relation of landlord and laborer, and not that of landlord and tenant. Bourland v. McKnight, 79 Ark. 427.

It appears from Woodson’s own testimony that the title to the crop was to remain in McLaughlin until the latter divided it and gave the former his share-. This is exemplified by that portion of Woodson’s testimony where he speaks of picking1 some of the cotton and turning it over to McLaughlin. McLaughlin, after taking out certain supplies which he had furnished Woodson, would then turn over Woodson’s share of the crop to him. It appears that the occupation of the house by Woodson was merely ancillary to his employment. His occupation was merely in the character of share cropper, and he had no interest whatever in the premises. Woodson’s possession of the house was that of McLaughlin, and was a part of the contract price for: the services performed by him. When his contract was terminated by McLaughlin discharging him, his rights in the premises were extinguished, and it was his duty to get out.

The general rule is that a person who occupies the premises of his employer as a part of his compensation is in possession as a servant and not as a tenant. On the termination of his employment; his right to occupy the premises ceases.

The complaint does not allege a violation of the contract of hiring on the part of McLaughlin, but it alleges a trespass. Hence in this case it does not make any difference whether the discharge of Woodson by McLaughlin was lawful or not. It is sufficient that McLaughlin discharged him. Bowman v. Bradley, (Penn.) 17 L. R. A. 213, and Lane v. Au Sable Electric Co., 147 N. W. (Mich.) 546 Ann. Cas. 1916-C, p. 1108, and case note.

If Woodson was wrongfully discharged, his remedy was to sue McLaughlin for a breach of contract. Where one, having contracted with another to allow him to cultivate his farm on the shares for a year, orders him off the farm before the end of the year, and refuses to let him gather the crop, the cropper may maintain an action at once against the land owner and recover as damages the value of such cropping contract. Jewett v. Brooks, 134 Mass. 505, and Tignor v. Toney, (Tex.) 35 S. W. 881. In such cases the damages, like the contract of hiring, are entire and accrue on the day when the contract is repudiated. They are measured by the value of the contract on which the cropper is deprived, and not by any injury done his person, or that of his wife.

It follows that the judgment must be affirmed.


text:
    Gibbs v. Bates.
    Opinion delivered October 31, 1921.
    1. Quieting title — jurisdiction.—The jurisdiction of equity to quiet title, independently of statute, can be invoked by a plaintiff holding under a legal title only when he is in possession, the remedy at law being otherwise adequate.

      2. Equity — want op jurisdiction — dismissal op action.— Where neither the original hill nor the cross-bill set up matters cognizable in equity, the chancery court properly dismissed the complaint for want of equity.
    Appeal from St. Francis Chancery Court; A. L. Hutclvins, Chancellor;
    affirmed.
    STATEMENT OP PACTS.
    Eva E. Gibbs brought this suit in equity against Nora L. Bates to quiet her title to a tract of land comprising 67 acres more or less in St. Francis County, Ark. In her .complaint she alleges that she is the legal owner and in possession of the land. Her complaint further states that Nora L. Bates makes an adverse claim to the land, the nature and character of which is unknown to the plaintiff.
    Nora L. Bates filed an answer in which she denied that Eva E. Gibbs was in possession of the land, and averred that she was herself in possession of the land. The defendant claimed title 'by .adverse possession, and asked to be discharged from the action.
    The record shows that the defendant had been in possession of the land in question for more than fifteen years, claiming and holding the same adversely to all persons.
    The chancellor found for the defendant, and it was decreed that the complaint of the plaintiff should be dismissed for want of equity.
    To reverse that decree the plaintiff has duly prosecuted this appeal.

      Otis Gilleylen and 'Carmichael S Brooks, for appellant.
    Appellee’s claim of adverse possession is inconsistent with her previous claim to a life estate in the land, which she based on the ground that she Was infant when she relinquished her dower to appellant, which deed was voidable. 57 Ark. 632. Possession of a life tenant does not become adverse to the reversioner until after the death of the life tenant. 126 Ark. 1. She acquired no right by paying taxes, which is an obligation impnsp.fl upon the life tenant. 128 Ark. 605. The former suit was one for unlawful detainer, therefore her plea of res judicata is untenable. 104 Ark. 322; 123 Ark. 156.
    Appellant was entitled to the relief sought. C. & M. Dig. §§ 8362 and 8369; 87 Ark. 494,
    The attempt of the infant wife to convey her homestead is not void, but voidable, and the contract being good on its face, she must disaffirm her contract within a reasonable time after arriving at full age.
    The action was not prematurely brought, nor the appeal prematurely taken.

      Mam & Mann, for appellee.
    Appellant was not in possession of the land and not entitled to relief under § 8362 C. & M. Dig.- Inasmuch as the allegation of possession was not sustained by the evidence, the cause of action must fail. 74 Ark. 383; 56 Ark. 391; 44 Ark. 436; 72 Ark. 256. Appellant having failed to establish her right to equitable relief, the court was without jurisdiction, and properly dismissed the complaint for want of equity. 56 Ark. 93.
    Appellee’s possession of the land was adverse to appellant. The answer filed by appellee to the previous suit denied the title of appellant to the property in suit, and was a disaffirmance by her of the deed executed during her minority, putting- into effect the statute of limitations. 22 Cyc. p. 554; 90 Ark. 367.
   Hart, J.

(after stating the facts). Equity jurisdiction to quiet title, independent of statute, can only 'be invoked by a plaintiff in possession holding the legal title. The reason is where the title is a purely legal one, and some one else is in possession, the remedy at law is plain, adequate and complete, and an action of ejectment cannot be maintained under-the guise of a bill in chancery. In such a case the party in possession has a constitutional right to a trial by jury. Pearman v. Pearman, 144 Ark. 528, and cases cited.

So, too, under our statute any person claiming to own land that is in the actual possession of himself, or those claiming under him, may have his title to such land confirmed and quieted in the manner provided by the act. Crawford & Moses’ Digest, §§ 8362 and 8383.

In the present case the plaintiff claims under a legal title, and the defendant is in possession of the land claiming to hold adversely to the plaintiff and to all other persons. The plaintiff claiming under a legal title and the defendant being in possession, the plaintiff had a full and complete remedy at law, and chancery had no jurisdiction in the premises.

It is true that the defendant filed an answer setting up title in herself by adverse possession, but she did this by way of defense to the plaintiff’s action, and did not ask affirmative relief for herself. Of course, where the defendant files a cross-bill founded on matters clearly cognizable in equity, this supplies any defect in jurisdiction and places the court in possession of the whole cause and imposes upon it the duty of granting relief to the party entitled to it. The original bill and cross-bill then became but one cause, and a court of chancery takes jurisdiction where allegation of the cross-bill supply the defects of the original bill. Pearman v. Pearman, supra, and cases cited.

It follows that, neither the original bill nor the answer having set up matters cognizable in equity, the chancery court was right in dismissing the complaint for want of equity, and the decree will be affirmed.


author: Smith, J.

text:
    McLaughlin v. Morris.
    Opinion delivered October 31, 1921.
    1. ' Taxation — description op land sold. — -A tax sale of land described as the undivided one-third of a certain quarter section is void.
    2. Guardian and ward — purchase op ward’s land by guardian.— Where a guardian purchased this ward’s land from one who had purchased it at tax sale, his purchase will be held to be for the benefit of his wards.

      3. Adverse possession — trust relation. — Persons standing in loco parentis to minor children are prohibited from acquiring title adverse to such children.
    4. Partition — purchase by guardian ad litem. — A guardian ad litem, of infant defendants in a partition suit may not purchase the interest of such defendants.
    5. Vendor and purchaser — notice op chain op title. — A. purchaser of land is required to take notice of an infirmity appearing in the chain of his title.
    Appeal from Lonoke Chancery Court, J. E. Martineau, Chancellor;
    affirmed.

      Will G. Ackers, for appellant McLaughlin.

      Trimble & Trimble, for appellant Robinson.

      Oscar E. Williams, for appellees.
    The tax deed upon which appellants base their title is void for indefiniteness of description. 94 Ark. 306, 126 S. W. 830; 77 Ark. 321; 92 S. W. 1124; Kirby’s Digest §§ 6976, 7024. 7083 and 7085; 79 Ark. 442; 50 Id. 689.
    One who stands in a fiduciary or a quasi fiduciary capacity toward another cannot purchase the property of his cestui que trust. 33 Ark. 575; 30 Ark. 44; 54 Id. 627; 16 S. W. 1052; 13 L. R. A. 490; 23 Ark. 622; 49 Id. 243; 4 S. W. 776; 112 Ark. 389; 55 Id. 85; 61 Id. 575; 73 Id. 575; 75 Id. 184; 78 Id. Ill; 89 Id. 178; 95 Id. 434; 96 Id. 573.
    An order decreeing attorney’s fees and costs as a lien against infants’ lands is void and may be attacked collaterally. 47 Ark. 86; 75 Id. 34; 76 Id. 146; 105 Id. 439.
    Rosie Johnson and J. A. B. McCrary are not barred by laches or limitations. Kirby’s Digest, § § 5056, 5057; 55 Ark. 85; 87 Id. 238.
    Appellants are chargeable with notice of the defect in the chain of title. 35 Ark. 100; 205 S. W. 113; 39 Cyc. 60.
   Smith, J.

Prior to 1880 Wash Ballard and his two brothers owned the southeast quarter of section 33, township 1 north, range 10 west. Wash Ballard died, and M. C. Armstrong was appointed guardian of the minor children. On May 11, 1891, Armstrong filed a final settlement of his guardianship of John Ballard, the oldest of the children, who had then, come of age; but it does not appear that he ever made final settlement of his guardianship of the three younger children. In 1884 Armstrong, as guardian, filed a suit for the partition of the land owned by the Ballard brothers, and in' the decree rendered in that cause a tract of land on the east side of the southeast quarter, containing 55.35 acres, was apportioned to the “Wash Ballard children.

On June 12, 1893, there was a sale of a tract of land, described as “Und. 1-3 southeast quarter section 33 * * * ,” for the taxes of 1892. This sale was made to J. D. Shulte, who assigned his certificate of purchase to W. P. Fletcher, who, upon the expiration of the period of redemption, received a tax deed therefor. On December 21, 1896, Fletcher conveyed an undivided half of the undivided third southeast quarter section 33 to Julia Cleveland, Irene Ellis and Emanuel Ballard. Jeff Cleveland paid the purchase price to Fletcher and had the deed made to Julia, his wife, and to Irene Ellis, who was Julia’s niece and a minor, and to Emanuel Ballard, a brother of his wife, who was also a minor. Julia Cleveland was a daughter of Wash Ballard by his first wife, and on her death she was survived by two sons, whose names are Ben and Grover. On December 16, 1898, Fletcher conveyed to Armstrong an undivided half of an undivided 1-3 southeast quarter of section 33. Armstrong had been in possession of the land as guardian of the minor children, 'and after the deeds from Fletcher were executed Armstrong and Cleveland shared the possession jointly.

The testimony shows that at the time of the execution of the deed from Fletcher to Cleveland, Emanuel Ballard was a minor and on his death was survived by an only child, a girl known as Rosie Johnson, who was also known as Fannie Ballard, and who was born December 20,1898. On of the questions of fact in the case is the identity of Fannie Ballard and Rosie Johnson, and, if the same person, whether she was the only child of Emanuel Ballard. AVithout reviewing here the testimony on this issue, we affirm the finding of the court below that Eosie Johnson is Fannie Ballard, and was the only child of her father, Emanuel Ballard. Eosie Johnson’s mother probably had other children after the death of Emanuel; but that is unimportant, as the inheritable blood was on the part of the father, and not that of the mother.

After the death of Emanuel Ballard in 1899 Julia Cleveland took Emanuel’s daughter Eosie, then an infant a year old, into her home as a member of the family, where Eosie lived until her marriage in 1913. Irene Ellis, another niece of Julia Cleveland, was also taken into Julia’s home as a member of her family and reared by her. Irene Ellis was one of the three grantees in the deed from Fletcher dated December 21, 1896. Irene Ellis was the daughter of a child of Wash Ballard by his first wife, and Irene’s ancester took no interest in the lands because Wash Ballard had conveyed his interest in the quarter section to his children by his second wife.

Susan Ballard intermarried with one J. W. Mc-Creary. Susan died in 1894, and was survived by only one child, a son named J. A. B. McCreary, who was born May 30, 1894, and was therefore just twenty-two years old when this suit was brought. Eosie Johnson became of age December 20, 1916, the day before this suit was filed. It does not appear that, at the death of Emanuel Ballard and Susan McCreary, Armstrong, their guardian, had made final settlement of the guardianship or had been discharged by the probate court.

In 1901 Armstrong sued Jeff Cleveland and Julia, his wife, and Irene Ellis and Fannie Ballard for partition. Fannie Ballard was about three years old at that time, and Irene Ellis was also a minor. J. C. Boyd, an attorney, was appointed guardian ad litem to represent these minors. Boyd also represented Julia and Jeff Cleveland, and was allowed a fee of fifty dollars by the court, which was declared a lien on the land. Partition of the land was made in kind, and the north half was given to Armstrong and the south half to Julia Cleveland and the other defendants. The fee allowed Boyd was not paid, and he 'caused an execution to be issued on the judgment, and in January, 1906, the.south half was sold under this execution, and Boyd himself became the purchaser. Later, after obtaining the sheriff’s deed, Boyd executed a quitclaim deed to Jeff Cleveland for the land thus purchased for the recited consideration of one dollar. Jeff and Julia Cleveland died, and their children, Ben and Grover, executed a quitclaim deed to their interest in the land to W. H. McLaughlin and to J. P. ICerby.

In the partition suit between Armstrong and Cleveland et al., Armstrong w-as represented by G-eorg’e Sibley and the firm of Trimble & Robinson, attorneys, and a fee was allowed these attorneys, which was fixed as a lien on the north half, this being the land assigned their clients, the heirs of Armstrong, who had died before the final decree was entered. This fee was not paid, and at a sale under an execution which issued on this judgment T. C. Trimble, Jr., who was not then a member of the firm of Trimble & Robinson, became the purchaser, and, by mesne conveyances from T. C. Trimble, Jr., this north half was conveyed to J. H. Robinson.

This suit was brought by Rosie Johnson and her mother, Mollie Morris, and by J. A. B. McCreary and his father, J. W. McCreary. . Ben and G-rover Cleveland were made parties defendant, but they made no defense. The other defendants, W. H. McLaughlin and J. P. Kerby- and J. H. Robinson, have a paper title which has its origin in the tax sale to Fletcher; and they say that this title, if not good originally, has been made so by possession of Armstrong and Cleveland, who lived on the land until a short time before the institution of this suit; and that the plaintiffs are barred by limitation.

Pending this litigation E. D. ICidder obtained from Rosie Johnson a quitclaim deed for her undivided interest; but that deed was canceled in the final decree which was rendered November 15, 1920. This decree recites that Kidder prayed, and was granted, an appeal; but his appeal was never perfected. The transcript herein was filed May 10, 1921, at which time McLaughlin and Robinson prayed an appeal, which was granted by'the clerk of this court. Not having perfected his appeal, we need not now review the action of the court in canceling Kidder’s deed. Section 2135, C. & M. Digest; Damon v. Hammonds, 73 Ark. 608.

The court found that the plaintiffs Rosie Johnson and J. A. B. McCreary are each the owner of an undivided one-third of the land sued for; and that the defendant J. H. Robinson is the owner of an undivided third'in the north half of said land; and that the defendants W. H. McLaughlin and J. P. Kerby are the owners of an undivided one-third of the south half of said land, each owning an undivided one-sixth interest.

The tax deed to Fletcher was void. The description employed in the tax sale and in the deed made pursuant thereto is identical with the description which the court held to be bad in the case of King v. Booth, 94 Ark. 306, except that in that case the description was “Und. 2/6,” while here the description is TJnd. 1/3.” We will not repeat here the reasoning of the court in that case distinguishing it from the earlier case of Payne v. Danley, 18 Ark. 441. Moreover, it may here be said that the description now under review was bad because it appears that in 1884 this quarter section was actually partitioned in a suit brought by Armstrong, as guardian, for that purpose, and therefore the interest of the Wash Ballard heirs was not an “undivided” interest.

The big question in the case is whether or not a trust relation existed on the part of Armstrong and Cleveland and his wife which prevented them from acquiring the title to the land in suit. After a careful consideration of the testimony we have concluded that the finding of the court below, that there was a trust relation, is not contrary to the preponderance of the testimony.

Armstrong was the administrator of Wash Ballard’s estate; and he was guardian of Emanuel Ballard, the father of Rosie Johnson; and was also ihe guardian of J. A. B. McCreary’s mother. As administrator and as guardian he took possession of the land, and remained continuously in its possession until the time of its partition in the suit brought by him for that purpose. It appears that he was removed as administrator for mismanagement of the estate; but it is not shown that he ever made a final settlement of his guardianship or received his discharge; and, in the absence of that showing, his purchase from Fletcher must be held to be for the benefit of Ms wards. Sconyers v. Sconyers, 141 Ark. 256; Holloway v. Eagle, 135 Ark. 206; Sorrels v. Childers, 129 Ark. 149; Hawkins v. Reeves, 112 Ark. 389; Waldstem v. Barnett, 112 Ark. 141; Haynes v. Montgomery, 96 Ark. 573; Eagle v. Terrell, 95 Ark. 434; Burel v. Baker, 89 Ark. 168; Reeder v. Meredith, 78 Ark. 111; Montgomery v. Black, 75 Ark. 185; Thweatt v. Freeman, 73 Ark. 575; Thomas v. Sypert, 61 Ark. 575; Gibson v. Herriott, 55 Ark. 85; Hindman v. O’Connor, 54 Ark. 633; Clements v. Cates, 49 Ark. 242.

Cleveland and his wife are in no better circumstances as regards their title. Cleveland took the deed from Fletcher to' his wife and to Irene Ellis and to Emanuel Ballard. Julia was a child by Wash Ballard’s first marriage, and Irene Ellis was the daughter of another child by Wash Ballard’s first wife; and Emanuel Ballard was Julia Cleveland’s brother. Irene and Emanuel were at the time both minors, and both were then living with Julia Cleveland as members of her family. Upon Emanuel Ballard’s death, Julia took Rosie, his infant daughter, into her home, where she lived as a member of Julia’s family until her marriage in 1913.

Julia and her husband Jeff thereafter stood in loco parentis to the infant child of Emanuel, as they had to Emanuel himself at the time of the execution of the deed from Fletcher. It is true that, in the deed to them from Fletcher made in 1896, they had Emanuel named as grantee, along with Julia Cleveland and Irene Ellis; but Emanuel was then a minor and his brother-in-law and sister, Jeff and Julia, could not thus acquire an interest in the land adverse to him. See cases cited above on the inability of Armstrong to purchase.

The testimony as to Emanuel Ballard’s age at the time of his death in 1899 is conflicting; and the contention is made that as he died in 1899 the statute of limitations has since run against his heir, Rosie Johnson. This is not true because the trust relation on the part of Julia and Jeff continued down at least until the time of Rosie’s marriage in 1913, until which time she had lived on the land with her uncle and aunt, and the bar of the statute could not have fallen between that date and December 21, 1916, the date of the institution . of this suit.

As to J. A. B. McCreary, there can be no question of limitation in any event, as he was born May 30, 1894, and his mother died that year, and Fletcher did not obtain the tax deed under which his adversaries claim title for more than a year thereafter, and he became of age May 30, 1915, which was only a little more than a year before this suit was brought.

Among the numerous other objections to the decree of the court below, it is insisted that the will of Wash Ballard was invalid as against his children by his first wife, because they were not mentioned therein. Such appears to be the fact.

It is also insisted that the deed from Wash Ballard to his children by his second wife is void because of the indefinite description, and, if not void for that reason, that it was void because it undertook to convey a particular part of a quarter section, containing sixty acres, when the interest then owned by Ballard was an undivided third.

Neither of these objections to this deed appears to be well taken. The deed from Wash Ballard conveyed a tract of land in shape of a parallelogram off the east side; and, while it does appear that.Wash Ballard did not then own that land in severalty, it does appear that when the partition was made the grantees in that deed were given substantially that land, the difference being that they were given only 55.35 acres, but that land lay within the boundaries of the sixty-acre tract. It is this 55.35-acre tract which forms the subject-matter of this litigation, and that land was embraced in the tract described in the deed from Wash Ballard. We do not know what showing was made in the suit for partition brought by Armstrong back in 1884; but we do know that the land now in litigation was assigned to Armstrong’s wards; and we also know that this land was included in Wash Ballard’s deed, although that deed conveyed about five acres more land than was assigned to Armstrong’s wards.

It is insisted that, as Rosie Johnson, or Fannie Ballard, was a party to the' partition decree in the suit of Armstrong et al. v. Cleveland et al. (and such is the fact), her title passed by operation thereof in the following manner. The court allowed J. C. Boyd a fee of $50 for his services in that case; and as the fee was not paid an execution issued and the whole half interest there assigned to the defendants in that case was sold, at which sale Boyd became the purchaser. Later Boyd received a sheriff’s deed, and thereafter conveyed to Cleveland, whose heirs, upon the death of their ancestor, conveyed to McLaughlin and to Kerby. But the sale to Boyd was void for the reason that he was the guardian ad litem of the infant defendants; and by sec. 8115, C. & M. Digest, it is provided that persons standing in that relation may not purchase at a partition sale.

It is said that McLaughlin had no notice of the infirmity in the sale. He makes no showing to that effect, although he alleges the fact so to be in his answer. But this infirmity appears in the chain of his title, and he is therefore affected with notice of it. Star Lime & Zinc Mining Co. v. Arkansas National Bank, 146 Ark. 246; Madden v. Suddarth, 144 Ark. 79.

The purchasers claiming title through T. C. Trimble, Jr., acquired no title, for the reason that Trimble himself acquired nolle in buying in the Armstrong title, for, as we have herein shown, Armstrong was a trustee, and as such held the titlé.

Upon a consideration of the whole case we are of opinion that the decree of the court below is correct, and it is therefore affirmed.