author: McCulloch, C. J. McCullough, C. J.

text:
    Bank of Hatfield v. Clayton.
    Opinion delivered April 2, 1923.
    1. Banks and bankinch-stated account. — -The furnishing of a statement by a bank to a depositor where the items are sufficiently shown to .put the depositor on notice constitutes an account stated,' to which objection must be made within a reasonable time, otherwise the account is final.
    2. Banks and banking — stated account — time for making objection. — Delay of three months in making objection to an account rendered is unreasonable.
    3. Trial — abstract instruction- — waiver op objection. — A request for -an instruction submitting an -issue operates -as a waiver of the error in giving -an -abstract instruction on the same issue.
    4. New trial — -insufficiency of evidence — waiver.—As the statute (Crawford & Moses’ Dig., §1311), makes the insufficiency of the evidence a ground for motion for a new trial, such ground is not waived by raising or failing to raise it prior -to that step in the proceedings.
    Appeal from Polk 'Circuit Court, James S. Steel, Judge;
    reversed.

      Norwood, & Alley, for appellant.
    Judgment was wrongfully rendered against the bank. If the bank was at fault in paying out appellee’s money on her check -signed by her by Johnson, she should have complained about it immediately upon receiving knowledge of the fact. If she authorized it, she was bound, and she had notice of the transaction, receiving the check he signed for her, and, not having complained about it, -she is -bound any way, and appellant was entitled to a directed verdict. The court erred in giving the four requested instructions fop appellee. Should not invade province of jury as to weight -to be given the evidence or single -out -any -part thereof. Sharp v. State, 51 Ark. 147; Railivay Co. v. Byars, 58 Ark. 108; 93 Ark. 316; 141 Ark. 25; 45 Ark. 165. No. 2 erroneously placed the burden of proof on appellant. Harris v. Lemley, 131 Ark. 471. There was nothing in signature of check to indicate bank was borrowing the money. Board of directors act for and direct affairs of bank. 3 R. C. L. 440, sec. 66; 128 Ark. 266. Court erred in amending •appellant’s requested instructions' 1, 2, 3 and 4, and giving them as modified. Facts show an account stated between the depositor and the -bank. Citizens’ Bank S Trust Go. v. Hinkle, 128 Ark. 275, quoting 1 R. C. L. 211.

      Van Hoy & Frederick, for appellee.
    The instructions were correct, and properly submitted the issues to the jury. Appellee’s money being on deposit, it devolved on the bank to show it had been paid to the depositor, or some one authorized to receive it, or that she had ratified an unauthorized payment made. 7 C. J. 699; Michie on Banks and Banking, 1341, sec. 154; 111 111. 323; 13 Cyc. 1647. Johnson, vice president of the bank, appropriated appellee’s funds, for which the bank was liable. Citizens’ Bank & Trust Co. v. Hinkle, 126 Ark. 266. The court’s instructions on ratification -are correct. 21 R. C. L. § 107; 31 Cyc. 1647; 147 Ark. 425; 124 Ark. 360; 74 Ark. 557; 55 Ark. 240; 29 Ark. 131; 11 Ark. 189; 96 Ark. 505; 141 Ark. 414; 96 Ark. 505. Appellee, immediately upon discovering that the bank bad not borrowed her money, complained and demanded payment of the mone3r. No evidence of ratification except she received the letter and the bank statement, with voucher or paid check. As to duty of depositor to examine passbook, 3 R. C. L. 538-9, sec. 168. No error in rejecting stub of receipt which was offered by appellant. The verdict is supported by the evidence, and judgment should be affirmed.
   McCulloch, C. J.

The plaintiff, Mrs. Nancy-Clayton, instituted this action against the defendant, Bank of Hatfield, to recover the sum of $1,000 held on deposit in the bank to the credit of plaintiff, for which a cheek had been issued and payment refused. The bank defended on the ground that the deposit had been previously withdrawn by check, and that plaintiff had no funds on deposit at the time the last check was drawn. Upon the issues the jury returned a verdict in favor of the plaintiff, and the defendant has appealed.

The defendant is a banking institution doing business at the town of Hatfield, in Polk County, and the plaintiff, Mrs. Clayton, is the wife of a farmer residing about a mile and a half distant from that town.

In May, 1921, Mrs. Clayton had on deposit in the bank the sum of $1,475.83, and Lewis Johnson, who was vice-president of the bank, and, according to the evidence, was more or less active in assisting in the management of the affairs of the bank, made a visit to1 the home of the plaintiff and proposed to plaintiff that if she would permit him to withdraw $1,000 of the funds from the bank and lend it out he could secure a loan for her at the interest rate of ten per cent, per annum. Johnson testified that the plaintiff consented to that arrangement, but the plaintiff testified that she declined to go into the plan, for the reason that she needed the money for another purpose. The verdict of the jury must be treated as having settled this issue of fact in favor of plaintiff. However, Johnson disregarded the expressed will of the plaintiff, and on June 5, 1921, he drew a check on the bank for $1,000 'and signed plaintiff’s name to it. The money was withdrawn from tlie bank on this check by Johnson and used in a loan to himself. . He executed a note to the plaintiff with (1. H. Johnson as surety, and this note was laid away in the vaults of the bank, presumably to be kept for the plaintiff. The cheek was in form as follows:

“Hatfield, Ark., June 5, 1921.

“The Bank ok Hatfield

“Pay to the order of loan 90 days ($1,000) one thousand and no/— dollars.

“(Signed) Nancy Clayton,

“L”

The money was withdrawn on this check June 8, 1921, and a charge was made against the plaintiff’s account on the books of the bank, together with another item of $6.08, covered by a cheek which the plaintiff had drawn herself.

On June 11,1921, Johnson wrote the following letter to plaintiff, which was received by her:

“Hatfield, June 11, 1921.

“Mrs. W. S. Clayton:

“I have placed a thousand dollars for you at ten per cent., and, if you should happen to need it, let me know a couple of weeks before you need it, and will place it back, but just as long as you don’t need it, will draw you 10 per cent, interest, and this will help you out. You have been good to us, and we want to do all we can to help you.

“Your friend,

“L. H. Johnson,

“V. President.”

Plaintiff testified that she received this letter, but made no response thereto.

On July 30, 1921, the bank delivered to the plaintiff an itemized statement of her account with the canceled checks. The statement had a proper caption showing what its nature was, and it had printed thereon notice to the depositor in the following form:

“This statement is furnished you instead of balancing your pass book. It saves you the trouble of bringing your pass book to the bank and waiting for it to be balanced. These statements will be found very convenient to check up and file. All items are credited subject to final payment. Use your pass book only as a receipt book when making deposits.”

This statement covered the plaintiff’s account for the months of June and July, and she admitted on the witness stand that she received the statement, and also that she thereafter received similar statements teach month as to the condition of her account and the items thereon.

On October 1 the plaintiff wrote a letter to Johnson as follows:

“I will wrote you a few lines in regard to my money. Will you be so kind as to place it back in tbe bank by tbe 1st of November, as I will need it bad by that time.”

Plaintiff drew a check for $1,000 in favor of her husband, W. S. Clayton, and gave it to him for presentation to the bank. The plaintiff’s husband went to the bank and presented the check, and, according to his testimony, the clerk, or official, in the bank, without paying the check, fold him about the note and gave him a receipt in the following form:

“To Nancy Clayton 10/6/21.

“For note of L. H. J. amount $1,000. O. K.

“Nancy Clayton,

“By W. S. Clayton.”

According to the testimony, plaintiff made no objections to the use made of the funds until some time in November. . She testified that she did not understand that the money was to be handled or used by Johnson individually, but that the bank was to handle the money for her.

The court submitted the case upon instructions which told the jury that plaintiff was entitled to recover the funds on deposit in the bank, unless it was found, from a preponderance of the evidence, that she authorized the loan of her funds, “or that thereafter, being fully informed of all material facts with respect thereto, plaintiff expressly ratified said transaction, either orally or in writing, or by her- conduct, to said defendant. ’ ’

The court refused to give the following instruction requested by the defendant:

“5. The 'court tells you, as a matter of law, that a reasonable time for the plaintiff to object to the stated account furnished her, if she had objection, was such time as a reasonable person, under all the circumstances, would have required to investigate the account, and if plaintiff failed in this, and failed to object within this time, then, as a matter of law, she would be estopped, and you should find, for defendant.”

The statement of plaintiff that she understood that Johnson was acting for the bank, and that the ¡bank, instead of Johnson individually, was to lend out her money, or had done so, may as well be disregarded as am issue in the case, further than it may throw light upon the reasonableness of the time for objection to be made by plaintiff against the items of her account presénted in the statement furnished by the bank, for there is no issue made by the pleadings or submitted to the jury as to the negligence or wrongdoing of the bank in lending the money to Johnson on insufficient security. The case was tried solely on the theory that the withdrawal of the funds from the bank was without authority from plaintiff, and that she had a right to recover the amount of the balance of the deposit on the ground that the bank was her debtor to that extent.

We are of the opinion that the court not only erred in refusing to give the fifth instruction requested by defendant, for it is a correct statement of the law, but that there was really no evidence upon which to submit the question to the jury whether or not plaintiff liad objected to the statement of her account within a reasonable time.

The statement rendered to the plaintiff by the defendant on July 30, 1921, constituted, according to the undisputed evidence, an account stated within the meaning of the law applicable to that term. Citizens’ Bank & Trust Co. v. Hinkle, 126 Ark. 266.

In the case just cited we quoted with approval a decision of the Supreme Court of the United States in Leather Manufacturers’ Bank v. Morgan, 117 U. S. 96, where the court said that the furnishing of such a statement bv a hank “in effect imports a request by the bank that, the depositor will, in proper time, examine the account so rendered, and either sanction or repudiate it.”

The rule seems to be universal that the furnishing of a statement by a bank to a depositor, where the items are sufficiently shown to put the depositor upon notice, constitutes an account stated, to' which objection must be made within a reasonable time, otherwise the account is final.

In the case quoted above (117 U. S. 96) it was said: While no rule can be laid down that will cover every transaction between a bank and its depositor, it is sufficient to say that the latter’s duty is discharged when he exercises such diligence' as is required by the circumstances of the particular case, including the relations of the parties, and the established or known usages of banking business. ’ ’

There are many decisions which establish the rule that it is the duty of a depositor to examine the statement of account thus presented' within a reaslonable time and to immediately make objections thereto, if any be found. Cases which may be examined with profit on the subject are collated in the following case notes: 27 L. R. A. 823; 29 L. R. A. (N. S.) 342; 1 R. C. L. 216.

The following cases specially bear upon the question as to what will be considered a reasonable time: Standard Oil Co. v. Van Etten, 107 U. S. 329; Brown v. Van Dyke, 8 N. J. Eq. 705; Knickerbocker v. Gould, 115 N. Y. 533; Hawkins v. Long, 74 N. C. 781; Freas v. Truitt, 2 Colo. 489; Kenneth Investment Co. v. National Bank, 103 Mo. App. 613.

The facts in the present case are undisputed, and it presents merely a question of law as to whether or not objection was made within a reasonable time.

The statement expressly called for an examination of the account and objection to any incorrect items. The account not only set forth the items but was accompanied by the 'canceled cheeks. There was a delay of between two and three months before any objection was made, and it was more than three months before it was insisted that the money had been wrongfully withdrawn. There were no undisclosed facts which might or might not have, affected plain tiff’s decision in repudiating the withdrawal of the fund. She says that she thought that Johnson was acting for the bank in making the loan, but she knew to a certainty that the money had been withdrawn from the bank, which had the effect of changing the status of the bank as her debtor, and the only fact which she claimed to misunderstand was that the money had been loaned out by Johnson instead of the bank; but she was aware of the precise method in which her money had been withdrawn from the bank, and it was her duty to object to this, if it was unauthorized.

Counsel rely on the case of Robinson v. Security Bank & Trust Co., 141 Ark. 414, as supporting their contention that plaintiff’s repudiation of the withdrawal of the funds was within a reasonable time, or that it was a question for the jury. The difference, however, between that case and the present one is that there was no account rendered in that case, and there was merely a withdrawal of funds on a forged or unauthorized check, and the depositor waited a considerable length of time before he made demand for the money after receiving information that the money had been withdrawn. No such strict rule is required where the bank does not furnish a statement which constitutes an account stated and is tantamount to an express request on the part of the bank to examine the account and make objections, if any exist. The case referred to above merely involved an instance of silence under circumstances where no express demand was made for an answer, whereas, in the present case, there was an account which called for objection within a reasonable time.

We are of the opinion that the evidence in the present case presents no uncertainty as to the plaintiff’s legal duty with respect to the statement of her account furnished to her, and, as a matter of law, it should be said that she waited too long before making objections.

The judgment is therefore reversed, and, the case having been fully developed, judgment will be rendered here against the plaintiff. It is so ordered,

OPINION ON REHEARING.

McCullough, C. J.

Counsel for appellee call our attention to .the fact, shown by the record, that instruction number five requested by appellant was given by tlie court, instead of refused, as erroneously stated in the original opinion. We recede therefore from that part of the opinion which erroneously held that error was committed in refusing to give that instruction. We have, however, .carefully reconsidered the evidence in the case, .and now adhere to the conclusion announced that the evidence is not legally sufficient to sustain the verdict.

It is further insisted by counsel that appellant, by requesting the court to give instructions 'submitting the issues to the jury, not only waived the error in .submitting the issues at the request of appellee, but waived the right to .assign as error the insufficiency of the evidence to support the verdict. Counsel is correct in the first contention, for we have often held that a request for an instruction .submitting 'an issue operates as a waiver of the error in .giving an abstract instruction on the same issue. St. L. I. M. & S. Ry. Co. v. Jacobs, 70 Ark. 401; Greenwich Ins. Co. v. State, 74 Ark 72; Western Union Tel. Co. v. Arant, 88 Ark 499; Berman v. Shelby, 93 Ark. 472; Prairie Creek Coal Mining Co. v. Kittrell, 106 Ark. 138; Morris v. Raymond, 132 Ark. 449; Patterson v. Risher, 143 Ark. 376. It does not follow, though, that the question of the insufficiency of the evidence is waived by requesting an instruction submitting the issues to the jury. Nor does a party waive that question by failing to request a peremptory instruction.

The statute makes the insufficiency of the evidence a ground for a new trial which may be raised in the motion. Crawford & Moses’ Digest, 1311, subdivision 6. A party is not required to raise that question prior to the motion for new trial, and it is not waived by either raising it or failing to raise it prior to that step in the proceedings.

The distinction lies between the error in submitting an issue and the error in the unsupported verdict, and the first only is waived by joining in the request for submission.

Rehearing denied.

Wood, J., dissenting.


source: Caselaw Access Project

author: McCulloch, C. J.

license: Public Domain

text:
    John Meeter & Sons v. Paragould Wholesale Grocer Company.
    Opinion delivered April 2, 1923.
    1. Sales — requisites to pass title). — Delivery and acceptance, either actual or constructive, is essential to the passing of the title under a contract of sale.
    2. Sales — delivery to carrier. — While a delivery to a carrier pursuant to instructions or agreement constitutes a delivery to the consignee and is sufficient to pass the title under a contract for the sale of chattels, a consignment by a seller to his own order does not of itself pass title unless there is an agreement that the title shall pass upon such shipment.
    3. Sales — direction of verdict. — Where a seller shipped onion sets to a purchaser consigned to shipper’s order, and the purchaser rejected them as spoiled and unfit, in the absence of any testimony that title was to pass 'before the actual delivery, the fact that the shipment was to seller’s order was conclusive that the title did not pass, and the court properly directed a verdict for defendant when the seller elected to go to trial upon his right to recover as for a completed sale.
    Appeal from Greene Circuit Court; W. W. Bandy, Judge;
    affirmed.

      Fuhr dk Futrell, for appellant.
    The sale was complete when the onion sets were loaded on cars at Lansing, “Terms, net cash f. o. b. Lansing, 111. The seller shall not be held liable for damage to sets in transit.” Evidence shows appellant performed its part of the contract, and was not able to find a market for t>he sets after appellee refused to accept them. The court overlooked the provisions of the contract iand treated the bill of lading to shipper’s order as conclusive of the question of delivery. 137 Ark. 397, holding title to shipment passed at point of shipment, controlling here. Ill Ark. 521; 56 N. J. Law 617; 32 Md. 344; 138 Ark. 350. Other cases: 68 Ark. 310; 81 Ark. 389; 90 Ark. 131; 106 Ark. 482; 102 Ark. 344; 91 Ark. 240; 54 Ark. 305. The construction and effect of contract ruled by decision in 126 Ark. 19. Appellee’s rights were not affected by the bill of lading, which neither accelerated nor delayed delivery. Shipping shipper’s order was only a method of collection that did not affect rights of parties. Appellee relies on 101 S. W. 477 and 13 S. E. 13, but they do not sustain its contention. Authorities cited in Erwin case do not support contention. New York cases are not in point, and Mass, and U. S. cases support our contention, as does Benjamin on Sales, § 581. The bill of lading is only conclusive of the passing of the title, in the absence of anything in the contract contrary thereto, but not so when the contract fixes the time and place of delivery. It is not denied in the answer that the, -sets were in good condition when delivered f. o. b. at Lansing, as the contract provides. The proof also shows it, and that they were in good condition at Port Worth, Texas, after four days stay at Paragould, where appellee refused to accept shipment. Appellant performed its contract, and is entitled to judgment.

      Bloch & Kirsch, for appellee.
    The onion .sets were not shipped according to the contract made, but were consigned shipper’s order, bill of lading with draft attached, and .the sale was not completed upon delivery to the carrier., 241 S. W. 887; 111 Ark. 521; 128 Ark. 124; 101 S. W. (24-) 447; 13 S. E. (Ga.) 513. The court was right in declining to submit the case to the jury on any other theory than that plaintiff’s right to recover would depend on the condition of the sets at destination. The measure of damages could not have been greater than the difference between the contract price and the market price at the time of the breach of the contract, if there was a breach of it. 89 American Decisions 713. Appellant refusing to permit the court to submit the ease to the jury on this theory, the verdict was properly directed.
   McCulloch, C. J.

Appellant (a corporation) is engaged in the business, at or near Lansing, Illinois, of producing for sale and selling onion sets and other vegetable seeds, and it entered into a contract in writing with appellee, a dealer in merchandise at Paragould, Arkansas, for the sale of eight hundred bushels of onion sets of different varieties. The contract was, signed by both parties, and specified the price, and also specified the terms of payment in the following language: “Net cash, f. o. b. Lansing, Illinois.” The contract also stated the date when the shipment was to be made. There was no other reference in the contract to the mode of shipment.

Appellant loaded the onion sets in a car at Lansing, Illinois, and consigned the same under bill of lading to its own order, and attached the same to a draft on appellee for the price, and forwarded the draft to a bank at Paragould for collection.

Appellee’s agent was permitted to inspect the onion sets in the car when the same reached Paragould, and rejected them on the ground that they were wet, spoiled, and unfit for planting.

Mr. Meeter, one of the officers of appellant corporation, came to Paragould upon receipt of notice from appellee of rejection of the shipment, and a controversy arose between the parties as to whether or not the seed were in good condition. Appellee refused to recede from its position rejecting the seed, whereupon appellant reshipped the seed to another place in an effort to find a market,

' This is a suit instituted against appellee to recover the price, alleging that the seeds were sold and delivered under written contract. The case was tried, before a jury, and each party introduced testimony concerning the condition of the seed at the time the car arrived at Paragould.

It is undisputed that appellee refused to accept the seed on the ground that they were unfit for use. The testimony adduced by appellee tended to show that the seed were spoiled and unfit for planting, whilst the testimony adduced by appellant tended to establish the fact that the seed were in good condition when they arrived at Paragould, and were even in good condition on arrival at Fort Worth, Texas.

After the testimony had been adduced on both sides, the court announced to counsel for appellant that the case could be submitted to the jury on the issue as to whether or not there had been a breach of the contract by refusal to accept the shipment of onion sets at Paragould, and upon the theory that, if appellee had broken the contract, appellant would be entitled to recover damages, but that the court would not submit the case upon the theory that there had been a completed sale so as to entitle appellant to recover the purchase price. “Whereupon (the record recites) counsel for appellant refused to permit the court to submit the case to the jury upon the theory that the cause of action, if any existed, was a breach of the contract, and the court, after being notified of this fact by counsel for plaintiff, directed a verdict for the defendant.” In other words, the court took the view that-, according to the undisputed testimony in the case, there was no testimony of a consummated sale, and that the case would not be submitted to the jury on that theory, but that the case could go to the jury on the issuers to a breach of the contract and the right to recover damages for such breach. Appellant elected to stand upon its right to go to tlie-jury on the issue of a consummated sale.

We are of the opinion that the court was correct in the view expressed concerning the state of the testimony with respect to a consummated sale. The shipment was made by appellant to its own order, and there was never any acceptance of the shipment, either by actual delivery of the seed or by acceptance of the bill of lading. The rule of law is elemental that delivery and acceptance, either actual or constructive, is essential to the passing of the title under a contract of sale. A delivery to a common carrier, pursuant to instructions or agreement, constitutes a delivery to the consignee, and is sufficient to pass the title under a contract for the sale of chattels, but, on the other hand, a consignment by a seller to his own order does not of itself pass title, unless there is an agreement that the title shall pass upon such shipment.

In the recent case of Richardson v. Fowler, 154 Ark. 92, we said that “where the seller consigns the shipment to his own order, thus manifesting his intention to reserve his dominion and right of disposition over the property, nothing else appearing to manifest' an intention to pass the title, such consignment does not constitute a delivery to the purchaser. ” In that case there were cited other cases to the same effect. Gibson v. Inman Packet Co., 111 Ark. 521; Georgia Marble Finishing Works v. Minor, 128 Ark. 124; McGehee v. Yunker & Ronk, 137 Ark. 397.

There was no testimony adduced in the present case tending in any degree to show that there was any agreement for the title to pass earlier than on delivery, and it therefore follows that the fact that the shipment was to the seller’s own order is conclusive that the title did not pass upon delivery to the carrier. The court was therefore correct in its view of the testimony in this case and the law applicable thereto, and, appellant having elected not to go to the jury on the issue as to a breach of the contract, it cannot complain that the court directed a verdict against it.

Judgment affirmed.


author: Hart, J.,

text:
    Staggs v. Joseph.
    Opinion delivered April 2, 1923.
    1. Appeal and error — effect of both parties requesting peremptory instruction. — Where both parties request a peremptory instruction and do nothing more, they thereby submit the case to the court, and its finding is as conclusive as the verdict of a jury and will be affirmed if the testimony is legally sufficient to warrant such finding.
    2. Vendor and purchaser — bona fide purchaser. — A quitclaim deed is a substantive form of conveyance, and a party holding thereunder may be entitled to protection as an innocent purchaser.
    Appeal from Clay Circuit Court, Eastern District; W. W. Bandy, Judge;
    reversed.
    STATEMENT oe pacts.
    This is ail action of ejectment by Odus Staggs against Thomas Joseph and others, to recover forty acres of land in the Eastern District of Clay County, Ark.
    The defendants denied title in the plaintiff, and asserted title in themselves.
    It appears from the record that on the 10th day of May, 1831, the State of Arkansas executed a donation deed to the land in controversy to T. J. Higdon, and his deed was duly filed for record in the recorder’s office in the Eastern District of Clay County, Ark. Both parties to this lawsuit dereign title from him.
    T. J. Higdon was a witness for the plaintiff. According to his testimony, he first sold the land to R. B. Self and delivered him a deed to it. Self took possession of the land under the deed. The deed to Self is not in the record. On the 18th day of August, 1898, R. B. Self executed a deed to said land to John Staggs, which was filed for record on the 26th day of November, 1920. The consideration in the deed was $350. John Staggs died on Nov. 3, 1898. After his death his widow lived on the land something like a year, and then moved into the State of Missouri.

      According to her testimony, Odus Staggs, the plaintiff, was born June 25, 1899, and is the son of John Staggs. She married John Baker, her present husband, on Jan. 12, 1899. After Odus was born, she and John Baker executed a deed to the land in controversy to Lee Costly in exchange for other lands. R. B. Self paid the taxes on the land for the years 1888 to 1897, inclusive, and John Baker paid the taxes on the land for the years 1898 and 1899. Thomas Joseph dereigns title as follows: On the 20th day of December, 1902, T. J. Higdon executed a quitclaim deed to said land to Lee Costly, which was duly filed for record. The consideration recited in the deed was $50, but no consideration was actually paid. On the first day of March, 1904, Lee Costly executed a warranty deed to P. J. Nye, which was duly filed for record. The consideration in this deed was $550. On the 18th day of October, 1909, P. J. Nye executed a warrantv deed to B. B. Bowlin to said lands, which was duly filed for record, and the consideration recited in the deed was $1,350. On the 19th day of October, 1912, B. B. Bowlin executed a warranty deed to said lands to T. H. Mason. for a consideration of $2,500, and this deed was duly filed for record. On the 6th day of December, 1916, T. H. Mason executed a warranty deed to said land to Thomas Joseph for the consideration of $1,700, and this deed was duly filed for record.
    Thomas Joseph and his grantors have paid taxes on said land from the year 1900 to 1921 inclusive. They have also been in possession of the land since it was purchased by Lee Costly in 1899. . All these parties paid for the land the consideration recited in their deeds. Joseph paid Mason $1,700 for the land, and had no notice •that any one else claimed any interest in the land-when he bought it.
    At the close of the evidence both the plaintiff and the defendants requested a peremptory instruction, and ásked for no other instruction. Whereupon the court withdrew the submission of the case from the jury and found for the defendants.
    From the judgment rendered the plaintiff has duly prosecuted an appeal to this court.

      W. E. Spence and Gautney $ Dudley, for appellant.
    Appellant’s ancestors bought the land August 18, 1898, and died seized and possessed of same Nov. 3, 1898. Appellant was born June 25, 1899, and Costly, the vendor of appellee, received a quitclaim deed from Higdon, from whom both parties deraign title, on December 20,1902. Appellant’s title is by descent and not by deed. Costly’s quitclaim deed from Higdon not only put him upon inquiry but was in itself notice of a defective title. Morrison v. Kelley, 74 Am. Dee. 169, and note; Knapp v. Bailey, 1 A. S. K. 295. Appellant inherited the lands, and the title never passed from him, and, being an infant, the defense of an innocent purchaser for a valuable consideration is not available against Mm. Harrod v. Myers, 21 Ark 592; Rowe v. Allison, 87 Ark. 206. Costly not an innocent purchaser. Gkdnes v. Saun-ders, 50 Ark. 322; White v. Moffett, 108 Ark. 490. Acquired no title from Higdon, who had none by the quitclaim deed. Court erred in not directing a verdict for appellant.

      Thomas Joseph, T. II. Mason, P. J. Nye, appellees, pro se.

    Appellees were innocent purchasers of the lands for a valuable consideration, and without notice of any defects in the title. 18 Corpus Juris 247, § 185. The quitclaim deed in their chain of title did not put them on inquiry nor constitute notice of a defective title. Bell v. South Arkansas Land Go., 129 Ark. 305; Brown v. Helms, 86 Ark. 398; Moore v. Morris, 108 Ark. 516. There was nothing of record to show that appellant’s father ever owned the lands. Chaddick v. Morris, 137 Ark. 467; Rubel v. Parker, 107 Ark. 314. The judgment should be affirmed.
   Hart, J.,

(atfer stating the facts). Under onr practice, where both parties request a peremptory instruction and do nothing more, they thereby submit the case to the court, and the finding of the court has the same binding effect as .the verdict of a jury, and it will be affirmed on appeal if the testimony is legally sufficient to warrant such finding. St. L. S. W. Ry. Co.v. Mulkey, 100 Ark. 71, and Watkins v. Louisiana State Life Ins. Co., 151 Ark. 596.

T. J. Higdon is the common source of title to both parties in this case. He executed a quitclaim deed to said lands to Lee Costly, which is in the chain of title of the defendants.

It is claimed by counsel for the plaintiff that, undcuthe circumstances, the defendant, Thomas Joseph, cannot be a bona fide purchaser of the land and entitled to protection as such. It is insisted that, because there is a quitclaim deed in his chain of title, he is thus notified as a matter of law that there may be some defect in his title, and he must take it at his own risk. This is not the law in this State. A quitclaim deed is a substantive form of conveyance, and a party holding under such deed may be entitled to protection as an innocent purchaser. Henry Wrape Co. v. Cox, 122 Ark. 445, and cases cited, and Bell v. South Ark. Land Co., 129 Ark. 305, and cases cited.

In the last mentioned case it was expressly stated that the fact that one of the deeds in appellee’s chain of title was a quitclaim deed did not of itself bar him of his defense as an innocent purchaser. There may be many, reasons why the holder of real estate may refuse to execute a warranty deed to it. He may be unwilling to assume any personal responsibility as to its title, or, from his own peculiar notion, he may refuse to execute anything but a quitclaim deed. Hence the purchaser desiring th¿ property is unable to secure a conveyance in any other form than one of quitclaim. Therefore it would be unreasonable to hold, as a matter of law, that lie should be denied the position of a bona fide purchaser merely because there was a quitclaim deed in his chain of title. A quitclaim deed operates to divest title out of the grantor and to transfer a complete title to the grantee. Hence the mere fact that - there is a quitclaim deed in the chain of title in the grantee does not raise a conclusive presumption of his want of good faith in purchasing the land.

In the present case the grantee paid full Amlue for the land, and had no notice whatever of any claim of the plaintiff. The defendant had the record title to the land, and the court, under the circumstances, was warranted in finding that he was a bona fide purchaser for value.

Therefore the judgment Avill be affirmed.


author: Wood, J.

text:
    Young Men’s Building Association v. Ware.
    Opinion delivered April 2, 1923.
    1. Subrogation — basis.—The doctrine of subrogation is an equitable one, having for its basis the doing of complete and perfect justice between the parties, without regard to form, and its purpose and object is the prevention of injustice.
    2. Subrogation — claims not perfected as liens. — Plaintiff, by paying off claims against a building, which might have become liens, had the statutory steps been taken, will not be entitled to subrogation as if it had discharged liens thereon.
    3. Mechanics’ liens — assignment of claims. — Under Crawford & Moses’ Dig., § 6907, making liens assignable, the right to prosecute a mechanics’ lien is not assignable; but, before a lien can be transferred or assigned, the claim on which it is based must have been established as a lien in the mannei required by the statute.
    Appeal from Pulaski Chancery Court, John E. Martineau, Chancellor;
    affirmed.

      Sam. M. Wassell, for appellant.
    Appellant was entitled to subrogation to the liens of materialmen and laborers Avhose claims it paid and for-the purchase money note taken up, for which it was entitled to .a prior lien, and to share alike with all other lienors in other claims. Sec.'6909, Crawford & Moses’ Digest; § 4975, Kirby’s Digest; sec. 18, act 146, Acts 1895, expressly repealed by § 6, act 446,- Acts 1911; § 6920, C. & M. Digest, provides for equality of lienholders (56 Ark. 640). Sec. 6912, Crawford & Moses’ Digest, makes owner liable -for cost of improvement to mechanics, materialmen, regardless of contract price. Assignee of a lien claim may sue in his own name. Sec. 6907, Crawford & Moses’ Digest. Barnett v. Wright, 172 S. W. 524; Southern Cotton Oil Co. v. Napoleon Hill Cotton Co., 108 Ark. 555; Sheldon on Subrogation, § 2) Smith v. Davis, 76 S. E. 671. Appellant entitled to prior lien for purchase money note paid and all others to owner’s remainder interest in property after payment thereof, § 6908, C. & M. Digest. It surrendered a valid security, the purchase money note, for an invalid one, its first mortgage not being good against lien of materialmen, mechanics, and should be protected by subrogation. Booh v. Matthews, 125 Ark. 378; 108 Ark. 555; 158 S. W. 1082; Sheldon on Subrogation, 2; Smith v. Davis, 76 S. E. 671; Federal Surety Company v. McGuire, 111 Ark. 373. The amended answer herein followed McGuire case.

      McConnell & Henderson, J. H. Carmichael, and Wallace Townsend, for different appellees.
    The doctrine of subrogation has no application in this case. No evidence showing appellant paid off any liens against the property. Southern Cotton Oil Co. v. Napoleon Hill Co., 108 Ark. 555; Cooh v. Moore, 152 Ark. 590, is precisely in point. There was no assignment of any liens to appellant. Martin v. Blytheville Water Co., 115 Ark. 230; Boyal Theatre v. Collins, 102 Ark. 539; Daly v. Arhadelphia Milling Co., 124 Ark. 405. Sec. 6907, Crawford & Moses’ Digest, authorizes assignment, and in Barnett Bros. v. Wright, 116 Ark. 45, lien had been perfected before claim assigned. Appellees held .perfected mechanics’ liens against the property for labor and materials furnished, and the chaneellor correctly held they were prior to lien of appellant. Sec. 6911, Crawford & Moses’ Digest.

      8am. M. Wassell, in reply.
    Secs. 6884, 6906, and 6907, Crawford & Moses’ Digest; Federal Union Stirety Co.*y. McGuire, 111 Ark. 373; Barnett v. Wright, 116 Ark. 44. The money of appellant went to discharge claims of equality of appellees, paid to claimants, and it should be protected by subrogation. Southern Cotton Oil Co. v. Napoleon Hill Co., 108 Ark. 555. Had it paid the money to the owner instead, then Southern Trust Co. v. Garner, 223 S. W. 369, might apply.
   Wood, J.

The appellant instituted this action to foreclose a mortgage executed by the appellee, T. E. Ware and wife, to the appellant on lot 2, block 4, Martin’s Addition to the city of Little Rock, to secure a loan of $3,500 made by the appellant to Ware. The complaint alleged that Ware had defaulted in the payments as required by the mortgage. T. P. Reed, who claimed an interest in the property, was named as a party defendant. By an amendment to the complaint the appellant alleged that it had become the owner by assignment of the following claims:

Central Bank (money for labor).....................$1,500.00

Union & Merc. Trust Co. (purchase of lot) .................................................................................... 800.00

R. P. Allen (judgment and costs).................. 152.93

Insurance ............................ 31.50

Tom Ware (for labor)............................................. 812.65

Total ..............................................................................$3,297.08

It is further alleged that the amounts above specified were paid to the parties “who were entitled to, and did, in some instances, file liens, and that said payments were made to save costs attendant upon declaring the liens.” The appellant alleged that the above amounts represented sums which had been paid to lienors who had furnished material and labor, and who were entitled to prior liens, and appellant prayed that it, as assignee, be entitled to the same priority as the parties whose liens it had acquired, and that it be decreed to share equally with other unpaid lienors.

Some parties filed separate suits, and there were interventions filed by other parties. These separate suits, and interventions were all consolidated in the foreclosure suit of the appellant, and were all treated as interveners at the trial. These suits and interventions are by the following parties, and for the amounts set opposite tlieir respective names:

Arkansas Brick & Tile Co...............................$ 147.25

Monarch Mill & Lbr. Co..................................... 73.77

Pace & Hall........................................................................... 157.10

Riley Lumber Co.......................................................... 1,007.60

R. A. Thieme..................................................................... 457.00

Arkansas Electric Co................................................. 192.68

Sidewalk Improvement Dist. No. 228...... 19.41

Henry Johnson ............................................................... 188.55

Arthur Almon ................................................................. 70.00

Total..............................................................................$2,313.36

It was stipulated that each of the above interveners “had properly complied with the law of the State of Arkansas and had perfected their several liens, and were entitled to liens on the property in controversy for the amounts above stated,” and that the lien's for the above amounts were prior to the execution and filing for record of the .mortgage to appellant.

The only question at issue before the trial court was whether or not the appellant was entitled to share pro rata with the interveners and preferred lienors, as set out. above, to the extent of the amount of the claims which it had paid, as set forth above, and which claims total the sum of $3,297.08.

Renton Tunnah, the secretary of the appellant, testified that appellee Ware was 'building a house on the lot in controversy, and had borrowed money from Wait of the Central Bank to pay his labor bills, amounting to $1,500. He owed the Union & Mercantile Trust Company $800, balance of the purchase money on the lot. The association took up these amounts, and paid the balance of the money for labor on the house. He bad checks to show that it was paid out at different times.

The court found that there was due the appellant the sum of $3,689 and eight per cent, interest from October 22, 1920; that the interveners’ claims mentioned above were liens upon lot 2, block 4, in Martin’s Addition to the city of Little Rock. The court entered a decree against Ware in favor of the appellant in the above sum, with interest, and also in favor of the interveners for the amounts set out above, with interest, and declared that the liens of the interveners were prior and paramount to the mortgage lien of the appellant, and entered a decree directing that the property be sold to satisfy the decree, and that out of the proceeds the decree in favor of the interveners should be paid in full, and, after these judgments were paid in full, that the decree in favor of the appellant then be paid.

The appellant excepted to the finding and judgment of the court and the fixing of priority in favor of the appellees, and prosecutes this appeal.

In the case of Southern Cotton Seed Oil Co. v. Napoleon Hill Cotton Co., 108 Ark. 555, we said; “The doctrine of subrogation is an equitable one, having for its basis the doing of complete and perfect justice between the parties, without regard to form, and its purpose and object is the prevention of injustice.” And quoting from Capen v. Garrison, 193 Mo. 335, we further said; “Equity will apply it (subrogation) though the parties may never have thought of it, if it is not inconsistent with the contract or in violation of any one’s legal rights, and if justice demands it. * * * * The usual application of this principle occurs where a person, at the request of the debtor, pays the mortgage debt, or where one interested in the property pays an incumbrance to protect his own interest, or where he stands in the relation of surety to the debt.”

The appellant invokes this doctrine of subrogation, as thus recognized in the above and other Arkansas cases, to support its contention that the court erred in not allowing it to be paid first the sum of $800 as subrogee of the Union & Mercantile Trust Company, and in not allowing it to share equally with the interveners in the distribution of the remainder of the funds. But the doctrine of subrogation above announced has no application to the facts of this record, for the reason that the appellant has wholly failed to prove the allegations of its amended complaint, namely, that “it was the owner by assignment of lien for the amounts named in the amended complaint, and that, as such assignee, it was entitled to the same priority as the interveners” whose claims were conceded to be established liens. The only testimony in the record upon which the appellant bottoms its contention is that of Tunnah, supra. This testimony falls far short of showing that the Union & Mercantile Trust Company, to whom the appellant paid $800, had a lien on the lot in controversy to secure the sum of $800, the balance of the purchase price of the lot. The mere statement of Tunnah that the appellant paid $800 to the Union & Mercantile Trust Company, which was the “balance for the purchase of the lot,” does not prove either that the Union & Mercantile Trust Company had a lien on the lot to secure this balance, or that the Union & Mercantile Trust Company assigned to appellant, or attempted to assign, any lien for a balance of the purchase money. The testimony of Tunnah as to this $800 is entirely too vague to establish a lien or incumbrance on the lot in favor of the Union & Mercantile Trust Company, which was paid off by the appellant and transferred to it by the Union & Mercantile Trust Company. Appellant therefore cannot claim this amount by subrogation against the claims of the interveners, which claims the appellant concedes to be valid.

Likewise we are convinced that the testimony of Tunnah wholly fails to prove, that the appellant had a lien by assignment, or otherwise, for the $1,500 which it claims it paid for labor. Repeating the testimony of Tunnah on this issue, he says: “Ware got himself in pretty bad shape. He was building a house on No. 2, that is, the house in controversy. He had borrowed some money from Mr. Wait to pay his labor bills to the amount’ of $1,500. We took up the $1,500 that was due for labor, and paid the balance of the money for labor on the house. I have the checks to show that it was paid out at different times.” Further along in his testimony he states: “Ware was getting in bad shape, and considerable liens were filed against No. 2, and the building association didn’t feel disposed to do anything more in Tom Ware’s name.” Now, this testimony is too uncertain to show that any laborers’ liens were established on lot No. 2. While he makes the broad statement that about that time considerable liens were filed against No. 2, he didn’t pretend to state the amounts of these liens, nor when they were filed, nor that the liens were for labor that was done on the house on lot No. 2. The testimony in the record shows that Ware, the owner at the time, was also engaged in building on lot No. 3. Furthermore, his testimony shows that the money to pay his labor bills had been borrowed by Ware from Wait, and that appellant paid Wait, of the Central Bank, the $1,500. There is nothing in this record to prove that Ware, who paid off the laborers’ liens, or the Central Bank, who furnished him the money, had any liens that they could enforce as laborers’ liens. So, even if the appellant stood in the shoes of Ware, or of the Central Bank, appellant held no lien which could be enforced as laborers’ liens against the property in controversy. The proof on the part of appellant wholly fails to show that there were any perfected liens for labor on the property in controversy which the appellant discharged. To have made its case complete in this respect, it was necessary for the appellant to show that valid liens had been established against the property in controversy in the manner pointed ont by the statute; that is, that liens of laborers had been filed within the time prescribed by statute, or that suits had been brought by them before the claims for labor had been barred. The respective claims, the amounts thereof and the time when established should have been proved, and then appellant should have shown that it paid off these laborers’ liens at the request of the laborers, or of the owner, Ware. See. 6906 of Crawford & Moses’ Digest gives laborers the right to a lien upon complying with the provisions of the act, which provisions of the act require that certain things be done before the benefits of the act can avail the laborers. See especially §§ 6917 and 6922. It will be observed that the statute (§ 6907) makes the lien assignable, but it does not make the right to perfect or claim a lien assignable. Such liens must be perfected before they can be transferred or assigned. Before the appellant' could claim any right by subrogation to the liens of laborers, it would have to prove that these liens had been established in the manner required by law. Such liens are creatures of the statute. See Royal Theatre v. Collins, 102 Ark. 539; Marvin v. Blytheville Water Co., 115 Ark. 230; Daly v. Arkadelphia Milling Co., 124 Ark. 405. See also Barnett Bros. v. Wright, 116 Ark. 45.

Therefore appellant has failed to prove facts that were essential before it could avail itself of the above doctrine of subrogation, which is here invoked. The decree is in all things correct, and it is therefore affirmed.

Smith, J., dissenting.


text:
    Metal Furniture Company v. Goss.
    Opinion delivered April 2, 1923.
    1. Sales — implied warranty. — Where merchandise is shipped to a retail dealer to toe resold, and he has no opportunity to inspect it, there is an implied warranty that the goods were in condition to stand shipment and be in condition for resale on arrival at destination.
    2. ■ Damages — measure of damages for defects in goods sold.— Where goods shipped to a retailer do not comply with the implied warranty as to their salability, the measure of damages is the difference between the contract price and the market value of the goods in a merchantable condition at the time and place of delivery.
    3. Sales — delivery to carrier. — Goods delivered by a seller to a common carrier, properly addressed to the buyer, are in effect delivered to the buyer, and he becomes liable for any loss occurring during the carriage.
    4. Sales — suit for purchase money — counterclaim.—In a suit to recover for the purchase money of goods sold, evidence held to sustain a counterclaim for damages on account of the defective condition of the goods.
    Appeal from Polk Circuit Court, James S. Steel, Judge;
    affirmed.
    STATEMENT OE EAOTS.
    The Metal Furniture Company sued J. B. Goss to recover $856.81, alleged to be the balance of the purchase price of a car of beds sold by the plaintiff to the defendant. The defendant admitted purchasing the oar of beds at the price mentioned in the complaint, but file.d a counterclaim for $1,460 damages on account of the defects and damaged condition of the beds when they were received by him.
    It appears from the record that the plaintiff is a corporation organized and doing business under the laws of the State of Indiana, and that the defendant is a merchant in Mena, Ark. The plaintiff sold to the defendant 365 beds, ranging in price from $2.85 to $16.80, aggregating $2,665.03. The plaintiff knew that the defendant purchased them to sell at retail in his store at Mena, Ark. The defendant paid $1,808.22 of the purchase price, leaving a balance due of $856.68.
    The beds were wrapped in excelsior and covered with paper, tied on with twine. Notwithstanding this wrapping, when they were first received the defendant discovered that some of them were defective, and put in a claim against the railroad company for $200. The claim was denied by the railroad company, and the defendant discovered, as he sold the beds, that they were more damaged than he at first thought. The beds were not unwrapped until they were sold. According to the testimony of the defendant himself, between fifty and seventyjfive of the beds were wholly worthless, and the balance of them were in a defective condition when received. According to the testimony of one of his clerks, between sixty and seventy of the beds were in a damaged condition when they were received. According- to the evidence for the defendant, it was also shown that all of the beds were rusted, and the paint fell off of them on account of the rust. When the beds were unwrapped, the paint would fall off in flakes, and it would be ascertained that the metal of the beds had not been cleaned of rust before they were painted. The damage to the beds amounted to $1,500. According to the evidence for the plaintiff, the beds were in good condition when they left its factory., Other evidence will be stated or referred to in the opinion.
    The jury returned a verdict for the defendant on his counterclaim for $100, and from the judgment rendered the plaintiff has duly prosecuted an appeal to this court.

      Choens do Ehrman, for appellant.
    The verdict is contrary to law and not supported by the evidence. The title to the shipment of beds passed on delivery to the carrier, and if loss occurred during carriage it must be borne by the purchaser, appellee. Southern Produce Go. v. Oteri, 94 Ark. 318, 126 ¡3. W. 1065; Harper v. State, 91 Ark. 422; 121 S. W. 737. Proof shows much of damage occurred in transit, and. a ■claim was filed for appellee against the railroad. If there was a breach of warranty, the measure of damages would be the difference between the value of the goods as warranted and the market value at the time and place of delivery. 24 R. C. L. 254. Williams v. New-kirk, 121 Ark. 439,181 S. "W. 304. There was no attempt to establish the market value of the beds as delivered. Leifer Mfg. Go. v. Goss, 93 Ark. 277; 124 S. W. 1042.

      Norwood & Alley, for appellee.
    Verdict is amply sustained by the evidence. Evidence in Leifer case, 93 Ark. 277, cited by appellant, very different from instant case. Damages could be ascertained with reasonable certainty. Smeltser v. Tippin, 109 Ark. 275. Never was an implied warranty. Bunch v. Weil, 72 Ark. 343; Truschel v. Dean, 77 Ark. 546; Am. Standard Jewelry Go. v. Hill, 90 Ark. 78. Appellee testified there was an express warranty. Market value was established. Tatum v. Mohr, 21 Ark. 349. The verdict will not be disturbed where there is any substantial evidence to support it. St. L. 1. M. & S. By. Co. v. White, 48 Ark. 495; American Ins. Go. v. Dannehower, 89 Ark. Ill: McCoy v. State, 46 Ark. 141; National Fruit Products Go. v. Garrett, 121 Ark. 570; Brown v. Norred, 122 Ark. 100; Wiley v. State, 92 Ark. 586; Stiewel v. American Surety Go., 70 Ark. 512; National American v. Ritch, 121 Ark. 185; Jones v. Hunter, 126 Ark. 300.
   Hart, J.,

(after stating the facts). In the Southern Produce Co. v. Oteri, 94 Ark. 318, it was held that, where merchandise is shipped to a retail dealer to be resold, and he has no opportunity to inspect it, there is an implied warranty that the goods were in condition to stand shipment and be in condition for resale when they arrived at destination. It was also held that the measure of damages in such cases is the difference between the price fixed by the contract and the market value of the goods in a merchantable condition at the time and place of delivery. In that case it was also held that the delivery of the goods by a seller to a common carrier, properly addressed to the. buyer, is, in effect, a delivery to the buyer, and, if any loss occurs to the goods during the carriage, it becomes the loss of the purchaser.

The present case was tried according to the principles of law laid down in that opinion, and-the only assignment of error relied upon for a reversal of the judgment in this case is that the evidence is not legally sufficient to support the verdict.

It is claimed by counsel for the plaintiff that the evidence is too indefinite, and that it does not show whether or not the defective condition of the beds was due to damage suffered by them in shipment, or whether they were defective when delivered to the carrier.

We cannot agree with counsel in this contention. The defendant bought 365 beds from the plaintiff, and, according to his testimony, all of them were in a defective condition. Between fifty and seventy-five of them were wholly worthless, and all of them were so defect tive that he had to sell them for less than cost. The beds were wrapped in excelsior, and the defendant did not know that they were damaged until they were unwrapped upon being sold. When they were unwrapped, the paint would fall off in flakes, and the iron of the beds would be rusty where the paint fell off. It is fairly inferable from this that the paint fell off because the iron was not properly cleaned before the beds were painted. Hence the jury might have found that this item of damage was not caused while the beds were in the hands of the carrier. The locks would break off of some of the beds when they Avere set up. It is inferable from the testimony that this occurred because the casting was defective.

While the defendant did not keep an itemized list of the defects on each bed, he does testify, that as many as fifty of the beds were wholly worthless, and that all of them were more or less defective, causing him to sell them at a loss. He averaged his loss at $1,500. The purchase price was $2,665.03. Of this amount he paid all but $856.81. The defendant only recovered judgment against the plaintiff for $100. Therefore we are of the opinion that, when all the circumstances are considered, the evidence is legally sufficient to support the verdict. The fact that the defendant made a claim against the railroad company does not preclude him from maintaining the present suit. The railroad company refused his claim for damages on the ground that it had not damaged the beds in the course of carriage. This was a question of fact presented by the pleadings and proof in this case, and the jury, by its verdict, has found that the damages occurred on account of the defective condition of the beds at the time they were delivered- to the carrier, and, as above stated, the evidence of the defendant supports the verdict.

The judgment will therefore be affirmed.


author: Hart, J.

text:
    Modica v. Combs.
    Opinion delivered April 2, 1923.
    1. Reformation of instruments — reformation of mortgage. — A court of equity -will reform a void description in a mortgage at the instance of the mortgagee as against the mortgagor or any subsequent purchaser with notice of the mistake.
    2. Reformation of instruments — parties.—The purchaser at a mortgage foreclosure sale under a power or any subsequent vendee is entitled to have a void description in the mortgage and repeated in the subsequent deeds constituting his claim of title.
    3. Appeal and error — conclusiveness of chancellor’s finding.— Where the testimony taken at the trial is not abstracted, the court will presume that the findings of fact were warranted, and the finding that a void description was inserted in a mortgage through mutual mistake, and that the parties intended to describe the land in controversy, will not be disturbed.
    4. Mortgages — redemption from mortgage foreclosure. — Crawford & Moses’ Dig., § 7407, giving -the right to redeem land sold under a mortgage foreclosure within one year, is a personal privilege to be exercised within the time and in the manner ■provided by statute; no exception being made in favor of minor children of a mortgagor.
    Appeal from Union Chancery Court; J. ¥. Stevens, Chancellor;
    affirmed.
    STATEMENT OE EACTS.
    This was a suit in equity by appellees against appellants to correct a misdescription in a mortgage, or deed of trust, on real estate, and to correct the same misdescription in a deed to the purchaser at a foreclosure sale under the power in the mortgage.
    It appears from the record, as abstracted, that Peter Módica was indebted to the J. F. Sample Company of El Dorado, Ark., in the sum of $555.56, which was evidenced by his promissory note. To- secure the payment of .said.note, Peter Módica and Malinda Módica, his wife, executed a deed of trust to 0. W. Phillips, as trustee, for. the benefit of J. F. Sample Company, on certain land, -the description of which in the mortgage was void for uncertainty. The mortgage contained a power of sale, and was duly filed for record. Default having been made in the payment of the mortgage indebtedness, the trustee sold the land which was intended to. 'be embraced in the mortgage under the same misdescription as stated above. The trustee sold the land in accordance with the terms of the deed of trust, and the J. F. Sample Company became the.purchaser at the sale. The trustee executed a deed to the purchaser, and, in drafting his deed, followed the description of the land' contained in the deed of trust, which, as we have already seen, was void for want of certainty. Subsequently the J. F. Sample Company conveyed the land' intended to be embraced in the •mortgage, and to be sold under the power of sale thereunder, to Ed Combs under a proper description of said land.
    Peter Módica died intestate, leaving surviving him his widow, Malinda Módica, and several adult children and two minor children. None of these parties exercised the right of redemption under the mortgage, given to them by the statute.
    The complaint in this ease was filed on October 14, 1921, and service of summons was had upon the defendants, including the minors, in the manner provided by the statute. A lis pendens notice was duly filed by the defendant through their attorneys, William Thompson and A. W. Spears. A. W. Spears filed an answer and cross-complaint, in which he claimed that he had purchased a part of the land from the heirs of Peter Módica, deceased, and exhibits his warranty deed from them. The record, however, shows that it was executed subsequent to the filing of the lis pendens notice.
    The chancellor found the issues of law and fact in favor of the plaintiff, and a decree was entered accordingly. To reverse that decree the defendants have duly prosecuted an appeal to this court.

      Wm. Thompson and A. W. Spears, for appellant.
    A court of equity will not reform the description in a mortgage where same is void for uncertainty. Neal v. Whitner, 119 Ark. 310; Tice v. Freeman, 5 Minn. 391, 5 Minn. 331, 15 N. W. 674; Story’s Equity, 404. Nor can the purchaser at a foreclosure sale or his vendee maintain an action for reformation of misdescription in the deed of the trustee under the mortgage. Dunnivan v. Hughes, 86 Ark. 443; Harper v. Combs, 61 W. Va. 561, 56 ;S. E. 902; Congers v. Mericles, 75 Ind. 443; MoCasland v. Aetna L. Ins. Co., 108 Ind. 130, 9 N. E.. 119 ; Blodgett v. Hobart, 18 Yt. 414; Machem v. Machem, 28 Ala. 374. Mistake must be corrected before foreclosure of mortgage. Buchner v. Anderson, 32 N. J. Eq. 35; McMillan v. Neto York Waterproof Paper Co., 29 N. J. Eq. 610; Strong v. Bloch, 11 Ohio St. 283, 78 Am. Dec’. 308; Davenport v. Sovil, 6 Ohio St., 459; 27 Cyc. 1093. Instruments of writing are reformed only for' mutual mistake and when the evidence thereof is clear, unequivocal and decisive. Parker v. Harper, 91 Ark. 162;
      Hall Brothers v. Moore & McFerrin, MI Ark. 539; Ezell v. Humphrey, 90 Ark. 24; Beneaux v. Sparks, 144 Ark. 23; Wales-Riggs PlaAüations v. Banks, 101 Ark. 461; Troupe v. Ancrum, 146 Ark. 36; Conn. Fire Ins. Co. v. Wiggington, 134 Ark. 152; Goodrum v. Merchants’ S Planters’ Bank, 102 Ark. 326; Cain v. Collier, 135 Ark. 293; Cheatham, v. Beck, 96 Ark. 230. Statute of limitations did not begin to run against right to redeem, as land sold under mortgage was not the land of the mortgagor. The minors had the right to redeem from sale under mortgage. Kirksey v. Cole, MI Ark. 504, 1. S. W. 778; §§ 7407, 6961, Crawford & Moses’ Digest. Lands were not legally sold under the mortgage. Sec. 7403, Crawford & Moses’ Digest; Atkinson v. Burt, 65 Ark. 316; Blake v. Askew, 112 Ark. 514. No appraisement. Craig v. Merriwether, 84 Ark. 298.

      Harry T. Dolan, and Flenniken & Sellers, for appellees.
    Appellants failed to abstract the testimony. Appellees had the right to a reformation of the deed of trust and the trustee’s deed made thereunder. Blackburn v. Randolph, 33 Ark. 120; Craig v. Pendleton, 89 Ark. 259 ; Jackson v. Lady, 140 Ark. 528; Neas v. Whitner-Lester Realty Co., 119 Ark. 301. No question of innocent purchaser, as appellants took conveyances after suit brought and lis pendens notice filed. Appellee’s possession was sufficient notice. Spndll v. Miles, 82 Ark. 445, and cases cited; Craig v. Pendleton, 89 Ark. 259. Neither was there any right of redemption. Sec. 6961, Crawford & Moses’ Digest; Gamble v. Phillips, 107 Ark. 562; Merry-man v. Blount, 71 Ark. 1; Hudgms v. Morrow, MI Ark. 517. Beneficiary could purchase at trustee’s sale. Merryman v. Blount, 79 Ark. .1. Verified account only required served in foreclosing mortgage of personalty, and not then when debt is promissory note. Sec. 7403. Atkinson v. Burt, 65 Ark. 316; Blake v. Askew, 112 Ark. 514; Perry Co. Bank v. RankJn, 73 Ark. 589. Power of sale not revoked by death of mortgagor. Hudgins v.
      Morrow, 74 Ark. 515. The following cases cover every phase of the case at bar and establish the right of appellees to the reformation: Oreen v. Watson, 54 So. (Ala.) 487; Goulding Fertiliser Go. v. Blanchard,, 59 So. (Ala.) 485; Howe v. Williams, 51 Mo. 252; Gex v. Dill, 38 So. (Miss.) 193; GolUns v. Lewis, 21 N. E. (Ind.) 475; Russell v. Sweesey, 22 Mich 235; McKinich v. Mill Oivner Fire Ins. Co., 50 Iowa 116; Hanna v. Renfro, 32 Miss. 126; Garden City Sand Co.- v. Miller, 41 N. E. (111.) 753; Stephenson v. Harris, 31 So. 435. The court will presume, tlie testimony not being abstracted, that the chancellor’s findings are supported by the evidence.
   Hart, J.

(after stating’ the facts.) It is first insisted by counsel for the defendants that a court of equity will not reform and correct the description in a mortgage where such description is void for uncertainty. This contention is contrary to the rule laid down in Craig v. Pendleton, 89 Ark. 259. In that case a suit was instituted in the chancery court by the trustee in a deed of trust for the reformation and foreclosure of it. It was shown that the lot in question belong*ed to the mortgagor, but that the description in the conveyance was void for uncertainty. The court held that the mortgagee was entitled to a reformation of the mortgage as against the mortgagor, or any subsequent purchaser with notice of the mistake.

Under the facts as shown by the record, the land in controversy was sold by the trustee under a power of sale contained in the deed of trust, and the J. F. Sample Company, for whose benefit the deed of trust was executed, bcame the purchaser at the sale for the amount of the mortgage indebtedness. A deed was duly executed to it by the trustee, and it contained the same void description as that contained in the deed of trust. Subsequently the purchaser at the foreclosure sale executed a deed to the land in controversy to the defendants, and the deed described the land correctly.

It is- contended also by counsel for the defendants that neither the purchaser at a foreclosure sale under a mortgage nor his vendee may maintain an action for the reformation of a misdescription in the deed, of the trustee to the purchaser at the foreclosure sale, and that, in any event, the court should decree a new foreclosure in the event it should reform the misdescription in the deed of trust. This question has also been decided by this court contrary to the contention of counsel for the defendants. The question came up in Blackburn v. Randolph, 33 Ark. 119. There parties claiming to be the owners of certain real estate, through a series of conveyances from a purchaser under a deed of trust, filed a bill against the surviving partner of the original grantor in the trust deed, who, as a judgment creditor, had caused an execution to be levied on a certain tract of land included in the plantation purchased at the foreclosure sale, and was about to sell the same. It was alleged in the complaint that, by mistake, this tract had been omitted in the description of the land in the trust deed, and that the mistake had been inadvertently carried through all the successive conveyances down to that of the plaintiffs. The facts alleged in the complaint were proved at the trial, and the court granted the relief prayed for. The court said that where the same mistake has each time repeated itself, occurring between the vendor and vendee upon each transfer, under such circumstances as to entitle any one of the vendees to a reformation as against his immediate vendor, equity will work back through all, and entitle the last vendee to a reformation against the original grantor. Hence our own court has announced the rule that the purchaser at a mortgage foreclosure sale under the power contained in the mortgage and his vendee is as much entitled to reform a perpetual mistake in the mortgage constituting his chain of title as any other subvendee. Thus we see that our own court is committed to the doctrine that, equity will reform a void description in a mortgage, not only at the instance of the mortgagee, but also at the instance of a purchaser at the foreclosure sale under the . power or his vendee.

Counsel for the defendants have not abstracted the testimony taken in the case. Therefore it will be presumed that the facts proved at the trial warranted all the findings of fact made by the chancellor, and, under our rules of practice, we cannot consider whether or not his findings on the facts are erroneous. It will 'be presumed that the facts warranted the chancellor in finding that the void description was inserted in the deed of trust through the mutual mistake of the parties, and that they intended to describe the land which is in controversy in this case. Jones v. Bank of Commerce, 131 Ark. 362, and Savage v. Savage, 143 Ark. 388.

It is next contended that the minors have a right to redeem under the mortgage, although they did not exercise the right of redemption within the period of time allowed by the statute.

Sec. 7407 of Crawford & Moses ’ Digest, which allows the mortgagor of real estate to redeem at any time within one year from the sale under the mortgage, was passed prior to § 6961 of the Digest, which allows infants three years next after full age to bring certain actions. Counsel places reliance upon the latter statute in this case. The latter statute is a statute of limitations for bringing actions, and contains a saving clause in favor of minors and others, under disabilities at the time their cause of action accrued. The statutory right to redeem from a mortgage is not a .statute of limitations at all. It is a mere personal privilege given by statute to The mortgagor after the land has been sold under the mortgage. It must be exercised within the time and in the manner provided -by the statute. It is true that the infant children of a mortgagor are in privity with him and may exercise his right to redeem after his death; but they must do this within the period of time allowed by the statute. The statute contains no saving .clause in favor of minors, and the court can make none. In Merryman v. Blount, 79 Ark. 1, this court held that real property sold under a power contained in -a mortgage or deed of trust can, under the statute, be redeemed by the mortgagor only within one year from the date of sale.

All other questions argued in his brief by counsel for the defendants are questions of fact, and, as above stated, he having failed to make an abstract of the testimony, under our rules of practice we will presume that the facts in the record support the findings of the chancellor based on them.

It follows that the decree will be affirmed.


author: Smith, J.

text:
    Phares v. State.
    Opinion delivered April 2, 1923.
    1. Criminal law — conduct op trial. — -Where a jury reported their inability to agree, it was not error for the foreman to retire with the judge and counsel for each side and there state the question upon which the jury was divided, especially where no objection was made until after the statement w-as m-ade, and where the court, in a subsequent instruction, repeated the juror’s statement to the others.
    2. Homicide — self-defense—instruction.—In a prosecution for murder, where the defense was self-defense, -an instruction -as follows, “Now, you are -the judges as to what the circumstances were at the time on the part of the defendant, and in determining these things the best thing I -can suggest to you would be to ask yourself the question, ‘What would you have done under similar circumstances?’” held not error, as the instruction merely required the jury to determine what the circumstances were as they appeared to defendants, and then, -as men of -ordinary caution, prudence and diligence, to determine what they would have done under -such circumstances as they -appeared to defendant.
    3. Criminal law-length of instruction. — The fact th-at an oral instruction was unusally long does not constitute reversible error.
    4. Criminal law — length of instruction. — Where -the trial judge is apprehensive of a mistrial, he should be allowed some discretion in the length to which the instructions shall extend in his endeavor to elucidate the issues so that the jury may not be mistaken about the law.
    Appeal from Monroe Circuit Court; George W. Clark, Judge;
    affirmed.

      Bogle & Sharp, for appellant.
    The court .should not have discussed 'the facts with the jury, and erred in its instruction telling the jury how they should determine whether defendant acted in self-defense. Flynn v. State, 43 Ark. 289; Polk v. State, 45 Ark. 165; Stephens v. Oppenheimer, 45 Ark. 292; Keith v. State, 49 Ark. 165; Blankenship v. State, 55 Ark. 244; Mitchell v. State, 125 Ark. 260; Parker v. State, 130 Ark. 234; Scott -v. State, 109 Ark. 391; Clark, Criminal Law, 152; 1 McLain’s Criminal Law, 306; 1 Wharton’s Criminal Law, 488; Smith v. State, 59 Ark. 132; Magness v. State, 67 Ark. 603. A correct instruction on the point could not remove the prejudice. Selden v. State, 55 Ark. 393; Burton v. State, 85 Ark. 48; Jones v. State, 89 Ark. 213; Pleasant v. State, 13 Ark. 360; 14 it. C. L. 777. Court erred also in retiring with one juror away from the others and discussing with him the question he -said the jury was in disagreement about. 109 Ark. 193. The court should not have gone over the- instructions again, it not being requested by the jury, and the oral instruction was long and necessarily confusing to the jury. 14 R. C. L. 778. The instruction amounted to an argument by the court.

      J. S. Utley, Attorney General, Elbert Godwin and W. T. Hammock, Assistants, for appellee.
    The record does not warrant the statement of 'Counsel that the court discussed the facts -with the jury. The instruction on -self-defense given on the court’s -own motion is a correct statement of the law. No error was committed in the court’s admonition to the jury, after it had returned and announced its inability to reach a verdict, -and there was no objection made to it anyway. Ya&oo & Miss. Val. By. v. Solomon, 123 Ark. 66; L. S
      A. Ry. v. Woodson, 192 S. W. (Ark.) 174. Nor in instructing the jury 'again on its request. No objection was made to the court’is retiring with the one juror and defendant’s attorney for information of the question of the jury’s disagreement, and it can’t be complained of now. 2 R. C. L. 92; Southeastern Tel. & Tel. Go. v. Abeles, 94 Ark. 254. If the instructions were over-long they were not incurred, and if objected to as argumentative, the point was not saved in the motion for new trial. Kilpatrick v. Rowan, 119 Ark. 175; Thomas v. Jackson, 105 Ark. 353.
   Smith, J.

Appellant was indicted for murder in the first degree, and upon his first trial was convicted of murder in the second degree. He appealed to this court, and in the opinion reversing the judgment of conviction a statement of the facts may be found. Phares v. State, 155 Ark. 75.

Upon the remand of the cause he was convicted of voluntary, manslaughter and given a sentence of two years in the penitentiary, and has again appealed. The testimony is substantially the same as it was on the former appeal.

Four assignments of error are.urged for the reversal of the judgment. They are: First: That the court should not have discussed the facts with the jury and expressed his opinion 'concerning same. Second: That the court erred in instructing the jury that it was their duty, in determining the question of whether or not the defendant acted in self-defense, to ask themselves the question, “What would I have done under similar and existing circumstances? ” Third: That the court should not have taken one of the jurors away from the other members of the jury and discussed with him the facts in the case. Fourth: That the instructions of the court are inconsistent and contradictory, and so long that they cannot be understood, and are argumentative and prejudicial.

Counsel for appellant do not discuss these assignments of error separately, nor shall we do so, as they can be more satisfactorily considered together.

It was the theory of the State that appellant went to the houseboat, where deceased was living in adultery with appellant’s wife, and, after lying in wait for some hours behind a tree, killed deceased as he emerged from the boat in the early hours of the morning. The theory of the defense was that appellant, accompanied by his wife’s brother, went to the houseboat to advise appellant’s wife that her mother had pneumonia, and to ask that she go to her mother’s home and nurse her. Appellant and his brother-in-law arrived at the boat about daylight, and appellant’s brother-in-law went into the boat alone to 'communicate the message they had come to bring. In the course of the conversation he mentioned the fact that appellant was up the river bank, whereupon deceased seized his pistol and announced his intention to kill appellant, and, as he was leaving the boat for that purpose, appellant fired the fatal shot ‘in his necessary self-defense.

After the case had been under consideration by the jury for some time the jurors returned into court and announced their disagreement. One of the jurors stated that they were disagreed over a question, and were undecided whether the question was one of law or fact. Another juror suggested that the foreman of the jury retire with the judge and state the question to him. Thereupon the judge, the prosecuting attorney and defendant’s counsel retired apart from the jury with the foreman, and the question was stated by the foreman. It was, whether or not appellant had the right to go to the houseboat under the circumstances of the case. The foreman retired to his fellows, and the court proceeded to give the instructions complained of.

It is obvious that the question propounded was a mixed one of law and fact. The court did not answer the question either affirmatively or negatively, and this be should not have done, for to have done “so would have infringed against the provision of the Constitution inhibiting judges from charging on matters of fact.

Counsel insist, however, that, although the court expressly disclaimed any purpose of stating the facts, the effect of his charge was to do so. The instruction is open to the objection of being unusually long, but we do not think it contained any expression of opinion on the facts. The court did tell the jury that the important, question to determine was, “for what purpose did appellant go to the boat?” and that the answer to this question would be decisive of his right to go to the boat. This thought was elaborated at unnecessary length in the court’s oral instruction; but, as we have said, the court did uot undertake to decide the question of fact, which, he said, was of controlling importance. Under the issue joined, the question in the case of controlling importance, as stated by the court, was the purpose of appellant in going to the boat, for its answer furnished a solution of the conduct of the parties, and, in the- absence of any objection to the language of the court except that the instruction was argumentative, we think the instruction was not prejudicial, although the court had stated what the controlling question of fact was.

We think there was no error in the action of the court in permitting the foreman of the jury to state the question upon which the jury had divided, and especially so as no objection was made until after the juror had done so. The court repeated to the jury the question which the foreman had stated, and the other jurors knew, of .course, whether this was the question about which they liad differed.

The second assignment, of error does not accurately reflect the charge of the court on the appearance of danger to appellant, this being a part of the oral instruction. The portion of the oral instruction on that subject, in its entirety, reads as follows: “Now, you are the judges as to what the circumstances were at that time on the part of the defendant, and, in determining all these things, the best thing I can suggest to' you would be to ask yourself the question, what would you have done under similar circumstances'?”

We think this instruction, read in its entirety, did not tell the jury to judge appellant’s conduct by what the members of the jury would have done under the circumstances, but that it meant the jurors were the judges “as to what the circumstances were at that time on the part of the defendant.” In other words, the jury was told to first find what the circumstances were as they then appeared to the defendant, and, having determined that question, it was not then improper to direct the. jury to determine what they, as men of ordinary caution, prudence and intelligence, would have done under the circumstances as they appeared to the defendant. The defendant has the right to have his conduct viewed from the circumstances as they appeared to him; but, when thus viewed, his conduct must be judged as that of the ordinary man similarly placed. We think this was the effect of the instruction set out above, and, as thus interpreted, we see no error in it. Smith v. State, 59 Ark. 132; Magness v. State, 67 Ark. 594; Dean v. State, 139 Ark. 433.

As we have said, the oral instruction was unusually long, but this does not constitute reversible error. The jury had twice reported and announced their inability to agree. It was obvious the court was apprehensive of a mistrial, and sought to avoid that result. It is highly desirable that mistrials be avoided; but the court cannot invade the province of the jury to prevent that result. But the trial court must be allowed some discretion in the length to which the instructions shall extend, especially so where a mistrial is about to result, and the court is endeavoring to so elucidate the issues as that the jury may not be mistaken about the law; and We think the .court committed no. abuse of. its discretion in. this respect.

Upon the whole case, we think no prejudicial error was committed, and the judgment is therefore affirmed.