text:
    Williams v. Agee.
    Opinion delivered March 8, 1926.
    1. Work and labor—implied contract to pay for another’s services.—Where a party accepts the benefit of another’s services, the law implies a previous request and a subsequent promise.
    2. Appeal and error — direction of verdict — sufficiency of abstract.—A judgment directing a verdict for defendant will be reversed on appeal where plaintiff’s abstract shows affirmatively that substantial evidence was introduced tending to establish plaintiff’s cause of action, though the abstract does not purport to set out all of the evidence.
    3. Appeal and error—sufficiency of abstract.—Though, in an action against an executor, the abstract of plaintiff on his appeal showed that he had. not renounced under the will of the testatrix, the failure of the abstract to aet out her will is immaterial where there is no showing in the abstract that plaintiff accepted anything under the will.
    Appeal from Phillips Circuit Court; E. D. Robertson, Judge;
    reversed.

      Moore, Walker & Moore, for appellant.

      W. G. Dinning, for appellee.
   McCulloch, C. J.

Appellant, Willie Mae Williams, filed her claim in the probate court of Phillips County against the estate of Melvina Mathews, deceased, for the total sum of $815 for services alleged to have been performed for the decedent, and for a small amount of money paid out for the benefit of decedent. The case was tried in the circuit court on appeal from the probate court, and the court directed a verdict in favor of appellee, and from the judgment entered thereon an appeal has been prosecuted to this court.

Appellant took the witness stand in her own behalf, but only testified in identification of certain checks drawn by her husband in payment of certain items, including taxes, for the benefit of the decedent, Melvina Mathew's. Other witnesses were introduced by appellant who testified, in substance, that the decedent, Melvina Mathews, was a very old woman, and was in ill health and almost helpless for nearly a year and a half, and that appellant went to decedent’s house every day and nursed her, did her washing- and scrubbing- and carried food to her. The testimony of these witnesses showed that appellant did not live in the same house with decedent, but lived with her husband at some place away from the home of decedent.

There is no testimony establishing the relationship between the decedent and appellant, nothing to show whether or not they were related either by consanguinity or affinity.

It appears from the evidence that the decedent had formerly made a will, which had been destroyed, and had left a later will in existence at the time of her death; that there was a bequest or devise of some kind in the will in favor of appellant, the character and amount not being shown in the evidence as abstracted, and that appellant had not renounced the same. There is no testimony to the effect that appellant had accepted under the will.

We think that the court erred in taking the case away from the jury, as there was sufficient testimony, giving- it the strongest probative force in favor of appellant, to warrant the inference that the deceased had accepted valuable services and money from appellant under circumstances from which a contract could be implied to pay for same. This court has often laid down the rule that, where a party accepts the benefit of the services of another; the law implies “a previous request and a subsequent promise. ’ ’ Nissen v. Flournoy, 160 Ark. 311. Previous decisions are reviewed in that opinion, and the rule stated therein is the settled doctrine of this court. We also said in that case that a contract to -pay for services “is not presumed between parent and child, or in any other case of near relationship where the parties live together and create the family relation. ’ ’ There is nothing, as we have already seen, to’ show what the relationship was between appellant and decedent, but the testimony does show affirmatively that they were not living together so as to create the family relation. The inference from the testimony is that there was no close relationship between the parties as would necessarily exclude the implication of a promise to pay.

It is insisted by counsel for appellee that the case should be affirmed for the reason that appellant’s abstract is not sufficient, in that all of the testimony is not fully abstracted. Appellee does not undertake to supply the omission, but calls attention briefly to several matters which are said to have been omitted from the abstract. It may be, as contended by appellee’s counsel, that all of the testimony is not abstracted, and, under the practice of this court, it is not incumbent upon us to explore the transcript, but there is enough testimony abstracted to show affirmatively substantial evidence tending to establish appellant’s cause of action. In testing the correctness of a directed verdict, we only consider whether or not there is substantial evidence in favor of the party against whom the verdict is directed, and, if enough testimony is abstracted to show that there is substantial evidence in favor of appellant’s cause of action, then error of the court is apparent from the abstract.

Appellee insists particularly that the omission to abstract the last will and testament of the decedent is fatal, for the reason that there is a stipulation abstracted to the effect that appellant had not renounced under the will. This fact does not necessarily defeat appellant’s right of action, for there is no testimony, so far as shown by the abstract, to the effect that appellant had accepted anything under the will; hence the effect of this action upon appellant’s right hereafter to claim anything under the will does not arise.

Reversed, and remanded for a new trial.


source: Caselaw Access Project

author: McCulloch, C. J.

license: Public Domain

text:
    Henry v. Board of Improvement of Paving District No. 3.
    Opinion delivered March 8, 1926.
    1. Municipal corporations—improvement districts—description of boundaries.—The proceedings in the creation of a municipal improvement district are void on their face unless they contain a description of the boundaries of the district, so that it can be definitely ascertained what territory is included.
    2. Municipal corporations—improvement districts—evidence as to organization.—The boundaries of a municipal improvement district must be determined by the face of the petition and ordinance, and cannot be varied by oral testimony, which is admissible only for the purpose of explaining the terms in which the description of the boundaries is expressed.
    3. Municipal corporations—improvement districts—presumption as to organization.—Under Crawford & Moses’ Dig., § 5652, providing that a city or town council shall determine whether the signers of a petition for the creation of an improvement district constitute a majority in value of the property owners therein, and that the finding of the council shall be conclusive unless suit to review it is brought within 30 days, held that on such review the finding of the council is prima facie correct, and the burden is on the attacking party to show that a majority failed to sign the petition.
    4. Municipal corporations—improvement districts—action of COUNCIL.—In a suit attacking a municipal improvement district •upon the ground that the petition for its creation did not contain a majority in value of the property Owners, there is no requirement that the proceedings before the city council be reduced to writing, and no inquiry will be permitted as to the manner in which the council arrived at its conclusion.
    5. Municipal corporations—improvement districts—direct attack.—Landowners within a municipal improvement district who did not appear before the city council and object to the creation of the district will not be heard, on a direct attack, to complain that certain promoters of the district unfairly dissuaded them from appearing before the council.
    6. Municipal corporations—improvement districts—impracticability.—Where an improvement district has been organized in the manner prescribed by the statute, having been authorized by a majority in value of the property owners in the district, the organization will not be invalidated because it is impracticable at this time to construct the improvement.

      Appeal from Benton Chancery Court; Lee Seamster, Chancellor;
    affirmed.

      W. O. Young, for appellant.

      A. L. Smith, for appellee.
   McCulloch, C. J.

An improvement district was formed in the city of Siloam Springs for the purpose of paving connected portions of certain streets in that city. The district was created by the • city council in accordance with statutory provisions (Crawford & Moses’ Digest, § 5649) on the petition of ten owners of real property within the boundaries of the proposed disr trict.- Within ninety days after the creation of the district a petition purporting to be signed by a majority in value of the owners of property within the district was presented to the city council in accordance with the statute. Crawford & Moses ’ Digest, § 5652. Due notice of the presentation was published, and the council, after considering the petition, found that it contained the signatures of the owners of a majority in value of the real property in the district, and an ordinance was duly enacted appointing the commissioners to construct the improvement. Within thirty days thereafter, appellants, who are the owners of property within the district, instituted this action in the chancery court against the district and its commissioners to restrain further proceedings, on the ground that the district was not legally organized, and that the petition for the improvement was not signed by a majority in value of the owners of property. On the trial of the case the court found against appellants, and dismissed their complaint.

The first contention of appellants is that t-he organization of the district is invalid because the description of the boundaries is so indefinite and uncertain that the property to be affected by the improvement cannot be ascertained. It-has been settled by decisions of this court that the proceedings in the creation of a municipal improvement district are void on the face thereof unless they contain a description of the boundaries of the district, so that it can he definitely ascertained wha,t territory is included. Bell v. Phillips, 116 Ark. 167. It does not appear, however, that there is any uncertainty about the description of the boundaries. In the original petition of property owners, and in the ordinance of the city council creating the district, the boundaries are described by metes and bounds, and also by particular description of each lot or tract embraced within those boundaries. If any variance should appear in the two methods of description thus adopted, the particular description of the separate lots and tracts would necessarily control, but it does not appear from the face of the proceedings that there is any variance between the two. The only basis of the contention of appellants is the testimony of a witness who expressed the opinion that the boundaries of the district extend farther at a certain point than indicated by the description of the particular lots. The boundaries must be determined, of course, by the face of the petition and ordinance, and cannot be varied by oral testimony. Such testimony could only be received for the purpose of explaining the terms in which the description of the boundaries is expressed. The testimony of this witness throws little, if any, light upon the question of the boundaries, and, as before stated, it only amounts to an expression of his opinion as to the extent of those boundaries. It devolves upon those attacking the validity of the description to point out the defects, and our conclusion is that the attack in this respect is unsuccessful.

The principal attack upon the validity of the proceedings is that the petition for the improvement was not signed by the oYraers of a majority in value of the real property in the district. The statute in relation to the petition for the improvement (§ 5652, supra,) reads as follows:

“If, within three months after the publication of any such ordinance, persons claiming to be a majority in value of the owners of real property within such district adjoining the locality to be affected shall present to the council a petition praying that such improvement be made, which petition shall designate the nature of the improvements to be undertaken, and that the cost thereof be assessed and charged upon the real property situated within such district, the city clerk or town recorder, by order of the city or town council, shall give notice by a publication once a week for two weeks, in some newspaper published in the county in which such city or town may lie, advising property owners within the district that on a day therein named the council will hear the petition and determine whether those signing the same constitute a majority in value of such owners of real property. At the meeting named in the notice, the owners of real property within such district shall be heard before the council, which shall determine whether the -signers of said petition constitute a majority in value, and the finding of the council shall be conclusive unless within thirty days thereafter suit is brought to review its action in the chancery court of the county where such city or town lies. In determining whether those signing the petition constitute a majority in value of the owners of real property within- the district, the council and the chancery court shall be guided by the record of deeds in the office of the recorder of - the county, and shall not consider any unrecorded instrument. (When so determined) the city council shall at once appoint three persons, owners of real property therein, who shall compose a board of improvement for the district.”

This action was, as before stated, commenced within thirty days after the city council made its -findings and appointed the commissioners, hence the attack upon the proceedings is direct and not merely collateral.

Oral testimony was introduced by appellants in an effort-to show that the petition was not signed by a majority, but, after careful examination of the testimony, we are of the opinion that it is not sufficient to overturn the findings of the city council that the petitioners constituted a majority in value. The first question arising on this branch of the case is, where the burden of proof rests in a proceeding of this kind. It does not appear that this court has ever directly decided that question. In all the cases referred to in the brief of counsel there was involved a collateral attack upon the validity of the proceedings under former statutes, and we held, of course, that the burden of proof rested upon the attacking party to show that a majority had not signed the petition. Now, it will be observed, from the language of the statute now in force, that the finding of the city council is conclusive “unless within thirty days •thereafter suit is brought to review its action in the chancery court.” This is a provision for a direct review—an independent investigation and inquiry, and not a mere review for errors—but it is nevertheless a review to determine whether or not the findings of the city council are in accordance with the facts. Therefore, in the very nature of things, the findings of the council must be treated as prima- facie correct, and the burden rests upon the attacking party to show to the contrary. This is true because the statute places the inquiry primarily with the city council to determine the facts concerning the majority, and a review of the proceedings before the city council contemplates the treatment of the findings as prima facie correct.

Appellants rely almost entirely upon the testimony of Miss Patton, the county clerk, to sustain their attack upon the findings of the city council with reference to the majority signing the petition. The witness testified with the tax records for the preceding year before her. She did not pretend to be familiar or to have any information at all with reference to the boundaries of this district, but she only gave testimony with reference to the assessed valuation of particular lots and tracts in Siloam Springs, about which she was interrogated. There is a controversy between counsel in the case as to whether or not she was asked concerning all of the tracts and lots within the boundaries of the district, but, be that as it may, it is certainly true that her testimony does not establish -the facts concerning the value of the property owned'by the petitioners. A list appears in the record, and there is a controversy as to whether it is properly in the record, but we find it unnecessary to determine that, for the reason that, even if we treat the list as being properly in the record, it does not establish the ownership of all the lands of the petitioners. The statute provides how the ownership shall be ascertained, and, in the absence of direct testimony showing that the petitioners were not the owners of a majority in value of the property in the district, we must indulge the presumption that the city council heard evidence and correctly determined, upon the basis prescribed in the statute, that the petitioners constituted a majority in value of the owners of property in the district. There is no requirement in the statute that the proceedings before the city council shall be reduced to writing, and it is not proper to permit an inquiry in this action as to how the city council arrived at the conclusion. Until the prima facie effect of the findings of the city council is overturned by evidence, we must, as before stated, indulge the presumption that only legal evidence was heard, and that the finding was made upon the basis prescribed by the statute.

It is next contended that there was unfairness on the part of some of the promoters of the district in preventing property owners from having an opportunity to be heard before the city council when the petition was being-considered.' Two of the witnesses related that, when the council considered the petition, they made inquiry and met a Mr. Osborn at the door, who told them that there was “no use going in there; they won’t tell you anything,” and that one of the promoters, when asked if they could see the petition, replied that he had it in his pocket, and it was going- to stay there. These witnesses did not actually appear before the council and demand a hearing, but relied upon the statements of those persons who met them on the outside of the council chamber. In any view of the matter, it cannot be said that this constituted a denial of a hearing before the city council. The witnesses, if they desired to be heard, should have gone into the council chamber and asked for a hearing. It is true that the party who informed the witnesses that he had the petition in his pocket and would keep it there was the city attorney, but he had no authority to represent the city council 'in the hearing, and, notwithstanding his alleged statement to the witnesses, they could have gone into the council and asked for a hearing, if they desired to be heard on the question whether the petition had been signed by a majority.

Finally, it is insisted that the organization should be invalidated because it is impracticable at this time to construct the improvement. That is a matter that cannot be considered at this stage of the proceedings, after the district has been organized in the manner prescribed by the statute and the improvement authorized by a majority in value of the owners of property in the district.

The chancery court was correct in dismissing the complaint, and the decree is in all things affirmed.


author: Wood, J.

text:
    Gaines v. Arkansas National Bank.
    Opinion delivered March 8, 1926.
    1. Trusts—jurisdiction op equity.—When a trust is created by will, a court of equity, as incident to its jurisdiction over trusts, has jurisdiction to- construe the will.
    2. Wills—construction—-intention op testator.—In construing the provisions of a will, the intention of the testator must first be ascertained, and, .when not at variance with the recognized rules of law, must govern.
    3. Wills—construction.—The intention of a testator must be gathered from all parts of a will, and such construction be given as best comports with the purposes and objects of the testator, and as will be least conflicting.

      4. Wills—power to sell and invest.—Where a testator conveyed all of his personal property absolutely to his wife and sons, and conveyed his real estate to a trustee with directions to pay the net income, during their lives, to his wife and sons and to the survivor of his sons, and that, upon the death of the survivor, the trust should terminate and the property should go to the lawful issue of such sons, or, in default thereof, to testator’s lawful heirs, a provision empowering the trustee to sell the lands, and providing that the sums arising from a sale of the lands were “to be reinvested and to become a part of the trust property and shall be administered and descend as herein provided,” held to contemplate that funds derived from a sale of lands or from insurance collected on a building destroyed by fire should be reinvested in veal estate situated in the county where testator’s lands were located.
    Appeal from Garland Chancery Court; J. P. Henderson, Chancellor;
    affirmed.

      Martin, Wootton S Martin, for appellant.
   Wood, J.

A. B. Gaines died testate on October 12, 1921, leaving surviving him his wife, Mary C. F. Gaines, and two sons, D. Fellows Gaines and A. B. Gaines Jr. His will was duly probated, and it contains, among others, the following clause:

‘ ‘ Third: All of the real estate owned by me at the time of my death, which is situated in Garland County, State of Arkansas, I give, devise and bequeath unto the Arkansas National Bank of Hot Springs, Arkansas, as trustee. To have and to hold the same unto the said the Arkansas National Bank, and unto its successors and assigns for and during the natural lives of my wife, Mary C. F. Gaines, and my sons, D. Fellows Gaines and A. B. Gaines Jr., and the last survivor of them, but upon the following express terms and conditions, viz: My said trustee shall collect all rents and profits arising or issuing from said real estate, and, after paying all taxes, insurance and repairs and reasonable compensation for its services, shall pay the net income therefrom to my wife, Mary C. F. Gaines, and my sons, D. Fellows Gaines and A. B. Gaines Jr., in equal portions of one-third to each, such payments to be made quarterly, or oftener if the beneficiaries of this trust require. My said trustee is hereby empowered and authorized to execute leases upon said real estate and to receive all rents and other profits therefrom. My said trustee is further authorized, in its discretion, but only with consent of my wife and sons, all three agreeing thereto, to sell any or all of my said real estate, and to execute deeds and conveyances thereof. But all sums arising from such sales to be reinvested, and to become thereupon a part of the trust property, and shall be administered and descend as herein provided. My said trustee is directed to keep all buildings and structures on my said lands insured, and, in the event of loss by fire, to collect the insurance thereon, and rebuild or repair same.
“For the purpose of erecting permanent improvements on my said real estate, my trustee may, with consent of my beneficiaries, borrow money, and, for the purpose of securing the same, may execute mortgages or deeds of trust upon such terms and running for such periods of time as my said trustee and beneficiaries may agree.
“Fourth: In the event either or both of my sons die, leaving lawful issue of his or their body living, or descendants of such issue, such issue, or descendants, shall immediately take fee simple title to all of the property hereby devised in trust for the parent of such issue. If either of my sons die without lawful issue, the interest of such son shall vest in the survivor. In the event of the death of my wife, and if both of my said sons shall die without lawful issue of their bodies, or descendants of such issue, then in such event, the trust herein created shall immediately determine, and all of the trust estate herein devised shall pass in fee simple to my heirs at law; my true intent being that the income from the trust estate hereby created and devised shall be enjoyed by my said wife and sons, and the last survivor of them, during their lives, and, if my said sons or either of them shall die leaving lawful issue of their body, my entire estate shall vest in such issue in fee simple, after the determination of the life estate hereby created. But, in the event of the death of my wife, and if my sons shall both die leaving- no lawful issue, then my estate shall vest in fee simple in my heirs at law. ’ ’

The testator, at the time of his death, owned certain lots in Hot Spring-s, Garland County, Arkansas, on which a building was situated. After the death of the testator this building was destroyed by fire. The trustee collected the sum of $18,000 insurance on the building. This amount was not sufficient to erect on the lots the same character of building that was destroyed, and the devisees in the will and beneficiaries in the trust created thereby demanded of the trustees that it invest the proceeds of the insurance in its hands in approved securities, such as stocks and bonds of various kinds, and notes secured by mortgages on real estate. They also requested that the trustee sell certain other real property belonging to the estate of the testator and invest the proceeds of such sale in approved securities of the kind mentioned. The trustee, while willing to sell certain of the real estate, whs unwilling to invest the proceeds of the sale as requested by the beneficiaries. This action was instituted by the devisees and beneficiaries under the will, hereafter called appellants, against the Arkansas National .Bank of Hot Springs, the trustee named in the will of A. B. Gaines, hereafter called appellee.

The appellants alleged the above facts in their complaint, and that they had assured the appellee of their consent for it to make thfe investments as requested by them, but, notwithstanding this fact, it had refused to comply with their request, and they prayed for a construction of the will in order to determine whether the trustee had authority thereunder to invest the money in its hands derived from the insurance policies, and to sell the real estate and reinvest the proceeds in approved securities as indicated, and prayed that, if it should be determined that it' had such authority, an order be entered to that effect.

The appellee,'in its answer, admitted the facts set up in the complaint, and averred that its reason for refusing to comply with the request of the appellants was ■because it was uncertain as to whether it had authority to do so under the will, and.it joined in the prayer of the appellants that the will, as above set forth, be construed, and that the appellee be directed in what character of securities it was authorized to invest the insurance money it had already collected, and as to whether it can sell and invest the money arising from the sale of real estate in securities of the character designated, or whether it was required to invest the same only in real property.

The trial court, after finding the facts as set up in the pleadings, entered a decree adjudging that “the true intent and meaning of the last will and testament of A. B. Gaines, deceased, is that the defendant, as trustee of said real estate, situated in Garland County, Arkansas, is authorized under the terms of said last will and testament to invest the moneys in its hands derived from fire insurance collected on building situated on said real estate and destroyed by fire, if such funds are not used for the purpose of rebuilding on said real, estate, in first real estate mortgages, United States Government securities, State bonds, county bonds, municipal bonds, improvement district bonds and school district bonds, but not in railroad bonds, dlv^end-t)ayin g stocks in radf” road companies, stocks of public utilities, stocks off®^ vate corporations, or personal securities; and that the defendant, as such trustee, in the event of the sale of any real estate so held by it in trust, under the terms of said last will and testament, is authorized and only authorized to reinvest the funds derived from any such sales in real estate, and is only authorized to make such investments in real estate in Garland County, Arkansas, where the real estate so held by it in trust under the terms of said last will and testament is situated, and within the jurisdiction of the Garland Chancery Court, to-the end that this court may exercise control over the acts of said trustee.” From that decree is this appeal.

There is sufficient ambiguity in the will of A. B. Gaines creating a trust estate to justify the trustee and the beneficiaries under the trust in seeking a construction of -the will by a court of chancery. Authority for so doing is found in Williamson v. Grider, 97 Ark. 588, 607, where we said: “When a trust is created by will, a court of equity has jurisdiction to construe the will. This power is incident to the jurisdiction which courts of chancery have over trusts.” See also authorities there cited.

In order to properly construe the will, it is necessary to consider all of its provisions. In Parker v. Wilson, 98 Ark. 553, 561, we said: “In construing the provisions of a will, the intention of the maker is first to be ascertained, and, when not at variance with recognized rules of law, must govern. The intention of the testator must be gathered from all parts of the will, and such construction be given as best comports with the purposes and objects of the testator, and as will least conflict. ’ ’ See also Gregory v. Welsh, 90 Ark. 152. In arriving at the intention of the testator in the third clause of the will, which we are asked to construe, considerable aid is gained by considering the clauses immediately preceding and following. By the second clause the testator eramoses of all of his p8PP$nal estate by bequeathing áSmsame to his wife and two sons in equal portions, share and share alike, to have and to hold in severalty as their absolute property. This second clause makes absolute disposition of all the personal estate which the testator might possess at the time of his death, of every character. No trust is created with reference to this personalty. At the death of the testator the legatees have the right to all the personal estate then in existence, without any limitation whatever upon its use and enjoyment—the absolute dominion over it-—and they hold their respective shares or portions not .jointly, but in severalty.

By the third clause above set forth the testator devises all of his real estate to the appellee in trust for the benefit of his wife and two sons during their natural lives, and the life of the last survivor. By this clause the duty was imposed upon the trustee to collect the rents and profits from the real estate and, after paying taxes, insurance, repairs and compeusation for its services, to turn over to each of the beneficiaries named the balance in equal shares. The trustee is authorized under this clause, with the consent of the beneficiaries named, to borrow money and execute mortgages to secure the same, to make permanent improvements on the land, and also to sell the lands, but the funds arising from a sale of the lands were “to be reinvested and to become thereupon a part of the trust property.”

By the 4th clause, upon the death of any of the beneficiaries, his or her interest passes to the survivor or survivors. If either of the sons die, leaving issue of body, such issue takes the parent’s share in fee simple, and, upon the death of the last surviving beneficiary without issue, the issue of the other beneficiary, if any, takes the entire estate in fee simple. Upon the death of the widow and the death of the two sons without issue, then the heirs at law take the estate in fee simple, and the trust is at that time terminated.

The effect of the third and fourth clauses of the will was to create an estate in fee tail in the two sons of A. B. Gaines of the lands of which he died seized and possessed, which, under our statute and decisions, vested in them only a life estate. C. & M. Digest, § 1499; Horsley v. Hilbourn, 44 Ark. 458; Wilmans v. Robinson, 67 Ark. 517. The heirs general at law of A. B. Gaines had only a contingent remainder in the estate, such contingent estate being subject to defeat by the death of D. Fellows Gaines and A. B. Gaines Jr., leaving issue surviving them. But, while this interest of the general heirs at law of A. B. Gaines in his real estate is contingent only, it nevertheless reveals the intention of the testator not to vest the fee simple title in his widow and sons, the beneficiaries named in the deed of trust. Manifestly, the purpose of the testator, when the language of all the clauses of the will is considered, was to give his widow and two sons all his personal property of which he was possessed at the time of his death absolutely, as we have already said, and in severalty share and share alike; and likewise to give them the rents and profits, the income derived from the rent or use of his real estate, as long as they lived. But, as we construe the instrument, it was likewise clearly his purpose to give his widow and sons a life estate only in his real property, to enjoy only the rents and profits thereof, the usufruct paid to them under the trust. The beneficiaries named have no power whatever of disposition or sale of the real property; neither has the trustee any such power, except only with the consent of all the beneficiaries named. With the consent of all the beneficiaries named the trustee may sell and execute deeds to the real estaté, but even this power of disposition carries with it the limitation imposed as a duty or obligation on the part of the trustee to reinvest the proceeds in such manner that the investment or reinvestment shall become a part of the trust property. The language placing this limitation and enjoining this duty upon the part of the trustee in case of the sale of real property is: “But all sums arising from such a sale to be reinvested and to become thereupon a part of the trust property, and shall be administered and descend as herein provided. ’ ’ .

It occurs to us that the language quoted above is a clear limitation upon the power of the trustee to reinvest the-proceeds of the sale of real estate, and it restricts him to reinvestments in other real property. This is true for -the reason that in no other way could the proceeds become a part of the trust property, because only the real property is embraced within the terms of the trust to be “administered, and (to) descend as therein provided.” The personal property of the testator, under the terms of the will, does not descend to the ¡beneficiaries named in the will as a part of the trust estate. Only the real estate is brought within the administration of the trust; only the real property and proceeds of the sale thereof reinvested in other real property are administered and descend as in the will provided. Furthermore, the word “reinvested” signifies that the proceeds of the sale of the real estate are to be laid out or invested in the same kind of property as that from which the proceeds were derived.

Now, the proceeds of the insurance policies on the buildings destroyed by fire cannot properly be considered as rents and profits arising from the real estate. The insurance money rather falls more properly in the category of money derived from the sale of real estate than in the classification “of rents and profits” issuing from the real estate. The testator signified his intention to have the insurance money invested in real property by the direction to the trustee to use the same to “.rebuild or repair” the buildings or structures on the land.

We are convinced that it was the intention of the testator that the proceeds derived from the sale of, or insurance on, the real estate should be reinvested in the same kind of property; that is, real property, and that it must be so invested in order to come within the trust created by the testator’s will. Since the entire real estate or property covered by the thust is situated in Garland County, Arkansas, and since the domicile of the trustee is in Hot Springs, Garland County, Arkansas, it seems to us that it was the intention of the testator to confine the administration and operation of the trust to that county, and that the trustee would not be authorized to make investments in real estate outside of the territory of Garland County, Arkansas.

Our conclusion therefore is that the trustee, under the terms of the trust, must invest the insurance money in its hands, and all the proceeds' of the sales of real estate held by it in trust, in other real estate in Garland County, Arkansas. 1 Perry on Trusts, § 452, says: “If there are directions in the instrument of trust as to the time, manner, and kind of investment, the trustee must follow “the direction and power so given them. The creator of a trust may specify the kind of investment, and what security may he taken, or he may dispense with all security. In the absence of such directions and powers, the trustees must be governed by the general rules of the court, or by the statutes and laws of the State in which the trust is to be executed. If there are no directions in the instrument, nor rules of court, nor statutory provisions in relation to investments, they must be governed by a sound discretion and good faith. They must not have speculation in view, but rather a permanent investment, considering both the probable income and the probable safety of the capital.”

The testator in the present case has “hedged in” the discretion of the trustee by the directions in the will so as to prevent the trustee and beneficiaries from exercising broad general powers to invest in the various kinds of securities named in the complaint. The wisdom or unwisdom of this policy is not within the province of the court to determine. The intention of the testator as gathered from the language of the will in the creation of the trust is the pole-star to guide the court in the proper construction of the will. The language of the will, as we have seen, does nof confer' upon the trustee the general powers which the appellants seek to have it exercise. The case does not present any such exigencies in the administration of the trust as to demand a departure from the language of the will, under the direction of the court, in order to conserve what the trustee and the beneficiaries and the court might think a more expedient administration of the trust estate than that outlined and directed by the creator of the trust.

Appellee-has not cross-appealed from that portion of- the decree directing it to invest the proceeds of the insurance in other property than real estate in Garland County, and therefore we cannot reverse the decree as to this, hut nevertheless, for the guidance of the trustee, and because such was its prayer, we have construed the will as a whole.

It follows that the part of the decree directing the trustee to reinvest in real estate in Garland County, the proceeds of the money derived from any sale of real property, in the event of such sale, is correct, and is therefore affirmed.


author: Hart, J.,

text:
    Missouri Pacific Railroad Company v. Mitchell.
    Opinion delivered March 8, 1926.
    1. Railroads—killing animals—contributory negligence.— Where plaintiff’s team, being hitched near a railroad track, got loose somehow and went upon defendant’s track and were killed, it was error to submit to the jury the question of plaintiff’s contributory negligence; but, where defendant requested such issue •to be submitted, it cannot complain that its request was modified by instructing that plaintiff’s negligence would be no defense if the accident was caused by defendant’s failure to keep a lookout.
    2. Railroads—killing op animals—presumption.—Proof that plaintiff’s animals were killed by a moving train constituted prima fade evidence of negligence on defendant’s part in managing the train, and imposed the burden on it to disprove such negligence.
    3. Railroads — negligence — evidence.—In an action for killing plaintiff’s team, evidence held to support a finding that defendant’s trainmen were guilty of negligence in not keeping a lookout.
    .Appeal from 'Conway Circuit Court; J. T. Bullock,Judge;
    affirmed.
    STATEMENT BY THE COURT.
    D. B. Mitchell sued the Missouri Pacific Railroad Company to recover $475 in damages, the value of a mule, horse and buggy which were killed and damaged ■by defendant’s moving passenger train on its track in the town of Menifee, Conway County, Ark.

      According to the testimony of D. B. Mitchell, he was a rural mail carrier, and the owner of the team and buggy which was run into by one of the defendant’s fast passenger trains at the town of Menifee, Ark., about seven o’clock a. m. on August 5, 1922. The passenger train struck the team between the crossing and.the depot. The team was a gray mule and a white horse, and they were hitched to a double buggy at the time the train struck them. The witness went down to the postoffice about six o’clock in the morning to fix up the’mail, and his boy brought the team down and hitched it in front of the postoffice. The train struck the team close to a post where it picks up the mail when the train does not stop. The gray mule was worth $125, and the white horse about $85. The buggy was worth about $30, and the -harness about $20 or $25. The engineer could have seen the team on the track about 3,000 feet away. There was no curve at all from the station back towards where the train was for 1,750 feet. The team was forty or fifty feet south of the public crossing at the station at the time the train struck it.
    Joe Talley was also a witness for the plaintiff. According to his testimony, as he came out of a store, he heard the noise of an approaching train, and, looking down the track, saw the horses on it. The mule and the horse were on the railroad track looking towards the approaching train. Two wheels of the buggy were on the track. You can see stock on the track 3,000 feet away; from-the west, which was the direction from which the train was approaching. Borne time after the accident happened, the witness stationed himself on the railroad track in the direction from which the train was approaching, and could see a horse standing on the track where the horses in question were struck, 3,000 feet away. The witness did not hear the engineer blow the whistle or ring the bell as it approached the station.
    According to the testimony of M. B. Rieff, he was the engineer on the train in question, and it was running about 45 or 50 miles au hour at the time it approached Menifee. Menifee was not a stop for the train, but he whistled for the road crossing and started, his bell ringing. When he was about 100 or 150 yards from the station, he saw a-team close to the track headed towards him, but it did not look like it was on the track. There was a curve in the track, and he looked around again. He then' saw that the team was on the track, and did all that he could to stop the train. He was keeping a lookout in front of him as he came around the curve towards the station. As soon as he saw that the team was loose, and not in charge of any one, he did all in his power to stop the train.
    The testimony of the engineer was corroborated by that of other witnesses for the defendant.
    The jury returned a verdict in favor of the plaintiff in the sum of $125, and from the judgment rendered the defendant has-duly prosecuted an appeal to this court.-

      Thomas B. Pryor and Vincent M. Miles, for appellau,t.

      Edward Gordon, for appellee.
   Hart, J.,

(after stating the facts). At the request of the defendant the court gave instructions Nos. 7 and 8, which read as follows:

“No. 7. You are instructed in this case that, where no person is injured, but only property is damaged, the defense of contributory negligence is an absolute defense, and, although you may find that the defendant was guilty of negligence, yet, if you find that the plaintiff was guilty of any negligence contributing to the damage, your verdict must be for the defendant, notwithstanding the negligence of the defendant, unless you find that the accident was caused by failure of keeping a constant lookout. ’ ’
“No. -8. You are instructed that if the act of the plaintiff or his son in permitting said team to become loose and wander upon the railroad track was the proximate cause of the damage, and that the negligence of the defendant was not the proximate cause of the damage, your verdict must be for the defendant.”

After counsel for the defendant had argued the case, the court modified instruction No. 8 to read as follows:

“You are instructed that, if the act of the plaintiff or-his son in permitting said team to become loose and wander upon the railroad track was the proximate cause of the damage, and that the negligence of the defendant was not the proximate cause of the damage, your verdict must be for the defendant, unless you find that the cause of the accident was defendant’s failure to keep a lookout.”

The sole reliance of counsel for the defendant for a reversal of the judgment is that the court erred in modifying instruction No. 8.

It is the contention of counsel for the defendant that the court correctly instructed the jury on the question of the plaintiff’s contributory negligence in instructions Nos. 7 and 8, as originally given, and that the modification of instruction No. 8 had the effect to eliminate the defense of the contributory negligence of the plaintiff. In other words, it is insisted that by modifying instruction No. 8 the court confused the defense of whether or not the negligence of the defendant was the proximate cause of the injury with the plea of the contributory negligence of the plaintiff.

We can not agree with counsel in this contention. The mule and horse were not in the immediate care, custody or control of the plaintiff or his son when they went upon the track. According to the plaintiff’s testimony, which is not contradicted, his son brought the team down and hitched it to a post near the postoffice in the town of Menifee. In some way not explained the team got loose and went upon the railroad track. There was no other testimony submitted to the jury upon this question, and we are .of the opinion that the court erred in submitting to the jury the contributory negligence of the plaintiff. The error in submitting the question of contributory negligence was committed at the request of the defendant, and it can not therefore be prejudiced by it.

The question then remains whether or not the court erred in modifying instruction No. 8, when considered without regard to the question of contributory negligence. The undisputed evidence shows that the animals were killed by the moving passenger train, and this fact constituted prima facie evidence of negligence on the part of the defendant in managing its train, and the burden devolved upon the defendant to show that it was not negligent in the premises. The question of whether the defendant’s servants were keeping a lookout, as required by the statute, was properly supmitted to the jury.

The question whether or not the engineer did all in his power to keep from injuring or killing the animals after he discovered that they were on the track was also properly submitted to the jury. Of course, according to the evidence of the engineer, the defendant was not negligent in this respect. According to his testimony, there was a slight curve in the track as the train approached the station at Menifee, and he at first thought that the animals were hitched to a vehicle in charge of some one near the track. He had whistled for the crossing, and was ringing the bell. Menifee was not a stop for his train, but, as soon as he saw that the team was on the track and not in charge of any one, he did all in his power to stop the train and to prevent hitting the team. His testimony, however, on this point is not undisputed. According to the testimony of the plaintiff and of a witness for him, the engineer could have seen the animals on the track at a. distance of 3,000' feet, and could have stopped the train in time to have avoided injuring them. In this connection it may be stated that the color of the mule was gray, and of the horse white. The engineer did not ring the bell or sound the whistle. The jury might have inferred that, had he given warning by a blast of the whistle, this would have scared the team, and made it get off of the track; or the jury might have found that, had he been keeping a lookout, the engineer could have discovered the team on the track in time to have stopped the train, and to have avoided hitting it.

It follows that the judgment must be affirmed.


author: Smith, J.

text:
    National Union Fire Insurance Company v. Harrower.
    Opinion delivered March 8, 1926.
    1. Insurance—damage by wind.—Under a policy of insurance indemnifying against direct loss by wind, but providing that there should toe no liability for damage toy rain or hail unless the building shall have first sustained .actual damage to the roof or walls by direct force of wind, held that where a wind storm tore the roof from the building insured, the insurer was liable for damage to the interior of the building by rain or hail.
    2. Insurance—damage by wind.—In an action on a tornado policy where the testimony .showed that . plaintiff’s building was unroofed by wind, that the rain caused the floors to buckle, and that much of the flooring was so damaged that it needed replacing, held the jury were not limited to the amount expended in making temporary repairs of the floors, but might allow such sum as would be necessary to remedy the damage suffered..
    Appeal from Yell Circuit Court, Dardanelle District; J. T. Bulloch, Judge;
    affirmed.

      McMillen & Scott, for appellant.

      Davis S Rollow and Bays, Priddy &■ Rorex, for appellee.
   Smith, J.

On June 14,1922, the appellant insurance company issued and delivered to appellee an insurance policy indemnifying appellee for a period of one year against all direct loss by tornado, windstorm or cyclone. The policy contained tbe following clause: “Tbis company shall not be liable for any loss or damage caused by hail, whether driven by wind or not. * * * This company shall not be liable for any loss or damage caused by rain or water, whether driven by wind or not, unless the building insured shall have first sustained an actual damage to the roof or walls of same toy direct force of wind, and then he liable for only such damage to interior of the building or the insured property therein as may be caused by water or rain entering through the opening of the building or roof or walls, made by the direct action of the wind. ”

Appellee brought suit on this policy, and alleged in «her complaint that the town of Dardanelle, where the insured building was located, was visited by a windstorm on April 28, 1923, damaging the building in the sum of $2,085, for which sum she prayed judgment. The defendant company filed an answer, admitting the execution of the policy sued on, tout denied that the damage was caused by a windstorm, cyclone or tornado.

The building insured was a brick business house, with a front of seventy-five feet, and extending back one hundred feet, and was divided into three store rooms, all of which were occupied by tenants at the time of the damage.

J. F. Harrower, the husband of the plaintiff, testified without objection, as the agent' of his wife, that on-April 28, 1923, a severe windstorm practically tore the roof from the building, and within fifteen or twenty minutes after this happened a heavy rain began, which in a few minutes was followed by a hail storm, and that the rain came into the building through the damaged roof, soaking the ceiling of the different store rooms, and ran down the walls and flooded the floors in such volume that a number of holes had to be bored in the floor to let out thé water, which could not be swept out fast enough.

Another witness testified that there was a windstorm ■ first, after which came the rain, and then the hail, and that the rain blew hard enough to blow down a tree in witness’ yard. There was other testimony corroborative of this.

The insurance company offered testimony tending to contradict the testimony stated above, and certain photographs showing the ground covered with hail were offered in evidence. The purport of the testimony offered on behalf of the insurance company was to the effect that there was not sufficient wind to have damaged the roof, and that the damage was caused by the beating of the hail upon the roof.

This question of fact was submitted to the jury under instructions which are not questioned, and the verdict of the jury in plaintiff’s favor is conclusive of the fact that the roof was damaged by a windstorm, and, this being true, the insurance company became liable for the subsequent damage occasioned by the rain and hail to the interior of the building.

The verdict of the jury was for the sum of a thousand dollars, and from the judgment thereon is this appeal.

Appellant insists that under the undisputed evidence the verdict should not have been for a greater amount than $819, this total being made up of the following items: Roofing, $562.50; calcimining, $88; painting wooden portions, $64; painting front, $60; flooring, $20; replastering, $25; total $819.

But, as is pointed out in the brief of appellee, the defendant’s figures do not take into account testimony offered in behalf of appellee that the water damage required the painting of the ceiling of two of the rooms, at a cost of $2 per square, and that there were 25 squares in the ceiling of each room, which would make $100 not included in the above tabulation'. In addition, the jury might have found that the damage to the floor, which appellant places at only $20, was much greater than that figure. Mr. Harrower placed the damage to the floor at fifty per cent, of its cost, and another witness at from twenty-five to thirty per. cent. This witness testified that the floor swelled up and buckled and burst the tongue and groove. A clerk in one of the stores testified that holes had to be bored all over the house to let out the water which had run down the walls. Mr. Harrower testified that he had used 250 feet of flooring in repairing the holes, and that there was still a part of the floor which, would have to be taken up and fixed, and that portions of the floor were weak from the effect of the holes which were bored to let the water out.

Under the facts stated, we think the jury was not limited in the assessment of damage to the floor to the actual cost of the flooring, the price of which was shown to be only $20. The patched floor is itself a damage which the jury had the right to consider, and the substitution of a new one, had this been done, would no doubt have been a greater cost than the sum allowed by the jury for this item, and would have made the verdict even larger than it was.

While the testimony as to the other items is not undisputed, the testimony in appellee’s behalf warranted the finding made, and this is conclusive of that question of fact on this appeal.

The testimony being legally sufficient to support the verdict of the jury, both as-to the cause of the damage and the extent thereof, and no other question being presented, the judgment must be affirmed, and it is so ordered.


author: Humphreys, J.

text:
    Moore v. State.
    Opinion delivered March 8, 1926.
    1. Criminal law—entry op nolle prosequi.—Under Crawford & Moses’ Dig., § 3063, providing that the dismissal of an indictment by the pro-secuting attorney “shall not bar a future prosecution for the same offense,” held, that an order of nolle prosequi entered in a criminal case at the instance of the prosecuting attorney wilt not bar a future indictment for the same offense.
    2. Criminal law—statute op limitation—suspension.—Under Crawford & Moses’ Dig., § 2889, when an indictment is dismissed by the prosecuting attorney, and another indictment is subsequently returned for the same offense, the time during which the first indictment was pending will not foe computed as part of the time of .limitation prescribed for the offense.
    Appeal from Columbia Circuit Court; L. 8. Britt, Judge;
    affirmed.

      W. D. McKay, for appellant.

      II. W. Applegate, Attorney General, and Barden Moose, Assistant, for appellee.
   Humphreys, J.

Appellant was indicted on the 24th day of November, 1925, in the circuit court of Columbia County, for the crime of having a still in his possession, making mash, and manufacturing whiskey on November 23,1925. On the 27th day of November, 1925, the causes were consolidated for the purpose of trial, and were tried tog-ether, resulting- in a conviction on all charges. His punishment was fixed at one year in the State Penitentiary for each charge. He has duly prosecuted an appeal to this court, and seeks a reversal of the judgments upon the alleged grounds: First, that the evidence is insufficient to support the judgments, and second, that the trial court erred in giving- the following instruction : “You are instructed that, in determining the time of the running of the statute of limitations, you will not take into consideration the time the former or prior indictment was pending against the defendant, if you find there was such an indictment; you will compute the time from the date it is alleged the offense was committed up to and including the day of the rendition of the first indictment into open court, and, if you further find that the indictment was dismissed, you will begin to compute the time from that date up to the rendition or return of this indictment into court, which is alleged to be November 25,1925, and, if you believe from the testimony in this case beyond a reasonable doubt that the- defendant is guilty as charged in the indictment, you will find him guilty.”

(1). The evidence relied upon by the State for a conviction, and which appellant contends is insufficient to support the .judgment, consists of the testimony of D. P. Futch, E. L. Owens, E. ¡W. Warren, and E. Atkinson.

D. P. Futch testified, in substance, that he was the sheriff of Columbia County from March 11, 1919, to January 1, 1925; that E. W. Warren and E. L. Owens, both of -whom, were deputy sheriffs in 1922, informed him that appellant was making whiskey; that he, in company with a Federal officer, went to appellant’s home immediately after his deputies had arrested appellant and were breaking up a still; that they found a 50-gallon copper still in operation, about seven and one-half barrels of mash, and six gallons of liquor; that appellant was placed under arrest, and, after a preliminary hearing, was bound over to await the action of the grand jury; that he gave a cash bond in the sum of $1,000 for his appearance at the August, 1922,“ term of the circuit court, which he forfeited; that subsequently an alias warrant was placed in his hands for appellant, but he was unable to locate him.

E. L. Owens and E. W. Warren' testified, in substance; that on the 22d day of June, 1922, they arrested appellant while he was operating a still; that it was a 50-gallon copper still, located in a thicket on a little spring branch on Trav Taylor’s farm, in Columbia County, Arkansas; that it was a regular still, with a cooling trough and a coil.

E. Atkinson testified, in substance, that he was the clerk of the circuit court, and had in his possession records of the court for 1922; that the records show a duly recorded indictment against appellant for having a still in his possession, making mash, and manufacturing whiskey on the 9th day of October, 1922; that the indictment was returned by the grand jury on the 11th day of October, 1922; that the records show the following order:

“Nolle prosequi: On this 12th day of February, 1925, a day of the regular February, 1925, term of the Columbia Circuit Court, the same being the fourth day thereof, comes the State of Arkansas by W. L. Brown, prosecuting attorney, also come the defendants, H. L. Taylor and David Moore, in proper person and by their attorneys, and the 'State moves to enter a. simple nolle prosequi in this case. It is therefore by the court considered, ordered and adjudged that the defendants herein, Henry Lee Taylor and David Moore, be not prosecuted further in this cause in this court, and that they go hence without day, and that the State of .Arkansas pay all costs in and about this prosecution.”

Appellant first contends that the evidence is insufficient to support the judgment for the alleged reason that it was not shown 'by the State that the old and new indictments related to the same acts’ of appellant for violating the liquor laws, and, if not, the crimes were barred as occurring more than three years next before the finding of the indictment in 1925. The proof introduced by the State showed that appellant was arrested while manufacturing liquor in June, 1922, and was bound over to the grand jury and indicted in that year. Appellant was convicted on testimony showing that he manufactured whiskey in June, 1922, so we think it sufficiently shown that the old and new indictments covered the same offenses, committed by the same acts of appellant. The bar did not attach because the statute of limitations was suspended during the pendency of the 1922 indictment for the said crimes. State v. Reed, 45 Ark. 333; State v. Harvey, 169 Ark. 1074.

Appellant next contends that, if the indictments rendered in 1922 and 1925 were for the same offenses, committed by the same acts, then the order of dismissal entered on the 12th day of February, 1925, barred any other prosecution. The order referred to and heretofore set out in this opinion was a simple nolle prosequi, and did not operate as a bar to future indictments. Section 3063 of Crawford & Moses’ Digest provides that “the prosecuting attorney, with the permission of the court, may, at any time before the case is finally submitted to the jury, dismiss the indictment as to all or a part of the defendants, and such dismissal shall not bar a future prosecution for the same offense.”

(2). The instruction of the court relative to the application of the statute of limitations was correct. We cannot agree with appellant’s counsel that the order entered on the first or old indictment reflected a trial and dismissal of the cause. On the contrary, it reflected a simple nolle prosequi or annulment of the indictment. The case comes within § 2889 of Crawford & Moses’ Digest. Gill v. State, 38 Ark. 528 Lay v. State, 42 Ark. 105; Stafford v. State, 59 Ark. 413.

No error appearing, the judgment is affirmed.


text:
    Bayou DeView Drainage District No. 1 v. Files.
    Opinion delivered March 8, 1926.
    1. Drains—liability of district.—Where, after a drainage district had employed an independent contractor to ibuild a bridge and he had abandoned the contract, the drainage commissioners were informed by plaintiff that the contractor had ordered lumber without paying for it, and the district thereafter used the lumber, it will be liable.
    2. Appeal and error—harmless error—instructions.—Where plaintiff was entitled to an instructed verdict, defendant cannot complain of errors in instructions.
    Appeal from Woodruff Circuit Court, Central District; E. D. Robertson, Judge;
    affirmed.

      E. M. GarlLee, for appellant.

      Roy D. Campbell, for appellee.
   Humphreys, J.

This suit was brought by appellee against appellant in the circuit court of Woodruff County, Central District, to recover $436.17, with interest at the rate of 8 per cent, per annum from January 17,1923, until same is paid, for lumber furnished by appellee to construct a bridge across Bayou DeYiew.

Appellant interposed the defense that it did not purchase or authorize any one to purchase the lumber used in the construction of said bridge for it or upon its credit.

The cause was submitted to a jury upon the pleadings, the testimony adduced by the respective parties, and instructions of the court, which resulted in a verdict and consequent judgment against appellant for the sum sued for, from which is this appeal.

Appellant contends for a reversal of the judgment upon the grounds: First, that the undisputed testimony reveals that, although the lumber manufactured by appellee was used in the construction of its bridge across Bayou DeView, it was bought by an independent contractor, J. D. Books, who undertook to build the bridge and furnish all the material for $12.50 per lineal foot, and that he did not purchase the lumber for it or as its agent; and second, because the evidence to prove agency in the purchase of the lumber was confined to the admission or statement of J. D. Books, the alleged agent, which testimony alone was insufficient in law to establish agency.

(1) . We cannot agree with the interpretation placed upon the testimony by the learned counsel for appellant. It is true that J. D. Books entered into a contract with appellant to build the bridge' and furnish the material for $12.50 per lineal foot, and that appellant advanced Books $650 under the contract, based upon the estimate of lumber which he had placed on the right-of-way, but it is also undisputed that Books told appellee, when making the order, that he was buying it as the agent of appellant, and that he abandoned his contract after building only ten feet of the bridge. It is also undisputed that, after Books abandoned the contract, and about the time the work was taken over by the district for completion, appellee informed two of the commissioners that Books had ordered the lumber for the district, and presented a bill for the balance due thereon to them, one of whom stated that they would use the lumber and pay him for it. The other commissioner stated that he ought to be paid for it. To say the least of it, they used the lumber after being informed that it had been ordered for the district by Books, and that he had not paid for it.

(2) . Under our construction of the evidence, appellee was entitled to an instructed verdict, so no prejudice resulted to appellant on account of the instructions given by the court.

The judgment is therefore affirmed.


text:
    Troyer v. Bank of DeQueen.
    Opinion delivered March 15, 1926.
    1. Mortgages—priority of lien.—Where notes secured by mortgage were transferred by the mortgagee as collateral security for a loan, .and the mortgagee subsequently by writing assigned to another his interest in the notes previously transferred, the assignee’s interest in the notes and mortgage was subordinate to the prior lien of the original transferee.
    2. Subrogation—intervening lien—intention of parties.—Where notes secured by a mortgage were transferred by the holder as collateral security for a loan, and a decree of foreclosure in favor of such holder was subsequently entered, whereupon a third party discharged the indebtedness to the holder, relying upon personal security for reimbursement and without intending to keep alive the lien of such mortgage, and took a second mortgage on the land as additional security, such third party was not entitled, by subrogation, to priority over an intervening lien of which it had constructive notice by the filing of a Us pendens notice.
    Appeal from Sevier Chancery Court; G. E. Johnson, Chancellor;
    reversed.

      Abe Collins, for appellant.

      Lake, Lake & Carlton, for appellee.
   McCulloch, C. J.

G-. W. Fensler conveyed 217 acres of land in Sevier County, Arkansas, to C.-W. and Clara R. Cameron, and took from them notes aggregating $5,500 and a mortgage on the lands to secure the same. Fensler borrowed $1,800 from Mr- Henry Moore, and transferred to him the 'Cameron notes as collateral security. Thereafter, Fensler executed to appellant an instrument in writing conveying to appellant his interest in the notes held by Mr. Moore as collateral. The 'Camerons failed to pay anything on the notes, and Mr. Moore and appellant joined in an action in the chancery court of Sevier County to foreclose their mortgage. The Camerons filed an answer in the suit, pleading for recoupment by way of abatement for the purchase price on account of alleged fraudulent misrepresentations made by Fensler concerning the character and value of the lands conveyed, and on the hearing, of the cause the court found that Moore was an innocent purchaser, and rendered a decree in his favor against the Camerons for the recovery of his debt and enforcement of the mortgage lien against the land. But the court found that appellant was not an innocent purchaser, and allowed damages to the Camerons in an amount sufficient to extinguish the balance of the debt over and above the claim of Moore. Appellant prosecuted an appeal to this court from the adverse decree, which was reversed by this court (160 Ark. 421), and the cause was remanded with directions to the chancery court to enter a decree in favor of appellant for the sum of $604.48, and to foreclose the mortgage for that amount .in favor of appellant, in addition to the prior foreclosure in favor of Moore.

There was no appeal by the Camerons from the decree in favor of Moore, and the commissioner of the court proceeded to advertise the lands for sale to pay Moore’s debt, in accordance with the decree. Immediately before the time for the sale in accordance with the advertisement made by the commissioner, the Camerons borrowed from appellee, Bank of DeQueen, the sum of $1,725, to use in paying off the debt to Moore. Appellee made the loan as requested, and took a note from the Camerons, signed by J. S. Lake and E. C. Lake as sureties, and the Camerons executed a mortgage on the land to secure the note. The money thus borrowed was used in paying off the Moore debt, and the decree in the latter’s favor was marked satisfied without sale of the lands. This was on October 16, 1922, and on December 14, 1923, the mandate of this court reversing the decree in appellant’s case against the Camerons was filed in the chancery court, and a decree was entered by that court in accordance with the directions of this court in favor of appellant for the sum- of $604.48, and the commissioner was directed to sell the lands in accordance with the decree to satisfy the debt. The commissioner sold the land on March 15, 1924, after due advertisement, and appellant became the purchaser for the sum of $800. .Wlien the commissioner’s report of sale was filed, appellee, Bank of DeQueen, appeared and filed an intervention, asking that it be subrogated to the lien of the Moore debt by reason of the fact that the money loaned to the Camerons was used in discharging that debt. Appellant filed an answer to the intervention complaint, denying the right of appellee to subrogation. The issues were tried by the court, and a final decree.was rendered in appellee’s favor declaring the latter’s right to subrogation. The court also -confirmed the sale to appellant, and the latter has prosecuted this appeal from the decree in favor of appellee.

It may be said in the beginning of the discussion that the Moore debt constituted a superior lien to that of appellant’s for the reason that all of the Cameron notes were transferred to Moore as security for his debt, and the subsequent assignment to appellant was necessarily subordinate to Moore’s lien. The case is not one where different notes secured by the same instrument were separately assigned to different persons, as in Penzel v. Brookmire, 51 Ark. 105, and cases following, but it 'is one where the whole of the secured debt was transferred successively to different persons, the first assignment in point of time being superior. It follows therefore that, if appellee is entitled to subrogation, its rights are superior to those of appellant as junior lienor.

According to the undisputed facts, there was no intention manifested on the part of appellee and the Camerons, in applying the money borrowed from appellee, to keep alive the Moore debt so as to bring the case within the rule of subrogation laid down by this court in Rodman v. Sanders, 44 Ark. 504. On the contrary, it is made clear in the proof that there was an absolute payment in discharge of the Moore lien and a satisfaction of the decree. This much is conceded by counsel for appellee, but the right of subrogation is claimed, notwithstanding the absence of such an intention, on the ground that appellee furnished the money to discharge the Moore lien, and took the security on the land under the belief that it was obtaining a superior lien. Counsel seek, in other words, to bring the case within the rule announced by this court in Southern Cotton Oil Co. v. Napoleon Hill Cotton Co., 108 Ark. 555, and similar cases decided later by this court. There are, we think, two important distinctions between the facts of the present case and the facts in the case just cited, on which appellee relies. In that case, as in this, the right of subrogation was,claimed on the ground that money had been loaned and used in discharging a prior mortgage lien, and new security was taken under the belief, and without fault, that the new security constituted a superior lien, but in that case the facts were established beyond dispute that the money was advanced in reliance upon the fact that a superior lien was to be secured on the property, and that there was freedom from negligence in failing to discover the intervening lien. In the opinion of the court it was said: “It is undisputed that both the mortgagor, Martin, and the mortgagee, appellants, understood, when the mortgage was executed, that the debt secured by the two prior mortgages was to be paid with the money advanced on this mortgage, and that it would be a first lien-against the property for the money so advanced.” And in another place the court said: “Here the parties expressly agreed that the appellant, mortgagor, was to have a first lien upon the premises, and while it is true they thought that the record qf its mortgage and the payment of the debt secured by the two prior mortgages and their release would effectuate that purpose, it failed to do so, because of the lien of the judgment of appellee intervening, of which appellant was ignorant and should not be charged with negligence in failing to discover it, since an examination of the index to the record of judgments would not have disclosed it.” On the contrary, the evidence in the present case fails to establish that there was a reliance upon obtaining a superior Ken on the lands, and there was fault upon the part of appellee in failing to discover the intervening claim of appellant. We quote from the. record the testimony of appellee’s representative who made the loan:

“Q. Did you know that Henry Moore or the estate of Henry Moore, deceased, had any unsatisfied lien of any kind against this land? A. Ño, he said his land was about to be sold, and he wanted to borrow some money to save it. Q. Did you loan the money on the faith of Henry Moore’s lien, or on your mortgage lien and E. C. Lake and J. S. Lake? A. On the mortgage and security; I didn’t know the details. Q. You mean you loaned the money on the mortgage you took on the land and on the personal security of E. C. Lake and J. S. Lake? A. Yes. Q. You were not relying on the fact that Henry Moore had a lien against the land for security of the note? A. No, I didn’t know anything about Henry Moore’s interest in it. Q. Did you examine the lis penclens record or other records to determine whether there were any other liens or claims against the land? A. No. Q. The loan was not made with any intention of keeping alive Henry Moore’s judgment for your protection, and you were not depending on it ? A. We were depending on Mr. Lake in regard to that, and when it came to the title or anything like that we expected him, being on the note, to look after it.”

It will be noticed from this statement of the witness that the reliance was entirely upon the sureties on the note, not only on their financial ability, but upon their knowledge and opportunity for ascertaining the condition of the title to the lands. It is true that the witness stated in general terms that he relied on the mortgage and the personal security, but his further statement shows unequivocally that he was depending entirely upon Mr. Lake, who is shown by other testimony to have been the attorney for the Camerons in the present litigation, and who, of course, was fully advised as to appellant’s claim. The testimony shows that, while appellee expected to take a mortgage from the Camerons and did so, it was depending entirely upon the personal security—depending oil Mr. Lake doing whatever was necessary to protect it. It is also manifest that appellee was not without fault in failing to discover the claim of appellant. At the beginning of the suit appellant filed a lis pendens in accordance with the statute, which constituted constructive notice to everybody. At the time of this transaction between the Camerons and appellee, there had been a final decree rendered against appellant, but an appeal had been entered and was subsequently perfected. The Us pendens, of course, continued as constructive notice until the end of the litigation, .and it was the duty of persons dealing with the Camerons to take notice of appellant’s claim.

The doctrine of equitable subrogation is a very broad one, and is designed to meet all the demands of natural justice, where there is no forbidding rule of law, but, in order to obtain that relief, the party asking it must be free from fault or carelessness. Equity will not give aid to one whose predicament is brought about by his own fault, and the fact that the situation of the other party is not less favorable after allowance of the right of subrogation than it was before the payment of the debt does not change the rule that the party seeking subrogation must be without fault.

For these reasons we conclude that the right of subrogation is not established, and that the chancery court erred in its decree, which is reversed and remanded, with directions to enter a decree dismissing the complaint of appellee for want of equity.


author: Hart, J.

text:
    Bridgman v. State.
    Opinion delivered March 15, 1926.
    1. Drunkenness—on public highway.—Evidence held to sustain a finding that accused appeared upon a public highway in a drunken condition.
    • 2. Criminal law—improper argument—reference to accused’s failure to testify.—It is error, presumptively prejudicial, for the prosecuting attorney to call attention of the jury to the failure of the accused to testify.
    Appeal from Stone Circuit Court; Dene II. Coleman, Judge;
    reversed.

      J. Allen Eades, for appellant.

      II. W. Applegate, Attorney General, and John L. Carter, Assistant, for appellee.
   Hart, J.

Leonard Bridgman prosecutes this appeal to reverse a judgment of conviction against him for violating § 2626 of Crawford & Moses’. Digest, charged to have been committed by appearing upon a public highway in a drunken or intoxicated condition.

The first assignment of error is that the evidence is not sufficient to support the verdict. .

The trial was had on the 16th day of November, 1925. According to the testimony of L. M. Gowers, along some time in September or October, 1922, he met the defendant, Leonard Bridgman, and his brother, Willis Bridgman, on a public highway in Stone County, Arkansas. The witness asked Willis whom he had in the car with him. The latter replied that it was his brother. The defendant raised his head up, and witness remarked that he looked a little bit peculiar. Willis said, “We met some of the boys over here on the road, and they had some ‘old wildcat, ’ and he got too much of it. ’ ’ The witness thought the defendant was drunk, and he was at the time on the highway leading to Big Springs in Stone County, Arkansas. On cross-examination, the witness admitted that he did not smell any liquor on the defendant, but said that he appeared to be drunk. His face was very red, and he was “kinder slobbering, arid looked in a peculiar way. There was something wrong with him.”

Willis Bridgman was a witness for the defendant, and denied that his brother was drunk on the occasion in question, and denied that he told the prosecuting witness that his brother had drunk too much moonshine whiskey.

The jury was the judge of the credibility of the witnesses, and by its verdict believed the testimony of the witness for the State. His testimony, if true, was sufficient to support the verdict.

The next assignment of error is that the court erred in allowing the prosecuting attorney to refer to the fact that the defendant had not testified in the case. The record showed that, in the argument of the attorney for the State, among other things, he stated that the defendant’s brother, Willis, said that Leonard had not had any liquor that day, but that the defendant did not say so. The defendant objected to this argument, and saved his exception to the ruling of the court in overruling his objection.

This court is committed to the rule that, under § 3123 of Crawford & Moses’ Digest, it is improper and presumptively prejudicial for the prosecuting attorney to call the attention of the jury to the failure of the accused to testify. Lee v. State, 73 Ark. 148, and Starnes v. State, 128 Ark. 302. The Attorney General, however, attempts to justify the action of the court under the authority of Markham v. State, 149 Ark. 507.

In that case it was held that, under the facts, the remarks of the prosecuting attorney could not be construed as a comment upon the failure of the defendants to testify. Markham and four others were separately indicted, but their cases were consolidated for trial. In the course of his argument the prosecuting attorney used the .following language: “We find the five leaving the mill and going in the direction of the still. None of them denied that they went to the still but Perry Franklin.” There were other parties besides the appellants said to have been at the still on that day when the appellants got there. The appellants might have proved by these parties that they were not at the still on the-occasion in question, or the appellants might have been witnesses -for each other. Hence the court ruled that the remarks of the prosecuting attorney could not be construed as a comment upon the failure of the defendants to testify, and that the remarks did not contravene the provision of the statute to the effect that the failure of the accused to testify should not create any presumption against him.

In the instant case the defendant and his brother, Willis, were met iby the prosecuting witness. The prosecuting witness testified that the defendant was drunk, or appeared to be drunk, when he met him and his brother in the public road. The brother of the defendant denied that the defendant was -drunk. No other person than the prosecuting witness, the defendant and the brother of the defendant was present at the time. Hence the remarks of the prosecuting attorney to the effect that the defendant did not say that he had not had any liquor on that day could only refer to the fact of the failure of the defendant to testify in the case. His brother had testified that the defendant had not had any liquor on that day, and the reference that the defendant -did not say so necessarily referred to the fact that he did not testify in the case.

The Legislature has seen fit to pass the statute in question, and there seems to be no discretion with the court in passing upon the probable injury of such allusion. This being true, we have no alternative except to reverse the judgment. The judgment is accordingly reversed, and the cause remanded for a new trial.


text:
    Planters’ Cotton Oil Company v. Galloway.
    Opinion delivered March 15, 1926.
    1. Mechanics’ lien—time of filing.—A lien for furnishing materials for construction of a gin plant is acquired by filing a copy of the account with the circuit clerk within 90 days from the time the last item of the materials was furnished.
    2. Mechanics’ lien—time of filing.—-Though the eyidenee shows that the -owner of a gin plant first contemplated operating the plant with electricity and subsequently changed his plans by adding an oil engine house, the materialman who furnished the materials for constructing the gin plant and the oil engine-house, charging all the materials on open account, was entitled to acquire a lien for all such materials by filing his account within 90 days from the time the last item of the account was furnished.
    Appeal from Lonoke Chancery Court; John E. Martmeau, Chancellor;
    affirmed.
    statement op pacts.
    H. Galloway brought this suit in equity against A. L. Barber, trustee for W. J. Somers, bankrupt, and the Planters’ Cotton Oil Company, to foreclose a lien for materials furnished and used in the construction of the gin plant of W. J. Somers.
    The complaint was filed and summons issued on December 24, 1923. On February 8, 1924, H. Galloway died intestate, and the suit was revived in the name of Cecil E. Galloway, as administrator of his estate.
    According to the testimony of Cecil E. Galloway, he was the son of H. Galloway, and the account of materials furnished in rebuilding the gin plant of W. J. -Somers amounted to $3,931.3-6. The account was filed as required by § 6922 of the statutes on December 15, 1923. The account is itemized, and shows that the items were furnished from May 12 to October 5, 1923. On September 21 and 22, 1923, items to the amount of $142.69 were furnished. The account showed that these items were for the engine house. They consisted of certain pieces of lumber, ship-lap and windows.
    On September 24, 1923, and on various days thereafter up to and including October 5, 1923, certain pieces of lumber and nails were furnished. The item of October 5, 1923, was one hank sash cord. Prior to the items just referred to, the last items of lumber furnished were dated September 5, 7 and 11, 1923. H. Galloway made a contract with W. J. Somers to furnish him materials with which to rebuild his gin plant. H. Galloway kept the books, land spoke to Mr. Somers several times about paying’ the account; but Somers kept putting him off until he could borrow some money with which to pay it. Subsequently W. J. Somers was adjudged a bankrupt. The Planters ’ Cotton Oil Company had a mortgage on the gin plant and the property on which it was located, and defended this suit in order to assert its right under the mortgage. Other facts will be stated or referred to in the opinion.
    The chancellor found the issues in favor of the plaintiff, and a decree was entered of record in accordance with his findings. To reverse that decree, the Planters’ Cotton Oil Company has duly, prosecuted an appeal to this court.

      W. D. J ones, for appellant.

      Gray & Morris, for appellee.
   Hart, J.,

(after stating the facts). The record shows that H. Galloway filed an itemized account of lumber and materials furnished for the gin plant of W, J. Somers, verified, as provided by § 6922 of Crawford & Moses’ Digest, in the office of the circuit clerk of Lonoke County on December 15, 1923. The record further shows that an amended complaint was filed in the chancery court on December 24, 1923. The filing of the account in. compliance with the statute, within ninety days after the last item of the materials was furnished, gives the material-man a lien under the statute. Burel v. East Arkansas Lumber Co., 129 Ark. 58; Hill v. Imboden, 146 Ark. 99; and Ferguson Lumber Co. v. Scriber, 162 Ark. 349.

It is the contention, however, of counsel for the appellant that the claim for the lien was not filed within ninety days after the last item of the materials was furnished. In making this contention, counsel claim that the materials furnished after the 15th day of September, 1923, were furnished under a separate contract for an oil engine house, and therefore do not constitute la part of the account for materials furnished in building the gin house, cotton house, and cotton seed house, which alone were considered when the first contract for furnishing materials was made. The record does show that Somers first contemplated operating a gin plant with electricity, and that the original contract was entered into with Calloway to furnish materials when this was his intention. Afterwards, when the gin house and cotton and cotton seed houses were about completed, Somers changed his plans, and decided to add an oil engine house. The substitution of an oil engine for an electric one did not have the effect to change the contract originally made by Somers with H. Calloway in any particular. Somers told Calloway that he intended to rebuild 'his gin plant, and wanted to make arrangements to purchase materials from him for that purpose. Calloway agreed to furnish the materials to Somers in such quantities and on the dates required. He only knew in a general way that he was to furnish materials to Somers with which to rebuild his gin plant. It did not make any difference to him whether Somers made alterations or additions to the plans. Calloway was to furnish lumber and nails to be used in rebuilding the gin plant. It was all one contract, and it did not make any difference to him whether the power to )be used in operating the plant was electricity or oil. Any change of plans or additions to the original plans could not in the very nature of things affect the contract of Calloway to furnish lumber, nails and other materials to be used in constructing the gin plant. The oil engine house was built into and constituted a substantial part of the gin house. The first material furnished by H. Calloway was on May 12, 19:23, and the last item was on October 25, 1923. A substantial quantity of material was furnished within ninety days of the filing of the claim, and it is fairly inferable from the evidence that these items constituted a part of the construction of the oil engine house, or of the gin house proper. The amount of the items furnished within the ninety days is not the test of whether they are embraced within the original account. But the test is whether or not the items fiall naturally and ordinarily within the account. The size and number of the items furnished within the ninety days indicated that they were furnished under the original contract, and not merely for the purpose of bringing the claim within ninety days after the furnishing of the last item.-

According to the testimony of Cecil E. Calloway, he delivered most of the items which constituted the account embraced in this action. He stated further that, after the gin plant had been completed, his father asked Somers for payment of the account, and that Somers kept putting him off until he could borrow some money with which to pay it. This constitutes proof of the correctness of the account. Indeed, there is no serious contention that the account is not correct, but the main reliance for a reversal of the decree is that the claim is barred because it was not filed within the ninety days provided by statute.

Again it is insisted that the decree should be reversed because the court erred in admitting certain slips in evidence to establish the items of the account. According to the evidence of Cecil E- Calloway, his father kept the books, and he used the single-entry system. In connection with it, he had a ticket system which served as an itemized statement of the accounts. When articles of merchandise were furnished, three tickets showing the items were run off of a machine. One of these tickets remains in the office, another is given to the purchaser, and the third is given to the driver to show him what materials to deliver to the purchaser. Iu keeping the books only the amount of each ticket would be written in the book. The system seems to provide a simple, correct and economical manner of keeping books, and altogether serves as an itemized statement of the accounts so kept. We are of the opinion that no error was committed by the court in permitting the account to be proved in this way.

A careful examination of the record convinces us that the decree of the chancery court was correct, and it will therefore be affirmed.