author: Hart, J.

text:
    Fisher v. State.
    Opinion delivered May 30, 1921.
    1. Homicide — justification—illicit Relations of deceased with defendant’s wife. — In a prosecution for murder, it was proper to refuse a requested instruction that defendant was entitled to prove that illicit relations existed between deceased and defendant’s wife as exculpating the defendant or in mitigation of the punishment, as that fact did not justify or excuse the homicide.
    2. Witnesses — communications to prosecuting attorney — privilege. — In a murder trial, testimony of the prosecuting attorney that, prior to the killing, defendant consulted him as to a criminal prosecution against deceased for illicit relations with defendant’s wife, and that witness informed defendant that he did not have sufficient evidence, was not privileged, as the witness was consulted as the public prosecutor, and no confidential relationship existed between them.
    3. Homicide — evidence—good character of deceased. — In a prosecution for murder, evidence on behalf of the State that deceased was a peaceable and law-abiding citizen is not admissible unless defendant undertakes to attack the character of deceased.
    4. Homicide — evidence—character of deceased. — In a prosecution for murder, eyidence on behalf of defendant that on several occasions, when visiting defendant’s wife in the night time, deceased borrowed a pistol to take along with him, is not an attack on deceased’s character for peace and quietude, and does not render admissible evidence on behalf of the prosecution as to deceásed’s character in that respect.
    Appeal from Cross Circuit Court; R. E. L. Johnson, Judge;
    reversed.

      Killough, Lines & Killough, for appellant.
    1. The court erred in refusing instruction No. 1 offered by defendant.
    2. It was reversible error to permit the testimony of Judge H. T. Mitchell and W. A. Weaver as to the reputation'of deceased as a peaceable, law-abiding citizen to go to the jury, as the character of deceased had not been put in issue. 75 Ark. 297; 171 S. W. 149; 190 S. W. 290; 21 Cyc. 907-8.
    3. Ernest Fountain was not a competent juror and the court erred in not setting aside the verdict and granting: a new trial. 104 Ark. 606; lb. 616; 178 S. W. 328; 72 Ark. 158.
    4. The burden was on the State to show the purity of the trial, and no -nroof was offered to show that defendant was not nreiudiced by the conduct of the juror. 44 Ark. 115: 109 Id. 193.
    5. It was error to admit the testimony of G-iles Dearinsr. Tt was a privileged communication. C. & M. Dig.. 'S 4146.
    The facts of this case are substantially the same as in 190 S. W. 290.

      J. 8. Utley, Attorney General, Elbert Godwin and W. T. Hammock, Assistants, for appellee.
    1. There was no error in refusing instruotion No. 1 for defendant. The use of the word “exculpating” was not prejudicial. Webster Diet., verbum.

    2. There was no error in permitting H. T. Mitchell and W. A. Weaver to testify that the reputation of deceased as a peaceable, law-abiding citizen, was good.
    3. There was no error in permitting the testimony of Mitchell and Weaver to go to the jury.
    4. The record fails to show that Ernest Fountain, a juror, was not a competent juror. The objections came too late — after the verdict. 40 Ark. 511; 19 Id. 156; 20 7<í. 50; 29 Id. 99.
    5. There was no error in admitting the testimony of Giles Dearing. No proper exceptions were saved and the objections were waived. 2 R. C. L. 96-7.
   Hart, J.

George Fisher was indicted for the crime of murder in the first degree, and was convicted of the crime of murder in the second degree, his punishment being fixed by the jury at twenty-one years in the State penitentiary. From the judgment of conviction the defendant has duly prosecuted an appeal to this court.

It appears from the record that the defendant shot and killed Jess Moore with a pistol in the town of Wynne, in Cross County, Arkansas, on the 16th day of July, 1920.

According to the witnesses for the State, Jess Moore, with two other men beside him, was sitting down near the depot in the town of Wynne when the defendant, George Fisher, approached them and sat down beside them, being the farthest away from Jess Moore. He spoke to them as he came un, and, after sitting there a few minutes, he arose and said, “Jess, you have done me dirty,” and then shot Jess Moore twice with a pistol. Jess Moore rose up and exclaimed, “Oh, George, don’t do that. ’ ’ At the time he was staggering around on the sidewalk. The defendant replied, “You have done enough, to me,” and shot him twice more. The deceased was unarmed at the time and made no attempt to shoot or otherwise injure the defendant.

According to the testimony of the witnesses for the defendant, the defendant lived at the town of Tilton, just north of the town of Fair Oaks, where Jess Moore lived. Both of these towns are situated in Cross County and not far from Wynne, the county seat. The wife of the defendant ran a boarding house at Tilton, and the deceased was accustomed to go there every other night ostensibly for the purpose of eating supper, but in reality to visit the defendant’s wife. It finally came to the knowledge of the defendant that the deceased was visiting his wife. Finally the defendant’s wife went to St. Louis, Mo., on a visit to her relatives, and on her return stopped at Wynne and did not come home. The defendant went over there to induce her to come home, but was unable to do so. He was on his way to the depot to take a local freight train for his home when the shooting occurred. According to the defendant’s testimony, the deceased made an effort to shoot him, and he shot him in his necessary self-defense.

A daughter of the defendant testified at the trial that she found a letter from the deceased to her mother in which he urged her to act in such a way that her husband would leave her so that he, the deceased, might then get to live with her. The deceased said in his letter that he could not live without her. Some testimony was introduced by the defendant tending to show that he was insane at the time of the killing.

No complaint is made by the defendant that the evidence is not legally sufficient to support the verdict, and it is only necessary to say that .a reading of the evidence for the State shows that it was amply sufficient for that purpose.

It is insisted by counsel for the defendant that the court erred in refusing instruction No. 1, asked by the defendant, which is as follows:

“The jury are instructed that defendant had a right to show all the circumstances connected with the killing of the deceased and to prove the illicit relations, if any, between deceased and wife of defendant, and that they may take all such facts and circumstances into consideration as exculpating the defendant or in mitigation of the punishment. ’ ’

The court was right in refusing this instruction. The fact that the deceased may have had illicit relations with the wife of the defendant did not excuse or justify the homicide under our statutes. Crawford & Moses’ Digest, $§ 2338-2383.

It is also insisted that the court erred in admitting the testimony of Giles Dearing. The latter was deputy prosecuting attorney of the county, and the court permitted him to testify before the jury that the defendant came to his house on the evening before the killing and asked him a number of questions relative to whether the deceased and the defendant’s wife had violated the criminal laws. From the information elicited by the questions, the deputy prosecuting attorney told the defendant that there was not sufficient evidence to warrant him in prosecuting the deceased and advised him that he might get a divorce from his wife. The defendant did not consult Dearing for the purpose of employing him as his attorney. He only consulted him as a public prosecutor. His testimony did not concern any communication made to him as attorney by the defendant as his client, or his advice thereon. Therefore no confidential relation existed between them which would prevent the witness from testifying concerning the matters talked about without the consent of the defendant.

Again it is contended by counsel for the defendant that the court erred in permitting witnesses to testify for the State that the reputation of the deceased for being a peaceable and law-abiding citizen was good.

In Bloomer v. State, 75 Ark. 297, the court held that it is well settled in this State that evidence on the part of the prosecution that the deceased was a man of good character for peace and quietude should not be admitted unless the defendant had undertaken to attack the character of the deceased. See, also, Kelley v. State, 146 Ark. 509.

The Attorney General conceded that the reputation of the deceased for peaceableness is not admissible as original evidence against one charged with murder where self-defense is relied upon. He contends, however, that the evidence of the defendant himself conflicted with the evidence in behalf of the State and made an issue on the question of who was the aggressor. The defendant, in order to corroborate his own testimony that the deceased was the aggressor, introduced several witnesses who testified that the deceased asked to borrow a pistol from them and gave as a reason that he was going to walk from Fair Oaks to Tilton in the night time and did not want to do so. without having a pistol. They refused to let him have a pistol.

Another witness testified that the deceased approached him in the same way, and that he let him have a pistol on one occasion to carry with him from Fair Oaks to Tilton in the night time.

Another witness testified that he frequently let the deceased have his pistol to carry with him on his night trips from Fair Oaks to Tilton, and that on each occasion the deceased-would return the pistol to his store on the day following. After the witness heard that the deceased was visiting the defendant’s wife at Tilton he refused to let him have his pistol -any more-.

It is insisted by the Attorney General that this testimony introduced by the defendant was sufficient to bring the case within the rule announced in Carr v. State, 147 Ark. 524. We can not agree with the Attorney General in his contention. We do- not think what the defendant proved concerning the deceased was equivalent to proving his general character as a violent, quarrelsome and fighting man. It is clear that the proof made in the Carr case by the defendant as to the character of the deceased was of an entirely different nature from the proof made in the case at bar. In that case the defendant offered to prove that the deceased had had numerous fights, paid a fine for each one of them; that he had had several quarrels with other persons; that he had beat up others; that he had killed a negro; and these matters all came along in such consecutive order that the court was of the opinion that they showed the general reputation of the deceased to be that of a violent, turbulent and fighting man. Here the deceased did not own any pistol, did not habitually carry one, and only wanted to carry it on the occasions when he went from Fair Oaks to Tilton in the night time. On each occasion that he borrowed the pistol he returned it on the next day. The evidence does not show that he went armed on other occasions. He was unarmed at the time he was killed. It was not shown that he had had any previous difficulties with the defendant or any other person. The mere fact that testimony was introduced tending to show that he visited the defendant’s wife and returned home in the night time and borrowed a pistol frequently on such occasions, does not establish his general reputation as being that of a violent, quarrelsome and fighting man.

The character of the deceased as being peaceful and quiet is presumed to be good until the contrary appears, and, the testimony of the defendant not being sufficient to show that the general reputation of the deceased in that respect was that of a quarrelsome 'and fighting man, the State was not entitled to introduce original evidence upon that subject.

It necessarily follows that, if the proof was incompetent, it was prejudicial to the defendant.

For the error in admitting it, the judgment must be reversed and the cause will be remanded for a new trial.


source: Caselaw Access Project

license: Public Domain

text:
    Battle v. Draper.
    Opinion delivered May 30, 1921.
    1. Contracts — construction.—It is the duty of the court to construe a written contract and to declare its terms and meaning where the contract contains no words of latent ambiguity.
    2. Contracts — mutuality.—Where plaintiff had sold a tract of mortgaged land to defendant, there was no lack of mutuality in a subsequent contract whereby it was agreed that defendant should for a reduced consideration buy in the above tract of land at the foreclosure sale and should also buy in another tract belonging to plaintiff, for which plaintiff agreed to pay the purchase money.
    8. Frauds, statute of — memorandum signed by agent.. — Where an agent was authorized to sign a memorandum of a written contract for the sale of land, it is immaterial that the authority of such agent was not witnessed by writing.
    4. Principal and agent — authority of general agent. — Where a father was general agent to act for his daughter, she was bound by his act in signing a written contract for the sale of her land, regardless of whether he had shown it to her or stated its terms to her before he signed it for her as her agent.
    5. Appeal and error — question not raised below. — Objection that a verdict is excessive can not be raised on appeal where it was not made one of the grounds of the motion for new trial.
    Appeal from Hempstead Circuit Court; George R. Eagnie, Judge;
    affirmed.
    STATEMENT OE PACTS.
    Mattie B. Draper brought suit against O. M. Battle to recover damages for the alleged breach of a contract. The defendant denied liability under the contract.
    Mattie B. Draper purchased from J. J. Battle two tracts of land in Hempstead County, Arkansas, known respectively as the Custer place and the Smith place. On the 10th day of October, 1912, she executed a mortgage on said tracts of land in the sum of $19,000 to J. J. Battle to secure a balance of the purchase money. On the 9th day of December, 1912, she sold and conveyed to the defendant, O. M. Battle, a brother of J. J. Battle, the Smith place for $16,000 and retained a lien upon the land for the unpaid purchase money. Most of the purchase money was unpaid, and the sale was made subject to the mortgage she had given to J. J. Battle. Having failed to pay J. J. Battle according to the terms and conditions of the mortgage, he brought suit against her and O. M. Battle in the chancery court to foreclose her mortgage and to cancel her deed to 0. M. Battle in so far as it affected his rights under the mortgage. On the 5th day of March, 1915, a decree of foreclosure in favor of J. J. Battle was entered of record in the chancery court. The court rendered judgment in favor of J. J. Battle for the sum of $21,621.45 for his mortgage debt, interest and taxes paid by him. This sum was adjudged to bear interest from date at the rate of 8 per cent, per annum until paid. It was decreed that the deed of Mrs. Draper to 0. M. Battle for the Smith place should be canceled, in so far as the rights of J. J. Battle under his mortgage are affected. A decree of foreclosure upon default of the payment of the mortgage indebtedness was entered of record in the usual form. The sale was advertised to take place on the 30th day of June, 1915. In order to protect their rights in the premises on that day and before the sale was had, Mrs. Mattie B. Draper and O. M. Battle entered into a contract in writing as follows:
    “Whereas, J. J. Battle has a judgment for $21,876.06, principal and interest, against the Custer land belonging to Mattie B. Draper and against the Smith place belonging to O. M. Battle; now we agree that O. M. Battle is to bid in all this land at the sale today, or have it done, and that, in payment of the judgment, there shall be charged against the Smith land the sum of $15,000 and against the Custer land the sum of balance of the judgment and costs of the case, now estimated at $100. O. M. Battle is to take care of the $15,000 and Mattie B. Draper is to take care of the balance of the judgment, that is, she is to proceed to make a loan on the Custer land and take up her part of the judgment, and O. M. Battle will deed or have deeded to her or her assigns the Custer land. If she fails to do this within twelve months, then this agree-

      ment is void, and said 0. M. Battle shall own the Custer land absolutely, this agreement being an option by 0. M. Battle, given in consideration of a large concession of the indebtedness due her, Mattie Draper, on the Smith place by 0. M. Battle. All received for these lands at the sale advertised for today, over the amount of the judgment coming to these parties, they or either of them may bid said land up, and if a reasonable bid is offered by an outside party, the owner may let his or her land sell, but such sale shall not change the basis of this settlement, and the owner of the land so sold shall have the overplus so bid.”
    J. J. Battle was the only bidder at the foreclosure sale, and he bid in both the Smith and Custer tracts for his debt, interest and costs. 0. M. Battle did not attempt to bid at the sale. Before twelve months expired Mrs. Draper, through her father, who was her agent in the premises, made demand .of 0. M. Battle for a deed to the Custer place in accordance with the terms of the contract of June 30,1915, and offered to pay him the sum of $7,000 therefor. O. M. Battle waived the actual tender of the money and refused to make the deed. He claimed that the title to the land was then in J. J. Battle, and that there was no liability on his part under the terms of the contract between him and Mrs. Draper of the date of June 30,1915.
    The witnesses in the case variously estimated the value of the Custer tract at from $15 to $35 an acre. J. J. Battle said that there were between five and six hundred acres in the tract, and that the land was not worth more than $15 per acre. The father of Mrs. Draper said that there were between six and seven hundred acres in the tract, and that the whole tract was worth $20,000. Other witnesses estimated the land to be worth from $20 to $35 per acre.
    J. J. Thomas, the father of Mrs. Draper, acted as her agent throuvliout the entire transaction, and signed the contract with O. M. Battle of the date of June 30, 1915, as follows: “Mattie B. Draper, by John J. Thomas, her agent.”
    Other facts will be stated or referred to in the opinion.
    The jury returned a verdict in favor of the plaintiff, Mattie B. Draper, against the defendant, O. M. Battle, in the sum of $7,500.
    From the judgment rendered the defendant has duly prosecuted an appeal to this court.

      John B. Gulley, for appellant.
    1. The court erred in its instructions. 53 S. E. 795; 6 L. R. A. (N. S.) .403; 89 Ark. 368; 104 Id. 459; 1 Elliott on Contracts 232; 13 C. J. 329; 49 L. R. A. (N. S.) 380; 13 C. J. 330; 84 N. E. Rep. 614. The contract and the evidence was undisputed, and a verdict should have been directed for appellant. Mutuality was lacking in the contract. 47 S. E. 66. See, also, 13 C.- J. 330.
    2. It was error to refuse to allow testimony as to whether or not an offer or tender of money was made to J. J. Battle as shown by the record. Fraud must be proved; it is never presumed. 99 Ark. 45, and many others. A promise to do something in future can not be made the basis of an action of fraud. 225 S. W. 340; 91 Ark. 324; 121 Id. 23; 124 Id. 308. Mrs. Draper waived the alleged fraud by failure to act promptly and long delay in making complaint. 26 Ark. 28; 77 Id. 261; 20 Cyc. 92.
    .3. The verdict is excessive.

      L. F. Monroe and John N. Cook, for appellee.
    1. No proper exceptions were saved, nor objections made to the instructions, nor to the introduction of testimony. 135 Ark. 499; 139 Id. 416; 113 Id. 120. The authority of Thomas to sign appellee’s name to the contract was not required to be in writing. 72 Ark. 359; 101 Id. 73; 92 Id. 215.
    2. The issues made were properly submitted to a jury and proper instructions given, and the verdict is not excessive.
   Hart, J.

(after stating the facts). It is first insisted by counsel for the defendant that the court erred in giving instruction No. 1, as follows:

“1. If you find from a preponderance of the evidence that the plaintiff, Mattie B. Draper, through herself or her agent, and within one year from June 30, 1915, offered to pay the plaintiff (defendant) the sum of $7,000 as the balance due on the ‘ Custer place, ’ and that the defendant refused said offer, or waived a tender of said sum, and failed to execute a deed to plaintiff to said land, your verdict will be for the plaintiff.”

The correctness of this instruction depends upon whether or not the contract between O. M. Battle and Mrs. Mattie B. Draper of the date of June 30, 1915, is ambiguous.

It will be observed that the court construed the contract and declared it valid in giving this instruction. It is well settled in this State that it is the duty of the court to construe a written contract and declaré its terms and meaning to the jury where the contract contains no words of latent ambiguity. Paepcke-Leicht Lbr. Co. v. Talley, 106 Ark. 400, and Wilkes v. Stacy, 113 Ark. 556.

It is first insisted by counsel for the defendant that the construction is erroneous because the contract lacked mutuality. We can not agree with counsel in this contention.

In Johnson v. Wilkerson, 96 Ark. 320, the court held that the entire contract must be looked to as a whole in determining the consideration for its various obligations and the question of mutuality of the obligations. The court held further that one condition is sufficient to support several undertakings and promises.

In Kilgore Lumber Co. v. Thomas, 98 Ark. 219, the court held that mutual obligations imposed by a contract form a sufficient consideration for entering into it. See, also, Fisher v. Skinner, 112 Ark. 190.

Tested by the principles announced in those cases, it can not be said that the contract was. void for want of mutuality. By the terms of the contract O. M. Battle bound himself to hid in all the land at the foreclosure sale and that he would take care of $15,000 of the mortgage indebtedness and that Mrs. Draper should take care of the balance of it, which amounted to about $7,000.

It will be remembered that Mrs. Draper had conveyed the Smith place to O. M. Battle in December, 1912, for the consideration of $16,800, most of which was on deferred payments. The sale was subject to the mortgage of J. J. Battle. The contract further provided that, unless Mrs. Draper paid her part within twelve months, the agreement should he void, and that O. M. Battle, should own the Custer land absolutely. The contract then recites that this option is given in consideration of a large concession of the indebtedness due Mrs. Draper on the Smith place by O. M. Battle. Thus it will be seen that, if O. M. Battle had carried out the contract on his part and had bid in the. land for the amount of the, mortgage indebtedness, interest and costs, he would have had an absolute title to the Custer place, provided Mrs. Draper did not exercise her option to repurchase under the contract and Battle would have been released from the payment of the purchase money which he agreed to pay Mrs. Draper on the Smith place in excess of $15,000. He had agreed to pay $16,800. Thus it will be seen that the difference was a substantial sum and was a good consideration for the contract. The agreement on the part of Mrs. Draper to release a part of his indebtedness to her for the purchase price of the place was a sufficient consideration for his agreement to bid in the lands at the foreclosure sale. There was a benefit derived on each side from the contract, and that fills the demand of the law as to consideration. Any benefit conferred on O. M. Battle to which he was not lawfully entitled or any detriment suffered or agreed to be suffered by Mrs. Draper is a good consideration and will support the contract.

It is also urged that the last part of the contract which deals with the question of what the parties should do in case of a reasonable bid being offered and accepted by an ontside party is ¡ambiguous. We need not consider this, however, for there was no bid by any outside party exceeding the mortgage indebtedness, as contemplated by the parties. The whole tenor of the agreement shows that O. M. Battle was to bid the amount of the judgment and costs, and the clause of the contract relative to outside parties bidding refers to them bidding more than the mortgage indebtedness and costs. This is shown by the language used, because it provides that such .a sale should not change the basis of the settlement, and that the owner of the land so sold should have the ¡overplus so bid. We think the court was right in construing the contract to mean that 0. M. Battle must bid at least the amount due J. J. Battle under the foreclosure decree.

The undisputed evidence shows that 0. M. Battle did not bid in the land as he had agreed to do, and there was no error in giving the instruction.

It is true the contract was signed by the agent of the plaintiff, and that there was no writing authorizing him to do so, but that does not make any difference. The evidence shows that the agent had authority to sign the contract for his principal, and such authority was not required to be in writing. Davis v. Spann, 92 Ark. 213.

It is also true, as contended by counsel for appellant, that Captain Thomas did not show the contract to Mrs. Draper until after it was executed; but that does not make any difference. Mrs. Draper stated that he was her agent in making the contract, and this constituted him as her general agent. She stated specifically that she gave him power to act as her agent in the matter. Therefore being her general agent to make the contract, she was bound by its terms as soon as her father made it, regardless of the fact of whether he had shown it to her. or stated the terms of it to her before he signed it for her as her agent.

Again it is urged that the judgment should be reversed because the complaint alleges that if the contract had not been entered into the plaintiff conld and would have raised the necessary funds and would have saved her land from sale under the foreclosure decree. This allegation was immaterial and had no part in the case. It was not treated as material to the issues raised by the nleadings, and no evidence was introduced relative to it. The reason is apparent. The parties had entered into a contract with regard to the matter and the terms of this •contract, which, if valid and binding, fixed their rights and the measure of damages for a breach of it. We have held the contract to be a valid and binding one. and the undisputed evidence shows a breach of it by O. M. Battle. This suit was brought by Mrs. Draper against him within the period of the statute of limitations, and she had a right to maintain it.

The court correctly instructed the jury on the measure of damages. It is claimed that the verdict is excessive. That the verdict was excessive is not made one of the grounds for a new trial, and the defendant, having failed to include it in his motion for a new trial, can not for the first time raise the question on appeal. Moreover, the evidence for the plaintiff was sufficient to1 warrant the jury in returning the verdict in the amount found by it.

It follows that the judgment must be affirmed.


text:
    Poe v. Poe.
    Opinion delivered May 30, 1921.
    1. Divorce — cruelty and indignities. — The remedy of divorce for cruelty and for indignities to the person, provided by Crawford & Moses’ Digest, § 3500, is intended for evils which are unavoidable and unendurable, and which can not be relieved by reasonable exertion by the parties.
    2. Divorce — cruelty toward stepchild. — A husband is not entitled to a divorce on acount of his wife’s cruelty toward his children by a former wife where it appears that her cruelty is not habitual nor exercised with the intent of causing suffering to the husband,

      3. Divorce — allowance of alimony. — An allowance of alimony to ■a wife, in the absence of any showing that it was excessive, will be presumed to be fair, and will not be.disturbed until the changed conditions of the parties render alteration or modification necessary.
    Appeal from Garland Chancery Court; J. P. Henderson, Chancellor;
    affirmed.
    STATEMENT OP PACTS.
    H. E. Poe brought this suit against his wife, Laura Poe, to obtain a divorce on the statutory grounds of cruel and barbarous treatment endangering his life and of such indignities offered to his person as render his condition in life intolerable.
    The wife denied the allegations of the complaint and asked for alimony.
    It appears from the record that the first wife of the plaintiff was killed in a cyclone, and that some of their children were injured so badly that they were carried to a hospital for treatment. The defendant was a nurse in the hospital' and nursed the plaintiff’s children while there. This led to the plaintiff’s hiring her to become his housekeeper. She went to his home as housekeeper and remained there in that capacity until their marriage about two years after they first became acquainted.
    Edgar Poe, the oldest son of the plaintiff, was a witness for him. According to his testimony, he was thirteen years of age, and during most of the time that plaintiff and defendant lived together as husband and wife the latter treated the children well. Sometimes she would whip them and sometimes she would make them do without their dinner. Sometimes they had been doing wrong and sometimes they had not when she punished them. She struck the witness four or five times with something other than a switch. She hit him once with a shovel and once with a stick of stove wood. One time she hit him in the mouth and knocked six of Ms teeth loose, and it was about a month before his mouth got well. The defendant was a Seventh Day Adventist and would not let the children do any work on Saturday, but sometimes attempted to make them work on Sunday, At one time his stepmother bruised his face and eye when she attempted to correct him, and also choked him so that she left her finger prints on his throat when she got through. All the matters testified to happened while the plaintiff was away from home.
    Albert Poe, the second soii of the plaintiff, testified that most of the time their stepmother treated the children well, but that she whipped them with the first thing she could get her hands on; that she would get mad quickly, and at one time got mad and tied him and his older brother with a rope; that his father was out in the back yard when this was done. He also corroborated the testimony of his brother about their stepmother hitting him in the mouth with a shovel and knocking six of his front teeth loose. The teeth became tight again in about a month. ¡
    The plaintiff was a witness for himself. According to his testimony a great many Seventh Day Adventist preachers called at his home, and he objected to this. His wife was good to her stepchildren the greater part ¡of the time, but when she got mad she used no judgment and would whip them with anything that she.got her hands on. She could not control her temper. He was not present at any time when she abused the children, except once when she tied two of them with a rope. He went into the house and cut the rope. His oldest son, Edgar, left home while the plaintiff was absent because he could not get along with his stepmother. The defendant wrote the plaintiff about this and said that Edgar had run away. She said in her letter that she did not think the matter was serious, but that she had not seen Edgar since he left. Edgar went to his aunt’s home when he left. The plaintiff went to see Edgar before he returned home. When he got home he asked his wife what she meant by treating his children the way she did while he was gone. He told his wife that it looked like she could not get along with, his children while he was away. His wife told him that it was all Edgar’s fault, and that she had not hurt him. The plaintiff then told her that they would have to move from the country into town because his work was in town. The defendant said that she would not go to town with him, and then he took his children to their aunt’s and left home. This was in May, 1919, and the plaintiff and the defendant have not lived together since. The plaintiff made no effort to find any particular place to live, but told the defendant that if she wanted to go to town that he would find a place, but it was on the condition that she would treat the children better. He further stated that she had never offered to go back to him.
    On cross-examination he admitted that he had been keeping company with other women since he and his wife had separated. He further admitted that he could not afford to take his wife back the way his children felt about her. He also stated that there was no possible chance for him and his wife to ever live together and get along, .and that he was' afraid to trust his children with her. His children showed great distress at being carried back to the defendant, and he did not have the heart to do this.
    Two other witnesses for the plaintiff testified that they had worked at the plaintiff’s house and had seen the defendant whip the children “awful hard.” One of them said that the husband would bring home meat to be cooked and that the defendant refused to cook it because it was against her religion to eat meat. She would only feed them on milk, potatoes and bread.
    The defendant was a witness for herself. She admitted tying the two boys together one time with a rope, but said that she was playing with them. She denied positively that she had whipped the children severely as testified to by them. She said that she had only whipped them moderately for the purpose of correcting them, and had required them to do but little work on Sunday. She stated that the plaintiff had left their home in the country in May, 1919, and liad wilfully remained away ever since. She continued to reside at their home after the plaintiff had left for nearly a year and left there because her husband came home during her .absence and took the furñi-ture out of the house. She stated that she had always treated her husband kindly and still wanted to make up and live with him. He left her on account of her alleged mistreatment of his children. She denied having mistreated them and asked him not to leave her. Her testimony was corroborated by that of her mother, who had made frequent and lengthy visits at their home while they lived together as husband and wife.
    Several other witnesses in the neighborhood .testified that they visited the home of the plaintiff and defendant frequently, and that the defendant always treated the plaintiff well and never cruelly whipped or mistreated his children.
    The chancellor found the issues in favor of the defendant, and dismissed the plaintiff’s complaint for want of equity. He allowed the defendant alimony in the sum of $20 per month until further orders of the court.
    A decree was entered of record according to the findings of the chancellor, and to reverse that decree the plaintiff has prosecuted this appeal.

      James E. Hogue, for appellant.
    It was error to dismiss the plaintiff’s bill for divorce. In those States where the courts have held the abuse of stepchildren is not a cause for divorce, the decisions were rendered under the common-law unaffected by statutes. 9 Ark. 507-516. (Besides the abuse of appellant’s children was the principal indignity complained of, yet there were others- rendering his condition intolerable and entitled him to a divorce under our statute. C. & M. Digest, § 3500.

      A. J. Murphy, for appellee.
   Hart, J.

(after stating the facts). The grounds for divorce are statutory merely. Among other causes our statute provides tliat the chancery court shall have power to dissolve and set aside a marriage contract where either party shall be guilty of such cruel and barbarous treatment as to endanger the life of the other, or shall offer such indignities to the person of the other as shall render his or her condition intolerable. Crawford & Moses’ Digest, § 3500.

In the first place, it may he said that the remedy of divorce, under this clause of our statute, is for evils which are unavoidable and unendurable, and which can not he relieved by reasonable exertion by the parties seeking the aid of the courts. Meffert v. Meffert, 118 Ark. 582.

In the second place, it may be said that the main grounds relied upon by the plaintiff in support of his hill for divorce is cruel treatment by his wife to his children by his first wife.

In discussing similar statutes, it is generally held by text writers that mistreatment of a stepchild in itself alone will not afford grounds for a divorce. It is only where the cruelty toward the child is habitual or exercised with the intent of causing suffering to the parent that a cause of divorce on this account will arise. Bishop on Marriage, Divorce and Separation, § 1586; Nelson on Divorce and Separation, § 301; 9 E. C. L., § 129, p. 347; 19 C. J., p. 50; Barker v. Barker (Okla.), 26 L. R. A. (N. S.) 909; Friend v. Friend, 53 Mich. 543; Melvin v. Melvin, 130 Penn. St. Repts., p. 6, and Rigsby v. Rigsby, 82 Ark. 278.

The stp-nmother miirht he vuiltv of great cruelty to her stenchildren, and yet not he a-uiltv in that respect to her husband. This is well illustrated in the present case. According to the testimony of the children and of the father, the stepmother had a very violent temper which she could not control, and when she got mad she would whip them with the first thing she got her hands on. The whippings were all done in the absence of the husband, and, according to the testimony of the children themselves, their stepmother whipped them only when she became mad at them. The stepmother denies having whipped them too severely at any time. If the testimony of the children is to be accepted, it does not show that the stepmother whipped them because she was mad at their father and intended by so doing to make him suffer. The children testified that for the most part she treated them kindly. So it may be said that the plaintiff has failed in the respect just set forth to establish any grounds for divorce under the statute. The testimony showed that, on account of their difference in religion, the mistreatment of plaintiff’s children by his first wife by the defendant and from other causes, their marriage was an unhappy one. Our statute, however, has not made these things a ground of divorce, and the parties must bear the consequences of having made an unwise marriage.

Therefore the chancellor was right in dismissing the plaintiff’s complaint for want of equity.,

No point is specially made on the fact that the chancellor allowed the defendant alimony in the sum of $20 per month. This allowance was in the usual form, “until the further orders of the court.” It does not appear from the record that the allowance was too much. In the • absence of any showing to that effect, it must be presumed that the allowance was fair, and it will not be disturbed until the changed condition of the parties malíes it necessary for the chancellor to' alter or modify it.

It follows that the decree must be affirmed.


author: Smith, J.

text:
    Thomas v. State.
    Opinion delivered May 30, 1921.
    1. PERJURY — INDUCING WIFE TO MAKE FALSE AFFIDAVIT. — One who induces his wife to make a false affidavit is not guilty of perjury, as defined by Crawford & Moses’ Digest, §§ 2588-9, though he might be guilty of subornation of perjury as defined by § 2592, Id-, by inducing her to qompiit wilful und corrupt perjury,

      2. Perjury — SUBORNATION op perjury. — One who induced his wife to make a false affidavit was 'not guilty of subornation of perjury, under Crawford & Moses’ Digest, § 2592, unless the wife knew the statements in the affidavit were false.
    Appeal from Lincoln Circuit Court; W. B. Sorrells, Judge;
    reversed.

      H. K. Toney and DeWoody Lyle, for appellant.
    I. The motion for new trial should have been granted, as the verdict was not responsive to the law and the evidence. Defendant, under the facts, could neither he indicted as an accessory or principal for the crime of perjury ; if guilty at all, it was subornation of perjury. 27 Ark. 275; 96 Id. 62; 102 Id. 594; 104 Id. 245; 108 Id. 450. The decision in 102 Ark. 596 is conclusive of this case and settles that the court erred in giving instructions asked by the State and refusing those asked by defendant.
    2. It was error to admit a letter directed to the Belt Automobile Ins. Ass’n, purporting to have been signed by Mrs.- Virginie Thomas, as there was nothing to show that she wrote it.

      J. S. Utley, Attorney G-eneral, Elbert Godwin and W. T. Hammock, Assistants, for appellee.
    1. Under § 2311, C. & M. Digest, defendant was guilty, as he was present, aiding and abetting his wife in making the affidavit. 1 Bishop, Cr. Law, § 803; 7 Car. & P. 881; 108 Ark. 447; 102 Id. 245. See, also, Kirby’s Dig., § 1561; 37 Ark. 274; 41 Id. 173; 50 Id. 313; C. & M. Dig., §§ 2588, 2592, 2304. Appellant, under these authorities, was guilty of commanding his wife to commit the crime, and -he was as guilty as if he had himself committed the crime. 13 R. C. L. 1237.
    2. There is no error in the instructions, and no error in admitting or refusing to admit testimony. The testimony sustains the verdict and is conclusive, as there are no errors of law.
   Smith, J.

Appellant Lee Thomas was tried and convicted under an indictment charging him with the crime of perjury. The indictment alleges that lie falsely, wil-fully and corruptly made affidavit before a notary public that a certain automobile, owned by his wife, had been stolen, when in truth and in fact it had not been stolen, and the false affidavit was made for the purpose of collecting certain insurance against the tbeft of the car.

The testimony in the case shows that Thomas did not make the affidavit, but that it was made by his wife in his presence.. Thomas admits the recitals of the affidavit were false, and that he knew they were false, but he says his purpose was to deceive his wife about the car and make her believe it had been stolen. The testimony tended to show that Mrs. Thomas did not know the recitals in the affidavit she made were false.

At the trial the court charged the jury that “it is not necessary to sustain a conviction that the defendant be present at every step of the commission of the crime, but if the defendant was present at any time and while present aided or assisted, encouraged or being present consented to its commission, then he would be guilty.”

The court refused to give an instruction requested by appellant which told the jury that a conviction could not be had unless the affiant, Mrs. Yirgie Thomas, appellant’s wife, knew that the car had not been stolen at the time she made the affidavit.

It is apparent from the instruction given and the one refused that the cause was submitted upon the theory that, if appellant had induced his wife to make a false affidavit in regard to the theft of the car, and was present when the affidavit was made, he was as guilty of the crime of perjury as he would have been if he had himself made the false affidavit. Appellant was not indicted as having’ coerced his wife, in his presence, to commit the crime of perjury.

We think a fundamental error was made in the trial of the cause. Under the lav/s of this State one who himself swears falsely and corruptly, commits the crime of perjury. If he induces another to do so, he commits the crime of subornation of perjury. These are distinct offenses and .are separately defined in our statutes.

The definition of perjury as contained in sections 2588 and 2589 of C. & M. Digest is as follows:

“Section 2588. Perjury is the wilful and corrupt swearing, testifying or affirming falsely to any material matter in any cause, matter or proceeding before any court, tribunal, body corporate or other officer having by law authority to administer oaths.-
“Section 2589. The wilful and corrupt swearing, affirming or declaring falsely to .any affidavit, deposition or probate authorized by law to be taken before any court, tribunal, body politic or officer shall be deemed perjury.”

Subornation of perjury is defined in section 2592 as follows:

“Section 2592. Subornation of perjury is the procuring of any other person, by any means whatsoever, to commit any wilful and corrupt perjury in any cause, matter, proceeding, affidavit, deposition or probate in or concerning which such other person shall be legally sworn, affirmed or declared.”

Appellant’s offense, under the State’s testimony, consisted in inducing his wife to make a false affidavit, and that offense is not perjury, but is subornation of perjury.

The conviction must, therefore, be reversed, because appellant has been convicted upon a charge for which he was not indicted.

Inasmuch as the cause is to be reminded, and appellant may be reindicted for the offense of subornation of perjury, we take occasion to say that the instruction requested by him set out above should be given when he is placed upon his trial for subornation of perjury.

In 21 E. C. L., p. 276, it is said: “Subornation of perjury is the crime of procuring another to commit perjury either by inciting, instigating or persuading the guilty party to do so. It is necessary that the perjury be actually committed to complete the crime. The sub-orner must also be aware that the person suborned intended to commit perjury. ’ ’ A similar statement of the law is found in Wharton’s Criminal Law, vol. 2 (11 ed.), § 1593; 30 Cyc. 1423; vol. 23, Standard Enc. of Procedure, 328.

Such is the necessary meaning of section 2592 of C. & M. Digest set out above. It is not sufficient that the suborner procures another person to testify falsely; but the requirement of the statute is for the person procured, “by any means whatsoever, to commit any wilful and corrupt perjury,” that is the person swearing must know the fact sworn to is false.

The judgment of conviction will, therefore, be reversed and the cause remanded.


text:
    Illinois Bankers’ Life Association v. Dowdy.
    Opinion delivered May 30, 1921.
    Insurance — sufficiency of payment of premium.— Where an insurance company authorized a hank to collect premiums, and insured, haying a sufficient deposit in the hank, directed the eashier to pay the premium and to charge the amount thereof to his account before the premium became due, and the cashier agreed to do so, this was a sufficient payment though the amount therof was not charged to insured’s account until after expiration of the time of payment.
    Appeal from Van Burén Circuit Court; J. M. Shinn, Judge;
    affirmed.

      T. E. Helm and Garner Fraser, for appellant.
    1. The bank was the agent of appellant for no purpose except to collect premiums, and had no authority except that delegated in printed and written instructions. The premium for January, 1920, was due and was not paid, and under the terms of the policy it was void.
    2. It was error to admit evidence to show that plaintiff had a deposit in the bank for the purpose of paying the premiums as they fell due, and that the bank had formed the habit of collecting* premiums after the period of grace allowed had expired. This testimony was not competent, as it was not within the pleadings and was entirely in reference to a new issue, and further, because it was not shown that defendant association ever had any knowledge that the bank had' at any time exceeded the specific instructions delegated to it by collecting any premiums beyond the time allowed under the contract. The evidence distinctly shows that the association never knew that any premium was collected by the bank after the thirty days of grace had expired.
    3. Failure to pay the premiums at maturity rendered the policy absolutely null and void without further notice or action. 112 Ark. 178-9; 187 U. S. 335; 93 Id. 24; 104 Id. 88; 104 Id. 252. The policy was never reinstated as provided for and was forfeited. 139 Pa. St. 546. The remedy of plaintiff, if any, is against the bank, as it was no fault of the association that the premium was not paid in time. 68 N. C. 11. .
    4. The bank was simply a depository bank. It had no authority other than to collect premiums and deliver receipts and could not waive any provisions of the policy and the rules and instructions of appellant association as to payments. 138 Ark. 442 ; 52 S. E. Rep. 536; 35 Id. 342. No affirmative action of the company was necessary to forfeit the policy after the thirty days of grace expired. 198 S. W. 74. The premiums must be paid when due or the policy is void. 112 Ark. 178-9; 3 Cooley’s Briefs, pp. 2260-1; 2 Joyce on Ins., §§ 555 and 555a. Notice to the bank to pay the premium by a depositor is not sufficient unless a check is made. 78 Ark. 127. An agent authorized to deliver policies and receive premiums but not to issue policies can not extend the time for payment. 53 Iowa 405 ; 3 Cooley’s Briefs 2484: 54 Ark. 75; 138 Id. 442. An agent who is only authorized to collect and transmit premiums can not waive conditions of forfeiture in a policy. 3 Cooley’s Briefs 2486; 129 Ark. 159; 24 Ohio St. 67.

      5. The court erred in its instructions, and the peremptory instruction asked by defendant should have been given. The evidence is uncontradicted that the policy was forfeited.

      M. P. Hatchett, for appellee.
    1. The Bank of Shirley had authority to receive premiums, and the premium was duly paid and the policy kept in force. 142 Ark. 132; 143 Id. 143; 3 A. L. R. 615.
    2. The Bank of Shirley was the agent of the insurance company, and under the proof in this case is estopped by the conduct of its agent; the knowledge of the agent is that of the principal. 142 Ark. 132; 79 Id. 375; 111 Id. 435; 26 Col. 252; 103 Ark. 171; 142 Id. 132; 138 Id. 442; 129 Id. 159.
   Smith, J.

On the trial from which this appeal comes the court gave, over the objection of appellant, an instruction reading as follows:

“No. 2. If you find, from a preponderance of the evidence in this case, that the said Tom M. Dowdy, as the agent of his wife, the said Julia A. Dowdy, during the latter days of December, 1919, or the early days of January, 1920, directed the cashier and assistant cashier of the Bank of Shirley, or either of them, to pay the premium due or coming due on said policy, and that said Tom M. Dowdy, from the time of such direction to the expiration for the payment of said premium, had sufficient funds on deposit in said bank to his credit to pay said premium, you will find for the plaintiff.”

This instruction, in effect, directed a verdict against the appellant insurance company, as there is no dispute about the facts which the jury was there told would warrant a finding for the plaintiff.

The court refused to give instructions asked by appellant which were the converse of the instruction set out above. These instructions declared the law to be that the insured had no right to rely on the promise of the officers of the bank to pay the premium, and that the payment of the premium was not made until the insur-anee company had received credit therefor on the hooks of the hank, and that such payment must have been made and credit given within thirty days of the due date of the premium.

Mrs. Dowdy was the insured, and her husband, Tom M. Dowdy, was the beneficiary. It was his custom -to pay the premiums, and the payments were ordinarily made by him in the manner in which he had directed the payment in dispute to be made.

The premiums on the policies were ordinarily payable quarterly, although policy holders had the option of paying the premium semi-annually or annually in 'advance, the due dates being January 1, April 1, July 1, and October 1, of each year. The insurance company mailed out in advance to the policy holders notices of the time within which their premiums would be due and the place where they would be payable, and there were a number of policy holders in appellant company residing in Shirley, Van Burén County, Arkansas.

It was the custom of the company to send to the Bank of Shirley a list of its policy holders residing there with a statement of the premium due by each and signed receipts for premiums to be delivered when payments were made; and for this service the insurance company paid the bank a collection charge of one per cent. The names of the policy holders were written on a printed form, which contained the following direction to the bank: “Please report as soon as all are paid and in any ■case not later than the maturity of said collections. Remit to cover all collections and return all unpaid notes and receipts.”

Mrs. Dowdy died March 11, 1920, and payment of the policy on her life, which was for a thousand dollars, was refused for the alleged reason that the premium due thereon January 1, 1920, was not paid at that time nor within the thirty days of grace thereafter allowed for payment. The policy in question provided that failure to pay premiums at maturity “shall render the policy absolutely null and void, and the same shall be forfeited without further notice or action of the directors of the association, unless reinstated as herein provided.” The bank had no authority to collect premiums after the thirty days of grace had expired.

It was shown that a few days before January 1, 1920, Mr. Dowdy inquired of the cashier of the bank whether the insurance list had been received, and was told that it had not been received. Dowdy thereupon directed the cashier of the bank to pay the premium when the list was received from the company and to charge the amount thereof to his account, and the cashier agreed to do so. Dowdy was a customer of the bank, and carried a deposit there sufficient to have covered the premium. He supposed his request had been complied with, «and that the premium had been paid in' accordance with his request and his usual method of paying premiums.

The cashier of the bank made up his report on February 7, and mailed it to the company with draft to cover the premiums collected; and the list of such premiums included the January premium on the Dowdy policy. It was the custom of the cashier to «make up and forward this report after the expiration of the thirty days of grace. The premium due on the Dowdy policy was $3.17, but the charge ticket made therefor by the cashier of the bank against Mr. Dowdy was not actually entered against his account on the books of the bank until February 12, 1920. The transmittal letter of February 7 miscarried in the mails, and after an exchange of letters and telegrams in regard to it a duplicate list and draft went forward to the company, which was not received by the company, however, until after the date of Mrs. Dowdy’s death.

Under the facts thus stated the court did not err in giving the instruction as set out above. This case is ruled by the cases of Sovereign Camp W. O. W. v. Newsom, 142 Ark. 132; N. Y. Life Ins. Co. v. Allen, 143 Ark. 143; Security Life Ins. Co. v. Bates, 144 Ark. 345.

In the case of New York Life Ins. Co. v. Allen, supra, the authority of an agent to collect and- the fact of collection of a premium note were in dispute. The payment of the premium was there claimed to have been made in a manner substantially identical with the method of payment employed here by Dowdy. In that case the court said: “Allen (the insured) had already told the cashier to pay the note and charge his account with the amount. He had money to his personal credit in the bank more than sufficient to discharge his indebtedness to the insurance company. This direction to cashier was sufficient, we think, to show a payment to the cashier if he had authority to receive it. ’ ’

The doctrine thus announced was reaffirmed in the ease of Security Life Ins. Co. v. Bates, supra.

No error-appearing, the judgment is affirmed.


author: HumphRbys, J.

text:
    T. A. Thomas & Sons v. Wolf.
    Opinion delivered May 30, 1921.
    Master and servant — assumed risk. — The danger attendant upon unloading logs from a wagon standing on rough, sloping ground, in passing on the lower side to a point between the front and hind wheels and releasing the bumper which held the logs in place on the wagon was obvious to an experienced servant, and the risk was assumed by him.
    Appeal from Clark Circuit Court; Joe Earddge, Special Judge;
    reversed.

      John II. Crawford and Dwight II. Crawford, for appellants.
    1. The court erred in refusing to direct a verdict for defendant. Wolfe was -experienced, knew of the danger and assumed the risk. 90 Ark. 407; 96 Id. 387; 96 Id. 206; 108 Id. 483; 82 Id. 11; 68 Id. 316; 93 Id. 564; 101 U. 197; 92 Id. 102; 95 Id. 560; 116 Id. 56; 118 Id. 304. See, also, 67 Id. 209; 226 S. W. 1055; 88 Am. St. 841; 158 Ind. 609; 92 Am. St. 319; 129 N. C. 173; 85 Am. St. 740; 101 Id. 945; 109 Id. 917. See, especially, 115 Wis. 332; 95 Am. St. 947.
    2. Appellee’s second, third and fifth instructions were wrong and prejudicial.
    3. The fourth was also wrong’ and prejudicial. 135 Ark. 341.
    4. It was error to refuse the fifth and sixth instructions asked by appellant.
    5. It was error to permit plaintiff to prove that there was a defective cable, because it was not shown that it was in any way connected with plaintiff’s injury. 90 Ark. 210.

      W. H. Mizell, for appellee.
    1. The peremptory instruction was properly refused. The testimony of plaintiff was undisputed.
    Statements by a person soon after an injury and while suffering’ from pain are entitled to slight credence and credit. 14 Ency. of Ev., p. 192. The citations of Arkansas cases by appellants do not sustain their contention. The only question is, did Wolfe assume the risk, and was he guilty of contributory negligence? We sav he did not and was not; This case falls within the rule in 77 Ark. 367. . See 110 Ark. 456; 77 Id. 367; 183 S. W. 189.
    2. There was no error in the instructions given. Similar ones have been approved in the cases cited above.
   HumphRbys, J.

Appellee instituted suit against appellants, a. partnership composed of T. A. Thomas and his sons, in the Clark Circuit Court, to recover damages in the sum of $8,500, on account of the loss of a leg, occasioned through the alleged negligence of said appellants in providing a defective wagon from which, and a rough, sloping yard upon which, to unload logs. •

Appellants filed an auswer, denying* that the injury resulted on account of their negligence, and interposed the further defenses of assumed risk and contributory negligence by appellee.

The cause was submitted upon the pleadings, evidence and instructions of the'court, which resulted in a verdict and judgment in favor of appellee for $500. From the judgment, an appeal has been duly prosecuted to this court.

At the conclusion of the evidence, appellants re-, quested the court to direct a verdict in their favor, which the court refused to do, over their objection and exception. Appellants now insist that the court committed reversible error in refusing to grant the request.

The facts necessary to a determination of this question are as follows: Appellee was forty-eight years of age and experienced in cutting and hauling logs. Appellants were operators of a sawmill. They employed appellee to haul logs to their log yard situated upon their tramway. They maintained a contrivance called a log boom in the yard for the purpose of pulling the logs by a wire cable from the yard and loading them upon the tramears. The wire cable was short, and this necessitated the unloading of the logs near the tramway. In loading the logs on the cars by this process, trash and dirt were drawn toward the tramway, which made the ground rough and sloping at that point. Nathan Thomas, one of the appellants, told appellee in unloading to drive as close to the track, or tramway, as he could ■ conveniently do, so that the logs, when unloaded, could be picked up easily by the loader. Appellants furnished appellee an 8-wheel wagon, for the purpose of hauling the logs, which contained a defect' in the front bumper block that caused the buck pin to stick, so that it had to be knocked loose with an ax in order to release, or throw out, the bumper block. The purpose of removing the bumper blocks was to permit the logs to be rolled off the wagon. The pin could have been removed with the use of a canthook by one standing at the front end of the wagon, or by going to a point between the front and hind wheels on either the upper or lower side of the wagon, or under the wagon. There was no danger incident to removing the pin by the canthook method or by pulling or knocking it out from the upper side or under the wagon, but there was great danger incident to removing it if standing on the lower side of the wagon. It was possible for an active, alert man without being injured to remove it while standing on the lower side of the wagon. The condition of the yard at the point where appellee was directed to unload the logs, as well as the condition of the bumper, was obvious and known to ap-pellee. In obedience to instructions theretofore given, appellee, on the morning of August 11, 1919, drove the wagon loaded with dogs in the .open space near the tramway and boom so that it stood on rough, sloping ground. He passed on the lower side of the wagon, and, when he reached a point between the front and hind wheels, he knocked the pin loose with an ax, which released the front bumper block, and, before he could get out of the way, a log rolled off and crushed his leg, which necessitated amputation. Apnellee was alone when the injury occurred. He had knocked out the bumper and unloaded logs in the same way and at the same place before that time without being injured.

According to the undisputed facts detailed above, the danger attendant upon unloading logs from a wagon standing on rough, sloping ground, in passing on the lower side to a point between the front and hind wheels and releasing the bumper which held the logs in place on the wagon by knocking or pulling- out the buckpin, was obvious. The danger was obvious and necessarily appreciated by appellee, for he was intellig-ent and experienced in this particular character of work. He was cognizant of the defect in the bumper which caused the buckpin to hang, as well as the sloping condition of the yard where he stopped the wagon for the-purpose of unloading the logs. There were other methods by which he could have released the bumper with safety to himself; for example, by the use of the canthook, or by going on the upper side or under the wagon and knocking or pulling out the buckpin. The undisputed facts bring the instant case clearly within the doctrine of assumed risks. Precedent for the application of that doctrine to the facts in the instant case will he found in the cases of Williams Cooperage Co. v. Kittrell, 107 Ark. 341; Wisconsin & Ark. Lbr. Co. y. Price, 125 Ark. 480; St. L. S. W. Ry. Co. y. Compton, 135 Ark. 563; Hunt v. Dell, 147 Ark. 146.

For the error in refusing to direct a verdict in favor of appellants, the judgment is reversed and the cause dismissed.


author: Humpheeys, J. Hart, J.

text:
    Wilson v. Pannell.
    Opinion delivered May 23, 1921.
    1. VENDOR AND PURCHASER — INNOCENT PURCHASER. — One who purchased a lot from a husband, having knowledge that he had abandoned his wife twenty-three years previously, that she had had actual possession of the lot during such abandonment, had paid the taxes and a personal indebtedness, of the husband to ■ prevent his creditors from seizing the lot, is not an innocent purchaser, and took only such title as the husband could have asserted against the wife.
    2. Equity — laches.—-Under the rule that equity aids the vigilant, not those who slumber on their rights, a husband who abandoned his wife and left her in actual possession of a lot for twenty-three years, and permitted her to pay all the taxes and assessments and a considerable amount of his personal indebtedness to protect the lot from his creditors, is not in position to ask a court of equity to clear his title as against her.
    3. Equity. — laches.—Laches may be pleaded in a suit in equity brought to establish a purely legal right.
    4. Quieting title — necessary parties. — In a suit to quiet the title to a lot, where defendant by cross-bill set up estoppel and asked for general relief against the plaintiff, her husband’s grantee, and moved to make her husband a party, such motion being overruled, it was error to quiet her title.
    Appeal from Clark Chancery Court; James D. Shaiv, Chancellor;
    affirmed.

      John II. Crawford, Dwight II. Crawford and T. D. Crawford, for appellant.
    1. The court erred in dismissing the complaint for want of equity. There was no abandonment of the lot by Pannell and no proof of an intention to abandon tbe property. 101 Atl. 305.
    2. Nor was he guilty of laches in allowing his family to receive the rents and profits and pay the taxes. 9 Wheaton 241, 288; 126 Ark. 93; 103 Id. 251; 140 Id. 100; 99 Id. 500.
    3. There is no presumption of a lost grant in this case, as Mrs. Pannell testifies that she never had any deed and that the only title she had was possession of the deed to Pannell from his grantor. She holds the land merely by virtue of her marital rights.
    4. There was no plea of estoppel in this case and that defense was waived. 21 C. J. 1246, § 257; 155 Ala. 648; 12 Ark. 769. Nor was there any equitable estoppel. 99 Ark. -260; 97 Id. 43.
    5. ' The chancellor erred in his conclusion on the issue of adverse possession. In the absence of evidence to the contrary, the presumption is that the possession is in accord with the legal title. 89 Ark. 19; 23 Id. 735; 43 Id. 469-485. The rightful owner is deemed to be in possession until he is ousted or disseized. 57 Ark. 523. Permissive possession is not such hostile possession as will start the statute of limitation. 84 Ark. 140; 133 Id. 589; 130 Id. 28; 114 Id. 376; 55 Id. 59.
    Where possession is originally taken and held under the true owner, a clear, positive and continued disclaimer and disavowal of title and assertion of adverse right brought home to the true owner are indispensable before the statute of limitations begins to run. 2 C. J 134; lb. 75. The doctrine of adverse possession is to be taken strictly. It can not be made out by inference or implication. The presumptions are all in favor of the true owner, and the proof to establish adverse possession must be clear, strict and unequivocal. It must be visible, open, exclusive and hostile and continue for twenty years. The exclusive.possession by a husband of a wife’s lands is not necessarily adverse. 234 Ill. 240. It results from the community of possession of husband and wife that neither can obtain title by adverse possession as against the other by mere occupancy. Peck on Dom. Eel., § 50; Schouler on Mar. and Div., p. 223.
    Title can not be required by one spouse against the other by adverse possession. 195 Ala. 457; 39 S. W. 48; 215 Ill. 552; 67 N. J. Eq. 165; 105 Ind. 410; 88 S. C. 184; 57 Am. St. 521; 81 Wis. 151; 37 Ala. 536; 179 Pa. 89; 128 N. Y. S. 772; 116 S. W. 43; 94 N. W. 332; 86 Ark. 448. The cases cited for appellee below (29 Pac. 1117 and 110 Pac. 313) do not apply, as the facts are entirely different from this case. See 76 S. W. 790-3; 43 Upper Can. Q. B. 406; 3 Can. App. Rep. 577; Blair v. Johnson, 215 Ill. 552. The payment of taxes and assessment in the wife’s name were not necessarily open and notorious and not hostile nor adverse. 224 S. "W. 629. Payment of taxes without color of title, no matter how long, does not start the statute of limitations. 45 Ark. 81.
    6. Appellant was an innocent purchaser and paid valuable consideration and acquired the legal title.

      J. E. Gallaiuay, for appellee.
    Mrs. Pannell was in possession when this suit was instituted, and it should have been at law, ejectment. But both parties acquiesced to a trial, and appellant must come into court with clean hands. He did not attempt to bring W. Gr. Pannell before the court to explain his attitude. Counsel cite 2 C. J. 29 as being against the presumption of a lost grant, but the chancellor did not base his opinion on that case. 135 Ark. 369; 114 Id. 65. There were other stronger equities, notwithstanding the courts generally hold that after twenty years’ peaceable possession a lost grant will be presumed. 2 C. J. 292.
    2. There is no error in the chancellor’s findings as to estoppel, as collusion is shown by the evidence. 21 C. J., p. 1245, § 254. Appellant’s purchase was in fraud of appellee’s rights, and he paid an inadequate price. A wife can acquire title to a husband’s land by continuous, exclusive, adverse possession. 158 Cal. 149; 110 Pac. 313; 29 Pac. 1117. See, also, 132 Id. 291. The husband had abandoned the lot, and appellee acquired title by adverse possession, and the chancellor so found, and justice and equity have been done.
   Humpheeys, J.

Appellant instituted suit against appellees in the Clark Chancery Court, to quiet his title to lot 12 in block 24 in Browning’s survey of Arkadel-phia, alleging that he was the owner of the legal title, and that appellees claimed title thereto without right, and that their claims cast a cloud upon his title.

One of the appellees, Arkadelphia Motor Company, answered that it was in possession under a lease from its coappellee, Mrs. S. A. Pannell. The other appellee, Mrs. S. A. Pannell, answered, setting up, among other defenses, facts, which, if true, constituted an estoppel on the part of appellant to assert his title in a court of equity.

The cause proceeded to a hearing upon the pleadings and evidence, which resulted in a decree dismissing appellant’s bill for the want of equity, from which decree an appeal has been duly prosecuted to this court, and the cause is here'for trial de novo.

There is little or no dispute in the testimony, and, in substance, the record reflects that, in the year 1897, the then owner of said lot, who is the husband of appel-lee, became enamoured of another woman and abandoned his family, consisting of his wife and three small boys, and moved with his paramour to Oklahoma City, where they have since lived in adultery; that, after that time, he never contributed to the support of his family or communicated with his lawful wife, the appellee herein; that a short time after the abandonment he returned, disposed of all Ms assets, except the lot in question, and appropriated the proceeds thereof to his own use, leaving unpaid debts to the amount of $800 or $1,000; that, prior to the abandonment, he had run a blacksmith shop upon the lot in question, which had a high fence around it; that, immediately after the abandonment, his wife, Mrs. Pannell, took possession of the lot and shop in question and, through her boys, conducted the blacksmith shop for fifteen years; that the city compelled her to move tlie shop off the lot, after which time she rented it for a small rental to other parties, and, at the time of the institution of the suit, had leased it to her co-appellee, Arkadelphia Motor Company, who was paying her a small rental therefor; that, in the year 1899 she assessed the lot in her own name for the purposes of taxation and thereafter paid the State, county, city and special improvement taxes upon said lot in the sum of about $200, and, out of her individual earnings, paid the indebtedness of her husband to the amount of about $1,000, in order to prevent the lot from being sold to satisfy his debts; that appellant was cognizant of the abandonment and familiar with the lot and uses to which it had been put by the appellee, Mrs. S. A. Pannell, having seen it every day, and sometimes oftener, during the entire period of abandonment; that J. J. Panned, a son of the appellee, Mrs. S. Á. Panned, had often talked to appellant concerning the affairs of Mrs. Panned and W. Gr. Panned, and had been told that the property belonged to said appellee; that, about thirty days before appellant purchased the property from W. Gr. Panned, he had inquired of J. J. Panned whether the lot was for sale, and was informed that it belonged to his mother and that she did not want to sell it; that, on the 6th day of September, 1920, appellant purchased the lot in question and obtained a quitclaim deed thereto from "W. Gr. Panned for $500; that, according to the opinion of various witnesses, the property ranged in value from $1,500 to $3,000 at the time he purchased it.

Appellant insists that the court erred in dismissing his bid for want of equity. This must depend upon whether his grantor, W. G-. Panned, was in position to assert his legal title as against the equitable rights of Mrs. S. A. Panned in a court of equity, for appellant can not be regarded as an innocent purchaser, as the record reflects that he had a personal acquaintance with his grantor, W. Gr. Panned, and the appellee, Mrs. S. A. Panned, and understood that they had lived apart for twenty-three years; that said appellee had been in the actual possession of the lot during that period, paying taxes thereon and claiming ownership thereto. As appellant was in possession of facts sufficient to put a reasonable man upon inquiry as to the exact situation, he merely succeeded to whatever rights and equities his grantor possessed. W. G. Pannell, appellant’s grantor, abandoned his family, consisting of his wife and three small boys, about twenty three years before the institution of this suit, and showed no further interest in them. At the time of his departure, he sold his personal property and took the proceeds with him, leaving an indebtedness of between $800 and $1,000 unpaid. Mrs. S. A. Pannell, thus abandoned, assumed the burden of the support of herself, the children, and the payment of this large indebtedness. In order to meet these burdens, she took immediate possession of the lot in question, and continued the blacksmith business, with the aid of her children, which had been theretofore conducted by her husband. During the entire period of abandonment, she paid the taxes upon the property, amounting to about $200, and liquidated an indebtedness against her husband, which, together with reasonable interest thereon, exceeded, perhaps, the value of the property at the time her husband sold it to appellant. During all this time, the property was assessed in her name, and she openly asserted ownership thereto. Mrs. Pannell testified that she paid the personal indebtedness of her husband to prevent his creditors from taking the lot. In saving the property from his creditors and from sale for taxes, she expended large sums of money. In that way, this delay in asserting his right to the lot has worked disadvantage to said ap-pellee. This unconscientious conduct on the part of appellant’s grantor, in the language of Mr. Pomeroy (Pom-eroy’s Equity Jurisprudence, vol. 1, 4 ed., § 404), would “repel him from the forum whose very foundation is good conscience.” To uphold the fight of appellant’s grantor to sell the lot under these circumstances would operate as a fraud upon the rights of appellee and calls for the application of the equitable doctrine announced above. Appellant insists, however, that tlie doctrine of laches is not applicable where one is attempting to enforce a legal right in a court of equity. This court applied the doctrine of laches in the case of Osceola L. and Co. v. Henderson, 81 Ark. 432, in which it attempted to assert its legal title to 1280 acres of land in a court of equity by seeking to remove a cloud upon its title. In doing so, this court reiterated the doctrine announced by Lord Camden in Smith v. Clay, 3 Brown, Ch., 638, in the following language: “Nothing can call forth this court into aétivity but conscience, good faith and reasonable diligence.” This court also took occasion to reiterate the following maxim of law: . “Equity aids the vigilant, not those who slumber on their rights.” The following cases also support the application of the doctrine of laches where equitable remedies were invoked in the assertion of purely legal rights. Clay v. Bilby, 72 Ark. 101; Turner v. Burke, 81 Ark. 352; Craig v. Hedges, 90 Ark. 430; Rachels v. Stecher Cooperage Co., 95 Ark. 6; Burbridge v. Wilson, 99 Ark. 455. We think the facts in this case bring it within the rule announced in these cases. Appellee prayed in the alternative that, in the event appellant’s bill was not dismissed, her husband, W. G. Pannell, be made a party, and that she be decreed a reasonable sum against him for maintenance and support, together with a reasonable attorney’s fee, and that a lien be declared against the lot in question for support and alimony and for taxes paid upon said lot, and for the sum of $1,000 paid by appellee upon his debts, and that the lot be sold to satisfy the lien. She also prayed for general relief. The motion to malee her husband, W. Gr. Pannell, a party was overruled. No answer was filed by appellant to appellee’s cross-bill. Under the issues joined, it was technical error to render a decree quieting the title to said lot in appellee, Mrs. S. A. Pannell, as against appellant. The decree will therefore be modified in that respect, but will be affirmed in other respects.

Mr. Justice Hart concurs in part and dissents in part; Mr. Justice Smith dissents.

Hart, J.

(dissenting in part). The facts necessary to a proper understanding of the case are these. W. G. Pannell and his wife lived in Arkadelphia, Arkansas, and in 1897, without cause, the husband deserted his wife and their three minor children. Since that time .he has absented himself from her and the children. When he deserted her, he converted all of his available assets into cash and carried away about $1,000 in money. He left debts to the extent of $1,000. He also owned the lot in controversy on which was located a blacksmith’s shop. To prevent the lot from being sold for her husband’s debts, Mrs. Pannell paid .off his debts and took possession of the lot. She has had possession of it ever since. When he deserted his wife, W. G. Pannell left the State, and has contributed nothing to the support of his family since. In September, 1920, Pannell temporarily returned to Arkadelphia and sold the lot to Thos. N. Wilson for $500. He executed a quitclaim deed to Wilson. Wilson knew that Pannell and his wife had separated and were not living together when he purchased the lot. It is also inferable that he knew that Pannell had deserted her and the children. When Pan-nell deserted his wife, he went to Oklahoma City with another woman. The present value of the lot is estimated from $1,500 to $3,000. The lot in controversy is located on one of the business streets of Arkadelphia, and Wilson knew that Mrs. Pannell was in possession of it when he bought it.- Wilson brought this suit against Mrs. Pannell, alleging that she was claiming title to the lot without right; that her claim constituted a cloud upon his title, and asked that his title to the lot be quieted.

Mrs. Pannell filed an answer and cross-complaint. She set up substantially the facts stated above and asked that a lien be declared against the lot for her support and alimony, including the taxes paid by her and the sum of $1,000 paid by her on her husband’s debts, and that the lot be sold to satisfy her lien.

Tile court found the issues in favor of Mrs. Pan-nell. It was decreed that the plaintiff’s complaint be dismissed for want of equity, and there was a decree in her favor quieting and confirming the title in her.

I am of. the opinion that the court was right in dismissing the complaint of the plaintiff, but also believe that its decree was too broad with respect to the cross-complaint. The chancellor should have allowed her the relief prayed for in her cross-complaint. Under the facts stated the wife had a clear-cut case for alimony and also the right of reimbursement for the payment of her husband’s debts.

Of course, a wife does not ordinarily stand in the relation of a creditor to her husband, and therefore can not set aside a conveyance made by him of his property as a fraud against his creditors. But, when the interest in the subject changes, a different rule prevails. When the husband wilfully deserts his wife and minor children, the wife has a right to institute suit for alimony. Wood v. Wood, 54 Ark. 172, and Horton v. Horton, 75 Ark. 22.

Upon the institution of such suit the wife becomes a creditor of her husband. The wife as a special creditor of her husband is within the protection of the statute against fraudulent conveyance and may proceed according to its provisions. On a proper showing of the fraud the conveyance will be set aside and the property of the husband will be declared subject to the decree for maintenance, or alimony. Nelson on Divorce and Separation, vol. 2, § 938.

In 19 C. J., § 734, p. 318, it is said that a conveyance made by a husband in anticipation of his wife’s suit for divorce and to prevent her from recovering alimony is fraudulent and may be set aside unless the purchaser take without notice and for value. Where a husband wilfully deserts his wife and refuses to support her and his minor children, he knows she is likely to become his creditor with the right to attack a fraudulent convey-anee of his property as being against her marital interests.

In Harrington v. Johnson, 44 Pac. 368, the Court of Appeals of Colorado said that on this point the better authorities agree on the rule just announced, and several cases are cited in support of the do-atrine.

In De Ruiter v. De Ruiter, 62 N. E. (Ind.) 100, the appellate court of Indiana, in a suit by the wife for divorce and to recover alimony, held that she is a present and continuous creditor of her husband, and that on a proper showing of fraud the husband’s conveyance of his real property will be set aside. According to the principles anounced in that case the wife may be either an actual creditor or a subsequent creditor, or holder of equities which afterward ripen into a claim. In the instant case the husband made the conveyance after he had deserted his wife. He had no other property in the State. The lot in controversy was not worth more than $3,000, arid it was the only property out of which she could enforce her claim for alimony and for reimbursement for the payment of her husband’s debts. She had a right to pay his debts to prevent the lot in controversy ftom being sold at a sacrifice for the payment thereof and thus deprive her of her lien nn it for support and maintenance.

Under our statute it is not necessary to obtain judgment at law in order to maintain a suit to set aside a fraudulent conveyance. Crawford & Moses’ Digest, § 4880. Section 4874 provides that every conveyance of real estate made to defraud creditors shall be void as against creditors and purchasers prior and subsequent.

The record shows that Wilson knew of the separation of Pannell and his wife and that the husband had left the State and was not contributing anything to the support -of his wife and minor children. Therefore, he was not an innnocent purchaser and stood in no better attitude in this case than Pannell.

Hence the court properly dismissed his suit for want of equity.

The appeal of Wilson brought up the whole case. The right of appellee to have Wilson’s complaint dismissed depended upon her right to alimony and to be reimbursed for the $1,000 paid on her husband’s debts. Hence the court should have heard her complaint and made her husband a. party so that the rights of all should be settled in one suit.

On cross-complaint the court should have decreed that the conveyance from Pannell to Wilson be set aside as in fraud of the wife’s marital rights and a lien should have been declared on the lot to reimburse Mrs. Pannell for the amount of her husband’s debts paid by her and for whatever amount of alimony the court should allow her.

Therefore, I respectfully dissent from the opinion of the court in this respect.


text:
    Steele v. Buchanan.
    Opinion delivered June 6, 1921.
    Highways — injunction against collection op assessments. — In a suit to enjoin the collection of assessments for the preliminary-expenses of a road improvement district created by Road Laws 1919, vol. 1, p. 530, it was error to g-rant a writ of injunction and to order the return to the taxpayers of an assessment levied to pay the preliminary expenses of certain sections of the district, which were not built, in view of section 27 of above act providing- that, if for any reason the improvements therein authorized shall not be made, 'all expenses shall be charged against the real property of the district, and the amount necessary to discharge all such indebtedness shall be assessed and apportioned and paid in the manner therein provided.
    Appeal from Nevada Chancery Court; James D. Shaver, Chancellor;
    reversed.

      H. B. McKenzie, for appellants.
    All lands in sections 1 and 3 should bear all the necessary and legitimate preliminary expenses, and the court should have ordered the return of the taxes paid by the landowners. 50 Art. 116. A law directly in conflict wtili a later act is repealed by the latter act. Act 130, Acts 1919, is. in conflict with the later act and is repealed.

      J. 0. A. Bush, for appellees.
    There is no error in the decree, as road district No. 2 had no right to collect a tax on territory included in district No. 1.
    Smith, J. In 1918 Road Improvement District No. 1 of Nevada County was organized under the provisions of act 338, of the Acts of 1915, page 1400, which act was carried into Crawford & Moses’ Digest as § 5399 et seq.

    At the 1919 session of the General Assembly, act No. 130 (Special Road Acts, vol. 1, p. 330) was passed creating Road Improvement District No; 2 of Nevada County. The territory embraced in the act of 1919 was divided into five sections, each of which, for all practical purposes, was a separate road district. Sections 1 and 3 of district No. 2 overlap and include all of the territory of district No. 1. The proposed roads in district No. 1 and in sections 1 and 3 of district No. 2 have the same termini and follow the same route, with the exception of four or five miles of section 1 of district No. 2 between the village of Boughton and the city of Prescott and the lateral running from the village of Emmett southeast-wardly to the village of Antioch. There are approximately 22,000 acres in district No. 1 and about 80,000 acres in sections 1 and 3 of district No. 2.
    This act 130 of the Acts of 1919 is very similar to, and in may respects identical with, a number of other special road acts passed at the 1919 session .of the General Assembly. A study of its provisions would appear to indicate that legislative sanction and authority had been given to construct the improvements committed to each of the five subdistriets or sections of Road Improvement District No. 2. But there appears in the act a section numbered 22, which reads as follows:
    “Section 22. If the commissioners and the county court find that it is feasible, practicable, and" desirable to construct sections 1 and 3 of the roads, as provided for in this act, and shall file the plans therefor with the county clerk, as provided in this act, or shall make the assessment of benefits in said sections 1 and 3, and said a$-sessment of benefits in each of these sections shall be sufficient to complete the improvement in each, and this act and the said assessment of benefits shall not be held invalid, and the commissioners are ready to let the contract for the construction of the improvements in each of sections 1 and 3, they shall file a statement to this effect with the county court, and the county court is thereupon authorized to enter an order terminating the existence of Road Improvement District Number 1 of Nevada County. Appeals from such order shall be taken within thirty days after its entry, and not thereafter. If the county court does not enter an order terminating the existence of said Road Improvement District Number 1, as herein provided, then its existence and tire proceeedings of its commissioners and assessors shall not be affected by'this act, but they may proceed to make the improvements in their district, under the provisions of the law under which said Road Improvement District No. 1 was created.
    “It was found and hereby declared that the surveys, plans and other expenses incurred by said Road Improvement District Number 1 produced results that will inure to the benefit of sections 1 and 3 of the respective roads and the respective territory set forth in this act, and in the event the existence of Road Improvement District Number 1 shall be terminated, as herein provided, the said sections 1 and 3, created under this act, shall assume and pay each one-half of such expenses and other indebtedness. ’ ’
    This section is somewhat ambiguous, and the difference of opinion as to its meaning resulted in the litigation which was terminated January 17, 1921, by the decision of this court in the case of Pittman v. Road Improvement District No. 1, 147 Ark. 87.
    It was insisted by the commissioners of district No. 2 that it was mandatory upon the county court, under the provisions of section 22 of the act of 1919, to terminate Road Improvement District Number 1 when the commissioners of said district No, 2 filed a statement with the county court in accordance with, the requirement of section 22 of said act 130. We held against that contention, and expressed the opinion that the word ‘£ authorize ’ ’ as there used was directory because the section itself provided that, in the event the county court did not enter an order terminating the existence of said Road Improvement District Number 1, then its existence and the proceedings by its commissioners and assessors should in no wise be affected by the act.
    In other words, our holding was that the county court was vested with a discretion to determine whether Road District Number 1 should be allowed to proceed with the construction of the improvement which it was organized to construct. The county court upheld district No. 1, and we affirmed the judgment of the circuit court on the appeal from the judgment of that court, which had affirmed the judgment of the county court, in the case of Pittman v. Road Imp. Dist., supra.

      It appears that the General Assembly in its wisdom so provided that the judgment and decision of the county court as to whether district No. 1 should be terminated, or should be continued, was not to be invoked until certain preliminary expenses had been incurred by district No. 2. In fact, portions of these expenses were to be incurred in acquiring the information upon which the county court would act, in part, in making up and rendering its judgment.
    The commissioners of district No. 2, pursuant to the authority conferred by law, proceeded to assess — and did assess — the betterments against the lands in sections 1 and 3 of district No. 2 to result from the improvement of the roads lying therein. In other words, district No. 2 was authorized to proceed, and did proceed, just as if district No. 1 was not existent until the period of time had arrived when the judgment of the county court was to be invoked as to the termination of district No. 1. As to the wisdom of that course, we are not concerned, as the manner of procedure was within the control of the Legislature, Betterments were assessed and extended on the tax books as provided by act 130. Tberenpon certain citizens and taxpayers who owned land in district No. 1 and in sections 1 and 3 of district No. 2 brought this suit agaist the commissioners of the district and the collector of the county to enjoin the collection of any assessment of benefits against the lands in district No.
    1 on account of the preliminary expenses incurred by sections 1 and 3 of district No. 2. The court held that such assessments were unauthorized and illegal, and that they should be canceled and set aside and the collection thereof be enjoined and restrained. The court further ordered that certain taxes which had been paid be returned to the landowners who had paid them.
    We think the court below erred in its action. It was within the contemplation of the Legislature that the improvement authorized by act 130 might never be constructed, and section 27 of that act provided s gainst that contingency. It reads as follows:

      “ Section 27. If for any reason the improvements herein authorized and directed shall not be made, all expenses and costs accrued to that time shall be charged against the real property of the district, and the amount necessary to discharge all such indebtedness shall be assessed and proportioned and paid in the manner herein provided. The commissioners shall have the right to pay such reasonable expenses as may have been incurred in preparing this act and securing the information therefor.”
    We do not have before us the items properly chargeable against the lands in sections 1 and 3 of district No. 2 under the authority of this section 27.
    The betterments were assessed against the lands in sections 1 and 3 of district No. 2, and those assessments became final and would be now collected in the manner provided by act 130 but for the action of the county court in refusing to terminate district No. 1.
    Preliminary expenses were incurred by authority of law and for the prospective benefit of all the lands' in 130 directs that these expenses be paid, and that they be “paid in the manner herein provided” — that is, that sections 1 and 3 of district No. 2, and section 27 of act they be paid just as the cost of the improvement would have been paid, had it been constructed.
    It follows, therefore, that all the lands in sections 1 and 3 should bear all the necessary and legitimate preliminary expenses of those sections, and these preliminary expenses should be borne in the same proportion as the cost of the proposed improvements would have been borne, and the court should not have ordered the return of the taxes paid by the landowners.
    The decree of the court below is therefore reversed and the cause remanded with directions to enter a decree in accordance with this opinion.
   Smith, J.

(on'rehearing). Appellees have filed a petition for rehearing and for a modification of the opinion. It is insisted that the levy of any tax in sections 1 and 3 was premature, and therefore unauthorized. This question was considered on the original submission, and we adhere to the view that sections 1 and 3 had the authority to collect a sufficient tax to pay the preliminary expenses incurred by those sections.

We are also ashed to modify the opinion so as to relieve the property owners in sections 1 and 3 from any liability except their proportional part of the preliminary expenses. The insistence is that the act of 1919 divided the territory of district No. 2 into five sections, and that the preliminary expenses were incurred in the name of, and for the benefit of, all these five sections or districts, and that these expenses should be apportioned among all these districts, and it is asserted that the effect of the opinion herein is to hold sections 1 and 3 liable for expenses which inured to the benefit of all five sections.

No such result was intended by us. We do not undertake to say what items are properly chargeable as preliminary expenses against any of these sections, as that feature of the case was not fully developed or passed upon by the court below. Nor have we undertaken to apportion these expenses.

It is said there are certain general expenses which inured to the benefit of all five sections .of district No. 2, and that certain other expenses were incurred .for the separate benefit of particular sections of district No. 2. Of course, those expenses which were for the common benefit of all five sections of district No. 2 should be borne by all of them and should be paid just as the cost of the improvement would have been paid had it been constructed as is provided in section 20 of the act. Special expenses for the special benefit of particular sections should be borne and paid by that section, just as the cost of the improvement local to that section would have been paid had it been constructed.

These equities must be worked out on the remand of the cause.