author: Humphreys, J. Smith, J.,

text:
    Kosier v. State.
    Opinion delivered April 7, 1924.
    1. Indictment and information — statutory offense. — An indictment for night-riding, under Crawford & Moses’ Dig., § 2797, charging that accused “did unlawfully and feloniously deliver and repeat a verbal message purporting to come from an organized band or members thereof, which, in substance and nature, was intended to intimidate and threaten one M. W.,” etc., being substantially in the language of the statute, was sufficient.
    2. Threats — conveyance of intimidating message. — Under Crawford & Moses’ Dig., § 2797, declaring it a felony to deliver or repeat an intimidating or threatening verbal message to another, purporting to come from an organized band, a conviction may be had for the delivery of such a message from a band which has not been proved to have been organized for an unlawful purpose, if the message contained language which, in its common acceptation, was calculated to intimidate a person of ordinary intelligence and courage.
    3. Threats — sufficiency of evidence. — In a prosecution for delivering an intimidating message from an organized band, in violation of Crawford & Moses’ Digest, § 2797, evidence that defendant carried a verbal message from the Ku Klux Klan to the complaining witness, demanding that the latter “come clean” with defendant concerning the disagreement and separation of defendant’s wife, was insufficient to sustain a conviction, in the absence of evidence that the Ku Klux Klan was an unlawful organization, and the message lacking the element of a threat.
    Appeal from Little River Circuit Court; B. E. Isbell, Judge;
    reversed.

      Seth C. Reynolds, for appellant.
    The demurrer to the indictment should have been sustained. For law governing night-riding, see C. & M. Digest, §§ 2795-2798 inclusive. An indictment must be direct and certain in giving the particular circumstances of the offense charged, where they are necessary to constitute a complete offense. C. & M. Digest, § 3012. And must charge the offense with such degree of certainty as to enable tire court to pronounce judgment on conviction. Id., § 3013. It must state the acts constituting the offense in ordinary and concise language, and in .such a manner as to enable a person of common understanding to know what is intended. Id., § 3028; 111 Ark. 214; 11 Ark. 180; 100 Ark. 409; 114 Ark. 38; 153 Fed. 1; 101 Pac. 599; 94 Pac. 419. The exact question involved here has not 'been decided by this court; but, as supporting appellant’s contention, see 140 Ark. 44; 154 Ark. 60.

      J. 8. Utley, Attorney General, John L. Garter, Wm. T. Uamvmocli, Darden Moose and J. 8. Abercrombie, Assistants, for appellee.
    The indictment is sufficient. It follows substantially the language of the statute, C. & M. Digest, § 2797, in charging the offense, and that is all that is required. 71 Ark. 80; 72 Ark. 586; 107 Ark. 33 (syl. 1); 135 Ark. 243, 245; 136 Ark. 372; C. & M. Digest, § 3013; 114 Ark. 38; 156 Ark. 594.
   Humphreys, J.

Appellant was indicted, tried, and convicted of the crime of nightriding, in the circuit court of Little River County, and adjudged to serve one year in the State Penitentiary as punishment therefor. Omitting the caption and signature of the prosecuting attorney, the indictment is as follows: “The grand jury of Little River County, in the name and by the authority of the State of Arkansas, accuse E. L. Rosier of the crime of nightriding committed as follows, to wit: The said E. L. Rosier, in the county and State aforesaid, on the 22d clay of September, 1923, did unlawfully and feloniously .deliver and repeat a verbal message, purporting to come from an organized band or members thereof, which, in its substance and nature, was intended to intimidate and threaten one Maloy Waddell, to whom said message was delivered, against the peace and dignity of the State of Arkansas.” A demurrer was filed to the indictment upon the ground that it did not state sufficient facts to charge appellant with the crime of nightriding. The court overruled the demurrer, to which ruling appellant objected and excepted.

Appellant contends for a reversal of the judgment because the court overruled the demurrer to the indictment. The indictment was drawn under the last clause of § 2797 of Crawford & Moses’ Digest, which is as follows: “* * * or who shall deliver or repeat any verbal message purporting to come from any such organized band, or any member or members therebf, which, in its substance or nature, is intended to intimidate or threaten any person, shall be deemed guilty of a felony, and, upon conviction, shall be confined in the penitentiary for a term of not less than one nor more than seven years.”

It will be observed by reference to the indictment that it is couched in substantially the language of the statute. In charging statutory crime this is all that is. necessary. Wolfe v. State, 107 Ark. 33; Gramlich v. State, 135 Ark. 243; Wald v. State, 136 Ark. 372; State v. Western Union Tel. Co., 160 Ark. 444.

Appellant also contends for a reversal of the judgment upon the ground that the evidence is insufficient to make out a case under the statute. The statute upon which the indictment is founded is directed at any one who delivers or repeats a threatening or intimidating verbal message to another, purporting to come from two or more persons confederated or banded together for unlawful purposes, or which, by sending an intimidating or threatening message or letter, has become an unlawful organization' or body of persons. The evident intent and purpose of the statute was to prevent any one from carrying- threatening or intimidating messages from organizations or members thereof, confederated together in the first instance for unlawful purposes, or who have converted themselves into unlawful organizations by sending threatening or intimidating messages. In the ease of a message or letter coming or purporting to come from a band or body of persons, which has not been proved to have been organized in the beginning for an unlawful purpose, a conviction could be had if it is shown that the message or letter, or the purported message or letter, contained language which, in its common acceptation, was calculated to intimidate a person of ordinary intelligence and courage.

The record in the instant case reveals that E. L. Kosier, the appellant, who had had trouble with his wife, went to the home of Maloy "Waddell and delivered the following message to him: .“There were two cars of Ku Klux came to my house last night and gave me orders to come over here and make you come clean with me.” The purpose of the message, according to the testimony of Maloy "Waddell, was to obtain a written statement from him as to whether he (Waddell) or Mrs. Kosier was to blame for the disagreement and separation of Kosier and his wife.

The prosecuting attorney admitted, and the undisputed evidence showed, that the Ku Klux Klan was organized for lawful purposes. While the message which was delivered was in the nature of a demand, it contained no threat. A message of this character purporting to come from a band or organization confederated together for lawful purposes could not have the effect of intimidating’ a person. Intimidation is the gist of the offense, and there is, an entire absence of proof tending to show that the Ku Klux Klan was organized for unlawful purposes, or that the purported message was in its nature threatening or intimidating. It was in the nature of a demand, but contained no threat or language implying punishment upon the failure to comply with it.

The court should have sustained appellant’s demurrer to the testimony and instructed a verdict of not guilty.

On account of the court’s refusal to do so, the judgment is reversed, and the cause dismissed.

The Chief Justice and Mr. Justice Smith dissent.

Smith, J.,

(dissenting). In my opinion the demurrer to this indictment should have been sustained. It is usually sufficient to charge a statutory offense in the language of the statute; but this is not always true, and is not true where a more particular statement of facts is necessary to enable the accused to properly meet the accusation against him. State v. Graham, 38 Ark. 519; Houpt v. State, 100 Ark. 409; State v. Scott, 114 Ark. 38.

Here it was not sufficient to charge the offense in the language of § 2797, C. & M. Digest, because, as appears from the language of that section quoted in the majority opinion, the section itself is not complete, and a reference must be had to one or more of the preceding sections to ascertain what the phrase, “from any such organized band or any member or members thereof,” means. One cannot read either the indictment itself or the section from which the language of the indictment is quoted and know what band is intended, or what message was delivered, or the purport thereof, and, in my opinion, the indictment is therefore demurrable.

The judgment of conviction was not reversed, however, because the indictment was bad. The majority hold it sufficient, and have reversed the judgment and dismissed the case because the testimony is not sufficient to support a conviction; and, as I do not concur in that view, I record myself as dissenting.

Any discussion of the purposes of the Ku Klux Klan would be beside the question. It may be true here that no message was sent by that organization, but the testimony shows, and the jury found, that appellant did deliver a message purporting to come from that organization, and the majority has found that this message was innocuous, and did not offend ag’ainst the statute. The opinion of the majority is based upon this finding, and it is therefore the only question which need be discussed.

Here a man and his wife had separated,' and the husband was being sued for a divorce and alimony, and he was defending upon the ground that his wife, and not himself, was to blame, and he sought to establish this fact by proving the written admission of Waddell to that effect. It is idle to argue the serious character of the admission which appellant sought to extort from Wad-dell. The message was not an inquiry, and I am unable to discern what it lacked of being a threat. Two cars of men would be quite a party; and if this party of men had, in fact, organized to give orders in the night time, the jury might well have concluded that a message from such a source was calculated to intimidate.

Waddell told appellant, in effect, that no improper relation had ever existed between himself and appellant’s wife, and that he had never been at appellant’s home except when accompanied by his own wife. But this was not the answer desired. Appellant produced a book and told Waddell that he must “come clean,” and that the Klan demanded that he write his answer, which would be delivered to the Klan at a meeting of its members to be held on the following Wednesday.

We think the jury was warranted in believing, and did in fact find, that here was a threat to enforce the “unwritten law,” which some regard as high authority in certain cases, with the alternative to Waddell to blacken a woman’s reputation, although Waddell had told her husband that the charge which connected his (Wad-dell’s) name improperly with appellant’s wife was untrue.

Is this a message to be waved aside as one not intended or calculated to convey a threat or to intimidate? The majority say yes, and assign as a reason for that answer that the prosecuting, attorney admitted, and the undisputed evidence showed, that the Ku Klux Klan was organized for lawful purposes, and that a message of this character purporting to come from a band or organization confederated together for lawful purposes could not have the effect of intimidating a person.

It occurs to me that this conclusion is erroneous for two reasons: The first is that it was not essential to show that the Klan had in fact authorized such a message. As is well said by the majority, this statute is directed against intimidation, and the penalty of the statute is directed against one “who shall deliver or repeat any verbal message purporting to come from any such organized band.” The statute does hot require that if should be shown that the threatening message actually came from an organized band. It is sufficient if the message delivered purports to eome therefrom.- The definition of the verb “purport” given in Webster’s New International Dictionary is: “To have the appearance or convey the impression of-being, meaning or signifying (some particular thing); to import; to mean or seem to mean or intend; often with an object clause or infinitive; as, the letter purports to be from the president; the letter purports to be in the interest of morality.”

One cannot concoct a message calculated to intimidate another into an admission involving the serious consequences of the admission here demanded and excuse that wrongful act by showing either that he was unauthorized to carry such a message or that the organization from which the message purported to come was not primarily organized for the purpose of executing such a threat as was here communicated. ■

The second reason is that it matters not how beneficent the primary purpose of any organization may be, nor what the recitals of its constitution, its by-laws or its articles of association are. “By their fruits ye shall know them,” and the lawful or unlawful character of any band is to be determined by its practices rather than by its professions. No organization, by any name, or without a name, may usurp the function of enforcing the law, either written or unwritten, and here was an order purporting to have been promulgated against a man who had been convicted without knowing that he had been accused. An organization might have the most laudable purpose in regard to the suppression of crime, but it must execute that purpose in a lawful manner by upholding and sustaining the agencies of the law, and not by usurping those functions and accomplishing that purpose in a manner which its members believe to be more effec-. tive than the more orderly, if less expeditious, processes thereof.

I think the jury was warranted in finding — as it did find- — that the message was pregnant with significant and evil portent; that it was -calculated and intended to intimidate the .recipient; and that it is immaterial that the Ku Klux Klan did not in.fact authorize or send the message. It is .sufficient that the message purported to come from an organized band, because, as the majority say, the statute is directed against intimidation, and one might be as badly frightened by a false message, if he did not know it was false, as by a truthful one.

It is, of course, elementary law that, in testing the sufficiency of testimony to sustain -a verdict, we give to the testimony tending so to do and to the inferences reasonably deducible therefrom its highest probative value. If the testimony here is so weighed, we have a message which assumes the existence of an improper relation between Waddell and appellant’s wife, a fact denied by Waddell, and the option given Waddell is not to show that the charge was false, but to “come clean,” that is, to say in writing whether he seduced Mrs. Kosier or was seduced by her. No organization, whatever its primary purpose may have been, hacl the right to send such a message; and, if such a message was sent or purported to have been sent, an intimidating' threat was communicated, at least the jury might have so found, and the jury here did so find, and the law was violated, and the cause should not be dismissed.

I therefore most respectfully dissent; and am authorized to .say that the Chief Justice is of the opinion that the testimony is sufficient to sustain the verdict, and, as he concurs with the majority that the indictment is sufficient, it is his opinion that the judgment should be affirmed.


source: Caselaw Access Project

author: McCulloch, C. J.

license: Public Domain

text:
    Reed v. Wilson.
    Opinion delivered April 14, 1924.
    1. Specific performance — contract as basis. — A suit against the Commissioner of State Lands to compel him to execute a-deed to plaintiff of certain lands, which he had applied to purchase by-virtue of Acts 1917, p. 1468 (Crawford & Moses’ Dig., §§ 6796-6802) held not a suit for specific performance, as no elements of a contract were involved.
    2. Mandamus — ministerial duty. — A public officer may be compelled to perform a purely ministerial duty involving no discretion.
    3- Venue — mandamus against state officer. — A mandamus against the State Land Commissioner to compel him to perform a ministerial duty by executing a deed to which plaintiff claims' to be entitled under Acts 1917, p. 1468 (Crawford & Moses’ Dig., §§ 6796-6802), must be brought in the county where such officer resides, under Crawford & Moses’ Dig., § 1175.
    4. Mandamus — matter of discretion. — Since Acts 1917, p. 1468 (Crawford & Moses’ Dig., § 6802), vests in the State Land Commissioner the discretion of determining whether an island in a navigable stream is agricultural or accretion land, or is below the mean high-water mark of the river, such discretion cannot be controlled by mandamus.
    Appeal from Conway Chancery Court; W. E. Atkinson, Chancellor;
    affirmed.

      J. Allen Ead.es, for appellant.
    After the Commissioner entered into contract with appellant, received part of the consideration, and sold him the lands in question, there remained only the ministerial duty of making the deed to the land. We recognize the general rule that one cannot sue the State or one of its agents and compel him to perform acts which would necessarily involve the exercise of discretion, and the exception to that rule is equally well established, viz: that one can compel an official in chancery to complete his contract where there remains nothing to be done but a mere ministerial act, and on that we rely. 7Ó Ark. 584 A suit to compel the Commissioner in this case to sign a deed could only be maintained in the county where the land is located. 134 Ark. 340. The prohibition against suing the State or any official representing the State is confined to such suits as seek to charge the State with some liability or duty, and does not apply to ministerial acts. 35 Ark. 565, 568.

      J. S. Utley, Attorney General, and Strait & Strait, for appellee.

      1. The court properly sustained the demurrer, correctly holding that the suit is, in substance and- effect, a •suit against the State, and could not be maintained under the Constitution, art. 5, § 20; 91 Ark. 527; 161 U. S- 10; 185 U. S. 373; 4 Pomeroy, Eq. Jr. 1341; 98 Ark. 525; 106 Ark. 174; 108 Ark. 60. King v. Harris, 134 Ark. 337, relied on by appellant, is not out of harmony with the decisions above cited by appellee, but in reality supports our contention.
    •2. If a suit of this character qould be maintained at all, the venue would be in Pulaski County, and not in Conway County, where the suit was brought. C. & M. Digest, § 1165; Id. § 1175.
   McCulloch, C. J.

This is an action instituted by appellant in the chancery court of Conway County against appellee as Commissioner of State Lands, whereby appellant seeks to compel appelle'e, as such Commissioner, to execute to him a deed conveying a tract of land in that county, alleged to be an island in the Arkansas River. Appellant alleged in his complaint that he applied to the Commissioner for the purchase of said land, and paid the estimated expense of survey, as required by statute; that the Commissioner appointed a surveyor, who surveyed the land and made its report, and that the Commissioner had refused, upon demand, to make a deed.

There was service of summons on appellee in Pulaski County, and he appeared by counsel for the purpose only of pleading to the jurisdiction of the court,, and filed a demurrer on the ground that, according to the allegation of the complaint, the action was, in effect, one against the State, which could not be maintained under the Constitution, and second, that the court was without jurisdiction of the person of the defendant, in that the action was not brought in Pulaski County, where appellee resided and maintained his office. The court .sustained the demurrer and dismissed the complaint.

A statute enacted by the General Assembly of 1917 (Acts of 1917, vol. 2, p. 1468, Crawford & Moses’ Digest, § 6796 et seq.) provides for the sale of islands formed in the navigable rivers of the State subsequent to its admission to the Union. It provides, in substance, that any person desiring’ to purchase that character of land .shall file with the Commissio ner of State Lands his application to purchase the same, describing it by local name, and depositing the estimated cost of survey, together with the sum of $1.25 per acre for the estimated acreage, and that thereupon the Commissioner shall appoint a -surveyor to accurately survey the land and compile field-notes and plats, and that, upon leceipt of the field-notes and plats by the Commissioner, and the payment of any additional amount of the price over and above the preliminary payment, the Commissiorer shall make a deed to the applicant. Section 5 of the statute (Crawford & Moses’ Digest, § 6800) gives the preemption right to bona fide claimants for one year after the passage of the act, and § 7 (Crawford & Moses’ Digest, § 6802) provides that lands “which are not accessible to agriculture, nor which are below mean high water mark of the stream or river in which they are located,” nor accretion lands that have “heretofore or may hereafter be formed,” .shall be sold or disposed of by the State under this statute.

Appellant’s complaint contains sufficient allegations to show that he complied with the terms of the statute with respect to the filing of the application, the payment of the sums and causing the survey to be made, but that appellee refused to execute a deed. The action seems to have been denominated by both parties as an equitable one for specific performance, but this is not correct, as there are no elements of a contract involved in the controversy. Where a public official fails to perform a purely ministerial duty, involving no discretion, he may be compelled to do so by mandamus; but, if it be contended that the facts stated in the complaint are sufficient to call for an award of the writ of mandamus as an appropriate remedy and a transfer of the cause from the chancery court to the circuit court, that remedy being of a strictly legal nature, we are met with the reply that such an action must be prosecuted as a personal one against the officer who refuses to perform his duty, and must he brought in the county where the officer resides. Crawford & Moses’ Digest, § 1175. That answer is complete. The only theory upon which the officer can be sued at all is that he is not the representative of the State, but that his wrongful act of omission is attributable to his refusal to discharge a duty imposed upon him by law. That being true, he must be sued in the county of his residence, in accordance with the provisions of the statute. Another answer to the contention of appellant is that the statute relating to sales of lands of this character reposes in the Commissioner of State Lands a discretion in determining whether the lands sought to be purchased fall within the terms of the statute, for there is an express provision in § 7 that non-agricultural lands, nor accretion lands, nor lands below the mean high-water mark of a river, are not subject to sale under the statute. This inhibition necessarily implies the exercise of discretion on the part of the Commissioner in determining whether or not the lands are subject to sale, and that discretion cannot be controlled by mandamus. Lewis v. Owen, 146 Ark. 469.

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


author: Wood, J.

text:
    McDonald Land Co. v. Shapleigh Hardware Co.
    Opinion delivered April 14, 1924.
    1. Judgment — vacation—meritorious defense. — Judgments will not be vacated as having been rendered without service upon the judgment debtor, without alleging and proving a meritorious defense to the actions in which the judgments were rendered.
    2. Fraudulent conveyances — evidence.—'Evidence held insufficient to prove that a conveyance of land by a debtor was made with intent to cheat, hinder and defraud his creditors.
    3. Deeds — delivery añd acceptance. — Where, before the execution of a deed, the grantees, in anticipation of its execution, paid the consideration therefor by discharging a part of the grantor’s debts, it will be presumed that the grantees accepted the deed from the time it was executed and deposited in the mail addressed to the grantees.
    4. Bailment — liability op gratuitous bailee. — Where goods purchased by one person were billed to a garage owned by another, who did not accept or agree to pay for the goods, but was a gratuitous bailee thereof, he was not liable therefor in the absence of any gross negligence causing loss to the seller.
    Appeal from Greene Chancery Court; Archer Wheatley, Chancellor;
    reversed in part.

      M. P. Huddleston, for appellants.
    1. The evidence is clear, practically undisputed, that Paragould, Arkansas, was not the “usual place of abode” of Bob J. McDonald at the time the several summonses were served upon his wife in the suits which went to judgment in the J. P. court, the transcripts of which judgments were filed with the circuit ¡clerk, and made the basis for the creditor’s bill. Not only had he left, July 1,1921, with the avowed public declaration never to return, but also, in the fall of the same year, his wife left, July 1,1921, with the avowed public declaration never land, Ohio, to which place he came from Canada, and from there they went to Cuba, whence she returned later in 1921 to Paragould with the avowed purpose of selling and disposing of their household effects and other property. It was while she was so engaged, and was living at the home of a brother of Bob McDonald’s, that the summons were served upon her, when she happened to be at the old home place looking after the furniture. The constable’s return on the summons is the only contradiction of these facts, and, in the face of this evidence, the return should not be permitted to stand. 124 Am. St. Eep. 759 ; 21 E. C. L. 1322; 12 Col. 46; Pac. 771; 13 Am. St. Eep. 204; 19 Kan. 458; 27 Am. Eep. 149; 8 Kan. 228; 12 Am. Eep. 466; Ann. Cas. 1914A, p. 413; 32 Cyc. 518; 13 Me. 245; 14 Ohio St. 240; 84 Am. Dec. .373; 26 Vt. 748; 15 W. Va. 277; 100 Fed. 213.
    2. The deed from Bob J. McDonald and wife conveying the swimming-pool to Bill McDonald, Jr., signed, acknowledged and mailed by Mm to Bill McDonald, Jr., at Havana, Cuba, on February 11, 1922, was delivered to the latter on that day; and the filing of the transcript of the judgment of the justice of the peace against Bob McDonald in favor of Shapieigh Hardware Company, in the office of the circuit clerk, on February 18, 1922, conferred no lien on the swimming-pool in favor of that company.
    3. The court’s holding that Bill McDonald was personally liable on the Shapleigh Hardware Company account was contrary to the preponderance of the evidence. He is not liable, even as a gratuitous bailee. 101 Ark. 81; 103 Ark. 12; 52 Ark. 364; Story on Bailment, § 23; 142 Ark. 100.
    4. The creditor’s bill was properly dismissed in so far as it sought to cancel the deed to the homestead. Creditors cannot complain at the ¡conveyance of a homestead. Moreover, the sale of property in consideration of a bona fide preexisting debt equal to or exceeding its value is not fraudulent as to creditors. 63 Ark. 232. See also 119 Ark. 12.

      B. P. Taylor, for appellees.
    1. Discussion of the validity of the service of the summons is out of place now. If it be conceded that the service was invalid, nevertheless appellants, have failed to allege and prove the fact necessary to invoke the jurisdiction of equity to set aside the judgments as clouds, viz: a meritorious defense to the several causes of action which eventuated in judgments. 50 Ark. 458; 74 Ark. 292, 297; 84 Ark. 527, 532; 127 Ark. 306, 310; 94 Ark. 347, 350. See also 136 Ark. 537; Id. 396. There is no reason why this rule should be relaxed in favor of a nonresident or expatriate. Appellants are barred from attacking the judgments for the further reasons that Bob McDonald received notice of the suits from his wife while they were still pending, and failed to make defense. This would be true even in a direct attack on a judgment rendered without service. 157 Ark. 464.

      2. As to whether or not the mailing- of the deeds on February 11,1922, constituted delivery on that day to the grantees, depends on whether the grantees selected the postal system as the agency for such delivery — and there is no proof that they selected that agency. It is a mistake, however, even treating the mailing of the deeds on February 11 as constituting delivery, followed by actual receipt thereof on February 20, to conclude that such' delivery vested title free from the lien of the judgment filed on February 18. Acceptance is quite.as necessary as delivery to investiture of title under a deed. 80 Ark. 8; 77 Ark. 89; 63 Ark. 374, 376. It is true that acceptance of a deed beneficial to the grantor will be presumed, and it may be conceded that our decisions, 121 Ark. 328 and 97 Ark. 283, imply that such acceptance is presumed to be contemporaneous with the delivery, but this presumption of contemporaneous acceptance gives way to liens intervening before actual delivery. 11 Bush (Ky.) 34, 21 Am. Rep. 205, 207; 54 L. R. A. 904, note. The proposition that a debtor may prefer any creditor who relinquishes a sufficient amount of his claim to constitute an adequate consideration, may be overcome by the accompanying circumstances, such as the participation by the preferred creditor in the debtor’s unlawful purpose to defeat other creditors. 28 Ark. 82 y 12 R. C. L. 577 et seq.

    3. The evidence of Bill McDonald’s personal liability for the Shapleigh Hardware Company’s account is clear and conclusive. If the merchandise order was unauthorized there was no repudiation of it, but, on the contrary, an acceptance of the -fruits of the agency. The attendant burden follows. 28 Ark. 59, 64; 101 Ark. 68, 75; Williston on Contracts, § 191; 6 R. C. L. 587. See also 25 Ark. 100; 53 Ark. 155, 160; 41 Ark. 502, 507.
   Wood, J.

Judgments were obtained against Bob J. McDonald in justice court in Greene County, Arkansas, by various creditors, from January 16, 1922, to and including February 8, 1922. Summons was issued in each'of these eases and service had upon McDonald, as shown by the return of the constable, as follows: “By delivering a copy and stating the substance thereof at the usual place of abode of the within named Bob J. McDonald, to Mrs. Bob J. McDonald, his wife, and a member of his family over the age of fifteen years, as I am herein commanded.” Execution was issued on the several judgments, and a return of nulla bona thereon, and certified transcripts of the judgments were-filed with the clerk of the circuit court of Greene County from and on January 27,1922, to and including February 18,1822.

Bob J. McDonald and wife executed a deed to Bill McDonald, Jr., conveying certain lots in Paragould, Arkansas, known as the “swimming-pool,” and also conveyed to the McDonald Land Company certain other lots described in the deed and known as “the Bob J. McDonald homestead.” The deeds were dated January 28, 1922, and were signed and acknowledged by Mrs. Bob J. McDonald on that day. The deeds were then carried with her to Bob J. McDonald, who was then in Cuba, and were by him signed and aclmowledged on the 11th of February, 1922, and on that -day mailed by him at Havana, Cuba, to the respective grantees at Paragould, Arkansas. The deeds were duly filed by the grantees for record in the clerk’s office at Paragould, Arkansas, at 11 o’clock a. m., February 20, 1922. On March 14, 1922, the Shapleigh Hardware Company, one of the creditors that had obtained judgment in the justice court, a transcript of which had been lodged in the office of the circuit clerk February 18, 1922, filed what it called a creditor’s bill in the chancery court of Greene County against the McDonald Land Company and Bill McDonald, Jr., alleging that the deeds above-mentioned were executed for the purpose of defrauding the creditors of Bob J. McDonald; that Bob J. McDonald at the time was a resident of Cuba, and that by these conveyances he had rendered himself insolvent. The other creditors who had obtained judgments in the justice court and filed transcripts thereof -with the circuit clerk, as above mentioned, also were made parties plaintiff to the creditor’s bill, and joined in the prayer to have the deeds mentioned canceled.

The Shapleigh Hardware Company alleged in its bill that Bill McDonald, Jr., was indebted' to it on the same account as that on which it had recovered judgment against Bob J. McDonald in the justice court, and it prayed personal judgment against Bill McDonald, Jr. The judgment creditors filed, and made an exhibit to their complaint the several judgments obtained in the justice court, as indicated.

The McDonald Land Company and Bill McDonald, Jr., answered the creditor’s bill, denying the material allegations thereof, and set up that no personal service was had upon Bob J. McDonald upon which to base the alleged personal judgments against him, inasmuch as he had been a nonresident of the State since July, 1921. Bill McDonald, Jr., answered, denying that he was indebted to the Shapleigh Hardware Company in any sum. The answer denied specifically that the conveyances were fraudulent, and alleged that the property conveyed therein was purchased in good faith and paid for. The McDonald Land Company and Bill McDonald, Jr., filed a cross-bill, setting up the same facts as alleged in their answer to the creditor’s bill, and alleged that the judgments obtained in the justice court were null and void, that same were a cloud on their title, and prayed that same be set aside and held for naught.

On March 2, 1922, the East Arkansas Lumber Company filed its complaint in the chancery court of Greene County to foreclose a lien against Bob J. McDonald, in the sum of $3,286.87, for materials furnished him in the construction of the swimming-pool on the lots which had been conveved by him to Bill McDonald, Jr. To this action service was waived, and the appearance of Bob McDonald entered as required bv statute. These actions were all consolidated and tried together. The causes were submitted upon the pleadings as above outlined, the exhibits thereto, the interrogatories that were propounded to each of the defendants in the actions, and the answers thereto, and the depositions that were submitted in the cause. The trial court found therefrom that Bob McDonald was indebted to the East Arkansas Lumber Company in the sum of $1,726.30, and declared a lien in its favor on the “swimming-pool” property as described in the deed. The court also found that the Shapleigh Hardware Company was entitled to a personal judgment against Bill McDonald, Jr., in the sum of $329.20, and that all the other creditors who had obtained judgments in the justice court as indicated were entitled to liens on the swimming-pool property described in the conveyance mentioned, to secure the payment of those judgments in the order of their priority, naming the several creditors and specifying the amounts of those judgments; and also found that Griffin Smith was entitled to an additional judgment in the sum of $136.31, which was a lien on lots 1 and 2, block 4, Pruitt’s Addition to the city of Paragould — the swimming-pool lots.

The court further found that, at the time of the conveyances by Bob McDonald to the McDonald Land Company of lots 4 and 5, block 1, McDonald’s Second Subdivision to the city of Paragould, Arkansas, known as the Bob J. McDonald homestead, these lands constituted the Bob J. McDonald homestead, and were therefore free from the claims of his judgment creditors, and dismissed their bill as to the McDonald Land Company, and rendered a decree in its favor on its cross-bill, canceling the judgments as a cloud on its title.

The court entered a decree dismissing Bill McDonald, Jr’s., cross-bill praying a cancellation of the judgments mentioned as a cloud on his title. The court,- in its decree, appointed a commissioner to sell the lots on which the swimming-pool was situated and to hold the proceeds subject to the decree in favor of the East Arkansas Lumber Company for material furnished, and the balance to the creditors in the order of their priority. The McDonald Land Company,'Bill McDonald, Jr., and Bob J. McDonald appealed from so mucli of the' decree of the court as is adverse to them, and the Shapleigh Hardware Company and the other plaintiffs in the creditor’s bill likewise appealed from the decree of the court canceling the judgments obtained by them against Bob J. McDonald and holding that the homestead of Bob McDonald, 'Conveyed by Bob McDonald to the McDonald Land Company, could not be sold to pay these judgments.

1. If Bob J. McDonald himself were seeking to have ■ the judgments rendered against him in the justice court canceled as a cloud on his title to the “swimming-pool” and the homestead, he could not obtain such relief until he had alleged and proved a meritorious defense to those actions. State v. Hill, 50 Ark. 458; Robinson v. Arkansas Loan & Trust Co., 74 Ark. 292; Broadway v. Sidway, 84 Ark. 527; Pettus v. Bird, 136 Ark. 537. This equitable doctrine applies to judgments rendered in a justice court as well as to judgments in courts of general jurisdiction. Simpson-Webb Furn. Co. v. Moore, 94 Ark. 347; Brookfield v. Boynton Land & Lbr. Co., 127 Ark. 306.

The McDonald Land Company and Bill McDonald, Jr., derived their title to the lands in controversy through deeds from Bob J. McDonald. They stand in his shoes, and have no greater rights to the lands in controversy than he had at the time he executed the deeds. Section 6481, Crawford & Moses’ Digest, provides that judgments of justices of the peace shall be a lien on the real estate of the defendant in the county, from the time of the filing of the transcript thereof, to the same extent as a judgment of the circuit court of the same county. Therefore the judgments rendered by the justice court against Bob McDonald became a lien on his lands from the time of the filing of-the transcripts thereof with the clerk of "the circuit court of Greene County. Transcripts of all the judgments rendered by the justice were filed with the clerk of the circuit court before the execution of the deeds mentioned, except the judgment of the Shapleig’h Hardware Company. Therefore it is unnecessary for us to determine whether or not service was duly obtained on Bob J. McDonald in the actions in which judgments were rendered by the justice of the peace, because the McDonald Land Company and Bill McDonald, Jr., do not allege that Bob J. McDonald had any defense to those actions. The filing of the transcripts of those judgments was constructive notice to the world of the liens on the Bob McDonald lands. The McDonald Land Company and Bill McDonald, Jr., therefore had to take notice of the liens of those judgments, and were not innocent purchasers for value of the lands in controversy, so far as the lands purchased by them were affected by the lien of those judgments. All these judgment liens, except that of the Shapleigh Hardware Company, were valid and existing liens on the lands in controversy at the time the deeds mentioned were executed. The trial court therefore erred in vacating and canceling these judgments.

2. The next question is whether or not the judgment of the Shapleigh Hardware Company takes precedence of the deeds from Bob J. McDonald to Bill McDonald, Jr., and to the McDonald Land Company. These deeds were signed and acknowledged by Mrs. Bob McDonald on January 28, 1922, and she took them with her to Havana, Cuba, where her husband executed the same on the 11th day of February, 1922, and on that day mailed the same to the respective grantees.

Bob J. McDonald sold to Bill McDonald, Jr., the ‘ ‘ swimming-pool, ’ and, as a consideration of the conveyance, Bill McDonald, Jr., agreed to pay, and did pay, Bob J; McDonald’s debts, amounting in the aggregate to over $10,000, which was a fair value for the property. W. J. McDonald, who was president and owner of the McDonald Land Company, in consideration for the deed to the McDonald Land Company, paid and advanced money to Bob J. McDonald amounting to a great deal more than the value of the Bob J. McDonald homestead which was conveyed to the McDonald Land Company. These advances were made and the debts paid by ÍW. J. McDonald in consideration that Bob McDonald would convey to W. J. McDonald his homestead, which he did.

It could serve no useful purpose to set out and discuss in detail the testimony with reference to these conveyances. Our conclusion is that they were not made with the intent to cheat, hinder and defraud creditors. The transcript of the judgment of the Shapleigh Hardware Company obtained in the justice court was filed in the office of the circuit clerk of Greene County, February 18, 1922. If the deeds mentioned were delivered and took effect before the filing of the transcript of the Shapleigh Hardware Company’s judgment, then clearly the lands in controversy could not be subjected to the payment of that judgment, conceding that such judgment was valid.

In pursuance of the agreement between the grantor and the grantees that these deeds should be executed for the consideration as above mentioned, the deeds were signed by Mrs. Bob McDonald at Paragould, Arkansas, January 28, 1922, and taken by her to her husband, who was then at Havana, Cuba, where he signed and acknowledged the deeds, February 11, 1922, and on that day mailed the same to the respective grantees. These facts constitute in law a delivery to and acceptance of the deeds by the grantees on the 11th day of February, 1922.

In Staggers v. White, 121 Ark. 328, we held that the “acceptance of a deed on the part of the grantee, the same being for his benefit, will be presumed.” See also Graham v. Suddeth, 97 Ark. 283. We are aware of the doctrine that the “presumption of delivery and acceptance of a deed beneficial to the grantee ought not to, and will not, obtain, where the right of a third party has intervened between the time when the grantor acted and the time of the actual acceptance by the grantee.” Fischer-Leaf Co. v. Whipple, 51 Mo. App. 181-185. See also Bell v. Farmers’ Bank, 11 Bush 34, 21 Am. Rep. 205-207. This doctrine seems to be supported by the weight of authority, though there are cases to the contrary. See note to Monroe v. Bowles, 54 L. R. A. 865-904.

But, under the facts of this record, it occurs to us that there was a delivery and actual acceptance of the deeds by the grantees on the same day they were signed, acknowledged and mailed to them, for the reason that, in pursuance of the agreement, these deeds were executed by Bob J. McDonald. And W. J. McDonald, before the deeds were signed by Bob J. McDonald, had already paid the debts of Bob McDonald in consideration for the deed, and Bill McDonald, Jr., had paid a large part of the debts he had assumed and agreed to pay. The deeds were executed by Mrs. Bob McDonald before she. went to Cuba, and it was known certainly by the grantees that Bob McDonald would execute the same when the deeds reached him. We are convinced therefore that the deeds were delivered to and accepted by the grantees and operated to convey the title to them from Bob McDonald from the time he mailed the same at Havana, Cuba, to the grantees at Paragould, Arkansas. The grantees could not, under these circumstances, have repudiated the deeds, for they had, in legal effect, as we view the evidence, already accepted the same. Therefore it follows that the title of the McDonald Land Company and of Bill McDonald, Jr., to the lands in controversy is not affected by the lien of the judgment of the Shapleigh Hardware Company, and the court did not err in granting the McDonald Land Company and Bill McDonald, Jr., a cancellation of the judgment of the Shapleigh Hardware Company as a cloud upon their title.

3. It would unduly extend this opinion to set out and discuss in detail the testimony on the issue as to whether or not Bill McDonald, Jr., was personally liable to the Shapleigh Hardware Company for the goods purchased by Bob McDonald, consisting of electric fixtures for the swimming-pool amounting in the aggregate to $329.20, for which sum the court rendered judgment against Bill McDonald, Jr. This issue, under the evidence, was a mixed one of law and fact, and, after carefully considering the testimony, we have concluded that the court erred in finding Bill McDonald, Jr., personally liable for this amount. There is a clear preponderance of the evidence on this issue to the effect that these fixtures were purchased by Bob McDonald from one Bond, the agent of the Shapleigh Hardware Company, for his swimming-pool, and billed to the Grand Central Garage Company, which was owned by Bill McDonald, Jr. But Bill McDonald, Jr., did not. authorize their purchase, did not authorize the same to be billed to the Grand Central Garage, and did not accept and agree to pay for the same. There was no contract to bind him to pay for these goods, and, as gratuitous bailee of the same after they were shipped to his garage, there is nothing in the testimony to show that he was guilty of any gross neglect through which any loss resulted to the Shapleigh Hardware Company. Bill McDonald, Jr., was not liable - therefore as a gratuitous bailee. Strange v. Planters’ Gin Co., 142 Ark. 100; Baker v. Bailey, 103 Ark. 12. The court therefore erred in rendering judgment against Bill McDonald. Jr., in favor of the Shapleigh Hardware Company for the amount of this account.

4. The only remaining question is on the cross-appeal of the Shapleigh Hardware Company from the decree dismissing its bill praying for a cancellation of the deed from Bob McDonald to the McDonald Land Company. It follows, from what we have already said, that the court did not err in' dismissing the Shapleigh Hardware Company’s complaint in this respect, for the deed to the McDonald Land Company, as we‘have seen, was executed, delivered, and accepted before the Shapleigh Hardware Company’s judgment became a lien on-the lands conveyed by Bob J. McDonald to the McDonald' Land Company.

The decree of the court canceling the justice judg-ments set up in the creditor’s bill, except that of the Shapleigh Hardware Company, is reversed, and the cross-bill of the McDonald Land Company and Bill McDonald, Jr., asking for a cancellation of these judgments, is dismissed for want of equity. - The decree of the court rendering personal judgment against Bill McDonald, Jr., in the sum of $329.20 in favor of the Shapleigh Hardware Company, is likewise reversed, and the bill of the hardware company as to this claim is dismissed for want of equity. In all other respects the decree of the trial court is correct, and it is therefore affirmed.


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    Scranton Mercantile Company v. E. Schneider & Company.
    Opinion delivered April 14, 1924.
    Frauds, statute of — undertaking to pay another’s debt. — Where plaintiff held a mortgage on a crop which defendants took charge of, and wrote to plaintiff that they would “take care of” plain-tiff’s account against his mortgagor, this was sufficient to take the case without the statute of frauds.
    Appeal from Logan Circuit Court, Northern District; James Cochran, Judge;
    affirmed.

      Anthony Hall, for appellants.
   Wood, J.

This is an action by tlie appellee against the appellants. Appellee alleged that on September 2, 1920, W. R. Douglas was indebted to it in the sum of $30 on a note made by Douglas to the First National Bank of Paris, Arkansas, and paid by the appellee for him, amounting with interest to $36.75; that Douglas was also indebted to the appellee for an account of merchandise; that the indebtedness of Douglas to the appellee was secured by a chattel mortgage on his crop of cotton and corn for the year of 1920; that on September 22, 1920, appellants bought the crop of cotton and corn from Douglas, and agreed to pay the indebtedness of Douglas to the appellee under the following agreement:

“Scranton, Ark., Sept. 22, 1920.
“Messrs. E. Schneider & Co.
“Paris, Arkansas.
“Dear friends: I bought the W. R. D. crop on the Stroupe place. My agreement is to take care of your account, since you hold first mortgage on the crop, Please let me know just wliat amount you have against W. R. Douglas’ crop, under your mortgage. ;We have a safe man in charge to gather the crop. ' When he gets cotton out and ginned, I call you up. We nearly had to do this to save ourselves. I would be glad if you would send me statement by next mail. In case we have corn left, which we should have, can you use same at what price ?
“Yours truly,
‘ ‘ George Heim. ’ ’

Appellee alleged that the debt of Douglas to it had not been paid. Appellants answered, and admitted that they took charge of the crop of W. R. Douglas during the year 1920, subject to the appellee’s mortgage. They denied that they assumed the payment of Douglas’ debt to the appellee beyond the value of the mortgaged crops. They allege the truth to be that Douglas was indebted to appellants, and that he was making a share crop on the land of Henry Stroupe in 1920, and alleged that the appellee held a mortgage on Douglas’ half share. Appellants alleged that, believing that they might obtain an overplus from the crop to take up their debt from Douglas, they agreed with Douglas to gather the crops, apply his half share, after expense of gathering crop, on appellee’s debt, and then on the appellants debt, and apply the overplus, if any, to Douglas. This agreement was made with Douglas September 22, 1920, and immediately thereafter Heim wrote the 'appellee the letter exhibited in the complaint. They alleged they caused the crop to be gathered and paid the expense of same; that the landlord took charge of Douglas’ crop, and appellants received nothing for their expenses in gathering the same; that the appellee and Stroupe sold the crop and applied the proceeds on their claims. Appellants denied that they owed appellee any sum whatever. They alleged that the action was brought by the appellee against the appellants on an alleged promise of appellants to pay to appellee the debt of Douglas, and that said terms, not being in writing, the action cannot be maintained, and therefore appellants pleaded the statute of frauds in bar of the action.

The appellee demurred to the answer. The court sustained the demurrer, and the appellants declined to plead further. Thereupon the court entered a judgment in favor of the appellee against the appellants for the amount claimed. From that judgment.is this appeal.

The appellants set ■ up in their answer the statute of frauds, and the only question they present for our decision is whether or not the letter referred to in the pleadings is sufficient to take the case out of the statute and render the appellants liable. A majority of the court construed the letter to be a promise on the part of the appellant Heim to pay Douglas’ account with the appellee. The allegations of the answer show that the appellee held a mortgage on Douglas’ crop which the appellants took charge of, thus depriving appellee of the right to the possession of Douglas’ share of the crop. The appellants had no right to do this without paying, or agreeing to pay, Douglas’ account with the appellee. The language of the letter, to-wit: “My agreement is to take care of your account, since you hold first .mortgage on the property,” in the opinion of the-majority, is unambiguous, and means that the appellant Heim had agreed with Douglas to pay his account with the appellee as the consideration to him for delivering his crop to the appellants, rather than to the appellee, and that Heim, by this letter, agreed to pay appellee Douglas’ account.

It occurs to the majority that, under the circumstances, the words, “to take care of your account,” mean “to pay your account,” and that these words are not susceptible of any other interpretation, for the only way to “take care” of Douglas’ account with the appellee was to pay the same. The ruling of the court sustaining the demurrer of the appellee to appellant’s answer and rendering judgment in favor of the appellee against the appellants is correct, and it is therefore affirmed.

The writer and the Chief Justice are of the opinion that the letter is ambiguous, and that the issue raised by the answer as to whether or not the appellants promised to pay the account of Douglas with the appellee was one that should have been submitted to the jury under the evidence; that oral testimony would have been competent on the issue as to whether or not the letter was sufficient to take the case out of the operation of the statute of frauds.


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    Buhrmester v. Buhrmester.
    Opinion delivered April 14, 1924.
    1. Executors and administrators — appeal prom probate court.— On appeal from a judgment of the probate court allowing to a widow dower and her statutory allowance, the circuit court, under Crawford & Moses’ Dig., § 2261, tries the case de novo.

    2. Executors and administrators — widow’s dower — evidence.—An allowance of dower and a statutory allowance to the widow will be set aside on appeal where there is no testimony showing the value of the items embraced in the inventory or tending to prove the value of deceased’s estate.
    Appeal from Poinsett Circuit Court; W. W. Bcmdy, Judge;
    reversed.

      S. T. Mayo-and Cooley •& Adams, for appellant.
    The wife of a partner is entitled to dower in partnership property only subject to prior payment of partnership debts and adjustment of partnership equities. 28 Ark. 256; 48 Ark. 557; 66 Ark. 251; 19 C. J. 473, § 53. When the existence of a person, a personal relation or state of things is once established by proof, the law presumes that the person, personal relation or state of things continues to exist as before until the contrary is shown, or until a different presumption is raised from the nature of the subject in question. 10 R. C. L. 872, § 15; 9 Ency. Ev. 538; 20 R, C. L. 849, § 54; 22 A. L. R. 359. The existence of a partnership having been proved at a particular time- is presumed to continue until a dissolution is proved. 48 Ark. 551. A widow is not a competent witness in a case where .the heirs seek to set aside a conveyanee of decedent in such, a way that her dower right would be affected. 12 Ency. Ev. 818. It is necessary that a decedent’s interest in a partnership or in partnership property should be included in the inventory of the-administrator. 23 C. J. 1161, § 378; while an inventory is prima facie correct it is not conclusive, and may be explained and shown to be incorrect in certain particulars. 23 C. J. 1166, § 383. Where one holds himself out as a partner and thereby induces others to act on the faith of such act or representation, he cannot be heard to prove that no such partnership in fact existed. Jones, Commentaries on Evidence, § 276-A, vol. 2, page- 527; 95 Ark. 1; 28 Ark. 59.
   Wood, J.

In the spring of 1922 Mrs. W. H. Buhrmester filed in the probate court a petition for dower and widow’s allowance, setting up that her husband, W. H. Buhrmester, had died and left an estate of the value of $4,000, consisting of rice, an automobile, horses, cows, hogs, and other personal property. She alleged that the estate was insolvent, and she therefore claimed her dower in the personal property and her widow’s allowance in the sum of $300, together with her wearing apparel, household goods and kitchen furniture. Mrs. Buhrmester also filed exceptions to the inventory of it. E. Buhrmester, administrator of the estate of her deceased husband. She excepted to his inventory on the ground that he had failed, neglected and refused to list an automobile, valued at $1,500, in which her husband had an undivided interest. The administrator responded to the petition for dower and allowance, and denied the allegations thereof. He alleged that practically all the property left by the deceased was partnership property belonging to the firm of Buhrmester Bros., composed of R. E. Buhrmester, the administrator, and W. H.'Buhrmester, his deceased brother. He -alleged that all the partnership debts would have to be paid out of the partnership assets before the widow was entitled to any part of the estate in his hands, and he asked to be permitted to introduce proof showing that the assets held by him were partnership assets, and prayed that the widow’s allowance he made subject to the payment of the debts of the partnership.

The cause was tried before the probate court, and that court found that the value of the personal estate of the deceased, after deducting first-class claims and the cost of administration, was $1,848; that the petitioner was entitled to dower in one-third of that amount, to-w-it, $616, and further entitled to her statutory allowance of $300, and rendered judgment in her favor in the sum of $916. An appeal was duly prosecuted by the administrator to the circuit court.

On August 16, 1922, the First National Bank of Jonesboro filed a claim against the estate of W. H. Buhrmester in the sum of $558. The probate court rendered judgment classifying and allowing the claim as a fourth-class claim.

A transcript of the proceedings in the probate court was duly lodged in the circuit court, and the appeal perfected. In a trial de novo before the circuit court that court, after hearing the evidence, found in favor of the petitioner as follows: that the petitioner was the widow of W. H. Buhrmester, deceased, and, as such, was entitled to dower in his personal property in the sum of $616 and a widow’s allowance in the sum of $300, and rendered judgment in her favor in the sum of $916, and directed the administrator to pay over the same to the petitioner out of the proceeds of the funds in his hands derived from the sale of the personal property of the estate. From that judgment is this appeal.

We have examined the testimony offered at the trial before the circuit court, and the only testimony to sustain the finding of the trial court was that of the petitioner, the appellee. To sustain her contention:, she testified that she was the widow of W. H. Buhrmester; that he died November 11, 1921; that, when he died, he had between seventy and seventy-five acres planted in rice; that he had a wagon and team, a tractor and two binders, a half interest in two binders, and a half interest in a Studebaker Six which, had been in use about four months 'before they were married. It cost $1,600. At the time of her husband’s death it was not in very good shape. He had, at the time of his death, a cow and calf and twenty-one head of hogs. Ralph Buhrmester owned the other half interest in these things. They operated together until witness! and her husband were married, and then they made the rice crop together. They made their- notes together before she and her husband were married, and witness thought they' also .did afterwards. The crops were not partnership crops. Witness didn’t know whether they borrowed any money to make the crop or not.

The inventory was then introduced, which showed various items of personal property, but no value of the items was stated, and there was no testimony whatever by the appellee to show what was the value of the items embraced in the inventory, and no testimony whatever tending to prove the value of the estate -of the deceased.

The trial before the circuit court was a trial ele novo. Section 2261, Crawford & Moses’ Digest; Grider v. Apperson, 38 Ark. 388; Wilson v. Hinton, 63 Ark. 145.

Since there is no testimony whatever in the record to sustain the finding and judgment of the trial court in favor of the appellee for $916, its judgment must be reversed, and the cause remanded for a new trial.


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    Wells v. Moore.
    Opinion delivered April 14, 1924.
    1. Mortgages — equitable mortgage. — Every instrument intended to secure the payment of money, whatever may be its form, and whatever name the party may choose to give it, is, in equity, a mortgage.
    2. Mortgages — equitable mortgage. — Where a note recited “that a'lien is retained upon his [the maker’s] entire interest in and to” certain lands belonging to the maker and not derived from the payee, the word “retained,” in the light of the context, meant “given” or “granted,” or was. meaningless, in which case it may be stricken out without impairing the sense.
    3. Contracts — ambiguity.—Where there is ambiguity in any part, word or words of an instrument, it is the court’s duty to place itself in the situation of the parties and ascertain, if possible, from the language used, what the parties meant.
    4. Mortgages — description op land. — A description of land in a note giving a lien thereon as “N. R. Moore’s father’s land, known as the Old Marshal Farm, situated on Spring River in the Western District of Lawrence County, Arkansas,” held sufficient as furnishing the means of identifying it.
    Appeal from Lawrence Chancery 'Court, Western District; Lyman F. Reecler, Chancellor;
    reversed.

      Pope & Bowers and Schoonover S Jackson, for appellant.
    Instruments which, after reciting the existence of an obligation, purport to create in favor of the obligee a lien on specific property of the obligor to secure the performance of the obligation, have operation as equitable mortgages. 19 E. C. L. 274, par. 44; 93 Ark. 371. The form or particular nature of the agreement which shall create a lien is not very' material, for equity looks at the final intent and purpose, rather than at the form. 3 Pomeroy, Eq. Jur. 1237; 31 Ark. 429; 37 Ark. 511; 51 Ark. 433; 52 Ark. 439'; 60 Ark. 595; 91 Ark. 268. An agreement on the back of a note, making it a charge on particular land, is -an equitable mortgage. 5 Elliott on Contracts, 4658; 51 Ark. 433. Almost any instrument in vrit’ng, intended by the parties to pledge land as a security for debt, will be treated and considered as a mortgage, although it' may lack the formal requisites of a mortgage, and be insufficient to constitute a mortgage at common law, or under the statute. 27 Cyc. 1078. In an action to foreclose a mortgage, the mortgagor cannot complain of an indefinite description in the mortgage, whatever might be the effect of .a sale under such description. 27 Cyc. 1193; 68 Cal. 374. Parol evidence may be introduced to show that the description, so far as it goes, is applicable to a certain parcel of land owned by the mortgagor, and would not be applicable to any other property of which he is the owner. 27 Cyc. 1092; 63 S. W. 151; 85 Ala. 80.

      L. B. Poindexter, for appellee.
    The authorities cited by counsel for appellant have .no application to the facts of this case. Parol evidence of the intention of the parties is inadmissible to vary a writing, in the absence of surprise, mistake or fraud. 10 R. C. L. p. 1018, § 210. An intended contract, not made, cannot be set up in place of one that is made. 29 Ala. 684. Parol evidence is not admissible to affect a written contract in which the parties have plainly expressed their intention. 143 Mass. 344. It is error to admit oral testimony of the intention with which a writing was executed. 24 S. C. 229. There was no error in the chancellor’s decision in sustaining the demurrer and dismissing the complaint. 30 Ark. 601; 7 Ark. 255; 51 Ark. 433. The demurrer was properly filed. 7 Texas 549. The same rules of law apply to intervener as to the original defendant in the action. 66 Neb. 525. Where the intervener files his petition and gives notice to the other parties to the suit, he can claim the benefit of the original suit and has the right to prosecute it to a final judgment. 8 Tex. 74; 14 Tex. 82; 25 Tex. 289; 26 Tex. 306; 28 Tex. 501; 1st White & Wilson, 1st Tex. App. Civil 379; 31 Tex. Civil 525; 43 Fed. 565; 30 Okla. 565; 60 Tex. Civ. App. 241; 6 Nev. 287; 48 Cal. 201.
   Wood, J.

The plaintiff, Wells, as administrator of the estate of Joe S. Pruitt, deceased, instituted this action against N. R. Moore and Pearle Moore on a promissory note as follows:

“$1,500.00 Ravenden, Ark., Nov. 2, 1918.
“On or before twelve months after date I promise to pay to the order of J. S. Pruitt the sum of fifteen hundred dollars, for value received, negotiable and payable without defalcation or discount, bearing 10 per cent, interest per annum from date until paid. It is agreed by the maker of this note hereof that a lien is retained upon Ms entire interest in and to his father’s land, known as the Old Marshal farm, situated on Spring River, Lawrence County, Arkansas, to secure the payment of this note, and he binds himself, his heirs and executors, that this lien shall be in full force until this note is fully paid, together with all interest due thereon.
“N. R. Moore. Pearle Moore.”

The plaintiff alleged that this note created a lien upon N. R. Moore’s interest in his father’s land, known as the Old Marshal Farm, situated on Spring River, in the western district of Lawrence County, Arkansas, which land is described in the complaint according to the government survey. The plaintiff alleged that the amount of the note was past due and unpaid; that the note constituted an equitable mortgage on the lands described, and, as between the payors and the payee, constituted a valid and subsisting lien on the lands. Plaintiff prayed that he have judgment for the amount of the. note, and that the lien be foreclosed to satisfy the same. A notice of lis pendens was filed on the day the suit was instituted.

The Bank of Ravenden (hereafter called bank), J. C. Moore and B. M. Moore intervened. They set up that on the 13th of January, 1922, N. R Moore was indebted to the bank in the sum of <$3,750, and he and his wife executed to the bank a mortgage conveying an undivided one-third interest in the land in controversy, and that John O. Moore and B. M. Moore also signed a mortgage to secure the indebtedness to the bank. The bank alleged that, when it took the mortgage from N. R. Moore, it had no knowledge of the debt due plaintiff’s intestate. It set up that it was an innocent lienor, exhibited its mortgage, and prayed that it be granted relief as such. John C. Moore and B. M. Moore alleged that, in order to secure the indebtedness of N. R. Moore to the bank, they executed a note jointly with N. R. Moore conveying their undivided two-thirds interest in all the land in controversy, and that, in order to protect themselves as the sureties of Moore, they assumed the indebtedness of Moore to the bank and bought outright his undivided one-third, interest in the lands in controversy on the second day of February, 1922, and alleged that, since that date, they had been the owners of the same. They bought the same in good faith and without any notice that N. R. Moore was indebted to plaintiff’s intestate, and were therefore innocent purchasers of the land in controversy. They exhibited the deed of N. R. Moore to them. The interveners prayed that plaintiff’s, complaint be dismissed for want of equity, and for all proper relief.

N. R. Moore and Pearle Moore, who were named as defendants in the action, were duly summoned, but failed to answer, and a .decree pro confesso was taken against them on the day that the interventions were filed, and the cause was continued on the issue between the plaintiff and the interveners as to the priority of liens. The plaintiff, on August.28, 1922, replied to the petition of the interveners, and denied all the material allegations thereof. He alleged that, at the time the note and equitable mortgage were executed by N. R. Moore to plaintiff’s intestate, Moore was cashier of the bank, and that the bank, through him, was charged with notice of the equitable lien. The plaintiff further set up, by way of affirmative answer to the petition for intervention, that, on the date of the alleged mortgage from N. R. Moore to the bank, N. R. Moore was charged with the crime of having embezzled funds of the bank, and that an agreement was entered into between him and the bank whereby Moore was to execute to the bank the mortgage set up in the petition for intervention, and the charge of embezzlement ag-ainst Moore was to be dismissed and discontinued. The plaintiff therefore charged that the execution of the alleged notes and mortgage to the bank and the dismissal of the charge of embezzlement against Moore constituted the compounding of a felony, and rendered the instrument null and void.

On the 26th of September, 1922, the interveners demurred to all that portion of the plaintiff’s complaint wherein it is alleged that “plaintiff has an equitable lien'On tlie lands embraced and described in this action.” The interveners set np in the demurrer that the complaint in the matter set forth does not state facts sufficient to constitute a cause of action. The court sustained the demurrer, and the plaintiff declined to plead further, but stood on his complaint. The court thereupon entered a decree dismissing that portion of the plaintiff’s complaint by which he was seeking- to establish an equitable lien upon the lands described in his complaint. From that decree, is this appeal.

In Cox v. Smith, 93 Ark. 375, we quoted from Mr. Pomeroy as follows: “The form or particular nature of the agreement which shall create a lien is not very material, for equity looks at the final intent and purpose, rather than at the form; and, if the intent appear to give or to charge or to pledge property, real or personal, as a security for an obligation, •and the property is so described that the principal things intended to be given or charged can be sufficiently identified, the lien- follows * * * ; the form of the contract is immaterial; if the intent appears to make any identified property a security for the fulfillment of an obligation, it will constitute an equitable lien.” 3 Pom. Eq. Jur. 1236. See also other cases there cited.

In the case of Turner v. Watkins, 31 Ark. 429, we said: “Any instrument intended to secure the payment of money; whatever may be its form and whatever name the parties may choose to give it, is in equity a mortgage.”

In Ward v. Stark Bros., 91 Ark. 268, we said: “Equity requires no particular words to be used in creating á lien. It looks through the form to the substance of an agreement; and if, from the instrument evidencing the agreement, the intent appear to give, or to charge, or to pledge, property, real or personal, as a security for an obligation, and the property is so described that the principal things intended to be given or charged can be sufficiently identified, the lien follows.”'

In McGuigan v. Rix, 140 Ark. 418, the instrument under review, which this court held to be an equitable mortgage, contained no power of sale in a trustee of the land embraced therein, nor did it contain a defeasance clause. Passing upon this instrument, we said: “It is therefore lacking in these necessary essentials to make it a technically legal mortgage. It is manifest, however, that it was intended by the parties thereto as a security for preexisting indebtedness of Hogue to said bank.”

Applying the principle announced in the above case to the language of the instrument under consideration, we are convinced that it was the intention of the makers of the note to create a lien in favor of the payee on their interest in the lands described therein as the Old Marshal Farm, situated on Spring River, Lawrence County, Arkansas. The appellees contend that the words, “a lien is retained,” have absolutely no meaning in the connection used. This is true if the word “retain” is given its literal signification. But it is the duty of the court, where there is ambiguity in any part, word, or words, to place itself in the situation of the parties at the time of the instrument and ascertain, if possible, from all the language used in the instrument, what the parties meant by any particular word, or words, that, taken alone, might have an ambiguous meaning, so as to give effect to the intention of the parties to be gathered from the language of the instrument as a whole evidencing the contract between them. Wood v. Kelsey, 90 Ark. 272; White Const. Co. v. Ark. & La. Imp. List., 160 Ark. 452. When this rule is observed, it is clear that the word “retain,” as used in the context, means “given.” The makers of the note intended to give a lien. To give it any other meaning would render the entire instrument nugatory, so far as effectuating the purpose of the parties, as reflected by all the other language in the sentence; whereas, if the word “retain” were omitted entirely, or construed as if the word “given” were used, then the manifest purpose of the parties would be effectuated. If the word “retain” were omitted it would not destroy the sense of the instrument, gathered from the language as a whole. It would be nonsensical to say that the parties intended to retain a lien on their own land to secure a debt which they owed to a third party. 'Construing the entire language of an instrument to ascertain what the parties meant by any "particular word or words used does not contravene the rule that parol evidence is not admissible to affect a written contract in which the parties had plainly expressed their intention. This is a case where an ambiguous word in the instrument is made plain by the interpretation of that word in the light of its context and all the other language used in the instrument.

If, as learned counsel for the appellees contend, the word “retain” in the connection used is nonsensical, then it may be stricken out without impairing the sense, and, if it were stricken out, the sentence would be read as follows: “It is agreed by the makers of this note hereof that a lien is upon his entire interest in and to his father’s land * * * to secure the payment of this note,” etc. We therefore conclude that the word “retain” was inadvertently used, and that the parties intended to use a word which meant the same as “given,” or “granted.” If this was not their meaning, then the word has no meaning at all, and should be eliminated, leaving the intention of the makers clearly expressed to create a lien in favor of Pruitt on the Old Marshal Farm, situated on Spring River, in Lawrence County, Arkansas.

It occurs to us that the most serious question is as to whether the language just quoted is a sufficient description to identify the land intended to be included in the mortgage. The allegations of the complaint contain a complete description ¡by government subdivisions of “N. R. Moore’s father’s land, known as the Old Marshal Farm, situated on Spring River, in the western district of Lawrence County, Arkansas. ’ ’ It thus appears that the particular description of the land, according to legal subdivisions, may be ascertained from the general description “Old M]arshal Farm, situated on Spring River, in the western district of Lawrence County, Arkansas. ’ ’

In 27 Cyc., p. 1087, it is said: “The fact that the description of property in a mortgage is expressed only in broad general terms instead of being specific will not necessarily invalidate it. Such a description may afford the means of positive identification, and that is all that is necessary.” And further, “if an estate, farm, or tract of land is commonly known and called in the vicinity by a popular name, it may be described by that name in a mortgage, provided the exact extent and location of the property can be rendered certain by extrinsic evidence or by reference to the title deeds of the mortgagor or other recorded documents.” We conclude therefore that the general description of the land contained in the instrument furnishes the means for its definite location and identification. This is all the law requires. It follows that the court erred in sustaining the demurrer to that portion of appellant’s complaint which alleged that appellant had “an equitable lien on the land embraced and described-in the action.”

For the error indicated the decree is reversed, and the cause is remanded with directions to overrule the demurrer.