text:
    Clark v. Wilson.
    Opinion delivered July 4, 1927.
    1. MARRIAGE — sufficiency OF evidence. — A preponderance of the evidence is sufficient to prove a legal marriage.
    2. Descent and distribution — proof of relationship. — Relationship of a daughter may be established by a preponderance of the evidence. •
    3. Adverse possession — sufficiency of evidence. — Evidence held to show that deceased widow had claimed to own land adversely as grantee of her previously deceased husband, not under her marital rights or rights to the homestead, though no deed from him to her was recorded.
    4-, Adverse possession — notice. — Notice of adverse possession of land by widow as grantee of her deceased husband would be imputed to a husband’s granddaughter, an illegitimate child of his daughter, whose existence was unknown to the grandparents, though she had no actual knowledge of that fact.
    ‘5. Descent and distribution — laches. — The unknown granddaughter of deceased held guilty of laches where 15 years had intervened and oil had been discovered on the land, and expensive litigation with other claimants had been conducted between the death of the grandfather and institution of the suit by the granddaughter to recover land claimed and occupied by -her grandfather’s widow and her grantee.
    6. Equity — laches. — A court of equity may, in exercise of inherent powers, refuse relief sought after undue and unexplained delay, where injustice would be done by granting the relief asked.
    Appeal from Union Chancery Court, First Division; J. Y„ Stev-ens, Chancellor;
    affirmed.

      Coleman & Gantt, J. Bernhardt and U. J. Cone, for appellant.

      Saxon, Wade & Warren, for appellee..
   Smith, J.

A negro named Charlie Wilson, who died in 1910, owned, at the time of his death, two forty-acre tracts of land in’ Union County. The land was described as follows: The southeast quarter of the southwest quarter of section 6, and the southwest quarter of the southeast quarter of section 6, township 16 south, range 15 west. The witnesses refer to the first tract as the “west forty” and to the other as the “east forty,” and for convenience we will employ the same descriptions.

The west forty was the subject of the litigation in the case of Wilson v. Biles, reported in 171 Ark. 912, 287 S. W. 373, while the east forty was the subject of the litigation in the recent case of Clark v. Friend, ante p. 26, in which the opinion was delivered on May 16, 1927. The opinions in those two cases recite many of the facts which appear in the record on the present appeal. •

On the first appeal, which involved the west forty, numerous litigants claimed title through conveyances from various persons claiming to be collateral heirs of Charlie "Wilson. Others claimed under the children of Mollie Owens, who, it was alleged, had been the wife of Charlie Wilson and had borne him four children. Under the record then before us we found that these collateral heirs had not made their case, and that a lawful marriage had not been proved by the heirs of Mollie Owens, and that the land was a new acquisition by Charlie Wilson, and that, as he left no children or descendants of children, Lizzie Wilson, the widow of Charlie Wilson, was entitled to one-half of his real estate in fee-simple, under § 3536, C. & M. Digest. We held that the effect of the decree from which the appeal in that case came was to declare that Lizzie Wilson had title to an undivided one-half of the land owned by Charlie Wilson, and that she had conveyed the west forty to Willie Wilson by a warranty deed, and the validity of that deed was upheld as a conveyance by the widow of the estate which she had acquired upon the death of her husband.

Willie Wilson is the legitimate son of Eosa Wilson, a daughter of Charlie Wilson born out of wedlock. He was born in the home of Charlie and Lizzie Wilson, and was reárecl by them as an adopted child, although he was never legally adopted.

During the progress of the taking of the testimony on the former appeals, testimony was offered which ledto the belief that Charlie Wilson had a grandchild, who, if living, would inherit to the exclusion of -all the collateral heirs. This testimony was to the effect that, immediately after the Civil War, and not later than 1868, Charlie Wilson was lawfully married to Fannie Mayo, by whom he had two children, one of whom died in-infancy,: and the other child, a girl named Dorcas, grew to womanhood, and, without having married, gave birth to a daughter, and that this daughter, although a bastard, would inherit -from her mother, who was the only legitimate child of Charlie Wilson.

The present record is an exceedingly voluminous one, as more than a hundred depositions were taken, and much of the testimony is directed to an attempt to prove a lawful marriage between Charlie Wilson and Fannie Mayo, and that a female child, Dorcas, was born of this union, and that she became the mother of one Fannie Watt, who is said to be the sole heir-at-law of Charlie Wilson.

One of the witnesses giving this testimony was Dora Watford, half-sister of Dorcas, who testified in one of the former cases that Dorcas was a daughter of Charlie Wilson and Fannie Mayo, and was survived by a daughter named Fannie, whose father was one William Wallace. -

Immediately an extended search was begun for this granddaughter, and a woman between thirty and thirty five years old was finally located in a levee camp near Hughes, Arkansas, who is said to be this missing heir. Her father, however, was William Watt, instead of William Wallace, and upon finding this woman she executed a declaration of trust, wherein she employed O. W. Clark, as trustee, to institute suit to recover both forty-acre tracts for her as the heir-at-law of Charlie Wilson.

The first fact to be established to recover the land was that Charlie Wilson and Fannie Mayo were lawfully married, and it is insisted that -they were lawfully married in Union Parish, Louisiana, before Charlie Wilson left that State and came to Arkansas. This fact -is shrouded in much doubt, as it was said to have occurred nearly sixty years before the testimony was taken to establish it. However, witnesses were produced who claimed to have been present when the ceremony was performed, and other witnesses testified that Charlie Wilson and Fannie Mayo lived together for a short time in Louisiana as husband and wife. In this connection it may be said that the clerk of the court, who was the custodian of the marriage records in that parish, testified that the marriage records were intact, and that there was no record of any license for this' couple to marry.

The testimony is to the effect that Charlie Wilson was then known as Roan Wilson, and the witnesses who identified Charlie Wilson as Roan Wilson testified that Roan Wilson changed his name to Charlie Wilson after he left Louisiana for Arkansas.

It is- clearly established that Roan Wilson left Louisiana and came to Arkansas, and that, when he left, he deserted Fannie and brought with him another woman named Ellen Westereath, but this woman soon returned to Louisiana.

After Roan Wilson left Louisiana, Fannie was twice married and bore children by both husbands, one of these children being Dora Wafford, previously referred to. After coming to Arkansas, Charlie Wilson, who is said to be the Roan Wilson who married Fannie Mayo in Louisiana, lived with Mollie Owens, and four children were born to them while they were cohabiting together. These children were held to be illegitimate in the case of Wilson v. Biles, supra.

The trial court specifically found, at the trial from which this appeal comes, that the testimony did not establish a legal marriage in Louisiana between Roan Wilson and Fannie Mayo. If we concurred in this finding, it would not be necessary to proceed further, as it is essential for Clark, trustee, to prove a valid legal marriage between Boan Wilson and Fannie Mayo, and tlxat Loan Wilson and Charlie Wilson are one and the same person.

While there is at least a reasonable donbt about the proof of this essential fact, it is a fact which does not have to be proved beyond a reasonable doubt. A preponderance of' the evidence suffices. Sims v. Fisher, 172 Ark. 1038, 292 S. W. 92. We have concluded, although with no assurance of certainty, that the preponderance of the testimony shows a valid legal marriage in Louisiana .between Charlie Wilson and Fannie Mayo. Leach v. Smith, 130 Ark. 465, 197 S. W. 1160.

The next essential fact for Clark,' trustee, to establish is that a child .was born to this union, that this child was Dorcas Wilson, and that Fannie Watt is the child of Dorcas, it being conceded that this child of Dorcas was illegitimate. The illegitimacy of Fannie Watt is immaterial if she is in fact the child of Dorcas, and if Dorcas is the child of Charlie Wilson and Fannie Mayo, as a bastard can inherit from the mother. Section 3473, C. & M. Digest.

The court found the testimony was not sufficient to establish this second fact, and this finding would also be conclusive of the case if we concurred in it. The relationship of Fannie Watt as the daughter of Dorcas Wilson and that of Dorcas as daughter of Charlie Wilson and Fannie Mayo is a fact which may also be established by a preponderance of the evidence, and, while the testimony is not clear and satisfactory, that degree of proof is not required, and we have concluded that the preponderance of the evidence shows that Fannie Watt is the daughter of Dorcas, and that Dorcas was the legitimate child of Charlie Wilson and his wife Fannie.

We do not set out the testimony, as no useful purpose would be served in doing so, and it may be conceded that there are many contradictions in it, due, no doubt, to the long period of time which the testimony was required to cover and the moving about by the parties whose identity it is sought to establish, but a very careful consideration of it all leads to the conclusions we have announced.

It appears from the opinion in the second appeal, that of Clark v. Friend, ante p. 26, that Charlie Wilson had become indebted to the firm of Young & Anderson, and had executed a deed of trust to the east forty, if not to both forties, and by a foreclosure, or in some other manner, Young, as the ; surviving partner; acquired the title to the east forty. Charlie Wilson resided on this forty until the time of his death, and, soon after his death, Lizzie and Willie Wilson moved to the west forty, where Lizzie resided until her death. Lizzie built a home and the usual farm outhouses on the west forty, and cleared, fenced and cultivated about half of it.

Appellants contend that Lizzie took possession of the Avest forty as the widow of Charlie Wilson, and that, as she had the right so to do, her possession Avas never adverse to the granddaughter, Fannie Watt. It is certain, hoAvever, that, even though Fannie Watt is the daughter of the only legitimate child of Charlie Wilson, neither he nor Lizzie Wilson ever knew of her existence.

One of Charlie Wilson’s nearest neighbors was Nazareth Flanagan, who for twenty years,lived only a feAv hundred yards from Charlie Wilson. This person testified that it was always understood by every one in the neighborhood that Charlie had deeded the Avest forty to his Avife Lizzie, and that he suav the deed from Charlie to his wife, although he did not examine it-to see if it was signed.

Robert Bradford, another neighbor, testified that it was always understood that one forty “went for the mortgage ’ ’ and that the other forty was deeded to Lizzie, and that, on one occasion, Lizzie Wilson brought -a deed to him, Avhich she said Avas from Charlie, and asked him to take care of it for her, but he declined to do so, as he had no trunk, and his house had recently burned.

Rhoda Flanagan testified that she lived for years in a house facing the one in which Charlie lived and died, and that she saw and talked with him and his Avife Lizzie every day, and that, AAdren Charlie got sick, he sent for the-husband of .witness and told him that he had deeded the west forty, to Lizzie and had Lizzie to “give her old man the deed to keep for her,” and that her husband kept it for a good while, hut he gave it back to Lizzie after Charlie died.

Charlie Blackmore, another negro, gave testimony corroborative of the testimony recited, and.“Willie Wilson testified that, when his grandfather, Charlie Wilson, got so he couldn’t work the land, he executed a deed of trust to Young & Anderson, and later gave Lizzie Wilson a deed to the west forty. This deed was never recorded, but all the testimony makes it very certain that Lizzie Wilson claimed to own the west forty, and-was regarded by all the neighbors as being the owner thereof, and we think it is clear that, she occupied and claimed the land, not under her marital rights, but as the vendee of her husband.

We think it is also clear that both Charlie and Lizzie Wilson regarded Willie Wilson with the greatest affection, and, when Lizzie grew old, she deeded the west forty to him. This deed was executed May 6, 1922.

. The undisputed testimony shows that the land had but little value at the time of Charlie Wilson’s death, being worth only two or three dollars per acre, and that the west forty was less valuable than the other, as the improvements were on the east forty.

It is true also that Lizzie Wilson might have occupied this west forty as a homestead, but it does not appear that she did so. Her possession was of such a character that there would be no question about it being adverse to all the world, but for the fact that she could have occupied it as a homestead had she had no other right to its possession.

In the case of Brinkley v. Taylor, 111 Ark. 305, 163 S. W. 521, Brinkley owned an eighty-acre tract of land, on which he and his wife resided for thirty-five years, and, after Brinkley’s death, his wife claimed title to the land, not.under her dower rights, hut as owner. A portion of the land was divided into town lots and were s.old as such by Brinkley’s widow. The widow took no steps to have her dower assigned, but it is recited in the opinion that, '‘upon the contrary, she took possession of the entire tract under a claim of ownership, and sold a considerable portion of it.” We said that, notwithstanding Mrs. Brinkley entered upon the land without attempting to assert any dower right, her entry and the possession thereunder would not be held to be adverse if the proof did not affirmatively show it to be such. We also said that the widow’s possession would be presumed to be permissive, and not in hostility to the heir, unless that fact affirmatively appeared, but, as we found that the possession was adverse and hostile, we held that the widow had acquired the title.

In. the case of Watson v. Hardin, 97 Ark. 33, 33 S. W. 1002, it was said that the possession óf a widow is not hostile to the title of the heir, where the widow is entitled to the possession of land as her homestead, that she holds a life estate and the heir a reversion, and the possession of the widow is therefore not adverse to him, and that the general rule is that the statute of limitations does not run against á reversioner until the death of the life tenant.

In that case it was recited that, while in its inception the possession of the widow was not hostile to the heir, it was said that ‘tit is true that her claim and possession might have been of such a nature as to amount to an entire disseizin of the heir and an entire denial of his rights, so as to result in an acquisition of title by adverse possession; but, before' her possession could become adverse, it was necessary for her to first repudiate the title (of her husband) and to disavow any claim thereto as his widow; and it was also essential that notice of such disavowal by her of title as widow should be brought home to the heir.” But it was there also said that.the widow might acquire title by adverse possession against the heir if her disclaimer and hostile possession was so open and notorious as to raise a presumption of notice to him.

In the case of Wilson v. Storthz, 117 Ark. 418, 175 S. W. 45, the facts were that Storthz had acquired a deed from certain heirs, which made him a tenant in common with other heirs who did not convey and of whose existence he was in ignorance. In the suit by the cotenants to recover their interests in the land it was insisted that they were unaware of Storthz’s possession and that he g’ave them no notice thereof, but we said that Storthz was unaware of their existence, and could not therefore have given actual notice of his adverse holding, and that, when all the circumstances of that case were taken into account, there was such evidence of adverse holding as to meet the requirement of the case there reviewed, which discussed the conditions under which one, by adverse possession, might acquire title against his cotenants.

There was a similar holding in the case of Miller v. Chicago Mill & Lbr. Co., 140 Ark. 639, 215 S. W. 900, where the existence of a cotenant was unknown to the occupants, and we held that the occupants had acquired title by adverse possession against the unknown coten-ant because their possession had been so adverse and hostile and long continued as to impute notice of the adverse holding.

Charlie Wilson died in 1910, and his deed to Lizzie Wilson, if one was made, Avas executed some time prior to that year, the exact date not being shown by the testimony, and her possession was at all times open, continuous, notorious, and adverse, until a few weeks before her death, Avhen, on May 6,1922, she deeded the land to Willie Wilson, who continued this possession.

It is true the suit Avas begun by the collateral heirs of Charlie Wilson on March 5, 1923, and' Willie Wilson therefore had had possession under his deed for less than a year, but the combined possession of Lizzie Wilson and Willie Wilson covered a period of about thirteen years betAveen the date of Charlie Wilson’s death and the institution of the suit by the collateral heirs, and'the claimants through Fannie Watt did not become parties until June 13, 1925. There AAras therefore a period of about fifteen years.intervening between the death- of Charlie Wilson and'the assertion of-title by his granddaughter, Fannie Watt, who, during all that time, was sui juris. No actual notice could have been given to her of the adverse holding, because her existence was unknown,-but there was such adverse possession that notice thereof must be imputed to her.

It may be said, in this connection, that Fannie Watt did not testify in the case, and there is no affirmative showing that she did not have actual notice of this adverse possession. The only part taken by her in the litigation was to file a pleading designated as a “suggestion to the court,” in which she called attention to the fact that she had brought a suit in the Federal district court to cancel her deed to Clark, trustee, on the ground of fraud, and suggested that the present case should await the determination of that case. Refusing* to plead otherwise, the court ignored her “suggestion” and proceeded to a final determination of the case.

Of course, if Charlie Wilson executed a deed to Lizzie Wilson, this would be conclusive of the case, but, whether the execution of this deed has been shown with that degree of certainty required to prove the execution of a lost instrument or not, the undisputed testimony shows that Lizzie Wilson claimed that there was a deed, and held possession under this claim, and her adverse holding was known to every one familiar with the land or apparently interested in it.

The defense of laches is also interposed. Lizzie Wilson abandoned the home in which Charlie Wilson had lived and died. She moved on to the other forty, which was then worth only a few dollars per acre. She built her a residence there, cleared the land and fenced it, and for many years paid the' taxes, and no one questioned the title until oil had been discovered and the land had become enormously valuable. Twenty-two alleged transfers of the land were placed on record before any action was taken by Fannie Watt or her .trustee. Yery expensive litigation was prosecuted by more than forty separate claimants, which Willie’ Wilson was required to defend. Clark, as trustee, became a party with full knowledge of the history of the litigation and the history of the title, and with knowledge that Willie Wilson was in the actual possession under a deed 'of record from Lizzie Wilson.

Lizzie Wilson was an ignorant colored woman, and may not have known that it was necessary to record her deed, or ,she may have thought the land of so little value that no one would seek to disturb her, or that there was no heir of Charlie Wilson who could do so. However this may be, no attempt was made to assert title through Fannie Watt until Lizzie Wilson was dead and the testimony was thus lost which might have established the execution of the unrecorded deed from Charlie Wilson about which numerous witnesses testified, and, as was said in the opinion in the case of Clark v. Friend, “large sums of money . had been expended in developing oil before any one attempted to assert any rights through or under Fannie Watt. True, she knew nothing of the discovery of oil, but that fact proves only her indifference to her grandfather and to her inheritance. She, no doubt, would have continued inert and indifferent but for the discovery of oil, which resulted from the expenditure of the large sum of money always involved in such explorations and the diligence of’ appellant.”

We there quoted as follows from'the case of Avera v. Banks, 168 Ark. 718, 271 S. W. 970: “'There is no hard-and-fast 'rule as to what constitutes laches. It is well -settled that - la- -court of .equity may, in ■ the exercise of its own inherent powers, refuse relief where it is'sought after undue and unexplained delay, and where injustice would, be-done in the- particular case by granting the relief asked. It is usually said that the two most important circumstances in such cases are the length of the delay and the nature of the acts done during the interval, which might affect either party and - cause a balance of justice or injustice in taking the one course or the other in so far as it relates to the remedy” (citing cases).

We think that doctrine is as applicable here as it was there, and that there is as much reason for holding the trustee barred by laches in the suit to recover the west forty as there was to so hold in the suit to recover the east forty.

We think the equity of the case is with appellee, and the decree of the court below is therefore affirmed.


source: Caselaw Access Project

author: Humphreys, J.

license: Public Domain

text:
    Scoggins v. State.
    Opinion delivered July 4, 1927.
    1. Forgery — sufficiency of evidence. — Evidence held sufficient to support a conviction for uttering a forged instrument, where defendant tried to cash a check payable to his order and purporting to have been drawn by his uncle.
    2. Forgery — admissibility of evidence. — In' a prosecution for uttering a forged instrument, exclusion of testimony of the purported drawer of a check that he had told defendant that he intended to hire a third person from whom defendant claimed he received the check held not error, where the defendant admitted the check waa not written or signed by the purported drawer.
    Appeal from Crawford Circuit Court; J. 0. Kincan-non, Judge;
    affirmed.

      D. II. Howell, for appellant.

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

Appellant was indicted, tried and convicted in the circuit court of Crawford County for the crime of uttering- a forged instrument, and ivas adjudged to serve a term of two years in the State Penitentiary as a punishment therefor, from which is this appeal.

The two following assignments of error are insisted upon for a reversal of the judgment: (1) That the evidence is insufficient to sustain the verdict; (2) that the court erred in excluding the testimony of T. R. Scoggins, appellant’s uncle, to the effect that he told him, a short time before the crime is alleged to have been committed, that he intended to hire Tom Darr to work for him.

(1) The undisputed testimony showed that appellant tried to cash a check payable to his order and purporting to have been issued or drawn by T. E. Scoggins, an uncle of appellant, on the .First National Bank of Van Burén, Arkansas, where the uncle had a checking account. Appellant’s defense was that he cashed the check for Tom Darr upon representation that he had received it from T. E. Scoggins for labor.

Appellant testified that, several days before he cashed the check, Tom Darr asked him to do so, and he told Darr that, if the check was made payable to him, appellant, he would cash it; that, pursuant to request, he met Tom Darr at the depot and cashed the check, which was for $12.50; that he borrowed money from Carl Johnson with which to cash it.

There is a. conflict in the testimony as to whether appellant cashed the check for Tom Darr. Tom Darr testified that he did not get the check from T. E. Scoggins for labor; that he had not worked for him for a long time; that he never requested appellant to cash the check for him, and that appellant did not cash it.

(2) The evidence is sufficient to sustain the verdict.

T. E. Scoggins was a State witness. On cross-examination the attorney for appellant propounded the following interrogatory to him, to which he made partial response.

“Q. Had you talked-to Homer Scoggins with refer-ence to Tom Darr working for you before that?, A. Yes sir. He was at my house about Christmas, and stayed with me two nights, and I told him if he saw Darr” — At this juncture the State’s attorney objected to the question and answer, whereupon the attorney for appellant stated that the purpose in offering the testimony was to show that appellant had reason for believing that Darr had a right to have his uncle’s check for labor he had done for him. The court excluded the testimony and the testimony of appellant to tlie same effect, over the objection and exception of appellant.

. We are. unable to see any pertinence in the testimony. It is remote in the sense of being indirect. If it be conceded that appellant had been informed that Darr was going to work for T. R. Scoggins at some future time, this would not account for Darr having a forged check in his possession. Appellant admitted that the check was not written or signed by his uncle. . This fact should have put him on inquiry before he cashed and uttered the check. The evidence was not relevant, and the court properly excluded it. ,

No error appearing, the judgment is affirmed.


text:
    Johnson v. Garrett.
    Opinion delivered July 4, 1927.
    1. BROKERS — JURY question. — 'Whether owners employed plaintiffs to sell an oil lease held a question for the jury.
    2; Brokers — implied contract. — The contract whereby the owners of an oil lease employed another to sell the lease may be implied and need not.be expressed, either orally or in writing.
    3.' Appeal and error — conclusiveness op verdict. — A verdict of the jury under proper instructions based on conflicting testimony will not be disturbed on appeal.
    4. Brokers — compensation.' — A contract of employment to sell an. oil lease may be valid without specifying the amount of commission, the law implying that the broker was to receive a reasonable compensation.
    5. Brokers — right to commission.' — A broker who produced a purchaser who was to and did buy an oil lease for the price asked and on the terms required, held entitled to a commission.
    6. Brokers — commission not excessive, when. — Under evidence that 5 per cent, commission on the sale of oil and gas leases was customary, an award of $18,750 as a commission to brokers for the sale of an-oil lease for $375,000, which was $75,000 more than the seller had been previously offered, held not excessive.
    Appeal from Union Circuit Court, Second Division; W. A. Speer, Judge;
    affirmed.

      T. J. Ga/mghan, J. T. Sifford, J. E, Gcmghcm and Elbert Godwin, for appellant.

      Goodwin & Goodwin and Powell, Sniead & Knox, for appellee.
   Humphreys, J.

. Appellees, J. M. Garrett and Joe Modisett, doing 'business under tbe firm name of Garrett & Modisett, instituted tbis suit in tbe second division of tbe circuit court of Union County to recover $18,625 from appellants, D. N. Johnson, J. B. Hawley and W. H. Flani-gan, doing business under tbe firm name of Smackover Petroleum Corporation, as a commission for effecting an alleged sale of an oil and gas lease located on tbe southeast one-quarter of section 34, township 15 south, range 15 west, Ouachita County, Arkansas, to tbe Phillips Petroleum Company for $375,000. It was alleged, in substance, in tbe complaint that appellants employed appel-lees to sell said lease, that they effected a sale theréof to tbe Phillips Petroleum Company for $375,000 in cash, and that a reasonable value for tbe service performed was 5 per cent, on tbe amount- received.

Appellees filed an answer, denying tbe material allegations of tbe complaint.

Tbe cause was submitted upon tbe pleadings, testimony adduced by tbe respective parties and instructions of the court, which resulted in a verdict and consequent judgment in favor of appellees for $18,750, from which is tbis appeal.

At tbe conclusion of tbe testimony appellants requested a peremptory instruction, which the court refused to give, and now seek a reversal of tbe judgment on tbe ground that tbe court erred in refusing to instruct a verdict in their favor, contending:

First. That tbe undisputed evidence reflects that no contract of employment for tbe sale of tbe lease was entered into between tbe parties.

Second. If such a contract was entered into, appel-lees performed no substantial services for appellants therein.

(1). Appellees were employed by appellants to drill an oil w.ell to deep sand on the leased premises, and brought in a producing- well of 12,000 barrels daily. Early Sunday morning May 24, 1925, a short time after the well came in, appellees and I). N. Johnson drove to El Dorado in a car. Appellants were inexperienced in the development and handling of oil properties, and desired to sell the lease for as much as possible. They had been advised by appellees to let agents, or what they called “lease-hounds” alone, else they would get them into trouble.

J. M. Garrett testified that, on the way to El Dorado, D. N. Johnson told him that he wanted to sell the property, and asked Mr. Modisett and himself to see if they could get a buyer for it; that, Sunday, he took Bob Matder, who represented the Humble Oil & Refining-Company, to the well to check it up, and • introduced him to appellants, who made them an offer for the property Monday morning, May 25. Matder was then stopping at the Garrett Hotel, and, while appellants were in his room discussing the trade, witness saW and approached ‘W. E. Thompson, with whom he was acquainted, and who represented the Phillips Petroleum Company, and had a conversation with him about purchasing the property; that witness arranged to take Thompson to see appellants at 11 o’clock; that Mr. Modisett called Matder’s, room over the telephone and advised J. B. Hawley not to close the deal with him, that they had a better offer; that, when Mr. Hawley came down the stairs, witness said to him and Mr. Johnson, “I have a competent buyer for the property from whom we can get more money; you be at your cottage at 11 o ’clock and I will have a man out there to make you an offer on the property;” that, at 11 o’clock, witness took Thompson out to the cottage in his car and introduced him to appellants — none of them knew him; that they began negotiations which resulted later in the sale of the lease for $375,000 to the Phillips Petroleum Company; that they had offices in the First National Bank at El Dorado, and were making- lots of sales in Nevada County at that time, but did not know whether they had sold any leases in Ouachita County, and could not remember any particular sales they made; that he paid a brokerage tax to sell leases in El Dorado in 1924, but did not for 1925, because they incorporated in 1925, about June;l; that, after-their sale of the lease, appellants settled with -them for drilling the well, at which time nothing was. said about the commission for making the sale of the lease...

Joe Modisett testified that, on the way to El Dorado the morning after the well came in, Johnson told Garrett and himself to go ahead and see what we could get for the lease; that we knew more about the lease than they did, and Go go ahead and see some of the men when we got to town, as he wanted to sell the lease;” that witness-asked Thompson why he did not buy the property, at which time he called Mr. Hawley from Mr. Matder’s room and told him not to close the deal with the Humble Oil & Refining Company, because Thompson, the Phillips Petroleum Company man, was there; that he was at the home of appellant when Garrett brought Thompson and introduced him to them; that he never thereafter disavowed any intention to. claim a commission.. . :

D. N. Johnson-testified that, after the well came in, he told Garrett and Modisett on the way to El Dorado that they wanted to sell the lease, but that he did not know that they were brokers; that Matder made an offer Sunday, the 24th, for the Humble Oil & Refining Company,. which they refused; that nothing further was done until- Garrett brought Thompson, representative of the Phillips Petroleum Company, out to the. house where they lived; that was the first intimation he had that Garrett had anything to do with the trade, and did not know that Garrett was. acting* or representing -them as a broker in trying to sell the lease; that he did not know that Garrett was claiming to- be a broker in handling the deal until June 10, after the property was sold on May 27; that they settled Avith Garrett and Modisett' for drilling the well after the sale of the lease, and made no claim for a commission at that time, nor afterwards when he saw them, until G-arrett wrote him, on July 10; that, some time after receiving the letter, he had a conversation with them, in which Garrett said he thought they ought, to have something, hut, in a conversation with Modisett after the first conversation referred to, he said that he did not make his money that way, and disavowed any intention of claiming a commission; that it is true that Modisett telephoned to Hawley, while they were in Matder’s room, not to close the deal, but that he attached no importance to it, and broke off with Matder because he did not offer what they wanted.

W. E. Thompson testified that he was interested in buying the lease for the Phillips Petroleum Company, and inspected it on his own motion on Sunday morning, the 24th; that he returned to El Dorado and that, by inquiry, he ascertained that D. N. Johnson was the president of the Smackover Petroleum Corporation that owned the lease; that later in the day he visited and checked up some of the surrounding wells; that on Monday morning, the 25th, he went to the Garrett Hotel; met Jimmy Garrett, and learned from him that D. N. Johnson and J. 'B. Hawley were upstairs in the hotel on a deal with some one relative to the sale of the lease; that he would get in touch with appellants, and, if they wanted to sell their lease, he would let me know; that he arranged to meet Garrett at 12 o ’clock, at which time they met, and Garrett took him to the home of appellants and introduced him to them; that, on the way, he told him that one party who wanted to buy would pay him a commission, and wanted to know if I would allow him a commission if I bought; that I told him “no”; that Garrett took no part in the negotiations, and that he was not aware that Garrett was appellants’ agent; that, after talking the matter over and looking at the well again, he made appellants an offer, which they declined, making a counter-offer, which he accepted; that several days thereafter they closed the deal in accordance with their agreement.

A. B. Taylor testified that he was the collector of occupation taxes in E'l Dorado, and that J. M. Garrett paid no occupation tax for himself or his company in 1924, but did pay one as drilling contractor for himself and also for Garrett & Modisett for the last quarter of 1925.

W. H. Flannigan testified that he was present when Garrett brought Thompson to the house and introduced him to them, but that he did not know that Garrett was a broker or acting as agent for them; that he sent a telegram to Johnson advising a compromise of appellees’ claim, but Johnson refused to make any kind of a settlement; that when they settled with appellees for drilling the well they made no claim for a commission; that subsequently in a conversation with Modisett he disavowed any claim to a commission.

J. B. Hawley testified that Modisett telephoned him not to close the deal with Matder, but that he did not attach any importance to the matter; that he was present when Garrett brought Thompson to the house and introduced him to them, but he had no idea that Garrett was acting in the capacity of a broker.

Only enough evidence has been set out in this opinion to indicate that the testimony was conflicting relative to the employment of appellees by appellants to sell their lease for them.

The rule of law applicable to cases of this character was announced by this court in the case of Scott v. Patterson & Parker, 53 Ark. 49, 13 S. W. 419, as follows: “If a real estate agent employed to sell land introduces a purchaser to the seller, and, through such introduction, the sale is effected, he is entitled to his commission, although the sale is made by the owner. ’ ’

There is sufficient substantial evidence in the record to sustain the verdict and judgment under the rule thus announced, when it is remembered that a contract of employment may be implied and need not bo expressed either orally or in writing. Appellees testified that appellants requested them to procure a purchaser for their lease, saying* that appellees were experienced in the business, and that they were not. The undisputed testimony reveals that they procured and introduced a purchaser to appellants, who bought and paid them $375,000 in cash for the lease. •' Of course, in a way, appellants denied a contract of employment, hut their denial made the question of employment one of fact to he determined by the jury. The question of employment was submitted to the jury under correct instructions, hence appellants are bound by the verdict. This court never disturbs verdicts of juries rendered under proper instructions on conflicting testimony.

It was not necessary that the contract of employment should specify the amount of the commission. If there was an employment, and the jury found there was, the law implies that appellees were entitled to reasonable compensation. From what has been said, appellants are not correct in their contention that the undisputed evidence shows there was no contract of employment.

(2) The contention that appellees performed no services entitling them to a commission, even if there were a contract, is without merit.

. Appellees produced a purchaser who was not only willing to buy the lease for the price asked, and upon the terms required, but who actually purchased the lease from appellants for $375,000 in cash. They secured a purchaser who paid them $75,000 more than the first man they introduced to them and $175,000 more cash than their first prospect offered to. pay.

Appellants ’ last contention for a reversal of the judgment is that it is excessive. The undisputed evidence shows that five per cent, commission on sales of oil and gas leases, where the price does not exceed $375,000, is usual and customary. The fact that they procured a purchaser who- paid $75,000 more than they had been offered for the lease indicates that the fee recovered is not excessive.

No error appearing, the judgment-is affirmed.


text:
    Farris v. Bell.
    Opinion delivered July 4, 1927.
    1. Lost instruments — sufficiency of evidence. — In a suit to establish a lost deed, evidence of the execution to plaintiff of the deed claimed to have been lost must be clear, conclusive and satisfactory in order to warrant a reversal of the decree dismissing the complaint for want of- equity. .
    2. Lost instruments — evidence. — In determining whether a deed claimed to have been lost was in fact executed, the court may consider the duration of plaintiff’s possession of the land, its value, whether it was held adversely, and all the surrounding circumstances.
    3. Lost instruments — sufficiency of evidence. — In a suit to establish a lost deed, where plaintiff had possession of the property continuously for almost 30 years, and had paid taxes thereon, he is held entitled to have the deed restored under the evidence.
    Appeal from Ouachita Chancery Court, First Division; J. F. Stevens, Chancellor;
    reversed.

      II. E. Meelc and Powell, Smead & Knox, for appellant.
   Humphreys, J.

Appellant instituted suit against aippellee in the first division of the chancery court of Ouachita County to restore a lost deed to the SE.% section 26, township 15 south, range 15 west, in said county, alleged to have been executed in or about the year 1897, by Ida Bell and her husband, John Bell, to appellant on account of services rendered by appellant to Mrs. Bell’s father and his family, as well as to Mrs. Bell’s family. In addition to the allegations of the execution and loss of the deed, the continuous occupancy of the land and payment of the taxes, appellant alleged that appellee procured an affidavit from herself and daughter .on August 19, 1922, disavowing the ownership of the land upon representation that it was necessary to sign such an affidavit in order to invalidate an oil lease which appellant had made to H. C. Cade, which affidavit was recorded on the deed records of said county.

The prayer of the' complaint was for the cancellation of the affidavit and the restoration of the deed.

Appellee filed an answer, denying the material allegations of the complaint. She admitted that appellant and her daughter made the affidavit disavowing any interest in the land, but denied that it was procured through the misrepresentation that it was necessary for them to sign it in order to invalidate the lease appellant had made to H. C. Cade, and alleged that it was executed by appellant in order to clear the title of any claim she might assert on account of continued possession and the payment of taxes for a long period of years, so that appellee could make an oil lease thereon to John Seips, who had offered her $2,000 in cash and certain royalties for an oil lease on the forty.

The cause was submitted to the court upon the pleadings and testimony adduced by the respective parties, which resulted in a decree dismissing appellant’s complaint for the want of equity, from which is this appeal.

The following facts appear to be undisputed in the record: Appellant is a negro woman, about eighty years of age, who was for many years the family servant of Dr. A. P. Farris, who owned a large amount of land in said county. Dr. Farris was the father of several children, including Ida, who married J. F. Bell. Appellant was a servant in the Farris home when Ida was born, and was with his wife when his last daughter, Carrie, was born. Mrs.. Farris died when Carrie was only five months old, and Dr. Farris prevailed upon appellant to rear the baby girl by promising her a home forever. During Dr. Far-ris’ lifetime appellant occupied a place owned by him a mile from the forty-acre tract in question. The doctor agreed to convey her the forty upon which she was residing at the time of his death, but he died before he did so. After his death his lands were partitioned amongst his children, the forty upon which appellant resided being assigned to Lucian Farris, and the forty in question and the forty just north of it being assigned, with other lands, to appellee. After the lands were partitioned, appellant moved onto the forty-acre tract in question in the year 1897, by consent of appellee, where she and her family have continuously resided and upon which she has paid all of the taxes.

The testimony is conflicting relative to the issue of the execution of the deed and the purposes for which the affidavit was made. Appellant testified that she moved upon the forty-acre tract in question at the direction of Mrs. Ida Bell, in the' winter after the lands of Dr. Farris had been divided among his children, and that, during the time that she was making her first crop, Mr. Bell brought a deed to her for it, signed by Mrs. Ida Bell, J. F. Bell and Carrie Farris, who was about fifteen years old when she moved onto the forty; that the- deed was made by and signed before Joe F. Cook, and that it was filled out on a blank with ink; that she put the deed in the bottom of her trunk, where it remained for years and until it disappeared ; that she paid the taxes every year and wrapped the tax recéipts around the deed; that Mrs. Bell told her to keep the' taxes paid and. never to mortgage the land to any one; that she bought the forty-acre tract north of her forty from Mrs. Ida Bell and her husband, and conveyed it to her son, Lucian Farris ; that she gave some kind of an oil lease to IT..C. ¡Cade; that Mrs. Ida Bell told her to sign an affidavit so as to get H. C. Cade off the record, and she would lease the forty of John Seips for $2,000 and give her $1,000 and all the royalty, and make her a deed in the place of the one that was lost; that she signed the affidavit not knowing its contents, received the $1,000, but when Mrs. Bell tendered her a deed to the forty, it only conveyed a 1/32 royalty for the oil-, and that, upon advice of her son, she refused to accept- the deed, and brought this suit. -

Stella Arnold, a daughter of appellant, testified that she married about six years prior to the time she testified, and built a house upon the forty, in which she and her husband resided; that she lived upon the land with her mother nearly all her life, and was present and signed her mother’s name to the affidavit on the 19th day of August, 1922, without reading it, on representation that its purpose was to.get H. C. Cade-off the record.

Sam Farris,- a soil of appellant, 37 years of age, testified that he had resided at home with his mother most of the time, and had seen the deed from appellee and her husband to his mother many times, and that.it was.lost; that she kept it in her trunk; that Mr. Gray Rogerson, a white man, owned a forty adjoining his mother’s forty; that he was helping Mr. Rogerson build a division fence between the two forties, and Mr. Rogerson requested him to get the deed-so that he could be certain about the fence line; that he got the deed, and Mr. Rogerson examined it and found out what he wanted to, after which witness took the deed back and put it in the trunk; that the deed had been lost about ten years.

• Lucian Farris, another son of appellant, who was 49 years of age, testified that Mr. and Mrs. Bell conveyed the southwest quarter of the southeast quarter of said section, township and range to his mother after they had lived on the forty awhile; that it adjoined the forty occupied by Mr. and Mrs. Bell; that his mother kept the deed in her trunk, where he had seen it a hundred times; that in 1900 his mother purchased the forty north of her forty from Mr. and Mrs. Bell, and conveyed it to him in 1909 for having remained at home with her and having helped pay off the debts; that, when his mother conveyed his forty to him, he took the deed Mr. and Mrs. Bell gave his mother to his forty and his deed to his home and produced and attached them as exhibits to his testimony.

Gray Rogerson, a white man, who owned and resided upon a forty-acre tract adjoining the forty claimed by appellant, testified that he wanted to build a fence between the forty he owned and the forty upon which appellant and her husband resided; that appellant’s boy, Sam, was helping him, and he sent him after his father and the deed; that the boy returned with the deed, but said that his father was not at home; that his purpose was to see whether appellant owned the forty and to have an agreement about the fence line; that witness examined the deed particularly with reference to the description,, and knows that the southwest quarter. of the southeast quarter of said section, township and- range was described therein; that it could not have been a deed to the north of appellant, else it would not have joined his land; that the deed ivas acknowledged before Joe F. Cook.

Joe F. Cook testified that he lived in the neighborhood of the southwest quarter of the southeast quarter, section 26, township 15 south, range 15 west, in Ouachita County, from 1863, except a short time, until 1917, when he moved to Camden; that witness was justice of the peace for that township for about twenty years previous to 1906; that he was well acquainted with both appellant and appellee; that he was appointed one of tlie commissioners to divide Dr. Farris’ land between his heirs, and that appellant and her husband were living on the forty-acre tract which was assigned to Lucian Far-ris in the partition; that Lucian was not willing for them to remain on the forty assigned to him, so they moved onto the southwest quarter of the southeast quarter of section 26, township 15 south, range 15 west,' which had been assigned with their lands to appellee;-that, some time after they moved onto that forty, Mrs. Ida Bell and her husband called him to their home and stated that appellant had been promised a home by Dr. Farris, and that they wanted her to live as close to them as possible, and asked him to prepare a deed from them to appellant covering that forty, stating that it had a house upon it and some of the land was cleared; that the forty they instructed me to make a deed to was adjoining the forty upon which they lived themselves; that witness filled out a blank deed, describing the forty referred to, which was signed and acknowledged by Mr. and Mrs. Bell; that appellant was present at the time 'the deed was written, and possibly had some of her children with her; that he has no distinct recollection now of the particular description he inserted in the deed, further thhn remembering that the forty was north of the forty upon which Mrs. Bell resides, and that, according to the plat before him, the desoription was- as given above; that he is certain that Mrs. Bell directed him to make a deed to appellant to the forty right north of her home; that in the conversation one reason assigned by Mrs. Bell for wanting -to make the deed to appellant was the fact that she had raised her sister; that witness'is able to tell from the map that the deed made at that time was to the northwest quarter of the southeast quartér of said section, township and range.

Mrs. Ida Bell, appellee herein, testified that at the time her father, Dr. Farris,-died, appellant was living on a forty that was given in the partition of the lands to witness’ half brother, Lucian Farris;-that, after she was dispossessed as a result of the division of the lands, appellant moved into a little house on witness’ land, which is the subject-matter of this lawsuit; that witness told appellant she could move on the forty and live there all of her life if she would pay the taxes upon it; that appellant 'bought the forty just north of the forty upon which she lived, and subsequently conveyed it to her son, Lucian; that she conveyed the north forty to appellant in 1900, but never at any time conveyed any other land to •her; that Mr. Cook never wrote any other deed than the one in 1900 from them to appellant for the forty north of where appellant resided; that appellee never made a deed to the southwest quarter of the southeast quarter of said section, township and range to appellant until after oil was discovered in Ouachita County, which deed appellant refused to accept; that oil was discovered in Ouachita County in 1922; that a negro by the name of II. C. Cade procured some kind of an option from appellant on the southwest, quarter of the southeast quarter of said section, township and range, and proposed to witness that, if she could straighten out the option and get appellant as much as $1,000 in cash and deed her the land, witness might have the royalty; that witness accepted •the proposition, and agreed in addition to give her a 1/32 royalty, provided she would raise no question or trouble about the title to the land; that, pursuant to the arrangement, she sold a lease to John Seip for $2,000 in cash and reserved the nsnal royalty; that, before Seip would buy the oil lease, he required that appellant make an affidavit stating that she had no interest in the land; that she had paid the taxes thereon in lieu of rent to appellee; that she had nothing" to do with the preparation or the execution of the affidavit; that, after Mr. Seip accepted the lease and paid witness $2,000, she divided it with appellant and tendered her a deed to the land and 1/32 of the royalty, which she refused.

■ John Seip testified that he discovered that H. 0. Cade had obtained an option for about three years from appellant on the southwest quarter of the southeast quarter of said section, township and range, but that the-title to said land was in Mrs. Bell; that, after making that discovery, he negotiated with Mrs. Bell for several days for a lease on the land; that he finally paid her $2,000 cash and certain oil royalties for the lease, on condition that appellant make an affidavit that she had no interest in the land and that she had paid the taxes on the land in lieu of rent to Mrs. Bell; that appellant and appellee had some kind of trade between themselves, of which he was not cognizant; that he does not remember the particulars with reference to the preparation of the affidavit nor whether he received it from appellant or appellee; that-he was in the bank when Mrs. Bell paid appellant $1,000, and remembers that she accepted it contrary to the advice of her son.

The affidavit referred to by the several witnesses is as follows: “Louis Farris and Stella Arnold state on oath: We are over the age of twenty-one years, resident of Ouachita County, Arkansas, and each have lived in said county and State for more than 25 years, and are well acquainted with the southwest quarter of the southeast quarter section 26, township 15 south, range 15 west, located in Ouachita County, Arkansas. We have known this land for at least 25 years. During that time we have known it by it being the property of and belonging to John Bell and his wife, Ida. Bell. We have lived upon this land for a number of years, as tenants of John Bell and Mrs. Ida Bell. We have never heard any one make claim to this property except them. During the time we have lived upon said land we have always paid rentals to Mrs. Ida Bell, and we recognize the land as being her property. It is our understanding that she has paid all taxes assessed against this land for several years past.

“We have no interest in the purposes for which this affidavit is made. ’ ’

In order for appellants to obtain a reversal of the decree the record must reflect clear, conclusive and satisfactory proof that appellee executed the deed to her, conveying the southwest quarter of the southeast quarter, section 26, township 15 south, range 15 west in said county, which she lost. Jacks v. Wooten, 152 Ark. 515, 238 S. W. 784; Wasson v. Walker, 158 Ark. 4, 249 S. W. 29; Erwin v. Kerrin, 169 Ark. 183, 274 S. W. 2; Langston v. Hughes, 170 Ark. 272, 280 S. W. 374. In determining whether the deed claimed to have been lost was executed, the duration of the possession of the land, its value, whether, held adversely, and all the surrounding circumstances, may be considered by the court. Carpenter v. Jones, 76 Ark. 163, 88 S. W. 871; Jacks v. Wooten, 152 Ark. 515, 238 S. W. 784.

Tested by these rules we think the decree is contrary to a clear preponderance of the testimony. • The testimony of the parties bearing upon the execution of the deed is in irreconcilable conflict, but appellant is corroborated by her daughter, two sons and two white men Avho have no interest whatever in the result of the suit. Gray Rogerson examined the deed particularly with reference to the description, and says he cannot be mistaken because the forty described in the deed was adjoining his land, and had the description covered the north forty it would not have joined his land. Joe A. Cook was the justice of the peace in the township, and testified just as positively as one well could that the description in the deed was the southwest quarter of the southeast quarter of said section, township and range. He based his testimony solely upon the maps he had before him and the location of the said forty with reference to the forty where Mrs. Bell herself lived. He testified that Mrs. Bell assigned as a reason for making the cleed to appellant, the promise her father had made to her, the services she had rendered the family, especially in rearing the youngest child, and her desire to have her close to her so that she could render services to the family in the future. The great length of time, however, appellant occupied the land and paid the taxes thereon is the most potent circumstance corroborating appellant’s testimony to the effect that the land was conveyed to her. We attach little importance to the affidavit made by appellant, as the facts it purports to state are untrue according to the undisputed evidence. Appellant never paid- any rent to appellee, and nothing occurred between them during her occupancy of twenty-eight years that indicated the relationship of landlord and tenant. Appellee never-paid any of the taxes after appellant moved upon the land. Both appellee and John Seip remember little about who prepared the affidavit and who procured the signature of appellant thereto. They rather disclaim any immediate connection with it. Appellant and' her daughter say that it was signed hurriedly under misapprehension on their part of its contents.

On account of the error indicated the judgment is reversed, and the cause is remanded with directions to grant the prayer of the complaint.


author: Kirby, J.,

text:
    Security Mortgage Company v. Herron.
    Opinion delivered July 4, 1927.
    1. DRAINS — notice to owner. — Where, in proceeding under Acts 1917, p. 417, to enforce a delinquent assessment in a drainage district, the actual legal owner in possession was designated in a notice of the proceeding as the “supposed owner,” a sale of the land thereunder was valid, although the name of a first mortgagee was not included as a supposed owner.
    2. Drains — validity op sale to second mortgagee. — A sale of land for delinquent drainage district assessments to a second mortgagee held valid though a first mortgagee was thereby deprived of its prior lien, where the first mortgagee was not misled into believing that the purchase was for its benefit also.
    3. Drains — sale op lands for delinquent assessments. — -It was within the power of the Legislature to provide, by Acts 1917, p. 417, for the sale of lands by drainage .district for delinquent assessments.
    4. Drains — redemption prom sale — repeal op statute. — Acts 1917, p. 417, providing for the organization, operation and maintenance of a drainage district, being complete in itself, and providing for redemption within one year, repeals Acts 1915, p. 123, providing ifor redemption within five years of lands sold for such delinquent taxes, in so far as the prior act applies to such district.
    5. Drains — redemption by second mortgagee. — The holder of a second mortgage was under no obligation to the holder of a first mortgage to redeem lands in the mortgagor’s possession from the sale of delinquent drainage taxes, notwithstanding , the owner was bound to pay such taxes by the terms of the first mortgage.
    Appeal from Clark Chancery Court; G. E. Johnson, Chancellor;
    affirmed.
    STATEMENT BY THE COURT.
    The appellant brought this suit, as mortgagee, to redeem from the sale by the Ross Drainage District, through the chancery court, certain lands sold for delinquent drainage taxes to D. and J. H. McMillan, stockholders in the Saunders Mercantile Company, for which they were acting in making the purchases.
    Will Herron, the mortgagor, agreed to keep all taxes and special assessments upon the lands mortgaged paid, hut failed to do so, and, as owner of the legal title, failed to redeem upon the sale thereof for delinquent taxes. Prior to the expiration of the time for redemption by the owner of the legal title, Will- Herron, the mortgagor and wife, conveyed the lands by deed to the Saunders Mercantile Company in payment of a second mortgage to that company. The mortgagors failed to redeem within the time allowed, and such failure, it was alleged, was with the intention to allow the time for redemption, to expire and thereby defeat the lien of appellant, the Security Mortgage Company, under its first mortgage, and piit the fee title in the Saunders Mercantile Company, holders of the second mortgage.
    Plaintiff alleged the sale of the lands for the delinquent drainage taxes without any notice to it; that they were sold to D. and J. H. McMillan for the benefit of the Saunders Mercantile Company, in which they were partners, and, through the connivance of said company and said parties, purchasers of the lands, who were stockholders in the corporation, neither the mortgagor nor the corporation, as holders of the legal title, redeemed said lands, as provided by the act creating the drainage district, and the failure to do so was “for the purpose of defeating the mortgage given to. the Security Mortgage Company, as herein alleged, and to vest the title, free of said lien, in said D. McMillan and J. H. McMillan, for the benefit of said Saunders Mercantile Company, a corporation; and that they are now trustees ex maleficio, so far as-the title to said lands is concerned, and the plaintiffs are entitled to redeem said lands from said sale for drainage taxes.” Alleged further that it-was entitled to redeem the lands, under the provisions of act 42 of the Acts of 1915, within five years from the sale, and offered to pay the amount necessary therefor when informed of it. Also alleged it had paid the assessments on the lands, after the sale to D. McMillan, amounting to $137, to the Boss Drainage District, and the State and county taxes for the year 1922, amounting to $32.09 ; that, if the court should hold that they were not allowed to redeem from the sale for the delinquent assessment due to the Ross Drainage District, they were entitled to recover the amount of tlie taxes paid, under their mortgage,. and prayed judgment therefor.
    The mortgage, which was made an exhibit to the complaint, contained a clause providing that, during the time of its continuance, the mortgagors ‘ ‘ shall at all times keep the State, county and city taxes and assessments for local improvements and other purposes fully paid, as required by law.”
    The parties answered denying all the allegations of the complaint, and on December 9, 1923, filed a demurrer to the complaint, which was sustained, and, plaintiff declining to plead further, the cause was dismissed for want of equity.
    On the amendment to plaintiff’s complaint, filed on the 4th day of October, 1926, and from the admissions of the McMillans, the court found that the plaintiff was entitled to recover from them, for the drainage and other taxes paid, $169.09, declaring same a lien upon the land, and ordered a sale for the satisfaction thereof, if not paid within 15 days, and adjudged the costs against the plaintiff.
    The appeal is prosecuted by the mortgage company from the decree dismissing its complaint.

      Gustavus G. Pope, for appellant.

      McMillan & McMillan, for appellee.
   Kirby, J.,

(after stating the facts). The act under which the drainage district was organized, special act No. 93 of 1917, provides how the delinquent assessment shall be collected by suit brought for the purpose, and that “proceedings and decrees shall be in the nature of proceedings in rem,” provides for the giving of notice of the pendency of the suit and the form of it, directs how the proceedings shall be conducted, about the decree and the sale and the making of the deed by the commissioner, and provides that “all deeds made by the commissioner, after the report of sale made bv him, shall have been duly approved as required for judicial sales, shall have the effect of vesting the title of owners of said lands or said property in the purchaser, in fee simple.”

Section 7 provides tire manner of redemption of the lands from such sale hy the owner or any person interested therein within one year after the date of said sale.

Section 8 provides that the lien for the assessments upon the lands shall he paramount to the rights- of persons owning or having an interest therein; while section 21 gives such lien priority oyer the lien of the State, county, road and school district taxes,

There is.no complaint of any defect in the organization of the district or irregularity in the levy of taxes or the sale of the lands for the payment thereof. Plaintiff only contends that the lands were sold for taxes upon constructive service only, in a proceeding in which it was not a party, and insists that it is entitled to redeem from such sale within the time allowed hy act 43 of 1915, five years from the date of the sale, and also that the Saunders Mercantile Company should have redeemed the lands from the tax sale, and cannot take advantage of the purchase thereof hy the McMillans for its benefit, not having done so.

The lands having been sold in accordance with the provisions of the special act creating the district, upon the .kind of notice therein required given, there appears to he no reason why the sale, should not be held valid. In the publication of the notice Herron, who was the owner and in possession thereof, was put into the notice, as the “supposed owner,” in accordance with the provisions of. the act, and certainly it was not necessary to include the name of the first mortgagee, under the circumstances, as the “supposed owner” of the lands.

The sale of the lands appears to have been made in conformance with the provisions of the law as to the notice required given, and the Legislature had the power to make such a law, as has been frequently held. Vietz v. Road Imp. Dist., 139 Ark. 572, 214 S. W. 50.

The holding in Simpson v. Reinman, 146 Ark. 417, 227 S. W. 15, upon which the 'appellant appears to rely,-in no wise affects the authority of the above case. In the Rein-man case a person was named as the “supposed owner” who had-no claim or interest in the land, while the'true owner was in the actual possession thereof, a condition altogether different from that obtaining here, where the true owner wias in possession and named, as the “supposed owner.”

Neither do we think there is any merit in appellant’s contention that special act number 92 of 1917, under which the drainage district was created, the terms of which were complete, providing for its organization, operation and maintenance, did not affect or change the time provided in the general act No. 43 of 1915 for the redemption of lands sold for such delinquent taxes, since there is no express repealing clause. It is true that, under that act, the period for redemption from sales of delinquent lands in improvement districts is five years, and any person is allowed to redeem who would have been permitted to redeem if the sale had been made by the collector for State and county taxes. The provisions of this special act complete in itself, covering the whole subject-matter, later passed 'by the Legislature and in direct conflict with the terms of the general act mentioned relative to the time allowed for redemption and the. persons permitted to redeem, and being the last expression of the legislative will, having a particular purpose, is exclusive and necessarily repeals by implication, those prior statutes, general or special, in conflict with its provisions. Boaz v. Coates, 114 Ark. 23, 169 S. W. 312; DeQueen v. Fenton, 100 Ark. 507, 140 S. W. 716; Hampton v. Hickey, 88 Ark. 327, 114 S. W. 707.

The holder of the second mortgage was under no obligation to the holder of the first mortgage to redeem the lands in possession of the mortgagor from their sale for delinquent taxes, notwithstanding the owner was bound to the payment of such taxes by the terms of the first mórtgage. The appellant, under his mortgage, could have paid the taxes before the lands were sold as delinquent, and charged them against the mortgagor, and it could have redeemed the lands in the manner provided by the act from the tax sale within the time allowed therefor after such sale.

Appellant makes no showing of having’ been prevented from either paying the taxes or redeeming the lands by any conduct of the holder of the second mortgage calculated to lull him into- security in the belief that such taxes would be paid or redemption would be made for his benefit.

We find no error in the record, and the decree is affirmed.


author: Kirby, J.

text:
    Lockhart v. Lyons.
    Opinion delivered July 4, 1927.
    Wills — rule of construction. — The paramount rule in the construction of wills is to ascertain the intention of the testator from the language used, giving force and meaning to each clause in the entire instrument.
    Wills — partial intestacy. — Wills are to be so interpreted as to avoid partial intestacy, unless the language compels a different construction.
    Wills — CONSTRUCTION of testament. — A devise of' all of the testator’s lands west of Cadron creek in Conway County held to embrace, a part of the land which was west of that creek ■but not in Conway County, where the testator otherwise disposed of all of his lands east of the creek and apparently intended to dispose of his entire estaté.
    Wills — effect of ratification of testator’s deeds. — An agreement by certain of testator’s children, ratifying deeds made during deceased’s lifetime conveying to them lands devised by his will,-held.to show that they understood that they had received all the land to which they would be entitled under the will..
    Wills: — intention of testator. — The fact that the testator’s widow and children by his ¡second marriage continued in possession without objection by children of a former marriage held evidence that the parties understood the testator’s intention to devise by imperfect description in the will all the lands occupied by the widow and her children.
    - Appeal from Faulkner Chancery Court; W. E. Atkinson-, Chancellor;
    reversed.

      Echoard Gordon and J. G. & Wm. J. Clark, for appellant.

      R. W. Robins; for appellee.
   Kirby, J.

This suit involves the title to certain lands devised 'by John Mallett of Conway County, Arkansas, and the construction of his will in making the disposition thereof.

Appellees purchased or leased a portion of same from the, children and heirs of the said testator by his first wife, and they brought suit therefor against the widow and children of his last marriage, finally joining the children of the first marriage and the suit proceeding as one for partition. From the decree adjudging all the children of both marriages heirs and cotenants, and partitioning the lands, this appeal is prosecuted.

Clause 2 of the will provides: “After payment of my said debts and funeral expenses, I give to my heirs by my first wife, Elizabeth, all of my land in Faulkner County, Arkansas, east of Cadron Creek. All of my land situated on the Avest side of the Cadron Creek, in Conway County, Arkansas, to my present Avife, F. T. Mallett, and her children by me to share equally, my Avife to have full control of said property so' long as she remains my widow.” It then provides that the Avife forfeit all said property if she marries again, and the said lands be divided equally among the children by her, and, at the death of the testator, if there be any surplus of personal property, same shall be divided ‘ ‘ with both sets of children, each one sharing equally.”

The lands in controversy, “all. that part of- the southeast quarter of section 34 (34) in toAvnship 8 (8) north, range 14 (14) west, that lies north and west of north Cadron Creek. All that part of the south half of the southwest quarter of section 34 (34), in township 8 (8) north, range 14 (14) Avest, that lies north-and west of North Cadron Creek,” all lie north and Avest. of Cadron Creek, but are not in Conway County.

After the Avill was made, the testator by deed conveyed to the sons of his first marriage, requiring them to pay to their sisters a proportionate value to make the division equal, the lands that had been devised to the children by his first wife in the will.

When the will was offered for probate, the children of the first marriage filed with the probate judge an agreement ratifying the will, showing the conveyance of the lands devised in the will to them by the testator in his lifetime, as follows: * * * “We further ratify and affirm the deeds that the said John Mallett made in his lifetime to the following children: J. L. Mallett, J. P. Mallett, J. E. Mallett and S. E. Mallett, conveying to said children their part of his real estate, which deeds were executed after the will was made. Said deeds conveying to said children all the lands of said John Mallett in Faulkner County, Arkansas, lying east of Cadron Creek.” This was signed by all the older set of heirs except Sallie Smith, who made an affidavit that she was willing to accept the will offered as the will of her father, and that the same be probated.

The testimony shows that not much of the lands north and west of Cadron Creek, devised to the younger set of heirs, was in cultivation, as most of it was hilly and broken, not well adapted to agriculture.

The testimony shows also that the bottom lands granted to the older set of heirs were about of equal value, many witnesses testified they were of greater value than the hilly lands, although some witnesses thought the latter were of more value. The widow and the younger set of children lived on the lands devised to them, and traded around among themselves, paying the taxes thereon, and had possession thereof, without any claim of ownership by any of the older set of heirs, until after their conveyance of the site for the store to the Lyons, appellees, to whom the appellants had refused to rent or sell any of the lands.

Appellants’ contention that the chancellor erred in his construction of the will holding that the testator did not dispose of his entire estate, but died intestate as to the lands in controversy, is right, and must be sustained.

The true rule in the construction of wills, which can he said to be paramount, is to ascertain or arrive at the intention of the testator from the language used, giving consideration, force and meaning to each clause in the entire instrument. Campbell v. Campbell, 13 Ark. 513; Booe v. Vinson, 104 Ark. 439, 149 S. W. 524; Moore v. Avery, 146 Ark. 193, 225 S. W. 599; Norris v. Johnson, 151 Ark. 189, 235 S. W. 804; LeFlore v. Handlin, 153 Ark. 421, 240 S. W. 712; Gregory v. Welch, 90 Ark. 152, 118 S. W. 404.

A testator is presumed to intend to dispose of his entire estate, and it must be borne in mind, in the construction of wills, that they are to be so interpreted as to avoid partial intestacy, unless the language compels a different construction. Booe v. Vinson, 104 Ark. 439, 149 S. W. 524; Badgett v. Badgelt, 115 Ark. 9, 170 S. W. 484; Gibbons v. Ward, 115 Ark. 184, 171 S. W. 90.

It is manifest from the provisions of the will, the whole instrument considered, that it was the intention of the testator to dispose of' all' his estate, and the chancellor erred in holding otherwise and that he died intestate as to the particular lands in controversy, which, although they were situated on the north and west side of Cadron Creek, were not in Conway County, the creek not being the county line through these lands.

There is no doubt about the intention to give to the testator’s heirs, children by his first wife, all of his lands in Faulkner County east of Cadron Creek. The creek is- the county line between the counties through certain of the lands. All the parties at interest understood this to be the case, and the testator, before his death, made deeds conveying these same lands, described in the will, to the sons of his first marriage, requiring them to pay to his daughters' by said marriage, their sisters, an amount of money equal to the value of the lands each would have had had the land itself been divided among them all. These children and heirs, by their written agreement “ratifying the will” and consenting to its probation, without notice, as the last will and testament of their father, John Mallett, stated they accepted its provisions and ratified and affirmed the devises therein contained, and “we further ratify and affirm the deeds that the said John Mallett made in his lifetime to the following children”: the sons of the first marriag*e, naming them, * * * “conveying to the said children their part of his real estate, which deeds were executed after the will was made. Said deeds conveying to said children all the lands of said John Mallett in Faulkner County, Arkansas, lying east of Cadron Creek. ’ ’ This ratification agreement was signed by all the children of the first marriage, except Sallie Smith, whose affidavit was filed therewith, and it recites that' the deeds from the testator in his lifetime were made to the sons, naming them, “conveying to .said children their part of his real estate, which deeds were executed after the will was made,” and the undisputed testimony shows that these grantees were required to pay to their sisters, the other children of the first marriage, an amount of money equal to their share of the lands so conveyed, as if they had been conveyed to them all.

This shows that the testator and his heirs, the children of the first marriage, all understood that they were receiving and that the testator had distributed to them, in his lifetime, _ all the lands that were proposed to be devised to them in the will.

The fact that the younger set of heirs and the widow continued in possession of all the lands devised to them by the testator, north and west of Cadron Creek, upon which they were living at the death of the testator, without any objection on the part of the children of the first marriage, who had received their distribution of the father ’s estate before his death, except an occasional sporadic complaint, that is but recently attempted- to be made- a claim of right to a division of these lands, also shows that all the parties understood the testator’s intention in making the devises, and this could be determined from extrinsic evidence, if it were necessary to resort to such evidence to discover the intention of the testator, which does not seem to be the case here. Eagle v. Oldham, 116 Ark. 565, 174 S. W. 1176, 1199.

It follows that the chancellor erred in the construetion of the will, and his finding that the older set of heirs had not acquiesced in its proper construction by their written statement of it and had been, making a claim of right to a division of the lands in controversy, which they claimed undisposed. of by the will, as heirs of the testator, is clearly against the preponderance of the testimony. It follows that the decree must be reversed, and the cause remanded ‘with directions to enter a decree quieting the title of appellants to the said lands and canceling the lease or conveyance of any part thereof by the said older set of heirs, appellees, as a cloud on the title of appellants, and for all further necessary proceedings therefor in accordance with the principles of equity and not inconsistent with this opinion. It is so ordered.


text:
    Standard Pipe Line Company, Inc., v. Dillon.
    Opinion delivered July 4, 1927.
    1. MASTER AND SERVANT — NEGLIGENCE OP MASTER. — In an action for the death of an employee of the defendant company engaged' in laying a pipe line, held that the evidence warranted the jury in 'finding that the company’s act, in raising a pipe line heavily charged with oiil and gas, which exploded, covering the employee with oil, was negligence.
    2. - Master and servant — proximate cause of pneumonia. — In an action'for the death -of an employee of a pipe line company, whether the drenching of the employee with oil negligently caused to be raised was the proximate cause of pneumonia by the employee, from which he died, held for the jury.
    3. Negligence — proximate cause. — Whether defendant’s negligence was the proximate cause of the injury sued for is ordinarily a question to be determined by the jury.
    4. Negligence — proximate cause. — To warrant a finding that negligence was the proximate cause of the injury, it is not necessary that the particular injury should have been foreseen; if the act or omission is one which the defendant, in the exercise of, ordinary care, ought to have anticipated as likely to result in the injury o-f others, it is liable for an injury proximately resulting therefrom, though it might not have foreseen the particular injury which did occur.
    Appeal from Nevada Circuit Court; James II. McCollum, Judge;
    affirmed.

      T. M. Milling, Gaughcm & Sifford and Don- W. Harrell, for appellant.

      Huey P. Long and William F. Denman, for appellee.
   Kirby, J.

This is an action for damages brought by appellee, as administratrix of the estate of Henry Dillon, against the Standard Pipe Line Company, Inc., for causing the death of her husband, Henry Dillon, by the carelessness and negligence of said company by raising or causing to be raised a pipe line heavily charged with oil and gas, which exploded and broke, the oil striking the deceased with violence, knocking him down and covering him, with the result that he developed pneumonia, from which he died.

Deceased was in the employ of the appellant company as water carrier, on or about the 11th day of May, 1925, at or near a village known as Cross Roads, in Union County, Arkansas, his duty being to carry water to the crew of the appellant engaged in constructing a pipe line near there. At the time of the injury the crew was engaged in laying the 10-inch pipe line under and beneath a 4-inch pipe line owned by the Lion Oil & Refining Company, and it was alleged that said crew, while so engaged, negligently, carelessly and recklessly raised said pipe of the Lion Oil & Refining- Company, which was heavily charged with oil and gas, causing same to burst and explode and drench the deceased with oil, from which he later developed pneumonia, and died on the 25th day of May.

The appellant company denied all the allegations of negligence and that the deceased was injured by the oil violently escaping from the burst pipe, and that pneumonia was developed on that account, and any liability for causing the death of deceased; pleaded assumed risk, and that the death resulted from natural causes, for which it was in no wise responsible.

Appellant insists for reversal that it was not guilty of negligence in raising the pipe line of the Lion Oil & Befining Company, and that the bursting of the pipe line and the drenching the appellee’s intestate with oil therefrom was not the cause of the deceased contracting pneumonia, from which he died.

The pipe line at the place was being laid in a ditch full of water, and, according to the testimony of the foreman of appellant, in charge of the work, the small live ' pipe line, on top of the ground, was raised high enough to put the 10-inch pipe under it in order to make the connections above the water, where they could be seen. It was the custom to lay the pipe line being constructed by digging a trench or ditch deep enough to carry it under the other pipe lines, already constructed, which were also raised at times to permit construction of new lines, it being customary to put the new lines under the lines already laid.

The superintendent stated that, if the ditch had not been full of water, the pipe would have been connected in the ditch without raising the pipe line on the surface.

The jury might have - found that there was negligence, under the circumstances, in lifting the surface line, carrying oil under a 400-pound pressure, high enough to connect the larger pipe line above the water in the ditch, but for which, of course, it would not have been necessary to raise the live line so high, nor at all.

. There was some testimony tending to show that the pipe line could have been raised without danger of breaking from strain and vibration, if it were not in operation, but it was not the custom to ask operators of other lines to cut off the power during the crossing of the new line, and, of course, the builder of the new line could not stop the operation of a line not belonging to it.

Even though it be conceded that appellant’s servants used due care in the raising of the pipe line, it does not follow that there was no negligence in raising it to the height necessary to connect the 10-inch line above the surface of the water in the filled ditch, nor in raising it at all, since, but for trying to make the connection with the ditch full of water, there had been plenty of clear space, as was intended in the digging of the ditch, to make the connection without raising the live pipe on the surface.

Neither can we say that the drenching of the deceased with the oil from the pipe negligently caused to be raised could not have been the proximate cause of the alleged development of the pneumonia, from which the injured employee died. The pressure was strong in the pipe, and one witness testified that the stream of oil, when the pipe broke, knocked the deceased down and covered him with the oil, although the testimony on this point is somewhat in conflict, and there is conflict also as to the time deceased remained in his oil-drenched clothing before he was able to get back to his room and change his clothing, as he was permitted to do immediately after the occurrence.

The physician treating him at the time of his death said it was caused by pneumonia following flu. Some of the expert witnesses testified that the wetting or drenching of the deceased with the oil would not have caused the development of pneumonia, but for germs already in his system, while others thought it would not have caused it at all. Other physicians testified that they would attribute the development of pneumonia, afterwards, to the condition produced by the oil escaping from the broken pipe, one saying that it was especially calculated to do so, because of the closing of the pores of the skin by the envelopment of the body in the crude oil.

Under the circumstances we cannot say that the verdict is not supported by substantial testimony, nor, as a matter of law, that the jury, the question being one ordinarily for its determination, was not warranted in finding the negligence the proximate cause of the injury. While it is generally held that, in order to warrant a finding that negligence is the proximate cause of an injury, it must appear that the injury was the natural and probable consequence of the negligent or wrongful act, and that it ought to have been foreseen in the light of attending circumstances. Still it is not necessary that the particular injury should have been foreseen, but, if the act or omission' is one which the party, ought, in the exercise of ordinary care, to have anticipated as likely to result in the injury of others, then he is liable for any injury proximately resulting therefrom, although he might not have foreseen the particular injury which did occur. Pulaski Gas Light Co. v. McClintock, 97 Ark. 576, 134 S. W. 1189, 1199, 32 L. R. A. (N. S.) 825; Morgan v. Cockrell, 30 L. R. 407, 294 S. W. 44; and Mid-Continent Life Ins. Co. v. Chappell, post p. 712.

We find no prejudicial error in the record, and the judgment is affirmed.


text:
    Mid-Continent Life Insurance Company v. Chappell.
    Opinion delivered May 16, 1927.
    1. Insurance — accident policy — blow as cause op appendicitis.— In a suit on an accident policy in which it was claimed that appendicitis resulted from a blow on the right side of plaintiff’s abdomen, .suffered while he was cranking a car, a finding that the blow caused the appendicitis will he sustained where the medical testimony was conflicting as to whether the blow caused the appendicitis.
    2. Insurance — instruction as to recovery for total disability.— Where, in an action on an accident policy, the evidence showed that appendicitis developed two day’s after the alleged injury, and a jury could have'found that insured was totally disabled from performing any duty from the date of the injury, it was not error to refuse an instruction that the insured could not. recover for total disability caused by appendicitis developing two days after the accident, where there was no provision in the policy requiring that the total disability must result and continue from the date of the accident.

      Appeal from Yell Circuit Court; J. T. Bulloch, Judge;
    affirmed.

      Rays, Priddy & Rorex, for appellant.

      Lewis M. Robinson, for appellee.
   Kirby, J.

Appellant bring-s this appeal from a judgment recovered ag’ainst it by appellee upon an accident policy for the sum of $212.50, the amount sued for, and interest, penalty, and $50 attorney’s fees.

It is claimed for reversal that the verdict is not supported by the testimony and that the court erred in refusing to give its instruction No. 1.

From the testimony it appears that appellee was returning from a trip in Oklahoma in a Ford car with his family, and stopped on his way home on July 23,1925, in Fort Smith, at the home of his brother-in-law. About 2 or 3 o’clock in the afternoon he took his own and the children of his brother-in-law for a ride, crossing the free bridge into Oklahoma.

About 5 o ’clock he had car trouble, and had to crank the car. It back-fired and jerked, and threw him on the radiator, and the crank struck him on the right side of the abdomen. Within 20 or 30 minutes he was able to crank the car and return to Fort Smith, where he stayed that night, and had no doctor attending him. The next day, with the assistance of his wife, he drove the car from Fort Smith to. his home in Dardanelle, drove down town from his residence, bought some groceries, went to his barber shop, and returned home and ate a little supper. About 8 o’clock on that evening of July 24, after supper, he became unconscious, and remembered nothing further until he found himself in the hospital the next evening, where an operation was performed for acute appendicitis. He was in the hospital 21 days, and totally disabled for 30 to 31 days after leaving the hospital, and went back to work on September 14.

The operating physician testified that the rupture was from a pns formation; he also said the condition was produced by trauma or injury, that he knew of the lick or accident before the operation, and that the pns causing the rupture could have formed within 48 hours after the blow was received; also that 10 cases out of every 152 of appendicitis are caused directly from a bruise or lifting.

Other physicians testified — one that it was not possible for sufficient pus to form to rupture the appendix within 48 hours after the injury was received, unless it was already infected; the other was doubtful about it.

Appellant insists that the judgment is hot supported by the testimony; that it was physically impossible for the insured to have been injured as he claimed to have been, and for such injury to have caused the appendicitis.

The .jury found, however, from the testimony that the appellee was struck in the side by the crank, when the engine back-fired, while he was cranking the car, not an impossible occurrence; and the physician who operated successfully removing the ruptured appendix knew of the injury, and -said it caused the acute appendicitis, and that the appendix was long and extended down over the brim of the pelvis, being’ a factor in causing the appendicitis to result from the trauma. One of the other physicians said it was not possible for it to do so, and the third was doubtful, inclining to the view that the injury could not have caused formation of the pus, rupturing the appendix, -within the time.

We cannot say therefore that the verdict is not supported by substantial testimony, nor, when medical men differ about the matter, that it is contrary to natural or scientific principles, or that it has been demonstrated that the verdict is based upon what is untrue and what could not be true.

No error was committed in refusing to give requested instruction No. 1, telling the jury that the insured could not recover for total disability caused by appendicitis developing two days after tbe accident, if there was an accident. There is no provision in the policy herein requiring that the total disability must result and continue from the date of the accident, as was the case in Southern Surety Company v. Penzel, 164 Ark. 365, 261 S. W. 920, relied upon by appellant, and the jury could have found that the insured was totally disabled from performing any and every kind of duty pertaining to his occupation from the date of the injury.

We find no prejudicial error in the record, and the judgment is affirmed.